*1 America, STATES UNITED
Plaintiff-Appellee, DYER, II,
Kenneth Defendant- J.
Appellant.
No. 08-5671. Appeals,
United States Court
Sixth Circuit. June 2009.
Argued: Sept.
Decided and Filed: En Banc
Rehearing Rehearing
Denied Nov. 2009.*
* Judge grant rehearing in her Moore would for the reasons stated dissent. *2 Johnson, Stephen
ARGUED: Ross Rit- chie, Davies, P.C., Knoxville, Dillard & Tennessee, Ward, for Appellant. Hugh B. Jr., Assistant Attorney, United States Knoxville, Tennessee, Appellee. for ON Johnson, Ritchie, Stephen BRIEF: Ross Davies, P.C., Knoxville, Dillard & Tennes- see, Ward, Jr., Appellant. Hugh for B. Attorney, Assistant United States Knox- ville, Tennessee, Appellee. MOORE, GIBBONS, supported Before exception. faith good did not fall under the FRIEDMAN, Judges.** Circuit reasons, following we affirm the For the GIBBONS, J., opinion delivered suppress. the motion to denial of *3 J., FRIEDMAN, court, in which I. 393-94), MOORE, joined. (pp. J. a Lee Glance rented cabin Stacie dissenting opinion. a separate delivered Forge, Tennes Cottages Pigeon Sunset see, early Tipped December of 2006. OPINION Decem by off a confidential informant on GIBBONS, Circuit SMITH JULIA selling Dyer ber 4 that and Glance were Judge. cabin, drugs from this officers conducted premises of the on December surveillance II, Dyer, his convic- appeals Kenneth J. Dyer a woman who fit 6 and observed and aiding abetting possession tion for exit the cabin. description of Glance methamphet- with intent to distribute December Officer Neal Seals of the On plea of Dyer amine. entered a conditional Dis of Tennessee Fourth Judicial State eighty a sentence of guilty and received Force Drug trict and Violent Crime Task by the imprisonment United months an to the Tennessee submitted affidavit for the Eastern Dis- District Court Court, a search warrant requesting Circuit Dyer chal- appeal, trict of Tennessee. On inspect the rental cabin for evidence of lenges suppress the denial of his motion to The affidavit methamphetamine sales. a evidence of use found at rental heavi paragraphs contained six and relied cabin, ly from the informant.1 claiming that the search warrant on information ** ence, Friedman, transpired in the basement of the The Honorable Daniel M. Senior pool a Judge of the United States Court of rental cabin where table is located. Circuit Circuit, sitting by Appeals also for the Federal CS1 stated that Stacie Lee Glance was designation. present during the at the rental cabin trans- a action. CS1 further stated that blue paragraphs supporting pertinent of the Ranger Dodge gray a Neon and Ford affidavits are follows: registration parked Carolina North 4, 2006, I contacted On December outside the cabin at the time. NC, County, Department Jackson Sheriff’s 6, 2006, On December I met with Lieuten- regarding Hooper Kim informa- Lieutenant Buchanan, Hooper, ant Detective and CS1 he had received from a confidential tion Pigeon Forge, CS1 took us to a 316 TN. source, hereinafter referred to as CS1. The Way and showed us where the Silver Stone County Department has Jackson Sheriff's place. taken A blue transaction had charged felony drug CS1 with various bearing registration Dodge NC ... Neon charges disposition those gray Ranger bearing regis- a NC Ford charges 2006, pending. are On December [sic] parked tration ... were in front of the voluntarily gave CS1 a statement cabin. County against penal his interest to Jackson 6, 2006, December I conducted surveil- On Department Detective Rick Bu- Sheriff’s Way. lance at 316 Silver Stone I observed chanan. CS1 stated that CS1 and another individual, II, female, Dyer and a white Kenneth James past days, within the seven went Glance, fitting description of Stacie Lee Kenny Dyer to meet with rental cabin exit the rental and leave in a blue cabin Pigeon Forge, TN. CS1 [s]tated cabin, Dodge identify I was able to Kenneth Neon. they were at the while rental Dyer photograph provided James II from a purchased individual CS1 was with one Hooper. to me Lieutenant methamphetamine ounce of from Kenneth 6, 2006, $1,400.00. I received informa- On December Dyer During the James II for transaction, Hooper that Kenneth tion from Lieutenant large quantity CS1 observed Dyer James II and Stacie Lee Glance are Methamphetamine remaining pos- Lieutenant Kenny Dyer. that the both wanted in North Carolina. session of CS1 stated transaction, Hooper copies place pres- faxed me of warrants from which took in CSI's judge, report the search warrant trate who issued a and rec-
