United States v. Nickey Ardd , 911 F.3d 348 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0273p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-5257
v. │
│
│
NICKEY ARDD, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:16-cr-20094-1—Samuel H. Mays, Jr., District Judge.
Argued: December 5, 2018
Decided and Filed: December 18, 2018
Before: SILER, SUTTON, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: David M. Bell, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Naya Bedini, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for
Appellee. ON BRIEF: David M. Bell, FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant. Naya Bedini, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Nickey Ardd tried to buy a half pound of cocaine from an
undercover Memphis police officer but was arrested instead. Before trial, he moved to suppress
evidence the police seized incident to the arrest, his subsequent statement, and evidence seized
No. 18-5257 United States v. Ardd Page 2
from his home. The district court denied Ardd’s motions, and a jury convicted Ardd of
possessing drugs and guns. We affirm.
I.
Two confidential informants learned that Ardd wanted to buy supplies of cocaine and put
him in touch with Memphis officer Harold Tellez, posing as a cocaine dealer from out of state.
Ardd “kept on calling” the second informant, who relayed the message to Tellez; Ardd was
“insistent” about purchasing a kilogram of cocaine from Tellez. R. 39 at 142. The two met on
January 20, 2015, but Ardd didn’t have the money to buy anything.
In June 2015, one of the informants told Tellez that Ardd was ready to buy. Tellez
telephoned Ardd, who agreed to meet in a Memphis parking lot to buy about 250 grams of
powder cocaine. Before the meeting, Tellez went to a county judicial commissioner and
obtained a warrant to search Ardd’s home for drug records and drug proceeds “[u]pon Ardd
being arrested for attempting to possess th[e] cocaine.” R. 68-1 at 1. Tellez’s affidavit described
his experience in narcotics investigations and explained the course of the investigation: A
reliable informant had told him about Ardd’s drug activities; Ardd contacted Tellez several times
during the year about buying distribution quantities of cocaine; and Ardd was ready to buy. The
affidavit described Ardd’s residence and noted the police had surveilled it several times.
Officers observed the controlled buy and arrested Ardd after he showed Tellez money,
climbed into Tellez’s car, and took the bag of cocaine. Police searched Ardd and seized the
cocaine, $9,800, and a loaded Glock pistol. They then searched his home, seizing thirty-four
baggies of drugs, four digital scales, and a loaded Luger pistol with an obliterated serial number.
Police gave Ardd his Miranda warnings and supplied a written copy of them, which he
signed and initialed. Ardd admitted that he came to the parking lot with a loaded gun to obtain
cocaine, and that he had been making up to a thousand dollars a week in cocaine sales for years.
He also admitted that he had more drugs and another gun at home.
Before trial, Ardd moved to suppress this incriminatory evidence. The court denied
relief. A jury convicted Ardd of possessing cocaine with intent to distribute, being a felon in
No. 18-5257 United States v. Ardd Page 3
possession of a weapon, carrying a weapon during a drug trafficking crime, and possessing a gun
with an obliterated serial number. The court sentenced him to 270 months.
II.
Evidence seized from Ardd’s home. The Fourth Amendment commands 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 reviewing a search warrant application, a magistrate considers whether the information
adds up to “a fair probability” that the police will find evidence of crime at the location. Illinois
v. Gates, 462 U.S. 213, 238–39 (1983). The salient question is whether the police can show a
“nexus” between the site and the evidence. United States v. Carpenter, 360 F.3d 591, 594 (6th
Cir. 2004) (en banc). If the magistrate conditions the warrant on a triggering event, she must
identify probable cause that the event will take place. United States v. Grubbs, 547 U.S. 90, 96–
97 (2006).
When officers violate a suspect’s Fourth Amendment rights by using a defective warrant,
say by failing to establish a nexus between incriminating evidence and the site of a search,
suppression is the customary remedy. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). With an
exception: A court may admit evidence gleaned under the auspices of an unconstitutional
warrant if a reasonable officer would not have appreciated the defect. United States v. Leon,
468 U.S. 897, 919–21 (1984). A defendant may defeat an officer’s claim of good faith if the
affidavit was so lacking in factual support that the officer’s belief in probable cause was entirely
unreasonable or the affiant included information that he knew or should have known was false.
Id. at 923.
As a few of our decisions confirm, we have struggled to identify the quantum of evidence
needed to connect drug trafficking by an individual to a probability that evidence will be found at
the individual’s residence. See United States v. Brown, 828 F.3d 375, 383–84 & n.2 (6th Cir.
2016). Some cases suggest a bright-line rule—that adequate evidence of the one amounts to
probable cause of the other. See, e.g., United States v. Gunter, 551 F.3d 472, 481 (6th Cir.
2009); United States v. Kenny, 505 F.3d 458, 461–62 (6th Cir. 2007); United States v. Miggins,
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302 F.3d 384, 393–94 (6th Cir. 2002). Other cases require independent evidence tying the
residence to drug activity to infer that it will contain evidence of drug trafficking. See, e.g.,
Brown, 828 F.3d at 383–84; United States v. Ellison, 632 F.3d 347, 349–50 (6th Cir. 2011);
United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). We need not enter these frothy
waters and pass on the validity of this warrant because the government met the Leon good-faith
exception anyway. Still, it goes without saying—almost—that what police officers need to do to
satisfy constitutional minimums in this arena is not invariably all they should do.
