*1 557- Thе record is unclear Esparza. card from relationship defendant to the between They ap- and the second officer.
Kiefer vehicles, in separate to have arrived pear this is unclear. Kiefer but even While card, Esparza’s he was not the retained it. one who seized issues, In view of the factual the uncer- tainty parameters as to the of the Fourth violation, briefing, Amendment the lack of ability proba- the denial of the to raise the appeal summary on ble cause issue plaintiffs, though he judgment for even it, I clearly did not waive do not believe we plaintiffs’ should decide motion for sum- on Fourth mary judgment Amendment affirming claim. It seems to me that sum- mary judgment plaintiffs on our own than requires certainty
initiative more I have here. do not see the issue that is inextricably prop- intertwined the issues
erly before us. America,
UNITED STATES Plaintiff-Appellee, KESZTHELYI, Rudolph Defendant-
Appellant. No. 00-6630. Appeals, United States Court of Sixth Circuit. Argued: June 2002. Decided Filed: Oct. *2 (cid:127)558
MOORE, J., opinion delivered the SILER, court, J., BOGGS, joined. in which 580), (p. separate delivered a concurring J. opinion.
OPINION
MOORE, Judge. Circuit Defendant-Appellant Rudolph Keszthe- lyi appeals the district court’s denial of his suppress motion to evidence seized house, three searches of his as well as the imposed by sentence the district court fol- lowing plea guilty distributing his engaging monetary cocaine and trans- criminally property. action in derived De- contends, first, that fendant *5 initial authorizing the search of his resi- dence was invalid due to material factual in the warrant affidavit. Defen- omissions argues dant also that his Fourth Amend- rights ment were violated when law en- a forcement conducted second a obtaining search of his home without In new search warrant. relation to his sentence, objects Keszthelyi to the district drug quantity by court’s determination unexplained deposits extrapolating from Keszthelyi’s into bank accounts over a five- a year period, application and to the upward adjustment upon based two-level possession in con- Keszthelyi’s of firearms For the drug nection with the offenses. below, AFFIRM. reasons stated I. FACTS AND PROCEDURE 27, 1999, grand jury a in On October (argued and Laymon, Paul W. Jr. re- the Eastern District of Tennessee briefed), Attorney, Assistant United States against turned a sixteen-count indictment TN, Chattanooga, Plaintiff-Appellee. for Keszthelyi. The indictment defendant indict- superseding followed three briefed), (argued and Peter J. Strianse ments, eighty-seven in culminating Nashville, TN, Tune, White, EntreMn & Superseding Indictment filed count Third Defendant-Appellant. Third Su- on March 2000. The BOGGS, SILER, MOORE, perseding charged Indictment Before: hy- conspiracy to distribute cocaine Judges. with Circuit Alcohol, Tobacco, drochloride, engaging reau of and Firearms numerous counts (“ATF”) criminally investiga- in initiated undercover transactions monetary in identify selling counts of tion to individuals cocaine numerous property, derived Chattanooga night Keszthelyi, in clubs. hydrochloride, pos- cocaine distributing dealer, drug suspected primary cocaine was the in connection with sessing firearms investigation. Special ATF target firearms as an of this possessing trafficking, undercover, States, Harwood the United Jeff worked illegally in alien business- obstructing justice posing as successful Nashville multiple counts of proba- testimo- man named Jeff Harris who was on to withhold persuading witnesses prior drug tion for arrests. Harwood fre- ny. Chattanooga in an quented night clubs Keszthelyi entered into July On targets investiga- effort befriend whereby pleaded he plea agreement, wired and monitored tion. Harwood was knowingly engaging count of guilty to one agent during a control these activities. criminally monetary transaction in a Har- investigation, the course of the Over of 18 U.S.C. property violation derived pur- a number of controlled wood made Two) (Count § and one count of dis- chases of cocaine from the defendant hydrochloride in violation tributing cocaine July after Keszthelyi. Sometime (Count Forty-Two). § of U.S.C. returned to and ceased Harwood Nashville exchange, the United States dismissed the investigation. in the to be involved counts of the indictment. The remaining agreement contained no plea agreement 8, 1999, law enforcement On October drugs involved Kesz- quantity to the to search authorities obtained warrаnt conduct. Pursuant to the thelyi’s criminal magistrate home from a *6 plea agreement, Keszthelyi reserved judge. The warrant instructed the offi- court’s denial of right appeal the district home “on or before cers to search the suppress evidence seized his motion to (not days).” to exceed 10 October during three searches of his residence. (“J.A.”) Appendix at 60. Joint DEA an Isom of the submitted James Investigation Background A. and support in A affidavit of the warrant. Keszthelyi migrated from South Africa portion of the affidavit de- substantial in October of 1992 on to the United States purchases a number of controlled scribed in Keszthelyi settled Chatta- a