United States v. Kenneth Pointer ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0528n.06
Case No. 22-1082
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 20, 2022
)
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
KENNETH POINTER, ) DISTRICT OF MICHIGAN
Defendant-Appellee. )
) OPINION
Before: CLAY, GIBBONS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant Kenneth C. Pointer appeals his conviction and
sentence for several drug-related federal offenses. He argues that evidence discovered in a search
of an apartment connected to him should be suppressed due to lack of probable cause for the search,
as (1) there was an insufficient nexus established in the warrant affidavit between the apartment
and criminal activity and (2) the affidavit contained stale and false information. Pointer further
alleges that evidence seized after his car was searched during a traffic stop should be suppressed
as the fruit of an unconstitutional search. Finally, Pointer argues that his sentence was procedurally
and substantively unreasonable. Because there was sufficient evidence to establish probable cause
for both searches, and because his sentence is neither procedurally nor substantively unreasonable,
we affirm Pointer’s judgment and sentence.
Case No. 22-1082, United States v. Pointer
I.
1. Facts
Pointer, currently forty-seven years old, grew up in Detroit. Police investigated Pointer and
another man, Anthony Garner, for drug activity between April 2017 and November 2019. Both
men have a long history of involvement with the criminal justice system. Pointer was convicted of
several drug offenses throughout his life, with multiple other arrests, drug-related and otherwise.
Garner has multiple charges and convictions related to homicide, weapons offenses, larceny,
voluntary manslaughter, assault and battery, gambling violations, and a 2010 drug offense. In
2014, Pointer’s then-girlfriend turned over money to Tri-County Metro investigators and stated
that the money was a portion of Pointer’s proceeds from drug manufacturing and sales. At the time
of the 2017-2019 investigation, neither Pointer nor Garner had an apparent legitimate source of
income. During the investigation, officers surveilled at length an apartment frequented by Pointer
and Garner at 3019 Woodruff Avenue, #2 in Lansing (the “Woodruff Apartment”). Several aspects
of the investigation into Pointer and Garner are relevant to this appeal.
a.) 2017 Controlled Buys
Tri-County Metro investigators conducted four controlled buys from Pointer and/or Garner
in 2017 via confidential informant (“CI”). On April 13, 2017, the investigators used a CI to arrange
to purchase cocaine from Garner in a parking lot. Pointer and Garner arrived at the meeting
together, and Garner exchanged cocaine with the CI for money. On May 10, 2017, the Tri-County
Metro investigators conducted another controlled buy with Garner through the same CI. Garner
showed up to the meeting by himself, briefly met with the CI, exchanged the drugs for money, and
left.
-2-
Case No. 22-1082, United States v. Pointer
On June 7, 2017, the CI once again contacted Garner to purchase drugs, at the behest of
the Tri-County Metro investigators. The CI was told by Garner that Garner did not currently have
any crack and would need to have someone manufacture it. That night, Garner and Pointer were
seen entering the Woodruff Apartment building together by officers surveilling the apartment.
Garner then contacted the CI and told him that he had obtained the crack. The next day, Garner
and Pointer met again at the Woodruff Apartment building and went inside; later, Garner left, went
to the parking lot, met with the CI, and completed the exchange.
On October 5, 2017, the Tri-County Metro investigators again had the CI ask Garner to
sell him crack. Garner said he did not have it and would need to have someone manufacture it.
Garner went to a location in Detroit, then drove to the Woodruff Apartment building and met
Pointer outside, going in together. Garner then told the CI that the crack was ready and that Pointer
would deliver it. On October 6, 2017, Pointer arrived at the parking lot by himself and gave crack
to the informant in exchange for money.
b.) May 24, 2017 Traffic Stop
On May 24, 2017, Pointer was pulled over by police while driving for a traffic violation.
At that stop, he was arrested for possession of marijuana, and when he was searched incident to
the arrest officers found 17.5 grams of crack on his person, which was divided up into many
individually-wrapped rocks.
c.) Other Suspicious Activity
Pointer and Garner were also observed participating in various other suspicious activities
indicative of drug crimes. On June 29, 2017, officers saw three people separately enter Pointer’s
vehicle for a brief moment, then leave. On August 17, 2017, Pointer was seen entering the
Woodruff Apartment building and then exiting with a duffel bag, which he brought to another
-3-
Case No. 22-1082, United States v. Pointer
residence before going back to the Woodruff Apartment. He then left the apartment and went to
another parking lot where he had a brief meeting with a woman. On October 30, 2017, Pointer was
observed in a similarly brief meeting. The next day, Garner was seen receiving a large amount of
cash in another parking lot, then leaving to meet with Pointer.
d.) The Search of the Woodruff Apartment
Additionally, Pointer and Garner were seen multiple times entering and exiting the
Woodruff Apartment building, though they primarily lived at other residences. Pointer drove a car
which he frequently parked in the parking spot assigned to the Woodruff Apartment. He was also
seen with the leaseholder of the apartment on multiple occasions.
