UNITED STATES of America, Plaintiff-Appellant, v. Robert Lee ARCHIBALD, Jr., aka Chan; Lolethia Muse; and Duantez Cornell Jenkins, Defendants-Appellees.
No. 11-5488.
United States Court of Appeals, Sixth Circuit.
July 11, 2012.
Rehearing and Rehearing En Banc Denied Aug. 22, 2012.
685 F.3d 553
Finally, the Supreme Court‘s recent decision in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not warrant a different result. In Miller, the Court extended the reasoning in Graham to mandatory sentences of life without parole for juveniles convicted of homicide offenses. But, once again, the Court did not address juvenile offenders, like Bunch, who received consecutive, fixed-term sentences for committing multiple nonhomicide offenses. Thus, even if we assume that Miller also applies to Bunch‘s case on collateral review, Bunch is still not entitled to habeas relief.
For the foregoing reasons, we affirm the judgment of the district court.
ARGUED: J. Alex Little, United States Attorney‘s Office, Nashville, Tennessee, for Appellant. Michael E. Terry, Terry & Gore, Nashville, Tennessee, for Appellees Archibald and Muse. ON BRIEF: J. Alex Little, United States Attorney‘s Office, Nashville, Tennessee, for Appellant. Michael E. Terry, Stephanie H. Gore, Terry & Gore, Nashville, Tennessee, Deanna Bell Johnson, Franklin, Tennessee, Joseph F. Edwards, Cookeville, Tennessee, for Appellees.
Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; and
OPINION
ALICE M. BATCHELDER, Chief Judge.
The government appeals the district court‘s order suppressing evidence found as a result of a state-issued search warrant. Because we find that the search warrant was valid and the officers executed it in accordance with the Constitution, we REVERSE the district court‘s suppression order.
On May 20, 2008, Michael Wilson, an officer with the Nashville Police Department, arrested a woman for solicitation of prostitution. The woman had worked as an informant for the Department in the past. In an effort to avoid the solicitation charge, the woman accepted Officer Wilson‘s offer to cooperate as a confidential informant in a controlled buy of crack cocaine. Later that evening, the informant purchased cocaine from 5A University Court, an apartment in Nashville, Tennessee.
On May 23, 2008, Officer Wilson presented an affidavit to a Tennessee state judge seeking a search warrant for Apartment 5A. The affidavit stated that a controlled purchase of an undisclosed amount of narcotics had ocсurred at that location within the last 72 hours with the cooperation of a confidential informant and that the informant had been “used in the past for successful recovery of illegal narcotics as well as the successful prosecution of such offenses.” It explained that the officers prepared the informant for the controlled purchase by searching her for contraband, giving her prerecorded money, and wiring her for audio surveillance. The affidavit further stated that the officers drove the informant to Apartment 5A and maintained physical surveillance of the premises while they monitored the audio wire on the informant. The affidavit stated that the officers would disclose the identity of the informant to the judge signing the warrant, but it did not give any further information about the informant or the contrоlled purchase. The state judge signed the search warrant at 11:10 a.m. the same day.
On May 28, 2008, five days after the state judge issued the warrant, officers executed the search at Apartment 5A. Defendants Archibald and Jenkins were in the premises when officers arrived. Officers discovered crack cocaine on Jenkins and a large amount of cash on Archibald. They also discovered a loadеd pistol and a substantial piece of crack in the kitchen. A canine search of Archibald‘s car, which was in the driveway of the premises, revealed $12,000 cash.
The state of Tennessee indicted Defendants Archibald and Jenkins on state drug and weapons charges. The state eventually dismissed the indictment after the trial court suppressed the evidence, and the state appellate сourt affirmed.
On March 31, 2010, a federal grand jury indicted Defendants Archibald, Jenkins, and Defendant Muse, the leaseholder of Apartment 5A, on several charges including the use of a premises to manufacture controlled substances, possession with the intent to distribute cocaine near public housing, making false statements to federal agents, and possession of a firearm in furtherance of a drug-trafficking сrime.
The government has timely appealed the district court‘s suppression order.
II.
