United States v. Roger Roberts ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0459n.06
No. 20-4272
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Oct 12, 2021
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellee,
)
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE
)
ROGER D. ROBERTS, NORTHERN DISTRICT OF
)
OHIO
)
Defendant-Appellant.
)
)
Before: SUTTON, Chief Judge; BATCHELDER and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Roger Roberts appeals the district court’s denial of his motion
to suppress evidence discovered during the execution of a search warrant at his home. He argues
that the warrant was issued without probable cause. For the reasons stated below, we AFFIRM.
I.
In September 2018, Detective Mike Schmidt of the Akron Police Department received
information that defendant Roberts was selling cocaine out of his house. Detective Schmidt met
with a confidential informant and asked him to make a controlled purchase of cocaine from the
house. Schmidt had worked with this informant in the past and believed the informant to be
credible. The informant had told Schmidt that Roberts had said he had cocaine for sale and that
Roberts had firearms inside the house.
Less than seven days later, Detective Schmidt applied for a warrant to search Roberts’s
house. The supporting affidavit attested to Schmidt’s twenty‑one years of law enforcement
No. 20-4272, United States v. Roberts
experience and described the informant as having previously provided Schmidt with
“corroborated” “information concerning the possession and sale of controlled substances in the
Akron” area. The affidavit explained that before sending the informant into Roberts’s house to
make the controlled purchase, officers searched the informant and found neither controlled
substances nor cash. Schmidt gave the informant police‑department funds to use for the drug
purchase. Another detective on the scene, Detective S. Williams, watched the informant approach
and enter Roberts’s house. Schmidt watched the informant exit the house shortly thereafter. The
informant then handed Schmidt what appeared to be cocaine and confirmed that it had been
purchased inside Roberts’s house using the funds provided by the investigators. The substance
tested positive for cocaine. After reviewing this affidavit, a judge issued a search warrant for
Roberts’s residence.
Law enforcement officers executed the warrant the next day. Upon entering the house,
officers heard glass shattering upstairs. The officers then recovered a loaded firearm from below
a broken second-story window. Investigators later learned that the firearm was stolen. The officers
spoke to Roberts. Roberts said he thought his drug supplier was entering the house, so he had
planned to start shooting down the stairs; when he realized it was the police, not his supplier, he
discarded the firearm. Roberts admitted that he had drugs in his pocket and explained that he was
selling drugs to support his own habit. Officers found crack cocaine and a heroin/fentanyl mixture
in Roberts’s pocket. The officers then searched the rest of the house and found cocaine, drug
paraphernalia, and other contraband.
A grand jury returned a seven-count indictment, charging Roberts with multiple drug and
firearms offenses. Roberts filed a motion to suppress the evidence discovered in his house, arguing
that the affidavit in support of the search warrant lacked probable cause. The district court denied
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No. 20-4272, United States v. Roberts
the motion after a hearing. Roberts pleaded guilty to all seven counts, reserving the right to appeal
the district court’s denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2).
II.
We review “the district court’s factual findings for clear error and its legal conclusions de
novo.” United States v. White, 874 F.3d 490, 495 (6th Cir. 2017). While we give “no particular
deference” to the district court’s probable-cause determination, we give “great deference” to the
probable-cause determination made by the warrant-issuing judge. United States v. Brown, 732
F.3d 569, 572–73 (6th Cir. 2013). We will reverse the decision to grant a search warrant only
when the judge “arbitrarily exercised his or her authority.” Id. at 573.
A.
“[N]o 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. “Probable cause exists when there is a ‘fair probability,’ given the totality of
the circumstances, that contraband or evidence of a crime will be found in a particular place.”
United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991) (quoting United States v. Loggins,
777 F.2d 336, 338 (6th Cir. 1985) (per curiam)). When an affidavit is the basis for a probable‑cause
determination, it “must provide the [issuing judge] with a substantial basis for determining the
existence of probable cause.” Illinois v. Gates, 462 U.S. 213, 239 (1983).