work visa. from the defendant made of cocaine Tennessee, began employ- he nooga, where informant identified as CI-4. confidential E R company called & Prod- ment with explains August The affidavit company produced ucts. This various apprehended leaving was Kesz- CI-4 products, including customized woodwork residence, in- thelyi’s at which time he 1994, Keszthelyi pur- van In interiors. enforcement officials that he formed law E & R Products and obtained a chased just from purchased gram had of cocaine license, in effect from business which was buying one to the defendant had been E is no record of & R 1994to 1995. There grams per Keszthelyi week from for two operating Products after 1995. Keszthe- approximately year. agreed one CI^4 expired in he continued lyi’s visa but investigation at that cooperate with illegally. in the States to remain August, September, time. In and October Chattanooga engaged in six controlled In CI-4 December (“CPD”), purchases En- of cocaine from the defendant Department Drug Police (“DEA”), quantities ranging grams. Bu- from one to five Agency forcement and the electronically pills, syringes, tles of a box of and various were These transactions found by law enforce- other items. No cocaine was on the observed monitored and premises. agents concluded their purchases Three of these agents. ment property approxi- search and left the at Keszthelyi’s residence. The occurred at mately p.m. 5:00 occurred on purchase final at his residence day before the war- Isom, 9, Agent On October who had not rant issued. was participated the initial search of Kesz- residence, thelyi’s telephoned the At- U.S. to the information concern- addition torney’s returning office about to the resi- CI-4, affidavit described ing Agent Isom’s dence to continue the search. Isom stated of cocaine made purchases two controlled very strongly that he “felt there was working under- by Agent Harwood while locat- something there been affidavit also noted the state- cover. The initial at ed” search. J.A. confidential infor- of three other ments 22). (Suppression Hrg. at The decisiоn CI-3, CI-1, CI-2, mants, identified as was made to re-enter the residence and describing Keszthelyi’s cocaine distribution obtaining continue the search without Finally, the affidavit described activities. During new search warrant. the second financial investi- the results of extensive residence, no- search of defendant’s Isom revealed that Keszthelyi, which gation kitchen ticed the oven defendant’s deposits into the defendant had made cash was moveable. He moved the oven and $240,034 totaling multiple bank accounts containing ap- a plastic discovered bottle made a number of years over five and had proximately one ounce of cocaine. despite having very expensive purchases arrest, income. appreciable legitimate no After law enforce- agents ment interviewed a number of addi- arrested Kesz- Law enforcement witnesses, including three confiden- tional p.m. on thelyi approximately 3:00 Octo- W-l, W-2, tial informants identified day, agents waited ber 1999. On W-l, W-2, and W-3 W-3. Witnesses his residence and Keszthelyi to leave known to the before October him in he was driv- arrested his vehicle as investigation team waited to but the away Agents from his home. searched until after interview them *7 at that time and found four the vehicle custody in in order to ensure that Keszthe- the defen- grams of cocaine hidden inside lyi not influence them. These wit- would Shortly after garage opener. dant’s door they agents informed the nesses defendant, arresting com- Keszthelyi, and purchased cocaine from pur- of home menced a search money had buried stated that earli- suant to the search warrant obtained property. on his a loaded semi- day. Agents er that found 11, a Agent in Isom obtained night automatic inside a table On pistol proper- defendant’s pistol- and a loaded new warrant to search Keszthelyi’s bedroom support in of ty again. in once The affidavit gripped shotgun the bedroom closet. informa- new summarized the Agents approximately discovered $1000 affidavit, and jacket contained in the first pocket hanging cash in the of a tion cocaine concerning added information Agents the bedroom closet. also found scale, the defen- equip- and other evidence seized from digital electronic surveillance 8 and the exterior of the dant’s car and home on October up ment set to monitor W-l, records, house, from business several boxes of well as the information obtained warrant, ammunition, W-2, to the digital pager, numerous bot- and W-3. Pursuant again rounding that transaction showed that Keszthelyi’s home agents searched money no or paid quantity but Harwood for a of co- $300 on October found. drugs Although caine. would have been the $300 price one-eighth normal of an ounce of Proceedings Suppression B. cocаine, only Harwood turned over one- court, Keszthelyi moved agents. In the district sixteenth of ounce to his control as a result all evidence seized suppress Law enforcement records also showed home. Kesz- searches his of the three cocaine was not turned over to the support affidavit in argued that the thelyi pur- days DEA until several after it was insufficient to first warrant was of the