Preliminarily, we must address Defendant Jenkins‘s request that we consider an argument he presented to the district court regarding the preclusive effect of the Tennessee state courts’ decisions suppressing the evidence. Specifically, Jenkins argues that the
Turning to the merits of the government‘s arguments, we recognize that the district court suppressed the evidence because it determined that the prоbable cause in the affidavit had gone stale by the time the officers executed the warrant, eight days after it was issued. However, staleness is a concept that is meant to apply to information used for the issuance of a search warrant, not its execution; therefore, the more appropriate inquiry is whether the warrant was valid when it was issued and, separately, whether the offiсers properly executed the warrant.
A.
We review de novo the legal question of whether a search warrant affidavit establishes probable cause to search, and we give “great deference” to the determination of the judge who issued the warrant. United States v. Brooks, 594 F.3d 488, 492 (6th Cir.2010) (quoting United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc)). Generally, we view
The affidavit for Apartment 5A relies exclusively on the information of one confidential informant. Judges faced with this type of affidavit must consider the veracity, reliability, and basis of knowledge of the informant‘s information, Brooks, 594 F.3d at 493; but even “an affidavit that supplies little information concerning an informant‘s reliability may support a finding of probable cause, under the totality of the circumstances, if it includes sufficient corroborating information.” United States v. Coffee, 434 F.3d 887, 893 (6th Cir.2006) (quoting United States v. Woosley, 361 F.3d 924, 927 (6th Cir.2004)). Moreover, “an explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the informant‘s tip] to greater weight than might otherwise be the case.” Weaver, 99 F.3d at 1377 (alteration in original) (quoting United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994)).
Here, the affidavit states that an informant made a controlled purchase of narcotics while under police surveillance, and it further describes the officers’ arrangements for the controlled purchase. This is sufficient corroborating information from which the issuing judge derived a substantial basis for concluding that drugs would be found at Apartment 5A. See Coffee, 434 F.3d at 893-95 (finding probable cause in an affidavit that lacked any information regarding the reliability of the informant but which described the informant‘s purchase of drugs from the location to be searched and officers’ arrangements for the controlled purchase). Defendant Archibald argues that the informant and affidavit were unreliable because the affiant had never met the informant before May 20, 2008, and the affidavit failed to inform the issuing judge that the informant was working off a criminal charge. These faсts, however, are immaterial to whether the affidavit, as written, was sufficient to give the issuing judge a substantial basis to find probable cause. See id. at 892 (“Review of the sufficiency of the evidence supporting probable cause is limited to the information presented in the four corners of the affidavit.“); see also Brooks, 594 F.3d at 492 (“[I]nformation known to the officer but not to conveyed to the magistrate is irrelevant.“). The affidavit states that the informant had been used in past investigations and prosecutions, and although the details regarding the informant were sparse, that information combined with the information regarding the officers’ corroboration of the purchase, makes the affidavit sufficient to allow the issuing judge to conclude that the veracity and reliability of the informant supported probable cause.
Nor did the probable cause in the affidavit go stale by the time the state judge issued the warrant, three days after the controlled purchase. In considering whether probable cause exists when a judge issues a warrant, “the critical question is whether the information contained in the affidavit, when presented to the judge, established that there was a fair probability that evidence would still be found at the location of the search.” United States v. Abboud, 438 F.3d 554, 572 (6th Cir.2006) (internal alterations and quotation marks omitted). Accordingly, “a warrant is stale if the probable cause, while sufficient at some point in the past, is now insufficient as to evidence at a specific location.” Id. When analyzing staleness, we look to the specific facts of the case and consider several factors, including (1) the character of the crime, (2) the criminal, (3) the thing to be seized, and (4) the place to be searched. Id. at 572-73 (citing United States v. Spikes, 158 F.3d 913, 923 (6th Cir.1998)). In determining whether information in an affidavit had gone stale by the time officers applied for a warrant, we apply the same analysis that we apply when reviewing the sufficiency of the affidavit. See United States v. Greene, 250 F.3d 471, 480 (6th Cir.2001).
