United States v. Michael White, Jr. ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0059p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant, │
│
> No. 20-1633
v. │
│
│
MICHAEL AKEEM WHITE, JR., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cr-00044-1—Robert J. Jonker, District Judge.
Argued: March 2, 2021
Decided and Filed: March 8, 2021
Before: GILMAN, GIBBONS, and SUTTON, Circuit Judges.
_________________
COUNSEL
ARGUED: Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellant. Jasna Tosic, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Jennifer L. McManus, Austin J. Hakes,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellant. Jasna
Tosic, Joanna C. Kloet, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,
Michigan, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. When an undercover officer sought to purchase cocaine from a
suspected drug dealer, he watched as the dealer went into Michael White’s house before
No. 20-1633 United States v. White Page 2
emerging with drugs to complete the sale. A similar sequence repeated itself roughly forty days
later. Based on this information, a state judge approved a search warrant for White’s house,
where officers found guns, drugs, and cash. The district court granted White’s motion to
suppress the evidence, believing that probable cause did not exist without more evidence that
contraband would be found inside the residence. We disagree and reverse.
I.
Muskegon County Detective T. Schmidt investigated illegal drug trafficking in western
Michigan as an undercover agent. While in a car with a suspected drug dealer named Jared
Conkle in early December 2019, Schmidt asked to buy some cocaine. Conkle knew where to go.
He told Schmidt to “park in the rear” of a house that belonged to Michael White, whom he
described as an “acquaintance.” R.15-1 at 2. Schmidt watched Conkle exit the car, walk into
White’s house, and reemerge, after which Conkle handed Schmidt three grams of cocaine.
A similar sequence repeated itself about forty days later. Schmidt approached Conkle
and again asked him where he could buy cocaine. Conkle again took him to White’s house.
Rather than direct Schmidt to the rear of White’s house, Conkle told Schmidt to follow him to a
nearby alley. Schmidt handed Conkle some pre-marked cash, and Conkle drove by himself to
White’s house. Another detective watched as Conkle approached the house, exited his car, and
entered through the back. Conkle reemerged, got back into his car, and traveled back to
Schmidt, where he completed the sale.
Believing that White kept drugs inside his house for distribution, Schmidt applied for a
search warrant within 48 hours of Conkle’s second purchase. He gave the above account, then
explained that, “based on [his] training and experience” of seventeen years, drug dealers often
keep “controlled substances at residences of other individuals” they know. Id. at 3. Schmidt
explained how he confirmed that the home belonged to White. Because he feared that knocking
and announcing the officers’ presence might “endanger [their] safety” and because he thought
that White might “attempt to dispose” of drugs if they knocked, Schmidt also sought permission
for a no-knock warrant. Id.
No. 20-1633 United States v. White Page 3
A Michigan state judge approved the requests. The search turned up over 20 grams of
cocaine, over 30 grams of “crack” cocaine, a stolen semi-automatic handgun, an AR-style rifle,
and over $2,500 in cash. The government charged White with being a felon in possession of a
firearm, possessing a firearm to further drug trafficking, possessing with intent to distribute
controlled substances, and brandishing a weapon to further drug trafficking. See 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(c)(1)(A); 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).
Before trial, White moved to suppress the evidence recovered during the search, arguing
that Detective Schmidt’s affidavit failed to establish probable cause. The district court granted
the motion.
The government appeals.
II.
Probable cause. The Fourth Amendment protects the “right of the people to be secure in
their . . . houses” and requires 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 deciding whether “probable cause” exists to
issue a warrant, the magistrate must “make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983). In reviewing challenges to a warrant, we ask whether the magistrate had a
“substantial basis” for finding probable cause. Id.This warrant passes the test. The sequence of events, all explained in the affidavit
Detective Schmidt provided with the warrant application, goes a long way to showing why.
