United States v. Pointer
| Decision Date | 20 December 2022 |
| Docket Number | 22-1082 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellant, v. KENNETH POINTER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Before: CLAY, GIBBONS, and McKEAGUE, Circuit Judges.
Defendant Kenneth C. Pointer appeals his conviction and sentence for several drug-related federal offenses. He argues that evidence discovered in a search of an apartment connected to him should be suppressed due to lack of probable cause for the search, as (1) there was an insufficient nexus established in the warrant affidavit between the apartment and criminal activity and (2) the affidavit contained stale and false information. Pointer further alleges that evidence seized after his car was searched during a traffic stop should be suppressed as the fruit of an unconstitutional search. Finally, Pointer argues that his sentence was procedurally and substantively unreasonable. Because there was sufficient evidence to establish probable cause for both searches, and because his sentence is neither procedurally nor substantively unreasonable, we affirm Pointer's judgment and sentence.
Pointer, currently forty-seven years old, grew up in Detroit. Police investigated Pointer and another man, Anthony Garner, for drug activity between April 2017 and November 2019. Both men have a long history of involvement with the criminal justice system. Pointer was convicted of several drug offenses throughout his life, with multiple other arrests, drug-related and otherwise. Garner has multiple charges and convictions related to homicide, weapons offenses, larceny, voluntary manslaughter, assault and battery, gambling violations, and a 2010 drug offense. In 2014, Pointer's then-girlfriend turned over money to Tri-County Metro investigators and stated that the money was a portion of Pointer's proceeds from drug manufacturing and sales. At the time of the 2017-2019 investigation, neither Pointer nor Garner had an apparent legitimate source of income. During the investigation, officers surveilled at length an apartment frequented by Pointer and Garner at 3019 Woodruff Avenue, #2 in Lansing (the "Woodruff Apartment"). Several aspects of the investigation into Pointer and Garner are relevant to this appeal.
Tri-County Metro investigators conducted four controlled buys from Pointer and/or Garner in 2017 via confidential informant ("CI"). On April 13, 2017, the investigators used a CI to arrange to purchase cocaine from Garner in a parking lot. Pointer and Garner arrived at the meeting together, and Garner exchanged cocaine with the CI for money. On May 10, 2017, the Tri-County Metro investigators conducted another controlled buy with Garner through the same CI. Garner showed up to the meeting by himself, briefly met with the CI, exchanged the drugs for money, and left.
On June 7, 2017, the CI once again contacted Garner to purchase drugs, at the behest of the Tri-County Metro investigators. The CI was told by Garner that Garner did not currently have any crack and would need to have someone manufacture it. That night, Garner and Pointer were seen entering the Woodruff Apartment building together by officers surveilling the apartment. Garner then contacted the CI and told him that he had obtained the crack. The next day, Garner and Pointer met again at the Woodruff Apartment building and went inside; later, Garner left, went to the parking lot, met with the CI, and completed the exchange.
On October 5, 2017, the Tri-County Metro investigators again had the CI ask Garner to sell him crack. Garner said he did not have it and would need to have someone manufacture it. Garner went to a location in Detroit, then drove to the Woodruff Apartment building and met Pointer outside, going in together. Garner then told the CI that the crack was ready and that Pointer would deliver it. On October 6, 2017, Pointer arrived at the parking lot by himself and gave crack to the informant in exchange for money.
On May 24, 2017, Pointer was pulled over by police while driving for a traffic violation. At that stop, he was arrested for possession of marijuana, and when he was searched incident to the arrest officers found 17.5 grams of crack on his person, which was divided up into many individually-wrapped rocks.
Pointer and Garner were also observed participating in various other suspicious activities indicative of drug crimes. On June 29, 2017, officers saw three people separately enter Pointer's vehicle for a brief moment, then leave. On August 17, 2017, Pointer was seen entering the Woodruff Apartment building and then exiting with a duffel bag, which he brought to another residence before going back to the Woodruff Apartment. He then left the apartment and went to another parking lot where he had a brief meeting with a woman. On October 30, 2017, Pointer was observed in a similarly brief meeting. The next day, Garner was seen receiving a large amount of cash in another parking lot, then leaving to meet with Pointer.
