United States v. Dewon Dawson ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0374n.06
Case No. 21-4142
FILED
UNITED STATES COURT OF APPEALS Sep 15, 2022
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
DEWON R. DAWSON, )
Defendant-Appellant. ) OPINION
)
Before: SUTTON, Chief Judge; BATCHELDER and DONALD, Circuit Judges.
SUTTON, Chief Judge. Dewon Dawson pleaded guilty to distributing crack cocaine and
to possessing a firearm in furtherance of the crime. Most of the evidence against him was
discovered when the police executed a warrant to search his house. On appeal, he challenges the
district court’s denial of his motion to suppress the evidence. We affirm.
I.
FBI Agent James McCann spearheaded a year-long investigation into a drug conspiracy in
Youngstown, Ohio. The investigation relied on wiretaps, confidential informants, and physical
surveillance. With the information gathered from these efforts, Agent McCann determined that
Dawson made up part of the base of a drug distribution pyramid that extended upward to his
supplier, Sadiya Sow, and from Sow to her suppliers.
From 2016 to 2018, several confidential informants testified to Sow’s role in the
conspiracy. In February 2018, officers seized an ounce of cocaine from a customer 20 minutes
No. 21-4142, United States v. Dawson
after he met with her. From November 2017 to May 2018, wiretap intercepts of Sow’s negotiations
with her suppliers permitted law enforcement to watch her meet with suppliers to exchange drugs
and drug proceeds.
Most of the evidence against Dawson stemmed from a wiretap on Sow’s phone between
December 2017 and February 2018. Agent McCann, a 25-year veteran, translated the “code
words and phrases” used by the dealers to interpret the calls and texts between Sow and Dawson.
R.123-1 at 16. During the conversations, the pair used coded language to discuss the quality of
drugs Sow had provided to Dawson, negotiate over Dawson’s payments for drugs Sow had
supplied, and commiserate about Dawson’s cousin Darrell (who also obtained drugs from Sow to
sell but did not diligently pay her back with the proceeds). Sow’s conversations with Dawson and
Darrell frequently referenced quantities of cash including “the two thousand dollars,” id. at 24,
“5,000 there, 5,000 there,” id. at 29, “three grand,” id. at 31, “2-4,” id. at 36, and “6,” id. at 38.
The taped conversations, together with Sow and Dawson’s frequent negotiations over
payment, enabled officers to identify three occasions in January 2018 when Dawson delivered
suspected drug proceeds from his home to Sow. Before one occasion, Dawson texted that “I’m
bout to bring u that change.” Id. at 36. In another text to Dawson, Sow pushed for payment
because “[o]ur friend said he’ll be in town around 1.” Id. at 25. The next day, Sow received a text
from one of her drug suppliers (from whom officers would later seize four kilos of cocaine),
confirming their one o’clock meeting. Sow then texted Dawson that she was “[w]aiting on [him],”
after which he drove directly from his home to hers. Id. at 25. Within hours, Sow’s supplier
arrived for their planned meeting, which lasted for a few minutes.
The investigation culminated in Agent McCann’s 71-page affidavit in support of a warrant
to search multiple locations, including Dawson’s home. A federal magistrate granted the search
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warrant in May 2018. Officers executed it the next day. At Dawson’s home, officers found
multiple guns, thousands of dollars, digital scales, and crack cocaine. Dawson, Sow, and other
participants in the drug ring were charged with myriad gun and drug related offenses. Dawson
moved to suppress the evidence found during the search, claiming the affidavit in support of the
warrant did not provide probable cause. The district court rejected the motion. In exchange for
dropping the other charges, Dawson pleaded guilty to possessing crack cocaine with intent to
distribute and possessing a firearm in furtherance of a drug trafficking crime. The court sentenced
him to 10 years. Having reserved the option of appealing the denial of his motion to suppress,
Dawson now exercises that right.
II.
