United States v. Wayne Merrell , 330 F. App'x 556 ( 2009 )

FILED
May 28, 2009
LEONARD GREEN, Clerk
NOT FOR FULL-TEXT PUBLICATION
File Name: 09a0382n.06
No. 07-6406
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
WAYNE MERRELL, DISTRICT OF TENNESSEE
Defendant-Appellant.
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BEFORE: MARTIN, SUHRHEINRICH and WHITE, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Defendant Wayne Merrell appeals the judgment of the
district court following his conviction and sentencing for conspiring to manufacture more than 500
grams of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii).
Defendant entered a conditional guilty plea reserving his right to challenge the denial of his
suppression motion. On appeal, he contends that the district court erred (1) in concluding that he
failed to show, pursuant to Franks v. Delaware,1 that the affiant made a material omission with an
intention to mislead by failing to indicate that the contraband was sent to a P.O. Box and not his
residence, and (2) in holding that the affidavit demonstrated probable cause. We AFFIRM.
I. Background
A. Facts
1
Franks v. Delaware, 438 U.S. 154 (1978).
The following facts relevant to the issues on appeal are derived from the affidavit in support
of the search warrant, the magistrate’s report and recommendation, and the plea agreement. The
information contained in the affidavit can be summarized as follows:
On April 20, 2006, Ricky Smith, Director of the Twelfth Judicial District Drug Task Force,
prepared an affidavit in support of a search warrant for Defendant’s residence, which provided the
following information. Agents of the Twelfth Judicial Drug Task Force and the Tennessee Bureau
of Investigation had been receiving complaints about a strong chemical odor coming from
defendant’s residence, as well as the large amount of short-term traffic to the home. Smith reported
that on January 5, 2003, agents found 22 gallons of muriatic acid, a precursor chemical used in the
manufacture of methamphetamine, approximately 100 yards from Merrell’s residence. Further, on
June 19, 2005, the TBI received a complaint from an anonymous woman stating that there was a bad
odor coming from Defendant’s residence and that there were cars coming and going to his residence
and staying for only a few minutes.
Based on these ongoing complaints, the agents went to Defendant’s house in February 2006,
told him about the complaints, and sought consent to search his residence. Defendant declined the
request to search, and the agents left.
Next, the affidavit explained that in January 2006, DEA agent Daniel Schmidt of the
Seymour, Indiana Police Department learned that Gene William Wells, a California resident, was
distributing methamphetamine precursor chemicals through an entity known as China Home
Building Imports, Inc. After several emails, Wells shipped two kilograms of red phosphorous and
some methamphetamine as a sample. On February 13, 2006, the agent sent Wells $3,000.00 via U.S.
Postal money order, and on February 22, 2006, Wells shipped approximately 106 grams of crystal
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methamphetamine to the agent Postal Express Mail. The return address on the package listed Wells
and China Home Building Imports, Inc. A similar transaction occurred in March 2006 where the
agent mailed money to Wells and received, in exchange, over 100 grams of crystal
methamphetamine. The return address was the same as the previous package.
The affidavit continued that during their drug relationship, Wells informed the agent that he
had a Canadian supplier for crystal iodine, but lacked a supplier for ephedrine. The undercover agent
offered to provide ephedrine for $2,000.00 per pound, and Wells flew to Indiana to collect it. When
Wells arrived in Indiana on April 1, 2006, he was arrested and subsequently agreed to cooperate.
He told the agents he was supplying red phosphorous to twelve people in twelve states via the
Internet.
In reviewing Wells’s email account, DEA agents learned that Wells had been corresponding
with Defendant since April 2005, and that Defendant had mailed Wells $1500 in exchange for
precursor chemicals. They also learned that on March 28, 2006, Wells had emailed Defendant to
inform him that Wells had 100% pure ephedrine for $10.00 a gram. On April 5, 2006, Defendant
emailed Wells informing Wells that he had sent $990.00 to Wells via Western Union. Smith also
stated that, based on his training and experience, methamphetamine laboratories emit a strong odor
and that drug trafficking results in frequent, short-term traffic. Smith stated that Defendant was
expecting 99 grams of pure ephedrine.
Based on his affidavit, Smith obtained a search warrant for Defendant’s residence on April
20, 2006.
On April 21, 2006, law enforcement officers executed the warrant. The magistrate judge’s
report and recommendation following an evidentiary hearing found the following undisputed facts:
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Agents arrived at Defendant’s residence around 8:30 a.m. and knocked on the door. Defendant, his
mother, and co-defendant Robert Newman were present. An officer handed Defendant a copy of the
warrant. Defendant was placed in the kitchen with his mother. Newman was taken to a different
area of the house. He was not handcuffed at that time. At approximately 10:00 a.m., DEA Special
Agent Tony Isom advised Defendant of his Miranda rights. He also asked Defendant for consent
to search the computers in the house. Defendant initially declined, but then changed his mind and
signed a consent form.