not chased. Harwood testified he did cause, and that probable demonstrate cocaine, any of the and that it would use material omissions con- affidavit contained immediately practice have been his normal misconduct on the cerning allegations of drugs agent. turn the over to his control Keszthelyi fur- part Agent Harwood. Harwood, af- According to an internal objected that the search of October ther investigation concerning charges fairs under the permitted could not be drug improper relationship his use and warrant, initial and that the auspices of the January Brogdon with was launched sup- was not search of October any wrongdoing 2000. Harwood denied probable cause. ported new and was unaware of the current status hearing A was held on suppression investigation. counsel called 2000. Defense March suppres- at the Agent Isom also testified him questioned about Agent Harwood hearing. length sion Isom testified that Harwood became involved allegations gathered support the information about relationship Brogdon, Kim in a sexual with affidavit, including the in- of the warrant investigation ex-girl target of the in- vestigation surrounding the confidential defendant, during partic his friend alleged and the formant identified as CI-4 investigation. ipation in the undercover improprieties Agent Harwood. Isom sexually testified he was Harwood personally stated that he observed the con- Brogdon during the investi involved with purchases trolled made CI-4. Isom also begin that he did sexual gation, but Harwood had no connec- stated his involvement relationship with her after any involving tion to activities CI-4. Isom investigation ended. Harwood stat testified that he did not know whether night at his Brogdon spent ed that Brogdon and Harwood became involved times, apartment several but undercover romantically undercover before Harwood’s having sexual intercourse Harwood denied assignment ended. on of those occasions.1 with her *8 Keszthelyi’s The district court denied also asked Harwood Defense counsel suppress. to The court concluded motion drugs had ever used while whether he Agent that Isom’s sufficient affidavit was particular, de- working undercover. provide probable support cause to suspicious circum- counsel cited fense The purchase issuance of the October 8 warrant. surrounding drug a made stances Keszthelyi that had not shown February at the court found by Harwood on that Nightclub. by preponderance Evidence sur- a of the evidence South Beach testify any questions Brogdon suppres- at the about her involvement with was called to hearing, Fifth but she exercised her sion Harwood. privilege to answer Amendment and refused engaged mis- ernment testimony Harwood also offered to show investigation. during Keszthelyi only conduct The that sold cocaine in single if court also concluded that even the affida- gram quantities price approximate- at a of material omissions about the vit contained ly per gram. Combining defendant’s $100 Harwood, credibility Agent conduct and of deposits cash and those checks identified affidavit, portions unaffected of the cocaine, payments for government involving particularly those the controlled $245,000 contended that at least CI-4, purchases by have been suffi- would deposits made into defendant’s bank ac- probable cient to demonstrate cause. The represented proceeds counts of cocaine court further concluded that the October 9 Assuming sales. that defendant sold co- search was a valid continuation of the Oc- caine at a price per gram, constant of $100 require tober search did therefore, government argued that separate Finally, issuance of warrant. Keszthelyi responsible for 2.45 kilo- the court found the October grams of cocaine. supported by probable warrant was new government The also offered some di- searches, arising cause after the first two rect evidence of defendant’s cocaine trans- and was therefore valid. actions. Thomas Steffner testified that he purchased cocaine from Keszthelyi be- Sentencing C. tween 150 and times. Steffner stated sentencing hearing A was held on No- typically purchased he one-sixteenth hearing, gov- vember 2000. At the occasionally purchased ounce and attempted prove quantity ernment one-eighth (approximately of an ounce 3.3 drugs by extrapo- sold the defendant grams) during these transactions. Dr. lating unexplained deposits from cash purchased David Lewis testified that he Keszthelyi’s made into various ac- bank cocaine from the defendant between counts between 1994 and 1999. IRS times, usually and 20 and that pur- he Agent Lynn concerning Barker testified gram Roger chased one a time. Moss investigation the results of detailed purchased testified he cocaine from Keszthelyi’s finances. Barker testified quantities defendant at least 100 times in deposits Keszthelyi’s that net ac- bank slightly larger gram. than one Stout testi- ap- counts between 1994 and 1999 totaled bought fied that he cocaine from the defen- $374,000. these, $232,000 proximately Of dant as often as several times week for a deposits were cash and an additional period year, generally of a and that he $13,430 could be attributed to checks writ- purchased quantities approxi- cocaine Stout, ten to the defendant Herman