United States v. France

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0124n.06
Filed: February 16, 2006
No. 04-2542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Jeremiah France, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: MERRITT, MARTIN, and COLE, Circuit Judges.
MERRITT, Circuit Judge. Defendant Jeremiah France pled guilty to one count of
unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In
entering his guilty plea, France reserved his right to appeal the order of the district court denying
his motion to suppress evidence seized from his residence pursuant to a search warrant. France now
appeals from the district court’s order denying his motion to suppress and from his sentence. For
the reasons set forth below, we AFFIRM the district court’s denial of France’s motion to suppress,
and France’s subsequent conviction. However, we VACATE the sentence of the district court and
REMAND for re-sentencing consistent with the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
I.
No. 04-2542
United States v. France
On December 3, 2003, Detective Maureen O’Brien of the Grand Rapids Police Department
sought and obtained a warrant to search the residence located at 1320 Cass Avenue SE in Grand
Rapids, Michigan. Probable cause for the search warrant was substantiated by Detective O’Brien’s
affidavit, which was attached to the application for the warrant. The affidavit stated:
[Y]our affiant met with a reliable and credible informant who indicated from
personal knowledge that cocaine could be purchased at the above described
premises. This informant from personal knowledge is familiar with the
characteristics of cocaine, the manner in which cocaine is used and sold in the
community. When your affiant met with the informant, the informant directed your
affiant to the above described premise. The informant had been at the above
described premises within the last 36 hours and observed a quantity of cocaine being
sold there. The cocaine as described by the informant is being sold for various
amounts of US currency.
The cocaine is easily concealed on or about the person. When the informant left the
premise, there were additional amounts of cocaine on the premise being offered for
sale. The person(s) selling the cocaine is/are described as: 1) B/M, Jeremiah France,
5'7"/180, 45 yrs
Your affiant has known the informant 6 months and has made 10 controlled
purchases of controlled substances: cocaine. All of these controlled purchases tested
positive for the controlled substance cocaine. The informant has supplied
information on 20 drug traffickers in the community said information having been
verified by your affiant through police records, personal observations, other police
officers, and other reliable informants. The said informant has supplied information
for the issuance of 4 prior search warrants. The information led to the arrests of 2
subjects for violations of the controlled substance act.
Detective O’Brien and a team of other officers executed the warrant that day. During the
search of the residence, Detective O’Brien found an unloaded, .45-caliber, Colt semi-automatic
pistol and three rocks of cocaine, totaling 0.392 grams, in the bedroom that France shared with his
wife. The police officers also found indicia of drug trafficking, including a razor blade and
sandwich bags with the corners cut off, in the kitchen and dining room. France was arrested at the
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conclusion of the search. On February 12, 2004, France was charged with unlawful possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Following his indictment, France entered a plea of not guilty. France then moved to suppress
the evidence seized from his residence during the execution of the search warrant, arguing that the
affidavit supporting the search warrant was an insufficient “bare bones” affidavit within the meaning
of this Court’s decision in United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996), and hence lacked
probable cause. In addition, France argued that the warrant was not saved by the “good faith”
exception established by United States v. Leon, 468 U.S. 897 (1984). The district court agreed that
the affidavit was similar to that affidavit in Weaver and concluded that there was no probable cause
for the issuance of the warrant. Nevertheless, the court held that Detective O’Brien acted in good
faith and reasonably relied upon the validity of the warrant in executing the search under Leon. The
district court therefore denied the motion to suppress. Thereafter, France entered a conditional
guilty plea, reserving the right to appeal the district court’s denial of the motion to suppress, and the
district court sentenced him to 120 months of imprisonment. France then filed this timely appeal.
II.
A.
The first issue presented by this appeal is whether the district court erred in denying the
motion to suppress evidence seized from France’s residence pursuant to a search warrant. A district
court’s ruling on a motion to suppress is subject to a mixed standard of review. This Court will
uphold the factual findings supporting the district court’s decision unless clearly erroneous. The
district court’s legal conclusions as to the existence of probable cause are, however, reviewed de
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novo. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993). This court is required to give
“great deference” to the issuing judge’s determination of probable cause, which “should not be set
aside unless arbitrarily exercised.” Id. at 1363 (quoting United States v. Pelham, 801 F.2d 875, 877
(6th Cir. 1986)). As the Supreme Court has stated, the warrant must be upheld as long as the
magistrate had a “substantial basis” for concluding that the affidavit established probable cause to
believe that contraband or evidence would be found at the place cited. Illinois v. Gates, 462 U.S.
213, 236 (1983).
In the present case, the district court accepted France’s argument that there was insufficient
corroboration and explicitness of detail in the underlying affidavit to establish probable cause for
the issuance of a warrant. Specifically, the district court found that the affidavit, similar to those
criticized in Weaver and United States v. Hammond, 351 F.3d 765 (6th Cir. 2003), failed to supply
certain important details such as whether the police corroborated the informant’s information;
whether the informant’s identity was disclosed to the judicial officer; whether the informant had
made a controlled purchase of cocaine from France; and a description of the amount of drugs
involved. The district court further faulted the affidavit’s statement that the informant had been at
France’s residence “within the last 36 hours,” because this time frame was customarily included in
affidavits used by the Grand Rapids Police Department to obtain search warrants. Relying on
Weaver, the district court concluded that the affidavit supporting the search warrant was a “bare
bones” affidavit that “failed to provide sufficient factual information for a finding of probable
cause.” Weaver, 99 F.3d at 1379-80. We respectfully disagree with this conclusion. Instead of
assessing the “totality-of-the-circumstances,” as it was required to do under Illinois v. Gates, the
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United States v. France
district court erroneously focused on isolated issues, specifically corroboration and explicitness of
detail, and ignored other indicia of reliability. In so doing, the court invalidated the warrant by
interpreting the affidavit “in a hypertechnical, rather than commonsense, manner,” an approach
which was rejected in Gates. 462 U.S. at 236; see United States v. Smith, 182 F.3d 473, 478 (6th
Cir. 1999).