Good-faith reliance on an affidavit under Leon needs a “minimally sufficient nexus”
between the site of the search and the evidence sought. Carpenter, 360 F.3d at 596. And it is
not entirely unreasonable for an officer to infer a connection between evidence of drug
trafficking and a drug dealer’s home. See, e.g., Gunter, 551 F.3d at 481–82. All that’s required
in the Leon context are facts that show a nexus and that are not “so vague as to be conclusory or
meaningless,” Carpenter, 360 F.3d at 596—all less than what’s needed to show probable cause.
Case after case finds good-faith reliance in similar settings. See, e.g., United States v.
McCoy, 905 F.3d 409, 419 (6th Cir. 2018) (good-faith reliance on affidavit to search home,
though affidavit merely tied drugs to defendants’ place of business); United States v. Higgins,
557 F.3d 381, 391 (6th Cir. 2009) (good-faith reliance on affidavit to search home, though only
evidence linking home to drugs was an untested informant’s indication he’d just purchased drugs
there); Frazier, 423 F.3d at 537 (good-faith reliance on affidavit to search home, though it tied
drugs only to defendant’s former residence); Carpenter, 360 F.3d at 596 (good-faith reliance on
affidavit to search home, though it merely noted that defendant’s residence was connected by
road to nearby marijuana field).
Plenty of evidence supported the officers’ good-faith belief that probable cause existed.
Officer Tellez’s affidavit confirmed that, in his experience, drug dealers often keep evidence of
their criminal activity at their homes. His interactions with Ardd confirmed the informants’ tips
that Ardd dealt or was attempting to deal drugs—and confirmed that Ardd was looking for more
than a small amount of drugs that might be used just for personal consumption. Ardd repeatedly
told Tellez that he wanted distribution quantities of cocaine and that he was ready to buy over
250 grams of cocaine from Tellez. That’s thousands of retail hits of cocaine. Before the
No. 18-5257 United States v. Ardd Page 5
controlled buy, Memphis police had surveilled Ardd’s residence and confirmed that he paid the
utility bills and that his car was registered to that address. All of this was in the affidavit
supporting the warrant, which the officers executed immediately after the controlled buy. It was
not “entirely unreasonable” for Tellez and the other executing officers to believe there was
probable cause to search Ardd’s house for evidence. Leon, 468 U.S. at 923 (quotation omitted).
This case is leaps and bounds from cases that fall short of eligibility for the Leon good-
faith exception. See, e.g., Brown, 828 F.3d at 385 (no good-faith reliance on affidavit to search
home where defendant was not known drug dealer, defendant hadn’t been under investigation
prior to arrest, and police waited three weeks after arrest to seek search warrant); United States v.
McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (no good-faith reliance on affidavit to search
home where it did not allege defendant was involved in drug dealing, simply that he’d been
arrested there with drugs in his pocket).
Neither did the affidavit include information that Tellez knew or should have known was
false. Police surveillance supplied Ardd’s accurate address. Tellez’s interactions with Ardd
corroborated every material aspect of the informants’ tips—that Ardd wanted to sell drugs and
acted on his intentions. Ardd doesn’t deny his conversations with Tellez, the agreement to buy
cocaine from him, or showing up to the controlled buy. On this record, the officers were entitled
to rely on the warrant to search Ardd’s home.
Ardd counters that Officer Tellez knowingly or recklessly included two false statements
in the affidavit. Neither statement, however, establishes a deliberate falsehood or material
omission.
The first one says:
Detectives with the Organized Crime Unit received information from a reliable
Confidential Informant (CI) about Ardd being involved in the sale and
distribution of powder cocaine in the city of Memphis. The CI observed Ardd
possessing, storing and transporting both powder cocaine and crack cocaine in the
past. . . . The Reliable [CI] has provided information in the past that has led to
over 5 Felony drug arrests and convictions.
No. 18-5257 United States v. Ardd Page 6
R. 68-1 at 1. According to testimony at the suppression hearing, Tellez worked with two
informants during the investigation. The first one put Tellez in contact with Ardd about a year
before his arrest in June 2015, but eventually stopped cooperating with the police and
disappeared. Tellez and Ardd talked off and on during the six months before his arrest, as the
first informant had supplied Ardd’s contact information and Tellez was able to introduce a
second informant to Ardd. The second informant, just before the arrest, told Tellez that Ardd
was ready to buy. This informant had helped the Memphis police with multiple arrests in the
past. By “conflat[ing]” the two informants and failing to explain the “unreliable” informant’s
role in the investigation, Ardd contends, Tellez knowingly or recklessly deceived the
commissioner. Appellant’s Br. 38.