mately grams one-and-a-half at a time. payments who identified the checks as Keszthelyi disputed government’s cocaine. Keszthelyi Barker conceded that extrapolation theory. He called a number legitimate earned some income Keszthelyi witnesses who testified period. relevant deposits time The total regularly parcels containing received income, that could traced to legitimate be currency American from father however, his amounted to no more than $35,000. Africa. At a deposition, friend South government also introduced tending evidence father testified he sent show that *9 $70,000 $84,000 worked, his son and very rarely spent and between over the vast defendant’s, majority years. of seven A friend of his time a local health club Les Chapman, where he would receive and stated that he had mailed Kesz- make calls concerning $40,000, gov- thelyi monthly cocaine transactions. The mailed in $5000 supervised re- Keszthelyi years also ment and three
increments, during 1995. Keszthelyi timely filed a notice of Agent Barker had lease. attempted to show appeal. E & R his income from underestimated
Products. II. ANALYSIS presented evidence government
The that he received Keszthelyi’s claims rebut Objections A. Amendment Fourth family and in South money from friends 8,1999 1. on October Search that defen- Agent Barker testified Africa. Keszthelyi’s assignment of first deposits not show records did dant’s bank affidavit alleges Agent error Isom’s amounts he claimed with the consistent probable cause was insufficient establish him. Barker also testified sent to on for the search warrant issued any magazines find or did not alleges Agent The defendant Africa 1999. from letters South home, concerning Isom omitted material facts Keszthelyi’s despite the search of misconduct from the affi him Harwood’s Chapman claim that sent defendant’s Delaware, of Franks v. pages of davit violation money hidden in between the 154, 155-56, 2674, 57 Hollamby, a 438 U.S. 98 S.Ct. home. Theo magazines from (1978). Africa, evidentiary L.Ed.2d 667 After from also testi- police officer South the claim hearing, the district court found Chapman lying had admitted to fied that appellate to without merit. On review money Keszthelyi during be sending about ruling a of the district court’s on Franks police. African an interview with the South challenge, we review de novo the district adopted govern- The court district conclusions, legal and we review court’s theory, and concluded extrapolation ment’s fact findings the district court’s for clear $245,000 unexplained deposits that the Graham, 275 F.3d error. United States Keszthelyi had distrib- demonstrated that - (6th Cir.2001), 490, 505 of cocaine. kilograms at least 2.45 uted U.S. -, type quantity this upon Based (2002). drugs, the court determined Franks, twenty-eight. Supreme The Court held offense level to bе base if, warrant “must be voided” after applied a enhancement for court two-level hearing, the defendant establishes of firearms con- possession defendant’s (1) that “a preponderance of the evidence with the cocaine offenses. See nection knowingly Man- false statement and intentional- Sentencing Guidelines United States 2Dl.l(b)(l) truth, (“U.S.S.G.”) ly, disregard § or with reckless for the ual affiant in the two-level en- was included applied district court another (2) affidavit,” justice. that “with the affidavit’s See hancement for obstruction side, to one the affida- Finally, § the district false material set U.S.S.G. 3C1.1. remaining content is insufficient to downward ad- vit’s granted court two-level Franks, probable justment acceptance of re- cause.” for defendant’s establish 155-56, have with terms of U.S. at 98 S.Ct. We sponsibility accordance challenges held that Franks be based plea agreement. Consequently, facts from the total of- on the omission material court determined the defendant’s would, if applicable warrant affidavit that known to thirty, fense level to be issuing magistrate, dispel probable sentencing range to between 97 to be Atkin, cause. States v. imprisonment. months’ The court sen- (6th Cir.1997). cau- We have imprison- tenced to 120 months’
567 however, residence. The uncontradicted tioned, “an affidavit which evidence suppression hearing information exculpatory established potentially omits оf im- question likely present played is less to that Harwood no role in the de than one which official conduct permissible velopment pur of CI-4. The controlled information!,] affirmatively includes false by electronically moni chases CI-4 were allegation po- of omission ... because by police. tored and recorded Such conjec- tentially opens officers to endless strong support evidence offers for a find leads, fragments investigative ture about cause. See States ing probable information, might, or other matter Harris, (6th Cir.) 255 F.3d 293 included, redounded to defendant’s if have (noting purchases by that two controlled omitted). After Id. (quotation benefit.” history confidential informant with of re record, reviewing the we conclude liability played key establishing role Keszthelyi’s Franks challenge is without — denied, cert. cause), probable U.S. merit. -, S.Ct. L.Ed.2d 288 (2001); Murphy, United States v.