Sometime between 10:30 and 11:30 a.m., officers took Defendant outside and placed him
in handcuffs. One of the agents told Defendant that agents knew about his email communication
with Wells and that the officers had found a substantial amount of equipment used to manufacture
methamphetamine inside Defendant’s residence. Isom testified that at this point Defendant started
to talk, but that Isom stopped him and gave him his Miranda warnings again. The plea agreement
reflects that Defendant told Isom that he had been manufacturing methamphetamine for six years,
making one to two ounces per week during that period. He also stated that he sold two grams of
methamphetamine each week and used 1.5 grams each day. Defendant said that he kept empty
containers under a tarp because he knew they were toxic and was concerned about the environment.
In addition, the plea agreement provided that the agents found in Defendant’s bedroom a
small amount of methamphetamine, laboratory equipment, and two firearms. In the garage, they
seized red phosphorous, psuedoephedrine, muriatic acid, iodine, Coleman fuel, antifreeze, acetone,
hydrogen peroxide, lye, layered liquids, glassware, scales, tubing, condensers, and burners. Burn
piles and empty chemical containers covered with tarps were found behind the residence.
B. Procedural History
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On April 25, 2006, Defendant and co-Defendant Robert Newman were charged by complaint
with methamphetamine-related offenses. Thereafter, a federal grand jury returned a superceding
indictment charging them with conspiracy to manufacture more than 500 grams of methamphetamine
in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A)(viii) (Count One), aiding and abetting one
another in the attempt to manufacture methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1)
and (b)(1)(C) and 18 U.S.C. § 2 (Count Two), and aiding and abetting one another in possessing
chemicals, products and materials used in the manufacture of methamphetamine in violation of 21
U.S.C. § 843(a)(6) and 18 U.S.C. § 2 (Count Four). Defendant was also charged with maintaining
a drug house in violation of 21 U.S.C. § 856(a)(1), and being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).
Defendant moved to suppress the evidence seized during the execution of the search warrant
at his residence on the ground that the affidavit relied on stale and vague information and thus failed
to establish probable cause. He also asserted that the affiant had intentionally omitted crucial
information–namely, the address where he had received the precursor chemicals in the past and
where the recently-ordered chemicals were to be shipped was a post office box and not his residence.
Defendant argued that if this information had been presented, it would have negated any connection
between his purchase of methamphetamine precursors and his residence, thereby further negating
probable cause. Defendant also moved to suppress his statements to the DEA agent at the time of
the search.
After an evidentiary hearing, the magistrate judge recommended that Defendant’s motion to
suppress be denied because “[t]he affidavit at issue unquestionably provides substantial, fresh, and
police-corroborated information that the defendant was involved in illegal manufacturing of
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methamphetamine.” The magistrate judge found that Defendant satisfied the first prong of Franks
because the affiant omitted the fact that Defendant had used a post office box to receive precursor
chemicals, but concluded that a Franks hearing was unwarranted because the affidavit contained
additional information linking Defendant’s home to the alleged methamphetamine manufacturing
operation.
The magistrate judge rejected Defendant’s argument that his statements should have been
suppressed, crediting Isom’s testimony that he Mirandized Defendant twice, that Defendant’s waiver
of his right to remain silent was voluntary, and that the statements were not the product of an illegal
search.
Defendant filed objections to the magistrate judge’s recommendation regarding the validity
of the search warrant and reiterated his request for a Franks hearing. He did not object to the portion
of the report and recommendation about his motion to suppress statements.
On January 23, 2007, the district court overruled Defendant’s objections. The district court
agreed that a Franks hearing was not warranted, but for a different reason: that Defendant had failed
to make a strong preliminary showing that the affiant had engaged in a deliberate falsehood or
reckless disregard for the truth in omitting information from the affidavit. The court therefore found
it unnecessary to reach the probable cause inquiry, but considered it anyway and found probable
cause. The court therefore denied Defendant’s motions to suppress.
On August 9, 2007, Defendant entered a conditional guilty plea to Count One, reserving his
right to appeal the denial of his suppression motion. On November 15, 2007, he was sentenced to
240 months’ imprisonment, followed by ten years’ supervised release. This timely appeal followed.
II. Analysis
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Defendant alleges that the warrant affidavit omitted material information that Gene Wells
sent the contraband to Defendant’s post office box and not his place of residence and that, without
this information, there was no nexus to any criminal activity to the place to be searched, namely
Merrell’s residence. Defendant further claims that the additional information about anonymous
complaints and the muriatic acid containers was unreliable and stale. Thus, he argues that this Court
should find that the warrant lacked probable cause and reverse the decision of the district court
denying his motion to suppress. He also asks that this Court suppress the evidence found at his
house and the statements made during the unconstitutional search of his home.