The court issued day, First, day. denying Also that same Seals and ommendation the motion. magistrate judge in two cars to finding three other officers drove recommended they Dyer standing the warrant. As had no to challenge the cabin to execute warrant, officers search because he was not prepared execute listed as a cabin; and, guest and Glance exit the cabin renter or a if observed even attempted possessed he had a privacy and enter vehicle. The officers interest in the vehicle; driver, Dyer, but rental he it stop by fleeing abandoned cars, police rammed the car into one of the from the and never returning. By undrivable, contrast, rendering magistrate judge the car and fled the recom- *4 Dyer pursued finding scene. The officers and mended that Glance did have a functional remaining police privacy Glance interest in the rental cabin because car, Dyer escaped. but and Glance The cabin was listed in her name and be- company officers informed the rental cause she did not abandon premises, warrant, agent by the search and a rental evidenced her returning shortly after granted officers access to the cabin. Seals the warrant was magis- executed. The judge executed the warrant and found two safes trate further recommended conclud- $4,979.16 currency, ing with a in ap- total the search warrant supported proximately grams methamphet- by probable 50.9 cause and that it was not amine, residue, smoking pipes digi- unconstitutionally with a based on stale informa- scale, rolling papers. Dyer tal and Glance tion. separately objected When and Glance day, returned to the cabin later that to the magistrate judge’s report and rec- company voluntarily changed rental had The government supported ommendation. cabin, entry prevent- code to the which and report recommendation in its en- entering tirety. ed from the cabin. When Glance called the company gain Glance rental to The court adopted part district and cabin, company to her rental
access part overruled in the magistrate’s report police. called the Officers arrested Glance and recommendation. The district court Dyer apprehended at the cabin. was later Dyer privacy found that had a interest in and arrested North Carolina. the cabin because the evidence established Dyer Both he charged overnight guest. Glance and that was Glance’s aiding abetting possession with district court further that Dyer found did grams property intent to distribute five or more of not abandon his because when he cabin, Dyer methamphetamine. planning filed motion to left the he was to return. cabin, suppress adopted the evidence found at the The district court the remainder 1) claiming magistrate’s that the affidavit did not con- of the recommendations and suppress, finding tain to the motion information as of denied to 2) although Dyer priva- the confidential source and both and Glance had provided by cy information the confidential interests the rental the search by cause, source was stale. The States was supported probable United Dis- warrant trict for the Eastern District of and the information it Court relied on was not magis- Tennessee referred the matter to a stale. NC, County, County, County Swain and Buncombe He is wanted in Buncombe for felo- County wanted Swain
NC.
is
for
niously possessing, manufacturing,
felony possession of schedule II controlled
transporting methamphetamine in
excess
substance,
felony
probation,
violation of
grams
grams.
but less than 400
probation.
and misdemeanor violation of
(1978)
ques-
(finding Fourth Amendment
plea
into a conditional
Dyer entered
“we think
non-jurisdictional because
appeal
tions
reserving
right
his
agreement,
more
rights
of those
suppress.
that definition
of his motion
the denial
purview
of sub-
acquitted
placed
and was
within
properly
to trial
Glance went
the denial of
Amendment
law than
jury. Dyer timely appealed
stantive Fourth
court.
thus
suppress
standing”).
to this
that of
We will
his motion
within
standing
purposes
assume
II.
proceed
to ad-
Fourth Amendment
an
of the denial of
appeal
In
Dyer’s
merits of
claims.
dress the
a district
we review
suppress,
motion to
prohib
The Fourth Amendment
for clear error and
findings
court’s factual
they
its
warrants unless
have
search
novo. United
legal
its
determinations de
cause,
“upon probable
supported
issued
Frazier,
v.