Assuming
Keszthelyi
could show
(6th Cir.)
intentionally
(finding probable
or reck- F.3d
Agent
Isom
Agent
lessly
relating
omitted facts
cause to search defendant’s hotel room
misconduct,
the unaffected
pur
Harwood’s
where
observed controlled
affidavit were more than
portions of the
by
chase of crack cocaine made
confiden
probable cause.
room,
sufficient
to establish
tial
informant outside hotel
ob
Graham,
See
at 506. As the
served defendant
return to hotel room
explained, the stan-
Supreme
has
Court
transaction,
after the
and overheard tele
“whether,
probable
giv-
cause is
dard
phone conversation between informant
all
circumstances set forth
en
arranging
purchase),
defendant
includ-
magistrate],
affidavit before [the
1044, 121 S.Ct.
knowledge’
‘veracity’
and ‘basis of
(2001).
search and
government
The
contends
al
new warrant.
numbers matched those of the stolen
search was a reasonable
police
day
that the second
goods, the
returned the next
search,
8
of the October
continuation
Bowling,
and seized the machines.
351
8
authorized
the October
therefore was
F.2d at 240-41. We held that the second
alternative,
govern-
the
In the
warrant.
entry
au-
into the defendant’s home was
if
9
that even
the October
ment contends
warrant,
original
observing
thorized
the
invalid,
evidence discovered
the
search was
that “the mere fact that
the time of its
sup-
should not be
that search
during
promptly
first use was
noted
the war-
[on
it
have been discov-
would
pressed because
powers
did not vitiate its
as of the
rant]
during the third
inevitably
ered
Thus,
at 241.
following morning.”
Id.
on October
residence
defendant’s
Bowling
police may
establishes that
some-
the defendant
the Oc-
agree with
We
entry
than
into a
times make more
one
not a reasonable con-
search was
tober 9
during
single
residence
the execution of a
the October 8 sеarch. We
tinuation of
violating
warrant without
the Fourth
government
the
agree with
nevertheless
Amendment.
inevitably
have
cocaine
would
the
the
11
been discovered
Bowling,
Our decision in
howev
suppressed.
search and should
be
er,
permit
police
does not
unlimited
premises
identified in a war
access
a. The Reasonable
Continuation
throughout
rant
the life of the warrant.
Rule
recognized
dangers
long
Courts have
ap
of the federal courts of
Most
of official abuse that inhere in such a rule.
in
question,
peals to have considered
supreme
As one state
court
our circuit
Circuit, have held that a
cluding the Sixth
explained nearly fifty years ago:
authorize more
single search
If for no other reason than that
premises identified
entry
than one
into the
possession,
officer still has it in his
warrant,
long
entry
as the second
in the
served,
search warrant once
but not re-
original
is a reasonable continuation
turned,
can be used second time within
Bowling,
v.
351
search.
States
United
purpose
life of the
for the
[the
warrant]
(6th
Cir.1965),
241
F.2d
premises
of a
of the
de-
second search
86 S.Ct.
scribed, then,
it
logically, would seem
(1966);
221
Squillacote,
v.
United States
officer,
squad
follow that such
with his
(4th Cir.2000);
542, 557
United States
F.3d
assistants, may
use it to make an
(11th
Gerber,
F.2d
1559
Cir.
v.
indefinite number of such searches dur-
1993);
Kaplan,
v.
F.2d
States
Thus,
period].
the war-
[time
(9th Cir.1990);
United States
tyrannical
rant could become a means of
Cir.1988).