This case is governed by United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc), in
which we considered the sufficiency of an affidavit that stated: (1) that the affiant had known the
informant for 5 years, during which time the informant provided reliable information about criminal
activity; (2) that the informant’s name had been disclosed to the issuing judge; and (3) that the
informant had personally observed cocaine in the suspect’s apartment within the previous 72 hours.
Id. at 971-72. We found that, taken as a whole, the affidavit provided sufficient facts from which
the magistrate could draw an independent conclusion as to probable cause and held that:
[W]here a known person, named to the magistrate, to whose reliability an officer
attests with some detail, states that he has seen a particular crime and particular
evidence, in the recent past, a neutral and detached magistrate may believe that
evidence of a crime will be found.
Id. at 976 (emphasis in original). In concluding that independent police corroboration of the
information provided was unnecessary in such cases, we emphasized that probable cause
determinations must be based on the totality of the circumstances and cautioned against a continuing
reliance on formalistic “tests” that required the satisfaction of particular elements to support a
finding of probable cause. Id. at 975-76.
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United States v. France
It is the totality of the circumstances that persuade us that the affidavit in the instant case
was, in fact, not merely “bare bones” in nature but sufficient for a finding of probable cause. Here,
the affidavit states that the confidential informant, within the last 36 hours, had been “at” France’s
residence, and that while on the premises he observed a quantity of cocaine being sold. The affidavit
also indicates that when the informant left the premises, he observed additional amounts of cocaine
being offered for sale. In the affidavit, Detective O’Brien averred that she had known the informant
for six months, and that he was reliable and credible. The affidavit states that the informant had
given Detective O’Brien reliable information in the past on 20 drug traffickers in the community,
leading to 2 drug arrests. Furthermore, the affidavit states that the confidential informant had
supplied information for the issuance of four search warrants in the past. The fact that the affidavit
lacked certain details, such as the quantity of drugs observed and corroborating information, is not
fatal. As the Allen court stressed, “[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.” Id. at 975. Because the
informant was personally known to the detective who swore the affidavit, the informant’s reliability
was established, and the information alleged was of direct personal observation of criminal activity,
police corroboration was not required. Id. at 976; see United States v. Woosley, 361 F.3d 924, 926-
27 (6th Cir. 2004) (“[A]n affidavit including a tip from an informant that has been proven to be
reliable may support a finding of probable cause in the absence of any corroboration.”). Although
the affidavit here, like the affidavit in Weaver, did not indicate the amount of drugs observed, unlike
the Weaver affidavit, it did contain facts that would support a belief that drugs were being held in
the house for sale. The affidavit expressly indicated that the confidential informant had seen
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additional amounts of cocaine being offered for sale to other individuals. See Allen, 211 F.3d at 974
(explaining that “what was lacking in the Weaver affidavit was any indication of probable cause to
suspect drug trafficking”). A magistrate could conclude, based on the totality of the circumstances
described in the affidavit, that there was a fair probability that contraband or other evidence of a
crime would be found at France’s residence.
Given this clear outcome under Allen, we need not consider whether the “good faith”
exception from United States v. Leon, 468 U.S. 897 (1984), applies. See United States v. Pinson,321
F.3d 558, 565 (6th Cir. 2003); United States v. Williams, 224 F.3d 530, 533 (6th Cir. 2000).
B.
France contends that his sentence should be vacated and remanded for re-sentencing in light
of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
The government concedes that France’s sentence imposed under the then mandatory federal
sentencing guidelines constituted plain error, and that remand to the district court for re-sentencing
is appropriate. United States v. Barnett, 398 F.3d 516, 527 (6th Cir. 2005). We agree.
France also claims that the district court erred in applying a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5), arguing that the record contains insufficient evidence to support such an
enhancement. We need not address this claim now given that the district court must reconsider the
defendant’s sentence in its totality upon remand. Instead, “we encourage the sentencing judge to
explicitly state his reasons for applying particular Guidelines, and sentencing within the
recommended Guidelines range, or in the alternative, for choosing to sentence outside that range.
Such a statement will facilitate appellate review as to whether the sentence was ‘reasonable.’”
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United States v. Jones, 399 F.3d 640, 650 (6th Cir. 2005); United States v. Davis, 430 F.3d 345, 362
(6th Cir. 2005).
III.
We disagree with the district court’s determination that the affidavit here was “bare bones.”
We conclude, however, that the district court’s denial of the motion to suppress should be affirmed
because the warrant issued to search France’s residence was supported by probable cause. It is well
established that this Court may affirm a district court holding for reasons other than those stated by
the lower court. See, e.g., Leake, 998 F.2d at 1367 (citing Foster v. Kassulke, 898 F.2d 1144, 1146
(6th Cir. 1990)). Therefore, we AFFIRM the district court’s denial of the motion to suppress, and
France’s subsequent conviction. However, we VACATE France’s sentence and REMAND for re-
sentencing consistent with the Supreme Court’s decision in Booker.
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