*2 DAUGHTREY, Circuit Judge; and WISEMAN, Judge.* District BOGGS, Judge. Chief Paul Defendant convicted jury drug-trafficking a federal on charges. firearm appeals, claiming He 1) against the physical evidence him using was discovered a search warrant is- sued based an that did 2) cause; establish written * Wiseman, Jr., Tennessee, designation. sitting by Thomas A. trict Honorable Unit- Judge ed States the Middle District Dis- 3) discarded containing Chapman’s involuntarily; and given confession was tape. improperly denied district court identity of a confi- motion discover magistrate affidavit, the on this Based we find informant. Because dential warrant. judge issued a search *3 merit, we uphold lack these contentions Chapman’s arrived at agents ATF When Chapman’s conviction.1 warrant, they found residence Agent ATF Jakubow- outside. Chapman war- he the search ski testified that served 1, 2001, ATF John On October him rant, Chapman, and read handcuffed a sought Hoffman search warrant testified his Miranda rights. Chapman Detroit, residence in eastern Chapman’s read Miranda his rights he that was not Michigan, magistrate judge. a federal Moreover, that he he claims this time. cause to search for probable To establish he and intimidated because was befuddled there, weapons narcotics and just had taken heroin. stating in
submitted an affidavit relevant in- agents the house and The searched part: Later, reading after Chapman. terviewed 25, 2001, September a confidential in- On again, agents took rights his Miranda to a Chapman, formant claimed have seen his summarizing admis- signed statement felon, possession in rifle at of an assault sions, handguns that he had two including Chapman’s residence in December 2000. droom, in and rifle and an assault $25,000 heroin, cocaine, and cash a safe. The informant also claimed to have seen agents all of these items where found Chapman distributing narcotics while they be. Chapman had said would handgun armed with a in the elsewhere August 2001. east side of Detroit in late tried, arrested, indicted, Chapman was being posses- a felon and convicted of previously pro- This same informant had firearm, possession of of a and of sion ATF vided accurate information cocaine, heroin, marijuana with intent and leading handguns and the seizure of distribute, of 18 violation U.S.C. cocaine. 841(a)(1). § Dur- 922(g) § 21 U.S.C. and jailed had been six times in ing proceedings, these the district court Michigan weapons and offenses. suppress results denied motion through Hoffman had curbside searched search, 2001 denied of the October residence, rubbish from identity his motion to discover the duct-tape packaging, found silver which in Hoff- confidential informant described Hoffman knew his law-enforcement man’s affidavit. commonly used to experience package II
narcotics. issu dog magistrate’s A court reviews a A Detroit canine officer’s deference, drugs of a warrant with presence indicated the ance search Sentencing parties supplemental Guidelines also submitted determined that constitutionality as United Blakely challenge. briefs withstand a Sentencing applied 02-6278, as States Guidelines Koch, - Fed.Appx -, No. v. light Chapman’s sentence in of the recent 2004) (order Aug. Cir. WL 1870438 Blakely Washington, - U.S. -, decision v. Therefore, opinion). published advance (2004). L.Ed.2d 403 arguments Chapman’s Blakely fail. time, the en Sixth has Since that banc Circuit suppressing resulting evidence if To probable-cause determine whether magistrate’s finding stale, of probable cause court evidence considers the Greene, arbitrary. conduct, v. States defendant’s course of the nature crime, We re duration of the the nature of evidence, view district court’s determination of and more recent corrobora a suppression cause at hearing de tion. example, years For information two legal novo as to conclusions and for old clear is not stale as regards long-term and findings error as to of fact. United non-portable States enterprise growing like mari Smith, Cir.1999). juana, but a sighting two-month old We consider upon the affidavit which the proceeds retail-narcotics cash stale *4 warrant was in based a “commonsense” where the affidavit does indicate that manner, whether, asking in view of engaged long-term the defendant was a totality circumstances, of the there a enterprise. was criminal Compare United (6th “fair probability” that Spikes, 913, contraband would be v. States 158 F.3d 923 Cir.1998), found. Id. at (quoting Helton, 479 United States with United States v. Davidson, 856, 812, (6th Cir.2003). v. F.2d 936 859 314 Cir. F.3d 822 par Of 1991)). ticular