(8th
Carter,
1102, 1107
F.2d
unscrupu-
hands оf an
oppression
Bowling,
police
executed warrant
officer to the disturbance or de-
lous
home for stolen
to search the defendant’s
peaceful enjoyment
struction of the
search,
During
business machines.
workshop of him or
the home or
her
large
number
identified
against whom the efforts of such officer
they suspected to have been sto
machines
are directed.
po
len in
the defendant’s basement.
State,
McDonald v.
195 Tenn.
lice recorded the serial numbers
524, 524-25
Our decision in
machines,
seizing
without
S.W.2d
left the house
items,
reject
general
Bowling
serial numbers
did not
rule
and checked the
(W.D.Pa.
F.Supp.
*12
Huslage, 480
only one search.
authorizes
that a warrant
1979) (“The
the
question
635 F.2d
is not whether
Gagnon,
v.
States
See United
(“We
(10th Cir.1980)
agree
police
through
went
the door of the vehicle
fully
rather,
twice,
has
exe
con
warrant
been
whether the search
once a search
but
secured,
search
fruits of the
cuted and the
at
A.M. was a continuation of
ducted
10:00
expires
the warrant
authority under
the
initiated at 4:10
the search that
been
intrusion must A.M.”).
governmental
and further
Second,
the decision to conduct
1018, 101
cease.”),
entry to continue the search must
second
(1981); Wayne
3008,
pursuant to upon foregoing consider- Based government Finally, we note that ations, that the second search we conclude scope or intru- steps to limit the took no unreason- of the defendant’s residence was search of defen- of the second siveness in con- government’s able. The interest 635 F.2d at Gagnon, residence. See dant’s minimal, ducting a second search was mini- steps by police taken (citing fully agents were able to execute since the factor property with mize interference entry their initial the warrant of continued supporting reasonableness believing objective little basis existed for initial search was police presence after escaped that evidence the first search. v. New Coolidge see also completed); contrast, seаrch of defendant’s the second 91 S.Ct. Hampshire, 403 U.S. upon significantly intruded residence (1971) (plurality) 29 L.Ed.2d protected property priva- way of search or (“[A]ny intrusion jus- Absent some reasonable cy interests. evil, intrusion at so that no seizure is necessity, do showing tification or prior de- justified without a careful all is think that law enforcement *16 [Tjhose necessity.... termination authority single of a war- may, under the as necessary should be deemed searches rant, pri- thorough search of a conduct re-entering possible.”). Upon limited as day, and then return residence on one vate home on October the defendant’s begin process to the whole day the next complete another agents the conducted again. Agent Isom testi- property. of the search agents participat- than five fied that more Discovery b. Inevitable search, by all ac- which ed in the second Nevertheless, that we conclude the first. just thorough as counts was denied defen properly district court the case is distin- respect, this the instant fruits of the suppress the dant’s motion up- cases which have guishable from those ground that the 9 search on the carried searches held limited continuation during that inevita seized cocaine narrowly purposes, such as out for defined during the bly have been discovered would in- specific piece of evidence to recover of a second search war lawful execution during the initial advertently left behind 11, In Nix (con- rant on October 623 Kaplan, 895 F.2d at search. See Williams, 431, 104 S.Ct. 81 reasonably in re- cluding police that acted (1984), Supreme Court L.Ed.2d 377 hours turning approximately to office two exception to the exclusion recognized an certain files after initial search obtain in violation of ary rule for evidence seized in the warrant identified inevitably search); Fourth Amendment during them initial Car- given to 574 (1988), by discovered lawful Supreme approved
would have been
Court
prosecution
use of the
discovery
“[i]f
means. Nix held
inevitable
doctrine
under circumstances similar
by
preponderance
pre-
can
of the
to those
establish
sented
the instant case.
In Murray,
ultimately
evidence that the information
or
agents
federal law enforcement
observed
inevitably
would have been discovered
suspect drive a truck
marijua-
loaded with
lawful means ...
then the deterrence ra
na out of a warehouse.
Id. at
108
exclusionary
has
[of
rule]
tionale
so
agents
2529. The
illegally
S.Ct.
forced
little basis
evidence should be
way
their
into the warehouse and observed
(hold
Id. at
104
2501
received.”