On December 11, 2017, Tri-County Metro investigators obtained a search warrant for the
Woodruff Apartment from the 56th District Court for the State of Michigan. The affidavit
supporting the warrant contained the information described above concerning the controlled buys,
the apartment, the traffic stop and drug seizure, the apparent hand-to-hand deals, Pointer and
Garner’s previous arrests/convictions, and the 2014 incident with Pointer’s then-girlfriend. The
warrant sought drugs, drug trafficking implements and paraphernalia, and documents such as
records of residency and ownership. The warrant was executed the next day, during which time
the investigators recovered a large amount of drugs and drug paraphernalia. The investigators also
discovered several personal effects of Pointer’s in the apartment, including a copy of his driver’s
license and medical marijuana card, mail addressed to him, and an Xfinity bill for the apartment
in his name. They also found a large amount of cash. The investigators arrested Pointer that same
day, finding cash on him as well as keys to the Woodruff Apartment.
-4-
Case No. 22-1082, United States v. Pointer
e.) 2019 Controlled Buys
Lansing Police also used a CI to purchase crack cocaine in controlled buys from Pointer in
2019. These controlled buys occurred on four separate occasions between July and September
2019.
f.) November 7, 2019 Traffic Stop
Following the controlled buys, on November 7, 2019, officers tailed Pointer as he drove
alone from the Detroit area towards Lansing. Pointer was observed to be speeding by a Michigan
State Police Trooper, who was working with the Lansing Police. When the trooper approached in
his car, Pointer suddenly jerked into the right lane, cutting off another car. The trooper then pulled
Pointer over, at which time the trooper smelled burnt marijuana and saw marijuana in the center
console of the car. The trooper also saw a wad of cash on Pointer’s person. The trooper requested
that Pointer step out of the car, which Pointer did. The trooper brought a drug-alert canine to the
car approximately nine minutes after the stop was initiated, and the dog positively indicated the
presence of drugs. Officers then searched the car and found over a thousand grams of cocaine.
Pointer was subsequently arrested, at which time the officers found a keyring on his person. The
next day, Lansing Police officers executed a search warrant at an apartment on Hartford Road in
Lansing where Pointer had been seen on several occasions. The officers used a key found on the
keyring to open a safe in the apartment, where they found a collection of drugs.
2. Procedural History
On December 18, 2019, a grand jury indicted Pointer for: (1) distribution of cocaine and
aiding and abetting distribution of cocaine, (2) distribution of cocaine base, (3) distribution of
controlled substances and aiding and abetting distribution of controlled substances, (4) possession
-5-
Case No. 22-1082, United States v. Pointer
with intent to distribute cocaine, and (5) possession with intent to distribute cocaine base, all in
violation of 21 U.S.C. § 841(a)(1).
During the course of trial, Pointer filed several motions to suppress, which the district court
denied. He moved to suppress evidence seized in the search of the Woodruff Apartment, alleging
that the information in the affidavit supporting the warrant was stale and failed to establish a nexus
between drug activity and the apartment. The district court denied the motion, finding that the
evidence sufficiently demonstrated that Garner and Pointer maintained an ongoing drug operation,
using the Woodruff Apartment as their base, which was adequate to defeat the staleness argument
and create probable cause tying the apartment to drug activity. Pointer also moved to strike as false
certain statements in the warrant affidavit regarding officers’ observation of Pointer
entering/exiting the Woodruff Apartment. The district court denied this motion as well, finding
that the statements were not intentionally or recklessly false, as well as not necessary to the finding
of probable cause. Finally, Pointer moved to suppress the fruits of the November 7, 2019 search,
arguing that the search was unconstitutional. The district court denied the motion, finding that the
officers had probable cause to search the car and thus the automobile exception to the warrant
requirement applied.
The jury convicted Pointer on all charges. During sentencing, Pointer objected to the “drug-
house” enhancement under U.S.S.G. § 2D1.1(b)(12) suggested in his presentence report. The
district court overruled this objection, finding that there was evidence demonstrating that Pointer
maintained the Woodruff Apartment for the purposes of making and/or distributing drugs,
sufficiently supporting the enhancement’s application. However, this enhancement did not affect
Pointer’s total offense level, as Pointer fell into the career offender category, making his total
offense level 37 automatically, with a criminal history category of VI. The district court
-6-
Case No. 22-1082, United States v. Pointer
accordingly calculated his guidelines range as 360 months to life, and sentenced Pointer to 360
months’ incarceration on each count, to be served concurrently.
II.
Pointer raises three main issues on appeal: (1) the sufficiency of the warrant affidavit for
the search of the Woodruff Apartment, (2) the constitutionality of the 2019 traffic stop and search
of his vehicle, and (3) the procedural and substantive reasonableness of his sentence. We address
each in turn.
1. The Search of the Woodruff Apartment1
Pointer argues that the search of the Woodruff Apartment was unconstitutional, as the
affidavit supporting the search warrant failed to establish probable cause. Specifically, he claims
that there was an insufficient nexus between criminal activity and the apartment, that information
contained in the affidavit was too stale to support probable cause, and that a statement in the
affidavit was both material and false. We find that there was probable cause to support the search
and reject Pointer’s staleness and falsity arguments.
a.) Standard of Review
This Court reviews a district court’s legal determinations in a probable cause inquiry de
novo and its factual findings for clear error. United States v. Hines, 885 F.3d 919, 924 (6th Cir.
2018). In cases such as this one, where “the district court has denied the motion to suppress, we
review all evidence in a light most favorable to the Government.” United States v. Coffee, 434 F.3d
887, 892 (6th Cir. 2006) (quoting United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003)).
1
Pointer devotes a not insubstantial portion of his brief to demonstrating that he has standing to challenge this search.