In United States v. Pinson, this Court was presented with, for all relevant purposes, a search warrant that was identiсal to the search warrant in this case. See Pinson, 321 F.3d at 560-61 (quoting the affidavit in its entirety). Like Officer Wilson‘s affidavit, the Pinson affidavit described one controlled purchase by a confidential informant that occurred within 72 hours of the application for the warrant. Id. Rejecting the defendants’ argument that the information was stale three days after the controlled buy, we held that “[i]t is reasonable that three days after thе drug purchase that police would find narcotics, related paraphernalia, and/or the marked money in the residence.” Id. at 565. Under this same reasoning, the probable cause established in the affidavit did not go stale by the time the state judge issued the warrant three days after the controlled purchase, and, therefore, the warrant was valid.
Because the warrant was valid when the state judge issued it, the district court‘s sua sponte analysis of the affidavit‘s veracity, done under the guise of the good-faith exception analysis, was improper. Instead, the district court should have conducted the analysis required by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which mandates that a defendant first “provide a substantial preliminary showing that a false statement was made either knowingly or intentionally, or with reckless disregard for the truth.” United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir.2008). Only after
B.
We have recognized that the execution of a search warrant may be delayed within the time frame of the rules of procedure “where the cause or causes of the delay could appropriately be held to be ‘reasonable.‘” United States v. Wilson, 491 F.2d 724, 725 (6th Cir.1974). Likewise, we have also found that probable cause still еxists for the purposes of delayed execution of a search warrant when the warrant was executed within the time frame of the rules and where “there is nothing in the record to indicate that the circumstances related in the agent‘s affidavit affording probable cause for the issuance of the search warrant had changed before it was executed.” United States v. Lemmons, 527 F.2d 662, 664 (6th Cir.1975). Under Tennessee‘s Rules of Criminal Prоcedure, a “warrant must be executed within five days after its date.”
First, the record indicates that the five-day delay was reasonable. Officer Wilson testified that the officers waited for five days to execute the search warrant because the judge issued the warrant on the Friday of Memorial Day weekend, during which time the officers were off duty and the five-member team of officers had scheduling conflicts following the holiday weekend. We have found other delays reasonable where the delay was for the protection of an informant, Wilson, 491 F.2d at 725 (six-day delay), due to illness of the lead officer, Lemmons, 527 F.2d at 664 (five-day delay), and when the informant told officers that drugs would likely not be present over a weekend, United States v. Harris, 255 F.3d 288, 294 (6th Cir.), cert. denied, 534 U.S. 966 (2001) (four-day delay). See also United States v. Goins, 53 Fed.Appx. 724, 728 (6th Cir.2002) (affirming denial of suppression where three-day delay was “due to a lack of resources and a concern for indirectly disclosing the identity of the confidential informant“). Under the reasoning of these earlier cases, the five-day delay here, based on the holiday and scheduling conflicts of the officers, was reasonable. There is nothing in the record to suggest that the officers requested the warrant on the Friday of Memorial Day weekend so that they could purposely delay its execution for five days, and Defendants do not explain the strategic benefit of such a delay. Instead, the undisputed record indicates that the delay was simply the result of coincidence.
Second, there werе no changed circumstances between the issuance of the warrant and its execution that affected the presence of probable cause. Although we have stated that “[t]he law is clear” that there must be probable cause at the time the judge issues the warrant and at the time officers execute it, United States v. Bowling, 900 F.2d 926, 932 (6th Cir.1990), we have never held that the mere passage of time within the paramеters of the rules of procedure causes the dissipation of probable cause. Instead, we have looked for whether anything occurred during the delay that may have affected the continued presence of probable cause. See id. (considering the circumstances following the officers’ discovery that an intervening consensual search of the premises did not reveal any evidence of a crime); see also Lemmons, 527 F.2d at 664. Defendants have not alleged that any intervening circumstances, other than the passage of time, affected the presence of probable cause. Because the delay was reasonable and nothing occurred between the issuance and execution of the search warrant that affected the presenсe of probable cause, the officers complied with the Constitution when they executed the search warrant within the parameters of the Tennessee Rules. Therefore, the evidence is admissible, and the district court erred when it granted Defendants’ suppression motion.
III.
For the foregoing reasons, we REVERSE the decision of the district court and REMAND for further proceedings consistent with this opinion.
ALICE M. BATCHELDER
CHIEF JUDGE