Additionally, Pointer and Garner were seen multiple times entering and exiting the Woodruff Apartment building, though they primarily lived at other residences. Pointer drove a car which he frequently parked in the parking spot assigned to the Woodruff Apartment. He was also seen with the leaseholder of the apartment on multiple occasions.
On December 11, 2017, Tri-County Metro investigators obtained a search warrant for the Woodruff Apartment from the 56th District Court for the State of Michigan. The affidavit supporting the warrant contained the information described above concerning the controlled buys, the apartment, the traffic stop and drug seizure, the apparent hand-to-hand deals, Pointer and Garner's previous arrests/convictions, and the 2014 incident with Pointer's then-girlfriend. The warrant sought drugs, drug trafficking implements and paraphernalia, and documents such as records of residency and ownership. The warrant was executed the next day, during which time the investigators recovered a large amount of drugs and drug paraphernalia. The investigators also discovered several personal effects of Pointer's in the apartment, including a copy of his driver's license and medical marijuana card, mail addressed to him, and an Xfinity bill for the apartment in his name. They also found a large amount of cash. The investigators arrested Pointer that same day, finding cash on him as well as keys to the Woodruff Apartment.
Lansing Police also used a CI to purchase crack cocaine in controlled buys from Pointer in 2019. These controlled buys occurred on four separate occasions between July and September 2019.
Following the controlled buys, on November 7, 2019, officers tailed Pointer as he drove alone from the Detroit area towards Lansing. Pointer was observed to be speeding by a Michigan State Police Trooper, who was working with the Lansing Police. When the trooper approached in his car, Pointer suddenly jerked into the right lane, cutting off another car. The trooper then pulled Pointer over, at which time the trooper smelled burnt marijuana and saw marijuana in the center console of the car. The trooper also saw a wad of cash on Pointer's person. The trooper requested that Pointer step out of the car, which Pointer did. The trooper brought a drug-alert canine to the car approximately nine minutes after the stop was initiated, and the dog positively indicated the presence of drugs. Officers then searched the car and found over a thousand grams of cocaine. Pointer was subsequently arrested, at which time the officers found a keyring on his person. The next day, Lansing Police officers executed a search warrant at an apartment on Hartford Road in Lansing where Pointer had been seen on several occasions. The officers used a key found on the keyring to open a safe in the apartment, where they found a collection of drugs.
On December 18, 2019, a grand jury indicted Pointer for: (1) distribution of cocaine and aiding and abetting distribution of cocaine, (2) distribution of cocaine base, (3) distribution of controlled substances and aiding and abetting distribution of controlled substances, (4) possession with intent to distribute cocaine, and (5) possession with intent to distribute cocaine base, all in violation of 21 U.S.C. § 841(a)(1).
During the course of trial, Pointer filed several motions to suppress, which the district court denied. He moved to suppress evidence seized in the search of the Woodruff Apartment, alleging that the information in the affidavit supporting the warrant was stale and failed to establish a nexus between drug activity and the apartment. The district court denied the motion, finding that the evidence sufficiently demonstrated that Garner and Pointer maintained an ongoing drug operation, using the Woodruff Apartment as their base, which was adequate to defeat the staleness argument and create probable cause tying the apartment to drug activity. Pointer also moved to strike as false certain statements in the warrant affidavit regarding officers' observation of Pointer entering/exiting the Woodruff Apartment. The district court denied this motion as well finding that the statements were not intentionally or recklessly false, as well as not necessary to the finding of probable cause. Finally, Pointer moved to suppress the fruits of the November 7, 2019 search, arguing that the search was...
To continue reading
Request your trial