S.Ct.
marijuana
plain
bales of
sight. The
ing
body
that murder victim’s
discovered
agents later obtained a warrant
to search
illegal
pursuant
search should not be
legally
warehouse and
seized the mari-
evidence showed that vol
excluded where
juana.
warrant,
In applying for the
party
unteer search
would have discovered
relating
did not mention
facts
body
in the absence of
miscon
prior entry.
535-36,
to their
Id. at
duct).
circuit has held that
This
“the inev
Supreme
S.Ct. 2529. The
Court held that
discovery exception to the
itable
exclusion
marijuana
should
suppressed.
not be
ary
applies
government
rule
when the
can
Although
marijuana
knowledge of the
“was
demonstrate either the existence
an in
assuredly acquired at the time of the un-
dependent,
investigation
untainted
that in
reasoned,
entry,”
lawful
the Court
“it was
evitably would have uncovered the same
acquired
pursuant
also
at the time of entry
compelling
evidence or other
facts estab
warrant,
to the
and if that
acquisition
later
lishing
disputed
that the
evidence inevita
was not the
entry
result of the earlier
bly would have been discovered.” United
why
there is no reason
independent
(6th
Kennedy,
States v.
61 F.3d
source doctrine
not apply.”
should
Id. at
Cir.1995),
U.S.
Thus,
Murray
S.Ct. 2529.
teach-
“The
discovery
es that the inevitable
exception
government
satisfy
can
its burden
exclusionary
when,
to the
applies
rule
inas
showing
procedures
po
that routine
case,
the instant
evidence discovered dur-
regardless
lice would have used
of the
illegal search would have been dis-
illegal search would have resulted in the
legal
covered
a later
search and the
discovery
disputed
evidence.” Unit
inevitably
second search
would have oc-
(6th
Ford,
ed States v.
curred
the absence of the first.
*17
Cir.1999),
1161,
120
agree
We
with the district court that the
Our decision in D.
does not
his home.
compel
invalidation of the
case,
In
search.
the instant
did
Sentencing Objections
B.
possess
of prоbable
new indicia
not
cause
prior
known
to issuance of the October 8
Drug Quantity
1.
support
warrant to
the October 11 search.
Keszthelyi objects to the dis
importantly,
police
Most
obtained the
trict
findings
court’s
concerning
quan
W-l, W-2,
W-3,
of
statements
which
tity of cocaine used to determine relevant
gave
police
reason to believe that new
conduct.
specifically objects to
evidence could be found buried on the
the district
extrapolation
court’s
drug
of
in a
property
place not previously
quantity from the total amount of cash
searched.
id. at
(noting
Accord
deposits made into his bank accounts be
dispel
first search did not
probable cause
tween 1994 and 1999.3 We review the
because it did not encompass
areas
district court’s
findings
factual
drug
which
found evidence during second
quantity for clear error. United States v.
search).
addition,
In
unlike the
case D.
Owusu,
(6th
Cir.2000).
Bowling, the search of the defendant’s ve-
sentencing
may
“A
court
hold a defendant
hicle at the
time
his arrest and the
a specific
accountable for
amount
drugs
property
search of his
on October 8 con-
only if the defendant
likely
is more
than
suspicions
police’s
firmed the
that Kesz-
responsible
quantity
for a
greater than
thelyi himself was involved in narcotics
equal
or
to that amount.” Id.
activity. Combined with the statements of
W-l, W-2,
W-3,
provided
which
previously
We
have held that
рlausible explanation for
agents’
failure when “the exact amount
drugs
involved
to
locate more evidence
their initial
uncertain,
is
the court
make an esti
searches, this information was sufficient to
supported by
evidence”;
mate
competent
probable
establish
cause
believe that
but the
supporting
evidence
the estimate
evidence remained on the defendant’s
“must
have minimal
reliability
level of
property.
beyond
allegation,
mere
and the court
sum,
think
clearly
we
the evidence
should err on the side of caution in making
supports
omitted).
the district court’s conclusion its estimate.”
(quotation
Id.
that a new warrant
§
search the
commentary
defen- The
2D1.1 of the Sen-
argues,
Graham,
relying
The defendant
on McMillan
explained
F.3d at 517 n. 19. In
Pennsylvania,
that a
convincing
clear and
long
sentencing
as a
”[a]s
factor does not
evidence
apply
standard should
to the district
statutory range
alter the
penalties
faced
determination,
quantity
court's
because this
defendant
the crime of which he was
finding
wags
dog
was "a tail which
convicted,
permits
McMillan
the factor to be
substantive offense.” 477 U.S.
by preponderance
found
of the evidence.”
reject-
We
*19
Id.