States
Const,
or affirmation.” U.S.
amend.
oath
Cir.2005).
finding
A
TV. In order
to demonstrate
determination,
legal
which we
constitutes a
warrant,
justify a search
cause sufficient to
Martin,
novo.
review de
United
an affidavit
proponent
must submit
*5
(6th Cir.2008),
926,
cert. de
936
526 F.3d
probability
a fair
that evi
“indicate^]
—
305,
nied,
-,
172
129 S.Ct.
U.S.
dence of a crime will be located on
(2008). Nevertheless, “[t]he
L.Ed.2d 223
search.”
premises
proposed
of the
United
light
viewed in a
most
evidence must be
(6th
Jenkins,
751,
F.3d
760
States v.
396
of the district
likely
support
to
the decision
(internal
Cir.2005)
quotation
citations and
(citation
Frazier,
391 reliability, premises of the informants’ witnessed the deal on the indicia insist that the affidavit contain sub- courts specified the search warrant. Frazi Cf. independent police corroboration.” stantial er, at (finding 423 F.3d 533 no nexus be (internal Frazier, citations 423 F.3d place tween the searched and the evidence omitted). sought because “none of [the informants] activity illegal premises witnessed on the case, In affidavit con this Seals’s search”). proposed of the In United paragraphs, tained six the bulk of which v. Higgins, information received from a con contained Cir.2009), recently we reaffirmed the im fidential informant. claims portance “necessary nexus between information is unreliable that it does not so place be searched and the evidence support finding probable cause be sought,” finding based, no cause the affidavit failed establish the reliability. Dyer confidential informant’s in part, on the absence of indicating facts Frazier, heavily on relies which this that “the informant had been inside [the sup court found that an affidavit did not place to be or that searched] the informant port finding cause because it drugs had seen or other evidence or “any did not contain indicia” of the infor apartment.” around [the defendant’s] reliability. particular, mants’ Id. In (internal quotation marks and cita affidavit “no Frazier contained averments omitted). Here, tion the affidavit asserted pro of the information about that the informant witnessed a trans anonymous vided informants in the action in place the basement of the to be past, length ... no averments about searched, noted that pool there was a table *6 relationship the between and [the officer] room, in the stated the exact amount of informants, the confidential and ... no cash and methamphetamine exchanged, suggestion disclosed the [the officer] and large quantity observed that a issuing informants’ true identities to the methamphetamine remained after the magistrate.” Dyer correctly notes that sale.2 similarly any Seals’s affidavit lacks infor Furthermore, mation about the confidential the informant’s informant’s previous tips, length the or nature of the identity, while not magistrate known to the relationship between the informant and judge, was known to the officers. “The Seals, and indication that the magis ..., statements of an informant whose trate judge learned of the informant’s identity was to the and who known identity. subject prosecution making would be for report, a false are thus entitled to far appropriate analysis, howev greater weight anony than those of an er, adequacy is “the of what [the affidavit] mous source.” May, United States v. 399 contain, lacks, does not on what it or on (6th 817, Cir.2005). F.3d 824-25 Although might say what critic should have been informant, not Seals did name the the affi Allen, added.” United States v. 211 F.3d (6th Cir.2000) davit claims that (en banc). only Seals was not con 975 Unlike Frazier, tacted the informant but the affidavit the affidavit in also met with case avers the confidential informant the informant to corroborate the details. (or Contrary dissenting opinion's through to the asser- tered an individual's home looked tion, specific describing window),” --), none of the details (Dissenting Op. par- the money drugs the room or the amounts of and ticularly drug question when sale in took exchanged transaction could have place in the basement of a rental cabin. gleaned by "anyone who has ever en-
392
informant;
informant,
Seals met with
that the
Thus,
reject Dyer’s argument
we
the rental
reliability
informant showed Seals
not establish
and the
does
affidavit
matching
cars
the informant’s
the informant.
where
then con
description
parked.