is relevance here that at least one of sought the items to be was enduring “of Part of totality of circumstances to utility” Spikes, owner. F.3d 158 at be to an considered as affidavit’s sufficien State, 923 (quoting Andresen v. 24 Md. an cy “veracity, informant’s reliability (1976)). App. 128, 78, 106 331 A.2d of knowledge.” basis United States v. Allen, 970, (6th Cir.2000)(en 972 Agent Hoffman noted his affidavit Gates, that, banc)(quoting Illinois v. 462 training U.S. experience, based 213, 76 L.Ed.2d are by 527 firearms often traf- used narcotics (1983))(internal omitted). quotations protection, fickers for and people generally an When lacks indicia of repeat store their firearms home. a at As reliability, sole informant’s drug must dealer known to have continued or eyewitness corroborate the informant’s re returned to his trade month before the Here, however, Id. port. issued, at 976. the affi warrant find would a davit specifically firearm, sets forth that the especially powerful infor a assault mant had previously provided the ATF weapon, term, useful over the long productive with accurate and information. thus could reasonably expected to have magistrate judge correctly could con held on it at his home for months. nine sider the informant reliable. Id. at See Singer, 975. United States v. (7th Cir.1991) (“firearms 763 an are inte- This does not end our inquiry, because gral trade”); part drug eyewitness provided by information Smith, States F.3d v. 480 the confidential informant was rather thin: Cir.1999) (people guns to keep tend their he had seen an assault weapon Chap- home); Batchelder, at v. before, man’s home nine months and eight (7th Cir.1987) (reasonable 563, 564 F.2d months later seen Chapman dealing expect gun kept silencers were for eleven drugs city on the streets the same months). gun. a different The issue is whether allegations urges
these warrant a that a belief Government the infor search of Chapman’s sightings justify home had a “fair mant’s also a search two probability” revealing weapons drugs Chapman’s house because and/or Gates, drugs. they 462 U.S. at a “chain cover of related events show Moreover, says the affidavit time the current ing span of into a broad tape the duct Henson, the file cabinet “contained period.” United States Even trash. packaging” (6th Cir.1988) (quoting F.2d dog a well-trained narcotics-detection Haimowitz, 706 F.2d United States v. that, for exam- might to a alert But where 1554-55 well, leavings as ple, suspect’s held another odometer-shifting an Henson involved storage cocaine or had used for been discrete required several scheme helpful It have been week before. would months, Chapman seen en over steps explain why street-level, drug-traffick retail gaged this Perhaps in a file cabinet. tape was notoriously fly-by-night, portable ing—a protocol a part of well-established And, perish are guns, drugs trade. unlike ATF, state Michigan or the used More disposed quickly. and are able Hoffman, proper- to shield police, Agent over, nothing in the affidavit indicates suspect materials ly-isolated, street-level, espe retail trafficker in- sight and ensure the trained canine’s in his cially likely keep his stock own again, tegrity perhaps the test. Then Chapman kept gun residence. That not. *5 imply house December does not that his kept drugs September. he there the next raise Chapman Because failed to drugs A for at his house could be suppression hearing, search at these issues the justified only dog by they the sniff. v. Crit are forfeited. United States
ton,
1089,
1093
inmay
This
its discretion reverse
court
Ill
plain
error
based on a forfeited issue
under
Rule of Criminal Procedure
Federal
problem
dog
with the
sniff as
Olano,
52(b).
States v.
507 U.S.
United
give
is that the
not
evidence
affidavit does
725, 734,
1770,
S.Ct.
Cir.1996).
cannot sniff
Dogs
out narcotics
Agent
it is
that
Hoff-
Although
clear
special training, which not all po
without
pass
man’s affidavit failed to
muster
dogs
are trained
dogs
lice
receive. Some
indicating
dog’s
least
not
victims,
explosives
to detect
or accident
or
need
at this time
reliability, we
not decide
help spot
suspects.
and detain
Police whether issuance of the warrant amounted
not
handlers
error,
officers who are
canine
are
assuming plain
plain
Even
error.
always
aware of
difference. The
justified
“good
the search
under the
was
trained
dog
bare statement that
is
exception
require-
faith”
warrant
ibid.,
Leon,
enough,
in narcotics detection is
used
ment.
468 U.S.
says only
897, 922,
here
but the affidavit
drafting
obviously
deficiencies not
within
Savoca,
agent’s expertise.