However, the government does not contest standing, and we see no reason to doubt that Pointer has standing as a
frequent occupant of the apartment who paid bills there. Cf. United States v. Pruitt, 458 F.3d 477, 487 (6th Cir. 2006)
(Clay, J., concurring) (acknowledging that even a mere overnight guest can have standing to challenge a search).
-7-
Case No. 22-1082, United States v. Pointer
Where, as here, the search warrant was approved by a state magistrate, the underlying standard of
review asks only whether the magistrate had a substantial basis for concluding that probable cause
for the search existed. See United States v. Christian, 925 F.3d 305, 310 (6th Cir. 2019). As this
Court has noted in the past, “the Supreme Court has repeatedly said that after-the-fact scrutiny . .
. should not take the form of de novo review.” United States v. Kinison, 710 F.3d 678, 681–82 (6th
Cir. 2013) (cleaned up). Rather, great deference is owed to the state magistrate’s initial probable
cause determination. Id. at 682. Probable cause to search a particular place exists where, under the
totality of the circumstances, there is “a fair probability that contraband or evidence of a crime will
be found” there. Bailey v. City of Ann Arbor, 860 F.3d 382, 387–88 (6th Cir. 2017) (quoting United
States v. Brown, 857 F.3d 334, 339 (6th Cir. 2017)). In reviewing a state magistrate’s
determination, this Court may consider “only the sworn information provided to the state judge.”
United States v. Sheckles, 996 F.3d 330, 338 (6th Cir. 2021).
b.) Nexus
In order for there to be probable cause to support a search warrant for a location, courts
“have long held that a probable-cause nexus must connect” the intended “place to be searched and
the things to be seized.” United States v. Reed, 993 F.3d 441, 447 (6th Cir. 2021) (cleaned up). In
other words, “[t]here must be a fair probability that the specific place that officers want to search
will contain the specific things that they are looking for.” Id. In general, there must be a nexus
between criminal activity and the place to be searched in order to search that location. United
States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008).
Pointer argues that there was not a sufficient nexus between criminal activity and the
Woodruff Apartment to constitute probable cause to search the apartment. As Pointer notes, the
application of the nexus standard to searches of a suspected drug dealer’s home is not always clear.
-8-
Case No. 22-1082, United States v. Pointer
This Court in Reed detailed this dilemma. See Reed, 993 F.3d at 444, 447–49 (noting that this
Court has “‘struggled’ to answer this question in a consistent way”). However, Reed did not, as
Pointer implies, overhaul the entire nexus analysis in the drug-dealer context. It merely
acknowledged that the analysis is difficult, noted “several recurring factors” in the analysis to
“promote greater consistency,” and “reconciled [the] caselaw [on this issue] in fact-specific ways.”
Reed, 993 F.3d at 447–48; see also Sheckles, 996 F.3d at 342 (citing Reed, 993 F.3d at 448–50)
(stating that the case law on this issue is not contradictory and has been reconciled).
Specifically, the Reed Court provided several important guiding factors in the analysis.
First, “obviously, a court need not rely on a known drug dealer’s status alone whenever other
evidence (besides the dealer’s living there) links drug dealing to the dealer’s home.” Reed, 993
F.3d at 448 (emphasis in original). Further, “[e]ven if no specific evidence ties drug dealing to a
home, we have also called it ‘well established’ that a nexus to search the home can exist if a
suspect’s drug dealing is ‘ongoing’ at the time the police seek the warrant.” Id. As this Court later
stated, continual operations typically involve “large amounts of drugs,” though the “caselaw
‘leaves unclear the amount of drug activity required to invoke this nexus principle.’” Sheckles, 996
F.3d at 342 (quoting Reed, 993 F.3d at 451).
Pointer’s argument that there is an insufficient nexus between drug activity and the
Woodruff apartment fails because circumstantial evidence indicates that Pointer and Garner used
the apartment as a base for ongoing drug-manufacturing and drug-dealing operations. Pointer and
Garner were observed entering and exiting the apartment building frequently over the course of
several months, with Pointer parking in the spot assigned to Apartment 2. 2 On June 7, 2017, both
2
The criminal activity linked to the Woodruff Apartment need not directly relate to Pointer himself; any criminal
activity linked to the apartment may support a determination of probable cause to search it, as the requisite nexus is
merely between the activity and the location, not the defendant and the activity/location.
-9-
Case No. 22-1082, United States v. Pointer
Garner and Pointer entered the apartment building after Garner indicated to the CI that he needed
somebody to manufacture crack for him for their deal. Later that night, Garner told the CI that the
drugs were ready. The next day, Garner and Pointer returned to the Woodruff Apartment building,
after which Garner traveled directly to the deal, selling drugs to the CI. Similarly, on October 5,
2017, Garner told the CI that he did not have any crack and needed someone to manufacture it;
Garner then met with Pointer outside the apartment building, and they went inside together. Garner
then told the CI the drugs were ready. The next day, Pointer sold drugs to the CI. These facts
constitute circumstantial evidence that Pointer and Garner used the Woodruff Apartment to
manufacture drugs.
Further, the Woodruff apartment is not even Pointer’s or Garner’s residence, and Pointer
provides no specific reason for his frequent use of the apartment. Pointer offers this fact as support
for a lack of nexus, but logic counsels the opposite: his frequent visits to an apartment that is not
his residence raise the question of why he even visited there, constituting circumstantial evidence
that wrongdoing is afoot.
