554 F. App'x 491
6th Cir.2014Background
- In late 2008 federal and local officers investigated Charles Green for selling crack cocaine from his South Pittsburg, TN residence; confidential informants made controlled buys.
- Detective Johnson obtained a search warrant for Green’s home (authorized to seize cocaine, evidence of manufacturing, paraphernalia, records, currency, etc.) on Dec. 29, 2008.
- Execution was delayed after an informant said Green would not have cocaine that day; officers surveilled Green Dec. 31, followed him to Chattanooga, observed him return home, detained him, and executed the warrant.
- Search revealed a loaded .38 revolver in a closet, ammunition, scales, ~11 grams of marijuana, and $1,800 on Green; Green waived Miranda and made incriminating statements about drug purchases and ownership of the gun.
- Green moved to suppress (arguing Rule 41 defect, lack of probable cause at execution, scope exceeded, and Franks issues); magistrate and district courts denied suppression.
- After a jury trial Green was convicted on six counts (including drug distribution and maintaining a drug premises) but acquitted/directed verdict granted on the § 924(c) count; he was sentenced to 168 months, including a two-level § 2D1.1(b)(1) firearm enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probable cause dissipated between warrant issuance and execution | Probable cause remained: informant’s tip that no cocaine that day did not show cessation of drug activity and officers had corroborating information | Johnson’s knowledge that Green would not have cocaine on the originally planned day destroyed probable cause and should have been presented to the magistrate | Probable cause did not dissipate; warrant covered evidence beyond cocaine itself and subsequent info corroborated ongoing drug activity |
| Whether search exceeded warrant scope by seizing marijuana | Officers were authorized to seize evidence of drug trafficking and paraphernalia; marijuana was in plain view during a lawful search | Seizure of marijuana exceeded a warrant focused on cocaine | Search did not exceed scope; plain view doctrine justified seizure; defendant waived this argument by not timely raising it below |
| Whether incriminating statements were fruit of poisonous tree | Statements admissible because search and seizure were lawful and not tainted | Statements should be suppressed because they resulted from an unlawful search | Statements properly admitted; no Fourth Amendment violation rendered confession fruit of poisonous tree |
| Whether § 2D1.1(b)(1) two-level weapon enhancement was erroneous | Government proved possession (actual or constructive) by preponderance; weapon’s proximity, being loaded, and nature supported connection to drug offense | Directed verdict on § 924(c) and hunting explanation show it was clearly improbable the gun was connected to drug activity | Enhancement upheld: factual finding not clearly erroneous; defendant failed to show it was clearly improbable weapon was connected to offense |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (1983) (probable cause assessed under totality of circumstances)
- United States v. Archibald, 685 F.3d 553 (6th Cir. 2012) (probable cause must exist at warrant execution)
- United States v. Bowling, 900 F.2d 926 (6th Cir. 1990) (officers should inform issuing magistrate of post-issuance events affecting probable cause; search fruits need not be suppressed if a neutral magistrate would still find probable cause)
- United States v. Darwich, 337 F.3d 645 (6th Cir. 2003) (sentencing finding of firearm possession reviewed for clear error)
- United States v. Hough, 276 F.3d 884 (6th Cir. 2002) (presumption weapon was connected to offense; defendant must show it was clearly improbable)
- United States v. Greeno, 679 F.3d 510 (6th Cir. 2012) (defendant must present evidence, not argument, to meet burden rebutting connection)
- United States v. Moses, 289 F.3d 847 (6th Cir. 2002) (factors for weapon-connection inquiry: proximity, type, loaded status, alternative purpose)
- United States v. McCall, 85 F.3d 1193 (6th Cir. 1996) (acquittal on § 924(c) does not preclude § 2D1.1(b)(1) enhancement at sentencing)
- Watts v. United States, 519 U.S. 148 (1997) (clarifies standards between verdict and sentencing findings)
- United States v. Duncan, 918 F.2d 647 (6th Cir. 1990) (district court may find weapon possession by preponderance even after acquittal on firearm charge)