Graham,
argument
ed an identical
275
(5th Cir.) (defendant’s
large
of
possession
guidance
provides some
tencing Guidelines
time of arrest combined
amount of cash at
estimating drug quantity:
for
unemployed
fact that defendant was
with
drug seizure or
is no
there
Where
was
to demonstrate that cash
sufficient
the scale
not reflect
does
amount seized
sales),
denied, 519
drug
of
proceeds
approxi-
offense,
court shall
of
987,
446,
mately Indeed, per gram. Stout tes- $100 “the burden shift[s] the defendant tified that he tried on a number occa- show it clearly that was improbable Keszthelyi sions to convince to sell him weapon was connected with the of larger quantities, Cochran, cocaine but fense.” (quota F.3d at 1132 evidence, think, omitted). refused. This was suf- tion We review for clear error ficient support the district court’s find- the district court’s determination of wheth-
579
hunting
“an unloaded
rifle
example of
weapon in the
a
possessed
the defendant
er
closet,”
commentary to
which the
United
in the
drug offense.
with the
connection
(6th
Hill,
in which it
§
1486
2D1.1 offers as a situation
79 F.3d
v.
States
denied,
117 S.Ct.
Cir.),
clearly improbable
519 U.S.
that the fire
cert.
be
would
(1996).
158, 136
102
L.Ed.2d
the of
in
with
arm was used
connection
2D1.1, commentary,
§
fense. U.S.S.G.
of the
application
district court’s
The
facts,
upon these
the
applic. note 3. Based
2Dl.l(b)(l)
clearly
was not
enhancement
§
apply
in
clearly err
district court did not
in
were found
firearms
Both
erroneous.
the enhancement.4
bedroom,
shotgun
was
defendant’s
seized
as the
in the same closet
located
in
opinion
on our
The defendant relies
in the resi-.
also found
Drugs were
cash.
(6th
Peters,
540
v.
15 F.3d
States
United
that
dence, and evidence established
denied,
Cir.),
115 S.Ct.
U.S.
cert.
his residence
cocaine in
sold
defendant
(1994),
for his argu
nicate with even if it means III. CONCLUSION prolonging an initial search beyond well what would have occurred otherwise. upon foregoing analysis, Based AFFIRM both the district court’s denial of I would have abstained from deciding suppress defendant’s motion to and the validity search, of the October 9 given court’s determination of the defendant’s the clear applicability of the inevitable dis- sentence. covery rule. We should not decide consti- questions tutional when their resolution is
BOGGS, Judge, Circuit concurring. unnecessary to determine the relevant le- I concur in all of the opinion, court’s gal question: case, in this admissibility except 568-73), for Part (pp. II.A.2.а con- of the evidence seized in the October 9 cerning validity the Fourth Amendment Louisiana, search. Alexander v. the October 1999 search. Whether 625, 633-34, 92 S.Ct.
October 9 search (1972) was a reasonable contin- (discussing the tradition of “avoid- uation of the October 8 search is a close ing decision of constitutional issues unnec- and difficult question. The inevitable dis- essary to the decision of the case before covery provides rule wholly us”). sufficient
ground on which to hold the evidence
seized in the search admissible. Op., See 573-76). Part (pp. II.A.2.b Since was incarcerated dur- search, period entire I see HERMAN, Secretary Alexis M. little privacy difference in the violation Labor, Department United States a, between example, two-hour search Labor, Plaintiff-Appellant, on and a one-hour search on October 8 and another on October 9. The search on appear October 9 does not AMERICA, FABRI-CENTERS OF gratuitous, have been either designed or INC., Defendant-Appellee. inflict some privacy additional violation. addition, there seems to be a contra- No. 01-3080. easy diction between the conclusion on Appeals, States Court of page objective that “little basis existed Sixth Circuit. for believing that evidence escaped the first search” and the correct statement on Argued: June 2002. page 25 that “the amount of cash found Decided and Filed: Oct. during the initial the defendant’s (as residence expected” was less than well (and Isom’s ultimately informed
correct) conclusion that cocaine should