This is more evidence linking criminal activity with the place to be searched than in Reed,
where the affidavit supporting the search warrant “contained no allegations that [the defendant]
conducted drug activity at his home.” Reed, 993 F.3d at 446. Reed relied on the good faith
exception, and did not decide the nexus issue, but noted that the nexus issue in that case was a
close call. See id. at 449–50 (“[T]he facts of this case sit on the hazy constitutional border between
a sufficient nexus and an insufficient hunch.”). The nexus evidence here is also at least comparable
to, if not greater than, that found sufficient in United States v. Ellison, 632 F.3d 347, 349 (6th Cir.
2011) (“Commission of a drug transaction outside of a house and one participant’s walking back
into the house . . . plainly demonstrated a sufficient nexus with the house.”), and United States v.
- 10 -
Case No. 22-1082, United States v. Pointer
Houser, 752 F. App’x 223, 224–26 (6th Cir. 2018) (adequate nexus where the defendant exited his
apartment, conducted a hand-to-hand drug deal, and went back inside his apartment).3
In combination with the circumstantial evidence linking the apartment to drug activity,
there is also evidence that Pointer was involved in an “ongoing” drug conspiracy, bolstering the
case for probable cause for the search. See Reed, 993 F.3d at 448 (“[A] nexus to search the home
can exist if a suspect’s drug dealing is ‘ongoing’ at the time the police seek the warrant.”). Pointer
and Garner were involved in four controlled drug buys between April and October 2017. Further,
as described, circumstantial evidence indicates that Pointer helped manufacture the drugs for two
of those deals at the Woodruff Apartment.
There is also evidence that Pointer and Garner had been involved in drug operations for a
long time, including their prior convictions for drug offenses and the 2014 incident wherein
Pointer’s then-girlfriend accused Pointer of being involved in drug dealing and manufacturing. Cf.
United States v. White, 874 F.3d 490, 498 (6th Cir. 2017) (noting while performing good faith
exception analysis that the defendant’s drug convictions “len[t] further credence to the informant’s
tip that defendant’s narcotics activity was ongoing and that the controlled buy was not an
aberration”); United States v. Gilbert, 952 F.3d 759, 764 (6th Cir. 2020) (noting while performing
good faith exception analysis that the defendant’s prior drug convictions were a factor in
“establish[ing] ‘some connection’ between the suspected drug trafficking and [the searched
residence], in light of the marijuana taken from [the defendant’s] trash at that address and his
demonstrated history of drug trafficking”).
3
Pointer contends that Reed rendered Ellison and Houser outdated. However, the Reed Court cited both cases with
approval. See Reed, 993 F.3d at 448.
- 11 -
Case No. 22-1082, United States v. Pointer
Further, Pointer and Garner were observed to be involved in drug activity outside of the
controlled buys. In May 2017, during a traffic stop, police found a large number of individually-
wrapped crack rocks on Pointer’s person. Police observed Pointer conducting apparent hand-to-
hand drug deals on three separate occasions in June, August, and October 2017. This sort of
evidence logically is, and has been viewed by courts as, evidence of drug dealing. See, e.g., United
States v. Courtney, 730 F. App’x 287, 291 (6th Cir. 2018) (emphasizing that “the officers
themselves had seen [that] throughout the day [the defendant] typically let people into the
apartment who stayed for only a few moments; outside the apartment, [the defendant] made a
hand-to-hand exchange that looked like a drug sale; [and the defendant] drove his truck from the
apartment to numerous houses where he made similar hand-to-hand exchanges. . .”); United States
v. Castro, 364 F. App’x 229, 236 (6th Cir. 2010) (emphasizing the fact that an officer, “on several
occasions, surveilled the residence and observed heavy traffic in and out of the residence for short
periods of time, which in her experience and training suggested that narcotics deliveries were
occurring”); cf. United States v. Leake, 998 F.2d 1359, 1364 (6th Cir. 1993) (citation omitted)
(noting that “short visits” are “characteristic of drug trafficking”). Finally, officers observed
Garner meeting with Pointer after receiving a large amount of cash in a parking lot in October
2017, despite not being gainfully employed.
While Pointer and Garner’s operation may not have been on a national or international
scale, “the Reed court,” as Pointer concedes, “did not mark quantity as a critical factor in the
analysis.” Appellant’s Br. at 24. Further, the evidence suggests that Pointer and Garner conducted
multiple drug deals over the course of many months, occasionally manufacturing the drugs
themselves—this is sufficient to create an inference of a substantial ongoing operation. Cf. Reed,
993 F.3d at 454 (“[The officer] could reasonably believe that the ongoing nature of [the
- 12 -
Case No. 22-1082, United States v. Pointer
defendant’s] drug dealing (as compared to the quantity of drugs sold) is what creates the fair
probability that evidence would be located at his home.”).
All this evidence points to the conclusion that Pointer and Garner were involved in a
continuing drug operation, using the Woodruff Apartment as a base. This is more than enough for
this Court to determine that there was a sufficient nexus between the Woodruff Apartment and
drug activity such that the state magistrate had a substantial basis to conclude that there was
probable cause for a search. We therefore affirm the district court and hold that the magistrate did
not err in finding that there was probable cause to search the Woodruff Apartment.4
c.) Staleness
Pointer also alleges that certain information in the affidavit supporting the search warrant
was stale. Probable cause cannot be supported by stale information. United State v. Spikes, 158
F.3d 913, 923 (6th Cir. 1998). But information is not stale merely because some time has passed
since the relevant events occurred. Rather, this circuit looks to several factors in determining
whether information concerning events relatively remote in time is too stale to support probable
cause:
(1) the character of the crime (chance encounter in the night or regenerating conspiracy?)