See
V
(Leon
F.2d at
applies
296-98
rule
where
*6
Finally, we
the
review
district
affidavit failed to
robbery
state that
was
court’s
of Chapman’s
denial
motion to re
recent
to permit
so as
inference that de-
veal the confidential informant’s identity
fendant stashed loot
room
at hotel
to be
for abuse of discretion.
States v.
searched). Therefore,
the evidence ob-
Moore,
Cir.1992).
954 F.2d
tained
prop-
as a result of the warrant was
weighs
public’s
district court
the
in
erly
at Chapman’s
admitted
trial.
in maintaining
availability
terest
the
of
against
confidential
informants
the ac
IV
information,
cused’s need
the
ordering
Chapman argues that his confes
only upon
showing
disclosure
a
it
that
is
sion
involuntary
was
because he was under
essential for a fair
Ibid. Chapman’s
trial.
the
of heroin
influence
and because he was
requested
identity
the
solely
informant’s
given
not
warnings
Miranda
before he
ground
that the information might
interrogated.
was first
The Government
help him
and
discredit the informant
thus
only by
need prove
preponderance
a
of the
suppress the information obtained
aas
evidence that a
was voluntary.
confession
result
But
of the warrant.
because the
Wrice,
United States v.
954 F.2d
valid,
facially
Chapman
warrant
would
(6th Cir.1992). We
the district
review
merely
have to
that the
show
infor
findings
court’s factual
for clear error and
credible,
mant
also that
was
but
legal
its
conclusions de novo. Id. at 411.
knowingly
recklessly
included
argue
in
Chapman does not
that the
the affidavit false information obtained
Savoca,
way, only
him in
informant.
any
coerced
F.2d at
Chapman gives
his heroin-befuddled state made him undu
no
to think it
reason
ly frightened
po-
likely
of them. But “coercive
that he could make such a show-
upon which
warrant
begin the affidavit
merely
permission
asks for
ing, he
manner, asking
in a ‘commonsense’
based
fishing expedition.
reasoning
a
His
would
whether,
totality of the
of the
view
confidential infor-
case where
apply
circumstances,
probabili
there was a ‘fair
used,
ending
practice
mants were
thus
Cit
ty’
be found.”
that contraband would
maintaining confidentiality,
public
Smith,
States v.
ing United
court did not
detriment.
district
(6th Cir.1999);
denying Chapman’s
abuse its discretion
Davidson,
856, 859
Cir.
motion.
1991)).
have
light
principles,
In
of these
would
VI
majority’s listing of the
thought
reasons,
foregoing
For the
we AFFIRM
Hoffman’s affida-
“strong points” Agent
district
judgment
court.
have
suffi-
vit in this matter would
been
gross inadequacy
cient to establish
DAUGHTREY,
Judge,
Circuit
in the
document.
even
that sworn
Viewed
dissenting.
light
majority
positive
could shine
most
1791,judges, lawyers, prosecutors,
Since
it,
presented
mag-
to the
upon
have,
part,
and citizens
for the most
re-
justify entry
a citi-
judge
istrate
into
respected
vered and
the Fourth Amend-
Chapman,
home
zen’s
stated
recognition
“right
ment’s
of the
offender,
had
weapon
convicted
persons,
hous-
people to be secure
their
rifle in his home nine
with
been seen
effects,
es,
against
papers,
unreason-
earlier;
ten months
had
Chapman
seizures,”
man-
able searches and
and its
handgun away
been seen
issue,
that “no
shall
but
date
Warrants
home one month earlier while
distributing
upon probable
past
cause.” Over the
narcotics;
had
tape
duct
decades, however,
or four
some
three
trash;
alert-
police dog
and that a
have
ideals
exceptions
courts
carved
police department
ed to a
we,
nation,
provisions,
of those
as a
tape
drawer where the recovered
accept
content
increasingly
have been
stored.
*7
rights
those restrictions on hallowed
—in
reassuring
ma-
It is somewhat
exchange
purported security against
problems
jority recognizes the inherent
possible harm
illegal drugs, guns,
from
drug
relying upon
prior
the evidence
terrorists,
imagined
threats.
various
police-dog
and of this
sniff to but-
sales
away
Today,
majority chips
yet
the
anoth-
request.
noted
tress the warrant
As
er chunk
one of our constitutional
“nothing in
opinion,
lead
the affidavit
the
to
against
tyranny.
bulwarks
decline
street-level,
that
retail
indicates
join in this erosion and therefore dissent.
especially likely
keep his
trafficker is
to
The cornerstone of the Fourth Amend
Chap-
in his own residence. That
stock
requirement
ment’s warrant
establish
kept
gun
in his house in December
man
probable
necessary
the
cause
imply
kept drugs
ment of
he
there
does
person’s
home or
September.”1 Majority Opinion
authorize an invasion of
the next
majority,
says
As
the
we
“the
possessions.
