United States v. Braden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0694n.06
Filed: September 25, 2007

No. 06-5030

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
WILLIAM H. BRADEN, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )

Before: MOORE and COOK, Circuit Judges; and ACKERMAN, District Judge.*

COOK, Circuit Judge. William H. Braden appeals the district court’s denial of his motion

to suppress. We affirm.

I

Kentucky State Trooper Shane Goodall, responding to an early-morning domestic-

disturbance call at Sarah and Charles Lilly’s home, found the couple under the influence of drugs.

Sarah Lilly claimed people lurked under the house; Charles Lilly heard noises, saw the floorboards

moving, and thought armed men were pulling a freezer out from under the house.

*
The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
New Jersey, sitting by designation.
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Confirming Goodall’s suspicion, the couple admitted to smoking crystal methamphetamine

that morning. Sarah Lilly showed Goodall her remaining one gram and revealed her source:

Michael Hugley gave her the drugs, she said, for cleaning his trailer. She also told Goodall that she

saw other drugs and weapons in that trailer. When asked the location of the trailer, Lilly could not

give the trooper directions, but she knew the street was Reeves Branch Road. When Goodall drove

her to Reeves Branch Road, she visually identified the trailer.

With this information, Goodall sought a search warrant through an affidavit with the

following description of his investigation:

Upon arrival to scene, both subjects appeared to be under the influence of illegal
drugs. Upon investigation by affiant, Charles and Sarah Lilly admitted to smoking
meth prior to affiant’s arrival. While talking to Sarah Lilly, she showed affiant where
she kept the meth and used drug paraphernalia. Sarah Lilly stated the meth was given
to her for cleaning a trailer for Michael Hugley. Sarah Lilly also advised affiant that
she had seen multiple weapons that she thought to be stolen and also seen a large
amount of illegal drugs. Sarah Lilly visually identified the residence as which was
described to affiant.

The affidavit went on to describe the location to be searched as follows:

Traveling from Route 2, approximately 7 miles on US 60 West of Olive Hill,
Kentucky. Turn right onto Reeves Branch, Olive Hill, KY, traveling approximately
4/10 of a mile, situated on the right side of roadway more specifically as follows: A
mobile home white/brown in color, red well box in front yard, small wood front
porch, brown wood one car garage situated to the right of mobile home, having a
mailbox with the words “Howdy Damn It” and green address sign “440” on mailbox
post. Also green/white mobile home situated behind above-mentioned mobile home.
And all structures and out buildings situated on said property.

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The search of the trailer, which Braden occupied (though Sarah Lilly named Hugley as the

occupant), produced eighteen grams of crystal methamphetamine and thirteen firearms. Braden

challenges on several grounds the denial of his suppression motion.

II

Braden first asserts error in the district court’s failure to conduct a Franks hearing before

denying his suppression motion to examine whether Goodall concealed from the magistrate the

severity of Sarah Lilly’s intoxication. In Franks v. Delaware, 438 U.S. 154, 171 (1978), the

Supreme Court emphasized the long-standing “presumption of validity with respect to the affidavit

supporting [a] search warrant.” The Court explained, however, that a criminal defendant could

challenge the legitimacy of a search under certain circumstances by attacking the truthfulness of the

allegations made in the affidavit supporting the warrant application. Id. Franks directs “a court

considering whether to suppress evidence based on an allegation that the underlying affidavit

contained false statements [to] apply a two-part test: (1) whether the defendant has proven by a

preponderance of the evidence that the affidavit contains deliberately or recklessly false statements

and (2) whether the affidavit, without the false statements, provides the requisite probable cause to

sustain the warrant.” United States v. Charles, 138 F.3d 257, 263 (6th Cir. 1998). Carrying this

burden entitles the defendant to a hearing to determine if a preponderance of the evidence supports

the allegations of lack of truthfulness. Franks, 438 U.S. at 171–72.

