684 F. App'x 531
6th Cir.2017Background
- In Nov 2014 police investigating a prior gunshot wound to Tommy Banks found a pistol magazine in a GMC Suburban but not the gun. In Dec 2014 Officer Brouwer encountered the same Suburban, smelled marijuana, and identified Banks as the driver; Raymond Conley was a passenger.
- Conley admitted smoking marijuana earlier; Brouwer arrested Conley on outstanding warrants and found cash on him. Banks refused consent to search the vehicle.
- A drug dog alerted at the rear and then inside the Suburban; officers then found an unloaded firearm in the driver area.
- At the station officers suspected Banks hid drugs internally; after a strip search and with judicial authorization for a "buttocks cavity" search, officers obtained medical assistance and used laxatives/x-ray; Banks voluntarily passed packets later containing crack and heroin.
- Banks moved to suppress the gun and the drugs and later pleaded guilty to various drug and firearm offenses; PSR converted $1,073.91 found on Banks into drug-quantity money for sentencing.
- Conley pleaded guilty to felon-in-possession and admitted conduct supporting large cocaine-base quantities; PSR assessed a two-level role enhancement under U.S.S.G. § 3B1.1(c). Both appealed adverse rulings (suppression denial and sentencing issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Validity of warrantless vehicle search (firearm discovered) | Banks: odor traced to Conley & unreliable drug dog, so no probable cause to search vehicle | Govt: officers smelled marijuana from vehicle, knew Banks' prior shooting and missing gun, and had info linking Banks to trafficking => probable cause | Affirmed — probable cause existed from vehicle odor and other facts; dog reliability need not be reached |
| 2) Particularity & reasonableness of warrant to search Banks' anal cavity (drugs) | Banks: warrant too vague (only "buttocks") and magistrate should have approved medical procedures; search unreasonable | Govt: warrant read in context authorized interior cavity search; procedures (laxative/x-ray) were reasonable and medically supervised | Affirmed — warrant sufficiently particular; proposed medical procedures reasonable; alternatively inevitable discovery applied |
| 3) Conversion of cash to drug quantity at sentencing | Banks: cash was legitimate earnings, not drug proceeds | Govt: cash split by denomination, Banks unemployed, admission to drug-selling, scale and gun found, drugs on person support conversion | Affirmed — district court’s attribution of money to drug trafficking not clearly erroneous |
| 4) Role enhancement under U.S.S.G. §3B1.1 for Conley | Conley: factual admissions insufficient as a matter of law to show supervisory/manager role in a loose conspiracy | Govt: PSR and plea admissions show Conley recruited and used others (Preston/Green) to sell on his behalf | Affirmed — factual findings (recruitment, delegation) support two-level enhancement; not clearly erroneous |
Key Cases Cited
- Blair v. United States, 524 F.3d 740 (6th Cir. 2008) (standard of review for suppression findings)
- Cope v. United States, 312 F.3d 757 (6th Cir. 2002) (probable cause analysis for automobile exception)
- Smith v. United States, 510 F.3d 641 (6th Cir. 2007) (totality-of-circumstances test for probable cause)
- Foster v. United States, 376 F.3d 577 (6th Cir. 2004) (smell of marijuana can establish probable cause to search vehicle)
- Elkins v. United States, 300 F.3d 638 (6th Cir. 2002) (marijuana odor alone may establish probable cause)
- Garza v. United States, 10 F.3d 1241 (6th Cir. 1993) (smell of marijuana supports vehicle search)
- Dalia v. United States, 441 U.S. 238 (1979) (details of execution generally left to officers absent unreasonable intrusion)
- Nix v. Williams, 467 U.S. 431 (1984) (inevitable discovery doctrine allows admission of evidence that would have been found lawfully)
- Kennedy v. United States, 61 F.3d 494 (6th Cir. 1995) (proof standard for inevitable discovery)
- Booker v. Paglia, 728 F.3d 535 (6th Cir. 2013) (framework for evaluating intrusiveness of body-cavity searches and medical procedures)
- Mahaffey v. United States, 53 F.3d 128 (6th Cir. 1995) (clearly erroneous standard for drug-quantity findings at sentencing)