(2) the criminal (nomadic or entrenched?) (3) the thing to be seized (perishable and easily
transferrable or of enduring utility to its holder?) (4) the place to be searched (mere criminal
forum of convenience or secure operational base?).
Unites States v. Abboud, 438 F.3d 554, 572–73 (6th Cir. 2006) (citation and internal quotation
marks omitted). If the affidavit in question indicates continuous conduct, “time is of less
significance.” United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995) (citation omitted). Thus,
4
Because we conclude that there was a substantial basis for the state magistrate to find probable cause to search the
Woodruff Apartment, we decline to address the applicability of the good faith exception. See United States v.
Frechette, 583 F.3d 374, 381 (6th Cir. 2009) (“There is no need to go into a lengthy analysis of whether the agents
relied on the search warrant in good faith because the magistrate judge had a substantial basis for finding probable
cause.”).
- 13 -
Case No. 22-1082, United States v. Pointer
while the drug trade typically concerns easily consumable and movable contraband, staleness
concerns are lessened where there is “information indicating an ongoing and continuing narcotics
operation.” Frechette, 583 F.3d at 378 (quoting United States v. Kennedy, 427 F.3d 1136, 1142
(8th Cir. 2005)). A staleness argument is weak where “the crime at issue is ongoing or continuous
and the place to be searched is a secure operational base for the crime.” United States v. Hython,
443 F.3d 480, 485 (6th Cir. 2006).
Pointer argues specifically that (1) the controlled buys, which ranged from eight months to
two months before the search was executed; (2) the discovery of drugs on Pointer’s person seven
months before; (3) the allegations against Pointer by his former girlfriend, which occurred three
years before; and (4) Pointer’s prior convictions, which were eight and twelve years old, are too
stale to support a probable cause determination. Like the district court, we do not believe that these
pieces of information are stale when the totality of the circumstances are considered, as they tell
an overarching story of a continuous and ongoing drug operation based out of the Woodruff
Apartment.
First, the controlled buys are not particularly remote—they all occurred less than a year
before the search warrant was executed, with the latest occurring only two months beforehand.
Second, all of the allegedly stale pieces of information were presented in the warrant in
combination with the other evidence indicating that Pointer and Garner’s drug operation was
ongoing and continuous and that they used the Woodruff Apartment as a “secure operational base.”
Hython, 443 F.3d at 485. Evidence of the use of the Woodruff Apartment as a base and the ongoing
nature of the drug operation includes Pointer and Garner’s frequent use of the apartment, their
meetings there immediately preceding controlled buys, the apparent hand-to-hand drug deals
officers observed Pointer making, and Garner’s receipt of a large amount of cash in a parking lot.
- 14 -
Case No. 22-1082, United States v. Pointer
“Where recent information corroborates otherwise stale information, probable cause may be
found.” United States v. Henson, 848 F.2d 1374, 1381–82 (6th Cir. 1988) (citation omitted); see
also Spikes, 158 F.3d at 924 (“[E]ven assuming the information in the affidavit was in some
respects ‘stale,’ the more recent events related therein refreshed this otherwise stale information.”).
The information here is far more extensive and indicative of an ongoing operation than the
information deemed stale in Hython, which concerned only one drug sale with no information
regarding when the sale took place. 443 F.3d at 486. And the controlled buys are more recent than
the evidence in United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001), where the last alleged
drug purchase at the searched location occurred 23 months before the warrant was executed, as (1)
the drug activity at the location was frequent during that earlier period and (2) a package was sent
from the location to a “known marijuana dealer” a few weeks earlier. Additionally, this Court in
Spikes also found a warrant containing four-year-old information not stale, as the affidavit
“provide[d] a continuing series of incidents involving either the manufacture, sale, or distribution
of crack cocaine that are all connected in one form or another to [the searched residence].” 158
F.3d at 924.5
On the whole, Pointer’s staleness argument fails. Even if some of the evidence cited by the
warrant affidavit was remote in time, all of the evidence, considered together, paints a clear picture
5
It is true, as Pointer points out, that in those cases drug sales occurred at the places to be searched. However, that
fact is more relevant to the nexus argument than the staleness argument—the location of drug activity does not change
its suggestiveness of an ongoing conspiracy, which is the key question in the staleness inquiry. And, as described in
the nexus section above, there is plenty of evidence linking the Woodruff Apartment to drug activity, even if the
controlled buys did not take place there.
- 15 -
Case No. 22-1082, United States v. Pointer
of an ongoing drug operation using the Woodruff Apartment as a base.6 This is sufficient to defeat
an inference of staleness.
d.) False Statements
In a final attack on the affidavit supporting the search warrant, Pointer argues that it
contains false statements that should have been struck under Franks v. Delaware, 438 U.S. 154(1978). This Court evaluates such a challenge under the same standard as for a denial of a
suppression motion, reviewing factual findings for clear error and legal conclusions de novo.
United States v. Brown, 732 F.3d 569, 574–75 (6th Cir. 2013). Under Franks,
[W]here the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request. In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence, and, with the
affidavit's false material set to one side, the affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be voided. . . .