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Though Goodall’s affidavit includes no allegedly false statements, courts read Franks as

targeting alleged omissions of information from affidavits as well. Mays v. City of Dayton, 134 F.3d

809, 815 (6th Cir. 1998). But consistent with the Franks presumption of validity, “affidavits with

potentially material omissions, while not immune from Franks inquiry, are much less likely to merit

a Franks hearing than are affidavits including allegedly false statements.” Id. (citing United States

v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997)). Without “a strong preliminary showing that the

affiant with an intention to mislead excluded critical information from the affidavit, . . . Franks is

inapplicable to the omission of disputed facts.” Id. at 816.

Here, in the absence of a strong preliminary showing that Goodall omitted the extent of

Lilly’s intoxication “with an intention to mislead,” the district court properly denied the hearing

request. Id. Though lacking rich detail about Sarah Lilly’s mental state, the trooper’s affidavit

reporting that Lilly “appeared to be under the influence of illegal drugs . . . and admitted to smoking

meth prior to affiant’s arrival” vitiates any claim of an intention to mislead the magistrate about

Lilly’s mental state. See Atkin, 107 F.3d at 1216–17 (no intent to mislead where affidavit alerted

judge that informants “were persons whose veracity could be questioned”).

Braden next disputes the sufficiency of the affidavit to support a finding of probable cause,

pointing to the affidavit’s failure to establish Lilly’s reliability, to reference the specific time when

she observed the guns and drugs, or to identify Braden or his residence. We review the sufficiency

of an affidavit in a “commonsense, rather than hypertechnical manner,” United States v. Greene, 250

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F.3d 471, 479 (6th Cir. 2001), and ask “whether the magistrate had a substantial basis for finding

that the affidavit established probable cause to believe that the evidence would be found at the place

cited,” id. at 478 (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). “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.” Id. at 479 (internal quotation marks

omitted). The “substantial basis” standard accords the magistrate’s determination of probable cause

great deference, and we will reverse its decision to grant a search warrant only if “arbitrarily” made.

Id. (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc)). Reviewing Goodall’s

affidavit in a commonsense manner, we hold that the magistrate had a substantial basis for finding

probable cause.

In United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986), we upheld as sufficient an

affidavit stating only that the named informant had seen the defendant sell drugs in his home within

the past twenty-four hours. The Pelham court observed that “there could hardly be more substantial

evidence of the existence of the material sought and its relevance to a crime than [the informant’s]

direct viewing of marijuana in [the defendant’s] house.” Id. “Allen and Pelham make it clear that

independent corroboration of an informant’s story is not necessary to a determination of probable

cause.”1 United States v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005).

1
Braden misunderstands the different types of informants in arguing that probable cause
requires corroboration, relying on cases that involved either an unnamed, confidential informant or
an anonymous informant. See, e.g., Illinois v. Gates, 462 U.S. 213 (1983) (anonymous informant);
United States v. Frazier, 423 F.3d 526 (6th Cir. 2005) (confidential informant and anonymous

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Because the affidavit named Lilly herself as having personally observed drugs at Braden’s

residence, the magistrate could credit Lilly’s tip, volunteered against her interest, as reliable without

police corroboration or other indicia of reliability. See McCraven, 401 F.3d at 697–98; Allen, 211

F.3d at 976; see also United States v. Harris, 403 U.S. 573, 584 (1971) (courts may consider

informants who volunteer information against their interests reliable). True, Lilly had smoked meth

prior to offering the tip. But knowledge of her intoxication from the trooper’s affidavit was among

the factors the magistrate needed to consider in assessing whether probable cause existed. And as

this court recently recognized in the context of a Franks challenge, “Although it is possible that an

angry and intoxicated person may be less reliable than a detached and uninterested observer who is

sober, it is equally possible that those same factors can make a witness more inclined to be truthful

than they otherwise might.” Hale v. Kart, 396 F.3d 721, 730 (6th Cir. 2005).