The Fourth Amendment says that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. In evaluating a request for a search
warrant, a court asks whether “there is a fair probability” that “evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). That requires officers both to
establish probable cause of criminal activity and to demonstrate a connection between the criminal
activity and the site to be searched. United States v. Ardd, 911 F.3d 348, 351 (6th Cir. 2018). At
stake on appeal is whether the magistrate had a “substantial basis” for finding probable cause.
Gates, 462 U.S. at 238–39.
Measured by these requirements, this affidavit passes. The 71-page document contains
ample information indicating that Dawson distributed drugs and that his home contained evidence
of the crime. The affidavit, to start, contains abundant evidence that Sow participated in a drug
conspiracy. On top of that, Agent McCann’s interpretations of the wiretapped conversations make
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clear that Sow and Dawson were discussing a drug trafficking enterprise. In tying Dawson’s
trafficking to his home, the affidavit described three instances in which Dawson delivered drug
proceeds from his home to Sow. Courts give “considerable weight to the conclusion of
experienced law enforcement officers”—25 years of experience in Agent McCann’s case—about
“where evidence of a crime is likely to be found.” United States v. Williams, 544 F.3d 683, 686
(6th Cir. 2008) (quotation omitted). That is eminently appropriate here.
No more evidence was required to satisfy the nexus requirement. Courts have upheld
residential searches where a defendant drives directly from his home to a drug sale, sells drugs
immediately after leaving his house, or returns home after collecting drug proceeds. United States
v. White, 990 F.3d 488, 492 (6th Cir. 2021). The same logic applies when a dealer goes directly
from his home to a supplier’s residence after discussing the transfer of drug proceeds. All told,
the investigation permitted the magistrate to conclude that Dawson was engaged in drug trafficking
and that he stored evidence in his home.
It is not that easy, Dawson cautions. The last of his deliveries to Sow, he notes, occurred
in January, months before the warrant was issued in May, rendering the information too stale. But
this gap has a simple explanation. Dawson was a small fish in a big investigation. And officers
tracked his deliveries only through the Sow wiretap, which expired in February. Nor did Dawson
entirely disappear from the affidavit after January. Although officers no longer had access to the
contents of their communications, pen register records revealed 82 texts and 61 calls between early
April and late May, which Agent McCann characterized as “consistent with their ongoing drug
trafficking relationship.” R.123-1 at 71.
Dawson minimizes the calls and texts as social interactions between childhood friends, not
as drug-distribution efforts. But this claim cannot be squared with wiretap intercepts from other
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investigation targets, which establish Sow’s continued participation in drug trafficking after
February. Nor is the friendship explanation convincing. One could also say that Dawson and Sow
were childhood friends in December and January, and their conversations at that point either relate
to an unusual childhood or, far more probably, a classic drug-distribution business. Dawson offers
no coherent explanation why he would suddenly exit the drug business and start discussing social
rather than drug-related matters on his calls with Sow—just, as it happens, when the wiretap ended.
See United States v. Greene, 250 F.3d 471, 475, 481 (6th Cir. 2001) (upholding finding of probable
cause when confidential informant’s last purchase occurred 23 months before the warrant’s
issuance).
Shifting gears, Dawson complains that the affidavit did not contain evidence of his criminal
history or of controlled buys. But when evaluating probable cause, we must look to what an
affidavit “does show,” not what it “does not.” United States v. Christian, 925 F.3d 305, 312 (6th
Cir. 2019) (en banc). Probable cause exists independently of this omission.
Nor does it matter that the word “drugs” never appeared in the texts or calls. As Agent
McCann’s affidavit thoroughly explained, drug traffickers frequently use “code words and
phrases” to evade detection. R.123-1 at 16. In an intercepted call, Sow even chastised one of her
suppliers for “texting this shit to my phone” because “we don’t do all this talking on our phones.”
Id. at 65. Officers need not hear “magic words” before seeking a warrant. Cf. United States
v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc).
Last of all, Dawson challenges in his reply brief the denial of a second motion to suppress,
which accused the arresting officers of misconduct. But this under-developed and belated
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challenge says too little and comes too late. Scott v. First S. Nat’l Bank, 936 F.3d 509, 522 (6th
Cir. 2019).
We affirm.
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