Recall each step. Detective Schmidt asked Conkle, a suspected drug dealer, for cocaine. Conkle
directed Detective Schmidt to White’s house. Conkle went into White’s house and reemerged to
meet up with Schmidt. Only then did Conkle produce the drugs to complete the sale. Conkle’s
visit to White’s house between the offer and the sale raised a “common-sense” inference and a
“fair probability” that he obtained drugs from White’s house. See id.No. 20-1633 United States v. White Page 4
Even if doubt might cloud that conclusion after one transaction—perhaps Conkle had the
drugs all along or perhaps Conkle had sold the last of the cocaine from White’s house—that is
not all there is. A second buy occurred forty days later and reinforced the inference. Detective
Schmidt again approached Conkle to buy cocaine from him. Conkle again went into White’s
house. After leaving White’s house, Conkle again produced cocaine for sale to Schmidt. At a
minimum, the second buy gave Schmidt ample reason to seek a warrant and the magistrate ample
reason to grant one.
This conclusion does not blaze a new trail. United States v. Ellison involved a similar
situation, in which an informant observed two people complete a drug transaction outside of the
target house. 632 F.3d 347, 348 (6th Cir. 2011). According to the affidavit, the informant saw a
person exit the home, provide a buyer with a “large quantity of cocaine in a plastic bag,” and
return inside. Id. (quotations omitted). That sufficed to meet the probable cause requirement, we
reasoned, because the “[c]ommission 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.” Id. at 349. The informant not only watched the deal from outside the home, but he also
saw that someone “came out of” and “returned to” the residence during the transaction. Id. at
350. White’s house likewise amounted to the pivot on which each cocaine deal turned. Officers
watched as Conkle twice went into and returned from White’s house before producing cocaine to
complete the deal. That he went to the home only after Detective Schmidt asked for cocaine
supports an inference that drugs were stored inside the house. Whether in Ellison or here, these
fair-minded inferences and implications “demonstrate[] a sufficient nexus with the house.” Id. at
349.
Other cases, including some with just one controlled buy, have likewise met the probable
cause bar. United States v. Pinson looked at whether a single controlled purchase by an
informant within 72 hours of the search warrant application established probable cause.
321 F.3d 558, 560–61 (6th Cir. 2003). The affidavit explained that the officer gave an informant
buy money and “observed” the informant “enter through the front door of [the] stated address
and momentarily return[] through the same door.” Id. at 560. At that point, the informant
“walked directly back” to the officer, “turning over a large yellowish rock that later field tested
No. 20-1633 United States v. White Page 5
positive for cocaine base.” Id. at 560–61. This pattern, we said, “[o]bviously” linked the house
to evidence of drug sales. Id. at 564.
Other circuits have reached similar conclusions in the context of controlled purchases
designed to ferret out whether a home is being used for drug trafficking. The Tenth Circuit
found that probable cause existed to search a residence after police twice observed an informant
enter and exit a residence during a drug transaction. United States v. Artez, 389 F.3d 1106, 1110
(10th Cir. 2004). Even though officers used an additional middleman “as an intermediary
between the confidential informant and the suspect residence,” the affidavit passed the probable
cause test. Id. at 1112. The First Circuit found that probable cause supported the search of an
apartment after a confidential informant told officers of drug sales inside and police observed
only that the informant entered the apartment building, not the particular apartment targeted.
United States v. Khounsavanh, 113 F.3d 279, 281–82 (1st Cir. 1997). The detective watched as
the informant “went to the apartment . . . after having been patted down, and emerged several
minutes later with crack, explaining that he had purchased crack” from one of the suspects. Id. at
286. Even while acknowledging that the “controlled buy was less than ideal” because the
detective “did not follow the informant into the building and thus was unable to verify with
certainty which apartment was the source of the drugs,” the court upheld the search. Id.Similar conclusions followed after similar searches. See United States v. Garcia,
983 F.2d 1160, 1166–67 (1st Cir. 1993) (finding probable cause where a detective watched an
informant “enter the front door” of an apartment building and “observed him exit a few minutes
later from the same door,” after which the informant “handed [the detective] a quantity of
cocaine, reporting that he had purchased” it from the unit to be searched); United States v.
Dukes, 758 F.3d 932, 935 (8th Cir. 2014) (finding probable cause when a suspect took a
confidential informant to a house and “brought crack cocaine back” three times “[a]fter going
into the residence”).