Seals
that the
additionally argues
Dyer
Dyer
and identified
ducted surveillance
inde
contain substantial
affidavit did not
fitting
description.
and a female
Glance’s
activity
of criminal
pendent observations
Hooper
Kim
also
Significantly, Lieutenant
the information
to corroborate
sufficient
outstanding warrants from
copies
faxed
argu
informant. This
by the
provided
charging Dyer and Glance
North Carolina
First,
noted
two reasons.
ment fails for
crimes, including one warrant
totality of the cir
above,
we consider
manu
Dyer
possession,
for felonious
adequacy
assessing
when
cumstances
methampheta
facturing,
transporting
in the affidavit. See
of the information
mine.3 The information also revealed
(“Our
Martin,
inquiry
at 936
history
a criminal
involv
that Glance had
totality
of the
requires the review
use,
was
ing methamphetamine
practical,
com
circumstances ‘to make
Furthermore, Dyer
probation.
on
mon-sense,’
hyper-technical, determi
not
felony
charges
for additional
wanted
probable
pres
cause is
nation of whether
Gates,
II controlled sub
possession
schedule
(quoting
ent.”
U.S.
2317)).
dissenting opinion stance,
felony
probation,
What
violation of
S.Ct.
only
when no substantial
misses is
Al
probation.
violation of
misdemeanor
evidence exists within the four
supporting
though
history
a defendant’s criminal
of the affidavit as to the infor
corners
dispositive,
Higgins,
see
557 F.3d at
reliability
require
mant’s
do courts
sub
it is relevant to
independent police
stantial
corroboration.
Wagers,
States v.
inquiry. See United
Frazier,
III. at the stated location and the irrelevant reasons, For foregoing we affirm the (to the determination of whether Hig- suppress. denial of motion to gins’s house contained evidence of a crime) present-day fact Higgins had DISSENT a criminal record. MOORE, KAREN NELSON Circuit Judge, dissenting. majority here concludes that majority’s
Because the
probable-cause
search warrant at issue in the instant case
analysis
directly contrary
to this court’s
supported by
was
probable cause because:
holding
Higgins,
recent
United States v.
(1)
(6th Cir.2009),
the affidavit established that
the officers in history, criminal such
the defendant’s Higgins,
formation is irrelevant.1 F.3d at 390. CHEN, Plaintiff-Appellant, Ann Show only notable difference between the fact Higgins and the instant case is that he witnessed the
that CS1 did assert COMPANY, CHEMICAL DOW inside the thus “es- drug purchase Defendant-Appellee. necessary nexus between tablishing] No. 08-1597. searched and the evidence place be (internal marks sought.” quotation Appeals, United States Court of omitted). However, fact alone cannot Sixth Circuit. inadequacies the other compensate for Argued: June 2009. enough simply affidavit: It cannot be a previ- a search warrant support Sept. and Filed: 2009. Decided and unknown informant ously untested Rehearing Sept. Denied charges comes to the like the of Damocles over hanging Sword head, claims to have wit-
the informant’s activity in another individual’s
nessed
home, facts such as and describes innocent and the design home’s location and *9 physical appearance.
alleged drug dealer’s Moreover, open only Dyer had an Higgins cer Seals knew whereas the officer in concerning Higgins prior con- arrest warrant in North Carolina ascertained that had two which, itself, trafficking, Higgins, drugs, a does not defini- fact victions for narcotics Higgins tively had ever been found proof had show that F.3d at and thus offenses, guilty crime. adjudicated guilty Offi-