RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Woosley No. 03-5059
ELECTRONIC CITATION: 2004 FED App. 0085P (6th Cir.)
File Name: 04a0085p.06 _________________
OPINION
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT ROGERS, Circuit Judge. Defendant Rodney Woosley
_________________ entered a conditional plea of guilty to knowingly and
intentionally possessing marijuana with intent to distribute, in
UNITED STATES OF AMERICA , X violation of 18 U.S.C. § 841(a)(1), and to possession of a
Plaintiff-Appellee, - firearm in furtherance of a drug trafficking crime, in violation
- of 18 U.S.C. § 924(c)(1)(A). On appeal, Woosley argues that
- No. 03-5059 the district court should have granted his motion to suppress
v. - evidence seized during a search of his business, on the ground
> that the warrant authorizing the search was issued without
, probable cause. Because we conclude that the warrant was
RODNEY TODD WOOSLEY, -
Defendant-Appellant. - supported by probable cause, we affirm the judgment of the
district court.
N
Appeal from the United States District Court On or about August 15, 2001, Kentucky State Trooper
for the Western District of Kentucky at Owensboro. Christopher Armbrust applied for a search warrant for
No. 01-00042—Joseph H. McKinley, Jr., District Judge. Woosley’s business premises. In support of his application,
Trooper Armbrust prepared an affidavit on a pre-printed form.
Submitted: February 6, 2004 The form identified Woosley’s business, Quick Lube Plus, as
the premises to be searched and specified that the contraband
Decided and Filed: March 24, 2004 sought included marijuana, firearms, and other items related
to marijuana trafficking. The warrant application further
Before: NELSON, GILMAN, and ROGERS, Circuit provided that Trooper Armbrust received information from
Judges.
[a] confidential informant whom [sic] is known to the
_________________ affiant to be credible and reliable, who has provided
accurate information in the past which has been shown to
COUNSEL be truthful and reliable. This informant stated to the
affiant that on [August 15, 2001] they observed
ON BRIEF: Steve P. Robey, Providence, Kentucky, for approximately five pounds of processed marijuana under
Appellant. Terry M. Cushing, Larry E. Fentress, the desk of the Owner Rodney Woosley. Also present
ASSISTANT UNITED STATES ATTORNEY, Louisville, were two firearms which they described as Handguns
Kentucky, for Appellee. possibly 9MM.
1
No. 03-5059 United States v. Woosley 3 4 United States v. Woosley No. 03-5059
Trooper Armbrust averred that he had previously received Delaware, 438 U.S. 154 (1978).2 The district court issued an
tips from “numerous independent informants” that indicated order denying Woosley’s motion for a Franks hearing and
drug trafficking was occurring at the Quick Lube Plus and accepting his conditional plea. Woosley filed this timely
that he had received similar information from an officer at the appeal.
local police department.1
The district court correctly concluded that Trooper
Trooper Armbrust telephoned the county attorney and Armbrust’s affidavit was sufficient to establish probable
asked her for advice concerning the sufficiency of the cause because, considering the totality of the circumstances,
affidavit. She opined that the affidavit was sufficient to the affidavit contained sufficient information to permit the
support the application for a search warrant. Trooper issuing judge to make an independent determination of
Armbrust met with a state district judge, who issued a search probable cause.3 “In order for a judicial officer to issue a
warrant. During that meeting, Trooper Armbrust did not warrant, law enforcement officials must present evidence
orally supplement the information set forth in the affidavit. from which the magistrate judge can conclude from the
totality of the circumstances, ‘including the “veracity” and
Trooper Armbrust promptly executed the search warrant “basis” of knowledge of persons supplying hearsay
and discovered marijauna, small amounts of other drugs, and information, there is a fair probability that contraband or
two pistols at Woosley’s place of business. In a two-count evidence of a crime will be found in a particular place.’”
indictment, Woosley was charged with knowingly and United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000)
intentionally possessing marijuana with intent to distribute, in (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
violation of 18 U.S.C. § 841(a)(1), and with possession of a
firearm in furtherance of a drug trafficking crime, in violation This court reviews the sufficiency of an affidavit to
of 18 U.S.C. § 924(c)(1)(A). determine “whether the magistrate had a substantial basis for
finding that the affidavit established probable cause to believe
Woosley filed a motion to suppress the evidence found that the evidence would be found at the place cited.” United
during the search, arguing that the affidavit supporting the States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)
search warrant did not establish probable cause and that the (quotation omitted). The affidavit should be reviewed in a
warrant was not executed in good faith. The district court commonsense—rather than a hypertechnical—manner, and
denied the motion to suppress, finding that the affidavit the court should consider whether the totality of the
alleged facts sufficient to establish probable cause. At his circumstances supports a finding of probable cause, rather
change of plea hearing, Woosley entered a conditional plea of
guilty, pursuant to Federal Rule of Criminal Procedure
11(a)(2), reserving his right to appeal his motion to suppress 2
W oosley presented the motion to the court during the hearing, and
evidence. Woosley also moved for a hearing under Franks v. the court heard argum ents. W oos ley, however, did not formally file a
written motion until the next day.
3
In reviewing a district court’s determination of probable cause after
1
a suppression hearing, we uphold factual findings unless they are clearly
It appears that Tro ope r Ambrust received the tip from the erroneo us, but review legal conclusions de novo . United States v. Helton,
confidential informant after the tips from the independent informants, but 314 F.3d 812, 820 (6th Cir. 2003).
before he sp oke to the local po lice departm ent.