Analogous cases, in which defendants stop at their own property during or immediately
before or after a drug transaction, support comparable experience-based inferences. When a
defendant “drive[s] directly from” his or her house to a drug sale, United States v. Coleman,
923 F.3d 450, 457 (6th Cir. 2019), leaves his “home immediately prior to selling drugs,” United
No. 20-1633 United States v. White Page 6
States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007), “start[s] from her residence shortly before
allegedly delivering drugs,” United States v. Bulgatz, 693 F.2d 728, 731 (8th Cir. 1982), or
sleeps at home “the evening after . . . collect[ing] proceeds from a drug sale,” United States v.
Stearn, 597 F.3d 540, 564 (3d Cir. 2010), a judge may have good reason to think evidence of
drug sales might be found in the defendant’s house.
Trying to counter this line of precedent, White invokes United States v. Buffer, 529 F.
App’x 482 (6th Cir. 2013). But this unpublished decision does not provide the Rosetta Stone
that he claims. Even aside from the reality that “the paper of unpublished decisions cannot
escape the scissors of published decisions on point,” Keahey v. Marquis, 978 F.3d 474, 480 (6th
Cir. 2020), Buffer offers little assistance to White. In that case, officers received an anonymous
tip that Buffer sold drugs from his home. Buffer, 529 App’x at 483. They observed several one-
to-three-minute visits at the property, and one officer found marijuana in a car leaving the
residence. Id. On this record, we found that the “anonymous tip was insufficiently
corroborated.” Id. at 485. Here, in contrast, we have the firsthand account of an undercover
officer who asked to buy cocaine, then watched a suspected dealer walk into White’s house
before reemerging with the requested drugs. Twice.
Besides, the path of unpublished decisions has perils of its own. United States v. Davison
considered whether an affidavit provided probable cause to search a property that the defendant
had twice entered to complete a drug transaction. 766 F. App’x 232 (6th Cir. 2019). Although
many controlled buys occurred in the case, we focused on just two to find a nexus between
illegal drug deals and the searched house. One drug buy “required the informant to drive [the
defendant] to” the house, where he “entered the home and came back out to complete the
transaction in the driveway.” Id. at 236. The other happened after officers watched as the
defendant drove to the target house, entered, and left before meeting an informant to complete
the sale. Id. at 236–37. The defendant argued that the affidavit did not support an inference that
the home belonged to him, but we found that irrelevant. Due to the defendant’s “observed
movements entering and exiting” the property “in close temporal proximity to the controlled
drug buys,” the affidavit provided probable cause to search the house. Id. at 237.
No. 20-1633 United States v. White Page 7
What of the possibility, White adds, that Conkle already had the cocaine on him before
going into White’s house? Or the possibility that the last sale depleted the supply of cocaine at
White’s house? The affidavit, sure thing, does not eliminate either possibility. But possibility is
not the touchstone. The question is whether there is a “fair probability” or a “common-sense”
inference that the house contains cocaine. Gates, 462 U.S. at 238. Probable cause does not
demand resolving each jot and tittle of metaphysical doubt. Florida v. Harris, 568 U.S. 237,
243–44 (2013). As a veterinarian or doctor or scientist might say, “when you hear
hoofbeats, think horses, not zebras.” Siddhartha Mukherjee, A.I. Versus M.D., The New Yorker
(2017). An issuing judge need not eliminate every alternative explanation to find a “fair
probability” that contraband will be present. Gates, 462 U.S. at 238; see also Dukes, 758 F.3d at
938 (upholding probable cause when officers did not search an informant “prior to the drug
transactions”).
No-knock entry. White separately argues that police unjustifiably used a no-knock
warrant to search his home. Although the Fourth Amendment incorporates the common law rule
that officers must knock and announce their presence before executing a warrant, Wilson v.
Arkansas, 514 U.S. 927, 929 (1995), an exception applies if officers face a threat of physical
violence or if they seek evidence that might readily be destroyed, id. at 936. Whether this
affidavit sufficed to invoke the exception is an open question. It will remain one. Even if the
police violated the knock-and-announce rule, suppression is not the appropriate remedy. See
Hudson v. Michigan, 547 U.S. 586, 594 (2006). As Hudson explains, the key remedy for
unjustified no-knock entries is an action under § 1983 for money damages, not exclusion of the
evidence in a criminal proceeding. Id. at 597–99; see also id. at 603 (Kennedy, J., concurring in
part and concurring in the judgment).
We reverse and remand for further proceedings consistent with this opinion.