Officer Tellez fairly explained all of this at the suppression hearing. He noted that the
statement referred to the second, reliable informant—though he acknowledged that the first two
sentences would also be true about the first, unreliable informant. That the statement could be
read as indicating that only one informant was ever involved in this investigation does not sink to
a deliberate falsehood or material omission.
Ardd next contends that Tellez lied when he wrote this in the affidavit: “On June 12,
2015 Ardd made contact by phone with [Tellez] and said that he was ready to purchase 9 ounces
of powder cocaine.” R. 68-1 at 1. Ardd points out that call records reveal that he in fact
telephoned the reliable informant about this. The informant then told Tellez, who telephoned
Ardd. At the suppression hearing, Tellez denied that “made contact” was an inaccurate
description, explaining that all along Ardd would contact Tellez’s associate, the informant, who
would have Tellez call Ardd back. To the degree the characterization has any hints of
inaccuracy, we can safely consider it an innocent mistake, not a deliberate falsehood, because, if
rewritten the way Ardd prefers, it wouldn’t make any difference. What matters is what remains
undisputed: After many conversations with Tellez about buying a lot of drugs, Ardd agreed to
buy them and set about doing so.
Evidence from Ardd’s arrest and statement. Ardd appeals the denial of his motion to
suppress the evidence seized at his arrest as well as his later statement, arguing that the
purportedly illegal search warrant for his house tainted this other evidence. Not so. The warrant
No. 18-5257 United States v. Ardd Page 7
bears only on the search of Ardd’s home. The police searched Ardd after observing him
purchase drugs from Tellez. While the affidavit and the warrant mention Ardd’s person as well
as his residence, the police didn’t need the warrant to search him. The search-incident-to-arrest
exception to the warrant requirement supplied all of the authority they needed. See United States
v. Robinson, 414 U.S. 218, 235 (1973). Ardd never offers a reason for ignoring this exception
and does not deny that he gave his post-arrest statement voluntarily after his Miranda warnings.
Evidentiary hearing. Ardd appeals the district court’s denial of his request for a Franks
hearing. Franks v. Delaware, 438 U.S. 154, 156 (1978). Defendants are entitled to a hearing on
the truth of statements in a warrant affidavit if they make “a substantial preliminary showing that
the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false
statement or [made a] material omission in the affidavit,” and also show “that the false statement
or material omission is necessary to the probable cause finding in the affidavit.” United States v.
Young, 847 F.3d 328, 348–49 (6th Cir. 2017) (quotation omitted). But, as shown, the two
allegedly false statements were not false at all, were assuredly not deliberately or recklessly
false, and at any rate were immaterial to the commissioner’s probable-cause finding. No error
occurred.
Sufficiency of the trial evidence. Ardd claims that the jury lacked sufficient evidence to
convict him of possessing the cocaine, carrying the Glock during a drug crime, or possessing the
Luger with the obliterated serial number. We view the evidence in the light most favorable to
the government, and we will not disturb the jury’s verdict if any rational juror could have found
Ardd guilty beyond a reasonable doubt. United States v. Pierce, 62 F.3d 818, 825–26 (6th Cir.
1995).
A rational juror could find Ardd guilty of each charge. Police testimony established that,
in buying a distribution quantity of cocaine, Ardd knowingly possessed cocaine with intent to
distribute it. See 21 U.S.C. § 841(a)(1). The evidence showed that police found the Glock in
Ardd’s waistband at the scene of the controlled buy. See 18 U.S.C. § 924(c)(1)(A)(i). And the
search of Ardd’s home uncovered the Luger beside his bed. See id. § 922(k). This evidence
sufficed to prove drug and gun possession.
No. 18-5257 United States v. Ardd Page 8
That leaves Ardd with a steep hill to climb. He begins that effort by claiming that alleged
inconsistencies in the government witnesses’ testimony undermine the verdict. Several
witnesses, he points out, gave differing amounts for the cash and cocaine recovered, and the
police forensic chemistry report describes the drugs from the controlled buy as rock-like cocaine
while the evidence report calls it powder. He notes that the police testimony agreed that Ardd sat
in the front passenger’s seat of Tellez’s car during the buy, but that photos from the scene show
the cocaine in the front driver’s seat. He notes that the police disagreed about whether Ardd
opened the bag of cocaine or merely held it, and whether Tellez asked Ardd to show the money
beforehand. And he notes the testimony of the friend who accompanied him to the controlled
buy, who stated that he had not previously known Ardd to be a drug dealer. Each of these
alleged inconsistencies is minor at best. More to the point, not one of them relates to the
elements of drug possession or would prevent a rational juror from finding Ardd guilty of that
charge.
Ardd argues, last but not least, that he could not be found guilty of possessing the Luger
because the police did not recover any fingerprints from the gun and Ardd’s girlfriend said it was
hers. But we have found constructive possession, even if joint possession, when a gun is located
in the defendant’s bedroom, as this one was. See United States v. Hadley, 431 F.3d 484, 507 (6th
Cir. 2005). Ardd gives no reason why this case is any different. The district court did not err in
denying his motions for acquittal and a new trial.
We affirm.