No. 03-5059 United States v. Woosley 5 6 United States v. Woosley No. 03-5059
than engaging in line-by-line scrutiny. United States v. reliability is not established may be sufficient to create
Greene, 250 F.3d 471, 479 (6th Cir. 2001). The magistrate’s probable cause when there is some independent corroboration
determination of probable cause is afforded great deference, by the police of the informant's information.”). Thus, the
and that determination should be reversed only if the question is whether the instant affidavit, which contains little
magistrate arbitrarily exercised his discretion. Id. basis for the state court judge to assess independently the
informant’s credibility, otherwise includes sufficient
In United States v. Allen, 211 F.3d 970 (2000) (en banc), corroboration that the state court judge could determine,
which is relied on by both Woosley and the Government, we under the totality of the circumstances, that probable cause
held that existed.
where a known person, named to the magistrate, to Woosley complains that the affidavit did not contain
whose reliability an officer attests with some detail, sufficient information regarding Trooper Armbrust’s
states that he has seen a particular crime and particular confidential informant to permit the magistrate to make an
evidence, in the recent past, a neutral and detached independent evaluation of probable cause.5 Trooper
magistrate may believe that evidence of a crime will be Armbrust’s affidavit stated:
found.
[a] confidential informant whom [sic] is known to the
Id. at 976 (emphasis omitted). In concluding that independent affiant to be credible and reliable, who has provided
police corroboration of the information provided was accurate information in the past which has been shown to
unnecessary in such cases, we emphasized that probable cause be truthful and reliable. This informant stated to the
determinations must be based on the totality of the affiant that on [August 15, 2001] they observed
circumstances and cautioned against a continuing reliance on approximately five pounds of processed marijuana under
formalistic “tests” that required the satisfaction of particular the desk of the Owner Rodney Woosley. Also present
elements to support a finding of probable cause. Id. at 975- were two firearms which they described as Handguns
76.4 Consequently, an affidavit including a tip from an possibly 9MM.
informant that has been proven to be reliable may support a
finding of probable cause in the absence of any corroboration. ....
See id. at 976; United States v. Smith, 182 F.3d 473, 478-79
(6th Cir. 1999). Alternatively, an affidavit that supplies little
information concerning an informant’s reliability may support 5
W oosley’s other objections to the sufficiency of the warrant clearly
a finding of probable cause, under the totality of the are without merit. For example, W oosley makes the argument that the
circumstances, if it includes sufficient corroborating desk described in the affidavit could be anywhere, because that portion of
information. See Illinois v. Gates, 462 U.S. 213, 241-45 the warrant application did not specify a location. It is, of course,
(1983); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. reaso nable to infer that the desk is at the location for which a search
warrant is sought. Wo osley also makes the similarly meritless argument
2000) (“[I]nformation received from an informant whose that the factual allegations are ambiguous because the phrase “the o wner’s
desk” doesn’t specify whether the owner in question owns the desk or the
business. See United States v. Allen, 211 F.3d 97 0, 975 (6th Cir. 2000)
4
(en banc) ( “Affidavits are not required to use magic words, nor does what
Thus, we do not read Allen as setting a rigid requirement that a is obvious in context need to be spelled out; if a CI saw guns, he is not
confidential info rmant always be “nam ed to the magistrate.” required to explain how he knew what a gun looks like.”).
No. 03-5059 United States v. Woosley 7 8 United States v. Woosley No. 03-5059
Previously the affiant received information from specified pretrial motions. Woosley’s motion for a Franks
numerous independent informants information which hearing was not part of his motion to suppress, and it was not
indicates that Drug Trafficking is occurring at this disposed of in the district court’s September 10, 2002, order.
location. The affiant also has information that marijuana Accordingly, Woosley may not appeal the district court’s
is packaged in parts boxes specifically alternator boxes. adverse ruling on his motion for a Franks hearing, as he did
not reserve his right to appeal that issue.
The affiant also has spoken with Sgt. Jeffrey W. Hart of
the Morganfield Police Department who also has Because the warrant authorizing the search of Woosley’s
information that Marijuana is trafficked out of this business was supported by probable cause, the judgment of
business and usually leaves the business in computer the district court is AFFIRMED.
parts boxes.
While additional details about the confidential informant may
have been helpful, “[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.” Allen, 211 F.3d at
975. Here, Trooper Armbrust, who had received information
about drug dealing from Woosley’s business location in the
past, received a tip from a known, credible and reliable
source. The tip identified the contraband with great
specificity and described its particular location with precision.
Trooper Armbrust then spoke with a local law enforcement
officer, who confirmed that he had received similar reports.
A magistrate could conclude, based on the totality of the
circumstances described in the affidavit, that there was a fair
probability that contraband or evidence of a crime would be
found at Woosley’s business. Accordingly, the warrant
issued for Woosley’s business was supported by probable
cause.
Finally, we decline to consider Woosley’s additional
contention that the district court erred in denying his motion
for a Franks hearing, because his conditional plea only
reserved the right to appeal the district court’s
ruling—entered September 10, 2002—denying his motion to
suppress. Federal Rule of Criminal Procedure 11(a)(2)
provides that a criminal defendant, with the consent of the
Government and the court, may enter a conditional plea,
reserving in writing the right to appeal adverse decisions of