As another alleged failing in the district court’s decision to deny suppression, Braden targets

the absence of facts pointing to the recency of the evidence relied on for the warrant—when Lilly

observed the guns and drugs. Staleness concerns, however, are met here as the affidavit noted that

Lilly had not yet exhausted the drugs supplied to her at the trailer. See Pelham, 801 F.2d at 878; see

informant); McCraven, 401 F.3d 693 (upholding Pelham, but elaborating on the standards for a
confidential informant); Allen, 211 F.3d 970 (confidential informant); United States v. Tuttle, 200
F.3d 892, 894 (6th Cir. 2000) (confidential informant); United States v. Weaver, 99 F.3d 1372 (6th
Cir. 1996) (confidential informant); United States v. Leake, 998 F.2d 1359 (6th Cir. 1993)
(anonymous informant); United States v. Smith, 783 F.2d 648, 651 (6th Cir. 1986) (confidential
informant). Nevertheless, counsel cites Smith, 783 F.2d 648, for the proposition that even a “known,
reliable” informant’s tip requires corroboration, but in Smith, the “known, reliable” informant was
a confidential informant known to be reliable, but not named in the affidavit. Id. at 649.

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also Sgro v. United States, 287 U.S. 206, 210–11 (1932) (expiration of probable cause determined

by the circumstances of each case). The magistrate could also reasonably adduce from Lilly’s report

of seeing large drug quantities and multiple weapons that 440 Reeves Branch served as a base for

ongoing drug activity. United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988) (“‘[I]f an

affidavit recites activity indicating protracted or continuous conduct, time is of less significance.’”

(quoting United States v. Haimowitz, 706 F.2d 1549, 1554–55 (11th Cir. 1983))). Because these

circumstances evince a “substantial basis for determining the existence of probable cause,” Illinois

v. Gates, 462 U.S. 213, 239 (1983), Braden’s challenge grounded on its absence fails.

As a final objection, Braden calls attention to the warrant’s omission of a “description of the

location given or naming of the Appellant,” but Braden then neglects to offer any supporting

argument for our finding prejudicial error therefrom. It is axiomatic that “issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed

waived.” United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (citation omitted). Regardless,

this claim lacks merit because the particularity required by the Fourth Amendment “is not as to the

person against whom the evidence is to be used but rather as to the place to be searched,” Mays, 134

F.3d at 814, and, because the affidavit sufficiently detailed the place to be searched, no “reasonable

probability [existed] that another premises might be mistakenly searched,” United States v. Durk,

149 F.3d 464, 465 (6th Cir. 1998) (internal quotation marks omitted).

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Given our conclusion that probable cause supported the warrant, we do not address Braden’s

challenge to the district court’s alternate grounds for denying suppression—the Leon good-faith

exception. We affirm.

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KAREN NELSON MOORE, Circuit Judge, dissenting. I agree with the majority’s

description of this circuit’s taxonomy of informants; our caselaw identifies named informants,

unnamed (or confidential) informants who are known to the police but not to the magistrate, and

anonymous informants. Maj. Op. at 5 n.1. As each category of informant presents its own issues

of reliability, the majority is correct that we apply different legal standards in cases involving

unnamed informants, anonymous informants, and named informants. This case involves a named

informant, so I direct my attention to our precedent in that narrow area of law. A review of this

court’s precedent on named informants leads me to conclude that the naming of informants indicates

reliability only when the informants willingly and knowingly assent to an officer naming them and

the risk of prosecution inherent in that identification. In this case, because the informant was

hallucinating, I cannot conclude that she willingly and knowingly assented. In the absence of any

other indicia of reliability, the fact that the informant was named does not alone provide a substantial

basis for probable cause.