In considering the district court’s denial of a Franks hearing, the district court’s factual
findings are reviewed for clear error and its conclusions of law are reviewed de novo. United States
v. Graham, 275 F.3d 490, 505 (6th Cir. 2001); see also United States v. Mastromatteo, 538 F.3d 535,
545 (6th Cir. 2008) (noting that Graham provides the standard of review for the denial of a Franks
hearing, despite statements in United States v. Stuart, 507 F.3d 391, 396-97 (6th Cir. 2007), and
United States v. Stewart, 306 F.3d 295 (6th Cir. 2002), that this court had not resolved the issue).
Franks recognizes a defendant’s right to challenge the sufficiency of a search warrant. A defendant
is entitled to a hearing to challenge the validity of a search warrant if he “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 . . . the allegedly false statement
is necessary to the finding of probable cause.” Franks, 438 U.S. at 155-156. If, after the allegedly
false or reckless statements are set to one side, there remains sufficient content in the warrant
affidavit to support a finding of probable cause, no hearing is required.” Franks, 438 U.S. at 171-72.
The redacted affidavit establishes probable cause if it “provide[s] the magistrate judge with a basis
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for finding there was a fair probability that contraband or evidence of a crime would be found at”
the stated location. Graham 275 F.3d at 504.
The Franks test extends to material omissions as well. See United States v. Martin, 920 F.2d
393, 398 (6th Cir. 1990). However, this Court has recognized that material omissions are less likely
to present a question of impermissible official conduct than affirmative falsehoods. Id.; United
States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). This is because an allegation of omission
“potentially opens officers to endless conjecture about investigative leads, fragments of information,
or other matter that might, if included, have redounded to defendant’s benefit.” Martin, 920 F.2d
at 398 (internal quotation marks and citation omitted). If the defendant succeeds in his threshold
showing of “deliberate falsehood” or “reckless disregard for the truth” in this scenario, the court
must consider the affidavit including the omitted portions and determine whether probable cause still
exists. Atkin, 107 F.3d at 1217; United States v. Bonds, 12 F.3d 540, 568 n.26 (6th Cir. 1993).
A. Material Omission
Defendant alleges that law enforcement agents failed to advise the court that the shipments
from Wells were to Defendant’s post office box and not his place of residence. Defendant alleges
the omission shows either an intent to mislead or a reckless disregard for the truth because the
location to be searched is the principal inquiry in any probable cause determination.
We conclude that the district court properly denied the motion for a Franks hearing. As the
district court observed, although Defendant showed that an omission occurred, he made no showing
that the affiant intended to mislead the judge by that omission. “[E]xcept in the very rare cares
where the defendant makes a strong preliminary showing that the affiant with an intention to mislead
excluded critical information from the affidavit, and the omission is critical to the finding of
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probable cause, Franks is inapplicable to the omission of disputed facts.” Mays v. City of Dayton,
134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original); Hale v. Kart, 396 F.3d 721, 727 (6th Cir.
2005) (same; citing Mays).
B. Probable Cause
However, even if there was a substantial preliminary showing, the omitted statements did not
destroy probable cause. This Court reviews the sufficiency of an affidavit in a “commonsense, rather
than hypertechnical manner,” and asks “whether the [judge] had a substantial basis for finding that
the affidavit established probable cause to believe that the evidence would be found at the place
cited.” United States v. Greene, 250 F.3d 471, 478-79 (6th Cir. 2001) (internal quotation marks and
citation omitted). “Probable cause for the issuance of a search warrant is defined in terms of whether
the affidavit sets out facts and circumstances which indicate a fair probability that evidence of a
crime will be located on the premises of the proposed search.” United States v. Finch, 998 F.2d 349,
352 (6th Cir. 1993) (internal quotation marks and citation omitted). The warrant must establish “a
nexus between the place to be searched and the evidence to be sought.” United States v. Carpenter,
360 F.3d 591, 594 (6th Cir. 2004) (en banc). “‘The critical element in a reasonable search is not that
the owner of property is suspected of crime but that there is reasonable cause to believe that the
specific “things” to be searched for and seized are located on the property to which entry is sought.’”
United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (quoting Zurcher v. Stanford Daily, 436
U.S. 547, 556 (1978)).
Smith provided ample evidence demonstrating probable cause under the totality of the
circumstances. This included the 22 gallon amount of muratic acid found near Defendant’s house
three years earlier; the numerous anonymous tips about chemical odors coming from the house and
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the high volume of short term visitors there; Defendant’s email correspondence with and purchases
from Wells, a supplier of precursor materials for manufacturing methamphetamine; and Defendant’s
email to Wells several days earlier that he was expecting Wells to mail ephedrine, another precursor
material, to him. Although Wells mailed the materials to Defendant’s post office box rather than
his home, as both the magistrate judge and district court noted, it was reasonable to suspect evidence
of such activities would be found at Defendant’s home because “Defendant cannot manufacture
methamphetamine in the post office.” We acknowledge that some of the information would be stale
if viewed in a vacuum. However, given the relevancy of the latest Wells’ transaction, the older
information was relevant to provide context; specifically that it was likely that the recently ordered
materials were for use at Defendant’s residence.