Franks, 438 U.S. at 155–56. An officer’s negligent or accidental inclusion of false statements in
an affidavit is insufficient to justify a Franks hearing or the striking of statements. See, e.g., United
States v. Bateman, 945 F.3d 997, 1008 (6th Cir. 2019).
Pointer appears to challenge only one statement on appeal: paragraph 25 of the affidavit,
which reads “Affiant observed POINTER exit the door for apartment #2 located inside the
apartment complex located at 3019 Woodruff.” R. 41-1 at PID 341. He argues that
This observation was physically impossible from where the Affiant was standing, which
was outside the apartment building. Furthermore, in the hallway where the Defendant was
allegedly observed exiting, there is not only a limited view, but also there are also [sic] two
doors that Defendant could have been coming from.
6
Even if the incidents farthest back in time (Garner and Pointer’s arrests/convictions and the 2014 incident with
Garner’s then-girlfriend) were to be considered stale and excluded from the probable cause determination, probable
cause would still exist based on the rest of the information in the affidavit.
- 16 -
Case No. 22-1082, United States v. Pointer
Appellant’s Br. at 28. While it is true that the affiant, Rochefort, admitted that he could not see the
door to Apartment 2 from his vantage point, he also testified that
when [Pointer] came into view, he was coming in. I could see him facing away as – like he
would exit a door. He turns around, still has like a phone up to his ear and he’s holding it
with his shoulder, and I see he extends with his right arm and then makes a motion, brings
it back, and has a bag in his left arm, and then he proceeds up – up the steps. . . . Everything
from training, experience, and common sense told me that he exited apartment 2.
R. 41-3 at PID 425, 532. The district court concluded that “[b]ased on the photographs presented,
Rochefort made a reasonable inference. Paragraph 25 is not knowingly false, nor does it exhibit a
reckless disregard for the truth.” R. 87 at PID 820. We agree. It was reasonable to infer that Pointer
was exiting Apartment 2 based on what Rochefort saw in combination with the fact that Pointer
consistently parked in the parking space assigned to that apartment and that he was seen with the
leaseholder of the apartment. Further, as the government notes, Pointer does not allege that he was
exiting from any other apartment in the building, making no showing that the statement that he
exited from Apartment 2 was false. And Pointer does not provide any evidence of intent to lie or
mislead. Pointer has therefore failed to demonstrate that the paragraph was false, or that even if it
were false that the statement was intentionally or recklessly included.
In addition, Pointer has failed to demonstrate materiality, required under Franks. See
Franks, 438 U.S. at 156. He argues that “[w]ithout these statements, there were insufficient facts
in the affidavit to connect the Woodruff apartment building, and specifically its apartment two, to
Mr. Pointer, Garner, or any alleged criminal activity. . . .” Appellant’s Br. at 29. But this is simply
untrue. Pointer and Garner were spotted near the apartment building several times, Pointer
frequently parked in the spot assigned to the Woodruff Apartment, and Pointer was seen with the
leaseholder of the apartment multiple times. This is sufficient for a finding of probable cause—
- 17 -
Case No. 22-1082, United States v. Pointer
which is “not a high bar,” Bateman, 945 F.3d at 1010—even absent the challenged statement. We
therefore affirm the district court’s denial of Pointer’s Franks challenge.
2. The November 7, 2019 Search of Pointer’s Vehicle
Pointer also challenges the district court’s denial of his motion to suppress evidence seized
from the November 7, 2019 search of his vehicle following a traffic stop, alleging that the search
was unconstitutional.7 As stated previously, in reviewing a district court’s denial of a suppression
motion, this Court applies a de novo standard to legal conclusions and a clear error standard to
factual findings. Because there was probable cause to search the vehicle, we affirm the district
court.
Under the automobile exception to the warrant requirement, officers may search a vehicle
without a warrant “if they have ‘probable cause to believe that the vehicle contains evidence of a
crime.’” Taylor v. City of Saginaw, 922 F.3d 328, 334 (6th Cir. 2019) (quoting United States v.
Smith, 510 F.3d 641, 647 (6th Cir. 2007)). The subjective intentions of an officer in effecting a
traffic stop are irrelevant. United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). As long as
there is probable cause to believe a traffic violation has been committed, an officer may initiate a
traffic stop; and as long as there is probable cause to believe the vehicle contains evidence of a
crime, the vehicle may be searched without a warrant. However, officers may not prolong a traffic
stop unreasonably to generate probable cause for the search. United States v. Lott, 954 F.3d 919,
923 (6th Cir. 2020).
Pointer does not seem to argue that there was not probable cause to stop his car for a traffic
violation; he instead focuses on the constitutionality of the search following the stop. Pointer
7
Pointer also seems to argue that the search of his person during the stop was also unconstitutional. However, Pointer
has pointed to no evidence obtained from that search that would be excluded under the exclusionary rule, and thus it
is unnecessary to analyze that claim.
- 18 -
Case No. 22-1082, United States v. Pointer
appears to use the wrong standard for this search in his briefs: he writes that “law enforcement
lacked reasonable suspicion to believe that he was armed and dangerous” and that his “actions did
not generate the requisite reasonable suspicion required for law enforcement to perform a search
of his person and vehicle.” Appellant’s Br. at 34. This sounds similar to the standard for a Terry
frisk. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (an officer may conduct a reasonable search for
weapons “where he has reason to believe that he is dealing with an armed and dangerous
individual” and he reasonably believes that “his safety or that of others [is] in danger”). However,
the proper standard is whether there was probable cause to believe that the vehicle contained
evidence of a crime.