That an informant is named supports a conclusion of reliability only to the extent that it

signifies that the informant knowingly risks punishment if the tip is faulty. The majority opinion

references United States v. Harris, 403 U.S. 573 (1971), where four members of the Supreme Court

suggested that an informant’s statement against his penal interest is reliable because “[p]eople do

not lightly admit a crime and place critical evidence in the hands of police,” id. at 583 (Burger, C.J.,

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plurality). Significantly, Chief Justice Burger spoke for only four members of the Court.2 The true

relevance of Harris is to help explain our distinction between named informants on the one hand,

and unnamed and anonymous sources on the other. 2 WAYNE R. LA FAVE, SEARCH AND SEIZURE

§ 3.3(c) at 133 (4th ed. 2004) (approving of the analysis that Justice Harlan’s opinion for four

Justices “did not so much quarrel with the general proposition that a genuine declaration against

penal interest would be some guarantee of trustworthiness, but only with the application of that

principle to” certain unnamed informants (quoting Stanley v. State, 313 A.2d 847, 856 n.8 (Md. Ct.

Spec. App. 1974)).

Chief Justice Burger’s opinion in Harris does not, by itself, explain why our cases give

additional credence to a named informant; the danger to the informant inherent in admitting a crime

to the police exists regardless of whether the informant is named in the affidavit or not. See Harris,

403 U.S. at 585. Indeed, the informant in Harris was never named for the magistrate. Id. at 575.

Justice Harlan’s opinion in Harris, however, sheds light on the basis for the distinction between

named and unnamed or anonymous sources. Justice Harlan, leading three other Justices, thought that

2
Although Justice Stewart joined with Chief Justice Burger in the judgment of the court, he
signed on only to the part of the opinion that considered the entire factual basis for the warrant,
Harris, 403 U.S. at 579-80 (“[W]e conclude that the affidavit in the present case contains an ample
factual basis for believing the informant which, when coupled with the affiant’s own knowledge of
the respondent’s background, afforded a basis upon which a magistrate could reasonably issue a
warrant.”), and did not make any assertions regarding the effect of a statement against penal interest
other than to note that the informant made one, id. at 580 (“The accusation by the informant was
plainly a declaration against interest since it could readily warrant a prosecution and could sustain
a conviction against the informant himself.”).

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a statement against penal interest was not necessarily an indicator of reliability. Id. at 594 (Harlan,

J., dissenting). In support of this argument, Justice Harlan noted that an unnamed informant remains

unnamed because the police intend to continue using the source.3 If the police intend to keep their

source viable, the informant likely does not fear prosecution, even for a statement against his penal

interest. Id. at 595. Thus, the distinction between named and unnamed-but-known informants has

significance because naming removes the cloak of protection against prosecution whereas “an

admission against penal interest” by someone protected by the police “carries little weight.”

LA FAVE, § 3.3(c) at 136.

According to Justice Harlan, the mere fact that a statement happens to be against an

informant’s penal interest has no bearing on the informant’s potential veracity. Instead, it is only

when an informant recognizes the danger in misleading officers that the informant is more likely to

speak truthfully. We have adopted this position in United States v. Pelham, 801 F.2d 875 (6th Cir.

1986), cert. denied, 479 U.S. 1092 (1987), where we emphasized that an informant was “willing to

be named in the affidavit.” Id. at 878 (emphasis added). More recently, in United States v.

3
Revealing the identity of an informant almost always makes the source worthless in the
future. See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA . L. REV . 881, 939
(1991) (“In those rare cases where magistrates do require disclosure of the identity of a police
informant, the government concedes defeat rather than disclose, thereby sacrificing the search (and
presumably sometimes the whole prosecution). This practice confirms what should perhaps be
obvious: informants who offer valuable tips to the police will disappear if they think their position
might be compromised by disclosure, even disclosure only to judicial officers. It also suggests that
the real choice the system faces is not between unnamed informants and named ones, but between
unnamed informants and none at all.” (footnote omitted)).