Additionally,
noted
at 472-73.
determination
the
the
cabinet ‘contained
a district court’s
review
Chapman’s
probable
tape packaging’
cause de novo and “consider
such
Agent
Although
spoke
Hoffman did not seek
execute
September
search warrant until October.
confidential
informant
trash. Even a well-trained narcotics-de-
time Chapman
gun
was seen with a
in that
dog might
interval,
tection
alert to a file cabinet
the observation was of the defen-
that,
example,
dant,
suspect’s
away
home,
held another
from his
with a handgun,
well,
leavings as
or had been used for
not with the rifle that the informant had
storage
Majori-
cocaine
the week
previously.
before.”
seen
drastically
Such
differing
ty Opinion at 473.2
scenarios show that Chapman, unlike the
defendant in Spikes, did not demonstrate
Unfortunately,
majority
fails to sub-
ongoing pattern
an
activity
of criminal
as-
ject the
Agent
statements offered in
Hoff-
sociated with the location to be searched.
regarding
man’s affidavit
Chapman’s pos-
session of
to the same level of
The obvious weaknesses in the affiant’s
firearms
Indeed,
critical examination.
attempt
allow for
establish
cause
possibility
this information was
search the
necessarily
defendant’s home
anything
denigrate
other than stale is to
leads
majority
“good
to erect Leon’s
very principles
upon which the Fourth
safety
faith”
net in an
preserve
effort to
Amendment is founded. To contend that
the conviction rendered.
See United
it
“probable,”
merely
Leon,
“possible,”
that States v.
468 U.S.
(1984).
defendant had a firearm in
so,
his home in
October 2001 because one was seen majority implicitly recognizes the defi- previous there the December is unreason- ciencies in Hoffman’s efforts to es- able. To assert August tablish probable home, cause to search the possession, location, in a different of a but then patronizingly, my judg- states — completely type firearm, different ment —that “the flaws in the warrant affi- means that gun would be found davit were not so obvious as to appar- equally defendant’s home October is idle ent to the average agent.” law-enforcement speculation. Majority Opinion at 7. I would attribute greater sophistication constitutional majority attempts support its women and men to whom we entrust our position by citing to our decision in United safety security. relegate Rather than Spikes, States v. expectations our of police conduct to the Cir.1998), arguing “that at least one of denominator, lowest common I believe that sought items to be in the search was citizenry expect should law enforce- ‘of enduring utility’ Majori- to the owner.” ment officials to understand basic constitu- ty citation, however, Opinion 4-5. This tional principles forbidding invasions merely fallacy underscores the of the ma- personal privacy conjecture, on mere stale jority’s legal conclusion. “enduring information, and evidence unrelated to the utility” firearm to Chapman is sus- *8 location to be searched. pect given the fact that the confidential informant and the affiant were unable to A reasonable law enforcement official any any offer evidence of glaring connection be- should have been aware of the tween the defendant’s residence and shortcomings presented in the affidavit prior firearm the ten months magistrate judge in this case. To hold application for a warrant. Even the one otherwise cause level so ratifies item; Presumably, majority grant extremely 2. Department also would common little, any, weight tape if to the fact that duct Security Homeland we has even advised that trash, though was found in even purchase tape plastic all duct and sheets of tape wrap duct is sometimes used to narcot- protect ourselves from our nation’s enemies. all, tape ics. After is an innocent and not, citizen, law-abiding no low that protected fishing expedi-
would be his or for information contained on
tions home, papers, or in or her person
her join Rather than a decision
and effects. Amend- fundamental Fourth
that erodes values, majority’s from the
ment dissent Supreme
analysis conclusion holding in Leon allows the intro-
Court’s this into of the fruits of
duction evidence
illegal search. LAM, Petitioner-Appellant,
Samba ASHCROFT, Respondent-
John
Appellee.
No. 02-4279. of Appeals,
United States Court
Sixth Circuit.
Oct. *9 Muchnicki, OH, Dublin, Dennis
E. Petitioner. DC, Washington, Jocelyn Wright,
M. Respondent.