Based on the evidence known to the officers as a collective at the time,8 there was probable
cause to believe that Pointer’s car contained evidence of illegal drug activity. At the time of the
search, the police were already aware of several facts linking Pointer to drug activity that have
already been described, including the 2017 investigation into Pointer9 (involving Pointer’s
participation in controlled buys, and the drugs found on his person during the 2017 traffic stop)
and the four controlled drug buys Pointer participated in between July and September 2019. They
also became aware of more facts supporting probable cause when effecting the stop, including
(1) Pointer’s erratic driving; (2) the sight of marijuana in the car and the smell of burnt marijuana
emanating from the car, see United States v. Brooks, 987 F.3d 593, 599 (6th Cir. 2021) (officers
have probable cause to search a vehicle when they “detect the odor of illegal marijuana coming
8
Probable cause is determined by the collective knowledge of the police working together at the time of the search.
See United States v. Duval, 742 F.3d 246, 253 (6th Cir. 2014) (“[T]he collective knowledge of agents working as a
team is to be considered together in determining probable cause.” (quoting United States v. Woods, 544 F.2d 242, 259-
60 (6th Cir. 1976))).
9
The police department that stopped Pointer during the November 2019 traffic stop was aware of the 2017
investigation.
- 19 -
Case No. 22-1082, United States v. Pointer
from the vehicle”);10 (3) the large wad of cash on Pointer’s person, see United States v. Real Prop.
10338 Marcy Rd. Nw., Canal Winchester, Ohio, 938 F.3d 802, 810 (6th Cir. 2019) (citation
omitted) (“Carrying large amounts of cash . . . may be ‘strong evidence of some relationship with
illegal drugs.’”); and (4) the positive indication from the drug-alert dog, see United States v.
Howard, 621 F.3d 433, 447 (6th Cir. 2010) (positive indication from drug-alert dog can establish
probable cause for the presence of drugs).
Altogether, all of the facts known to the officers at the time constituted a “fair probability”
that Pointer’s vehicle would contain evidence of a drug crime. Reed, 993 F.3d at 447. We therefore
uphold the district court’s denial of Pointer’s motion to suppress the evidence found in the search
of his vehicle.
3. Pointer’s Sentence
Finally, Pointer challenges his sentence as procedurally and substantively unreasonable.
This Court reviews criminal sentences for procedural and substantive reasonableness under an
abuse of discretion standard. United States v. Sears, 32 F.4th 569, 573 (6th Cir. 2022). We review
a district court’s legal determinations concerning the Sentencing Guidelines de novo and the
court’s factual findings in that regard for clear error. United States v. Bailey, 931 F.3d 558, 562
(6th Cir. 2019). We address—and reject—Pointer’s procedural and substantive arguments
separately.
10
While Michigan has legalized the possession of marijuana, it is still illegal under Michigan law to drive a vehicle
after consuming the drug. See Mich. Comp. Laws § 257.625(8); see also id. § 333.27954(1)(a) (the Michigan
Regulation and Taxation of Marihuana Act, which legalized marijuana in the state with limitations, does not authorize
“operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational
vehicle, or motorboat while under the influence of marihuana.”). Thus, the smell of marijuana (and the sight of it in a
vehicle) can still, logically, support probable cause to believe that a crime has been committed and that the vehicle
contains evidence of that crime.
- 20 -
Case No. 22-1082, United States v. Pointer
a. Procedural Unreasonableness
Procedural unreasonableness in sentencing may arise from the district court improperly
calculating the guidelines, treating the guidelines as mandatory, failing to properly consider the
sentencing factors in 18 U.S.C. § 3553(a), considering impermissible factors, choosing a sentence
due to clearly erroneous facts, or failing to sufficiently explain why the particular sentence was
chosen. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).
Pointer alleges that his sentence was procedurally unreasonable because the district court,
over his objection, applied the “drug-house” enhancement to his sentence. Under U.S.S.G. Section
2D1.1(b)(12), a defendant’s offense level is increased two levels if “the defendant maintained a
premises for the purpose of manufacturing or distributing a controlled substance.” The
enhancement “applies to anyone who (1) knowingly (2) opens or maintains any place (3) for the
purpose of manufacturing or distributing a controlled substance,” and the residence need only
“play[] a significant part” in drug activity. United States v. Johnson, 737 F.3d 444, 447 & 449 (6th
Cir. 2013).
There is sufficient evidence in the record to support applying the drug-house enhancement
to Pointer. Pointer paid the Xfinity bill for the apartment, kept personal belongings there, parked
in the apartment’s parking space, had the key to the apartment, and received mail there, indicating
that he maintained the premises even if he was not on the lease. And a large amount of cash, drugs,
and drug-dealing/drug-manufacturing paraphernalia was found inside the Woodruff Apartment.