Defendant also challenges the veracity of the anonymous reports about odors and traffic at
his house, claiming they have no weight in the probable cause assessment because they were
uncorroborated. See Carpenter, 360 F.3d at 595 (holding that a warrant affidavit failed to establish
probable cause where it was based almost exclusively on the uncorroborated testimony of an
unproven informant); United States v. Campbell, 256 F.3d 381, 388 (6th Cir. 2001) (noting that a
search warrant based solely on anonymous tips lacks probable cause). Both the district court and
magistrate judge agreed that, standing alone, this evidence would not establish probable cause.
However, when considered along with the evidence that Defendant was buying precursor chemicals
from Wells to make methamphetamine, this evidence became significantly more credible. We agree.
Next, Defendant asserts that the evidence of muriatic acid found near his house three years
earlier as well as the evidence that he bought precursor chemicals from Wells three years earlier was
stale. We disagree. Defendant ordered a large amount of ephedrine, a precursor chemical for
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methamphetamine, about two weeks before the affidavit was prepared, clearly reflecting that the
methamphetamine-manufacturing operation at his house was ongoing. See Greene, 250 F.3d at 481
(stating that the passage of time becomes less significant when the crime is ongoing or continuous
and the place to be searched is a secure operational base for the crime); cf. United States v. Hython,
443 F.3d 480, 485-86 (6th Cir. 2006) (noting that the sale of drugs out of a residence is not
inherently ongoing). Even assuming the disputed information was stale, the second shipment
provided adequate fresh corroboration to permit a finding of probable cause. See United States v.
Spikes, 158 F.3d 913, 924 (6th Cir. 1998) (stating that “where recent information corroborates
otherwise stale information, probable cause may be found”) (internal quotation marks and citation
omitted).
Defendant contends that because he used a post office box, there was no nexus between his
receipt of precursor chemicals from Wells and his home. This argument must be rejected. As the
district court observed, the magistrate judge had a substantial basis for concluding that probable
cause existed at his home in part because “in the case of drug dealers, evidence is likely to be found
where the dealers reside.” Frazier, 423 F.3d at 537 (finding that the affidavit established a strong
nexus between the defendant’s drug dealing and his home) (internal quotation marks omitted); see
also United States v. Miggins, 302 F.3d 384, 394 (6th Cir. 2002) (citing cases); United States v.
Jones, 159 F.3d 969, 974-75 (6th Cir. 1998) (same; finding probable cause to search the suspect’s
residence though he was not seen selling drugs there but on the premises). When coupled with the
anonymous tips, and the muriatic acid, and the fundamental fact that Defendant could not
manufacture methamphetamine in the United States Post Office, the affidavit showed a fair
probability that Defendant did so at his home. See United States v. Higgins, 557 F.3d 381, 389 (6th
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Cir. 2009) (stating that “[t]he Fourth Amendment requires that a warrant must be supported by
probable cause, i.e. a fair probability that contraband or evidence will be found in a particular place”)
(internal quotation marks and citation omitted); cf. Carpenter, 360 F.3d at 594 (holding that an
affidavit describing a marijuana field near the residence to be searched and a road between failed to
establish the required nexus between the premises and the criminal activity).
Alternatively, as the United States asserts, even if the warrant were not supported by probable
cause, the agents relied upon it in good faith pursuant to United States v. Leon, 468 U.S. 897 (1984),
such that suppression is not warranted. It was not unreasonable for the officers to have relied on the
warrant because it was reasonable to believe that Defendant was manufacturing methamphetamine
and that evidence of such activity would be found at his home. See Frazier, 423 F.3d at 536-37
(applying Leon good faith exception even though warrant lacked probable cause because it was based
almost exclusively on the uncorroborated testimony of an unproven informant as there was a
sufficiently strong nexus between the defendant’s alleged drug dealing and his home; and cases
discussed therein).
C. Suppression of Statements
Defendant also suggests that the statements he made at the time of the search should be
suppressed because the underlying search of his residence was unlawful. First, the claim is waived
and unreviewable because Defendant failed to object to the magistrate judge’s report and
recommendation. See Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d 474 U.S. 140 (1985);
Campbell, 261 F.3d at 631-32; United States v. Walters, 638 F.2d 947, 949 (6th Cir. 1981). The
report and recommendation in this case provided adequate notice of Defendant’s right to object.
In any event, the search was lawfully executed pursuant to a warrant supported by probable cause.
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III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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