Here, the warrant affidavit relies on information provided by a confidential informant.
Thus, we must consider “the veracity, reliability, and basis of knowledge of the informant’s
information.” United States v. Archibald, 685 F.3d 553, 557 (6th Cir. 2012). “[A]n affidavit that
supplies little information concerning an informant’s reliability may support a finding of probable
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No. 20-4272, United States v. Roberts
cause, under the totality of the circumstances, if it includes sufficient corroborating information.”
Id. (quoting United States v. Coffee, 434 F.3d 887, 893 (6th Cir. 2006)).
A “police-monitored controlled buy” generally provides sufficient corroboration. United
States v. Henry, 299 F. App’x 484, 487 (6th Cir. 2008) (collecting cases). For example, in
Archibald, we upheld a warrant supported by an affidavit nearly identical to the one at issue here.
685 F.3d at 555, 557. There, as here, the affidavit said that an informant, who had been used in
past investigations, made a controlled purchase of narcotics. Id. at 555. As here, the affidavit
described how the officers prepared the informant for the controlled purchase by searching her for
contraband and giving her money to purchase narcotics. Id. And, as here, the affidavit described
how the officers physically surveilled the premises. Id. We held that “although the details
regarding the informant were sparse, that information combined with the information regarding
the officers’ corroboration of the purchase, ma[de] the affidavit sufficient to allow the issuing
judge to conclude that the veracity and reliability of the informant supported probable cause.” Id.
at 557.1 Other cases follow a similar pattern. See United States v. Jackson, 470 F.3d 299, 308 (6th
Cir. 2006); Coffee, 434 F.3d at 894; Pinson, 321 F.3d at 563.
In light of our caselaw, and based on the totality of the circumstances, we conclude that the
affidavit contained sufficient corroborating information to support a finding of probable cause.
Roberts argues that the affidavit was lacking because it did not associate the location to be
searched with “regular, repeated drug trafficking.” But he cites no authority for such a
1
We note that the informant in Archibald was wired for audio surveillance during the controlled
purchase, and the informant in our case was not. But Roberts makes no argument based on the
absence of a wire. In any event, “[t]he affidavit is judged on the adequacy of what it does contain,
not on what it lacks, or on what a critic might say should have been added.” United States v.
Pinson, 321 F.3d 558, 562 (6th Cir. 2003) (alteration in original) (quoting United States v. Allen,
211 F.3d 970, 975 (6th Cir. 2000)). And we have never deemed a wire indispensable. See Henry,
299 F. App’x at 487–88.
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No. 20-4272, United States v. Roberts
requirement, and “we have previously found that a single controlled purchase is sufficient to
establish probable cause to believe that drugs are present at the purchase location.” Archibald,
685 F.3d at 558 (citing Jackson, 470 F.3d at 307–08 and Pinson, 321 F.3d at 565); see also Henry,
299 F. App’x at 487–88. Additionally, there is no merit to Roberts’s argument that the affidavit
contained “boilerplate language” that did not corroborate the informant’s statements. “[T]he fact
that a search-warrant affidavit is an almost ‘word-for-word’ copy of the affidavit in a prior case is
irrelevant ‘[a]s long as there is sufficient information to provide probable cause for the search.’”
United States v. Green, 572 F. App’x 438, 441 (6th Cir. 2014) (second alteration in original)
(quoting United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). And as we have explained,
Detective Schmidt’s personal observations, his pat down of the informant before and after the
purchase of the cocaine, and the fact that the drugs purchased by the informant were later tested
positive for cocaine were sufficient to corroborate the information provided by the informant. See
Pinson, 321 F.3d at 563. Schmidt’s affidavit accordingly established probable cause for the search.
Because we find that the warrant was issued upon probable cause, we need not address the
government’s alternative argument based on the good-faith exception articulated in United States
v. Leon, 468 U.S. 897, 922 (1984).
***
We AFFIRM the district court’s denial of Roberts’s motion to suppress.
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