See Johnson, 737 F.3d at 447–48 (“[T]he more characteristics of a business that are present in the
home—such as tools of the trade . . . the more likely it is that the property is being used for the
purpose of [prohibited] drug activities.” (quoting United States v. Verners, 53 F.3d 291, 296–97
(10th Cir. 1995)) (quotation marks omitted)). There was little else in the apartment to signify that
- 21 -
Case No. 22-1082, United States v. Pointer
it was used as anything other than a base for drug operations; the two bedrooms contained between
them one mattress and some shoes and clothes in one closet, and there were few furnishings, food
or dishes. The apartment was not Pointer or Garner’s primary residence, and Pointer has not
provided a specific reason for his use of the Woodruff Apartment. Further, there is circumstantial
evidence, described above, that Pointer used the apartment to manufacture drugs for controlled
buys in 2017. These facts support a drug-house enhancement. We therefore hold that the district
court did not err in applying the enhancement.11
b. Substantive Unreasonableness
A sentence is substantively unreasonable where its length fails to conform with the goal of
§ 3553(a) “to impose a sentence that is sufficient but not greater than necessary to serve the
purposes of sentencing”—i.e., where the district court weighs the § 3553(a) factors incorrectly or
fails to consider certain factors. Sears, 32 F.4th at 573. As stated above, we review the substantive
reasonableness of a sentence under an abuse of discretion standard. Id. We may presume that a
sentence that falls within the guidelines range is substantively reasonable. United States v. Bailey,
27 F.4th 1210, 1215 (6th Cir. 2022) (citation omitted).
Pointer’s argument regarding substantive reasonableness is not very clear or developed. He
appears to argue that the sentence was “far in excess of what would be necessary to serve the
purposes of 18 U.S.C. § 3553(a),” and that the district court placed too much weight on his career
11
Because we hold that the district court did not err, we need not analyze in full whether any error was harmless.
However, any potential error was likely harmless, because, as Pointer concedes, the career offender enhancement
applied by the district court automatically set his offense level at 37. Thus, his offense level would have been the same
whether the drug-house enhancement had been applied or not. See United States v. Castro, 960 F.3d 857, 867 (6th
Cir. 2020) (“[E]ven without the obstruction enhancement, [the defendant’s] offense level would have been 43 (the
maximum under the Sentencing Guidelines). . . . Accordingly, even if the district court erred in applying the
enhancement, that error would not have affected [the defendant’s] offense level or Guideline range and was therefore
harmless.”).
- 22 -
Case No. 22-1082, United States v. Pointer
offender status, because Pointer’s age (forty-seven) means he will “age out” of crime long before
he is released. See Appellant’s Br. at 38.
The district court in this case applied the career offender enhancement—which Pointer did
not object to—bringing his offense level automatically to 37 and yielding a guidelines range of
360 months to life. The district court chose to sentence Pointer to 360 months, the bottom of his
guidelines range. In doing so, the district court thoughtfully considered the § 3553(a) factors. The
district court noted that the guidelines are advisory, and that it must impose a sentence “that’s
sufficient but not greater than necessary to comply with 3553(a).” R. 144 at PID 1849. The court
discussed the substantial amount of drugs that Pointer was involved in and the harm he caused to
his community; his continued participation in the drug trade, even after the earlier investigation of
him turned up drugs; Pointer’s stable upbringing, drug abuse, drug-related criminal history
stretching back almost thirty years, and failure to remain gainfully employed; the length of
sentences given to similar defendants; the possibility of educational and vocational training as well
as substance abuse treatment; and Pointer’s resistance to rehabilitation despite cycling through
incarceration, parole, and probation. Finally, the district court noted and rejected Pointer’s
argument that he deserved a shorter sentence because he was likely to age out of crime, noting that
he had been very difficult to deter for many years.
Based on this detailed discussion, it is hard to argue that the district court abused its
discretion in weighing and applying the § 3553(a) factors. There may be, as Pointer points to,
evidence suggesting that offenders age out of crime, and it may be that some policy factors support
(and trends demonstrate) lower sentences for non-violent career offenders. But the district court
was entitled to look at Pointer’s specific history and circumstances and make a judgment call about
Pointer’s propensity to reoffend, the harm he caused to the community, and the danger he continues
- 23 -
Case No. 22-1082, United States v. Pointer
to pose, even if he was not violent. Cf. United States v. Miller, 665 F.3d 114, 122 (5th Cir. 2011)
(responding to the defendant’s argument that “district courts in over 600 cases concluded that the
advisory guideline range for child pornography offenses was greater than necessary to meet
§3553(a)’s sentencing goals” by stating that “appellate courts are not tasked with applying
statistical analyses to assess the reasonableness of a particular sentence in a particular case. Nor
are district courts. While sentences imposed by other courts may be a consideration for a district
court, such information does not set a median, floor, or ceiling”); United States v. McKnight, 807
F. App’x 421, 423 (6th Cir. 2020) (“[The defendant] also asserts that there is an ‘overarching trend’
of district courts imposing sentences below the guidelines range in child pornography cases. But
‘the fact that a district court may disagree with a Guideline for policy reasons and may reject the
Guidelines range because of that disagreement does not mean that the court must disagree with
that Guideline or that it must reject the Guidelines range if it disagrees.’” (quoting United States v.
Brooks, 628 F.3d 791, 800 (6th Cir. 2011))). Because Pointer has failed to make the necessary
showing to rebut the presumption of reasonableness afforded his within-guidelines sentence, we
hold that the district court did not abuse its discretion and that the sentence was not substantively
unreasonable.
V. CONCLUSION
In sum, we AFFIRM the judgment and the sentence of the district court in full.
- 24 -