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McCraven, 401 F.3d 693 (6th Cir.), cert. denied, 546 U.S. 1010 (2005), a case the majority relies

upon heavily, this court again spoke of “an informant’s willingness” to be named. Id. at 698

(emphasis added). The choice of words we have used repeatedly emphasizes Justice Harlan’s point:

a statement against penal interest can indicate reliability only where the informant understands his

statement as a threat against his penal interest and recognizes the potential for prosecution. See

United States v. Chafin, 622 F.2d 927, 930 (6th Cir.) (describing the choice to admit to associating

with the principals to a murder as one that an informant “would not lightly make”), cert. denied, 449

U.S. 984 (1980); see also Harris, 403 U.S. at 583 (Burger, C.J., plurality) (noting that “[p]eople do

not lightly admit a crime” and thus implying that it is a considered and deliberate choice).

In some cases this court has not used the language of choice and awareness. In those

circumstances, however, there were other reasons for crediting the informant’s testimony. For

instance, in some cases the police bolstered the informant’s testimony through corroboration. See,

e.g., Wolfe v. Perry, 412 F.3d 707, 718 (6th Cir. 2005); United States v. Rosenbarger, 536 F.2d 715,

719 (6th Cir. 1976), cert. denied, 431 U.S. 965 (1977). In other cases this court relied on a statute

that made it a crime to provide to the police false information. See, e.g., United States v. Couch, 367

F.3d 557, 560-61 (6th Cir. 2004); United States v. Miller, 314 F.3d 265, 270 (6th Cir. 2002), cert.

denied, 539 U.S. 908 (2003). As this case also arose in Kentucky, the same statute involved in

Couch and Miller is relevant here. See KY . REV . STAT . ANN . § 519.040(1). The fact that the statute

was in place, however, does not mean that any informant is necessarily reliable. Instead, Harris’s

knowledge-and-willingness rationale applies; for the statute to impact the informant’s veracity, the

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informant must have been aware that lying to the police would be a dangerous choice. See LA FAVE,

§ 3.3(c) at 149-50 (“[I]t may be argued that information given to police may be found reliable where

the making of a false crime report is a criminal offense, in that once again adverse consequences may

follow if the allegations later turn out to be untrue, but this would not be persuasive absent a

showing the informant was aware that such an offense existed and that there was a real risk of

prosecution should his information prove false.” (emphasis added) (footnotes omitted)).

I dissent because Sarah Lilly, the informant here, despite admitting to buying and using

methamphetamine against her penal interest, was not a reliable informant. At the time they called

the police, Lilly and her husband were in the throes of a hallucinogenic episode; they believed the

floor was pushing upwards, and that a crowd of people was outside their home pulling a freezer from

underneath their house. Joint Appendix (“J.A”) at 39 (Uniform Offense Rep. at 3). The very fact

that the Lillys saw no problem with calling the police while under the profound effects of

methamphetamine belies any assertion that they could appreciate the risk in making incriminating

statements to the police. Lilly’s statements to the police were not the product of the considered and

careful weighing of the threat to her penal interests that our precedent requires before such

statements can be considered reliable. See Armour v. Salisbury, 492 F.2d 1032, 1035 (6th Cir. 1974)

(concluding that a statement against penal interest is only “sometimes conclusive” and evaluating

the entirety of the affidavit for credibility); see also State v. Gamage, 340 A.2d 1, 17 (Me. 1975)

(holding that a statement against penal interest “may justify an affiant’s reasonable belief of

credibility of the informant’s story” (emphasis added)). Instead, Lilly’s tip was nothing more than

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the statement of an uncorroborated and unreliable informant, which cannot alone sustain probable

cause.4

The majority suggests that we should still consider Lilly’s statement reliable because

sometimes intoxicated people are more honest than their sober counterparts. Maj. Op. at 6. To

buttress this assertion, the majority relies upon Hale v. Kart, 396 F.3d 721 (6th Cir. 2005). Unlike

the case at hand, however, in Hale the informant was so minimally intoxicated that the officers could

not have known. Id. at 730 (concluding “there is no evidence that [the intoxication] was ever

observed or could have been” observed by the officer). Similarly, in the circumstance that officers

“did not feel that [the informant] was either under the influence of heroin or in a state of

withdrawal,” the Ninth Circuit did not consider the statements “per se unreliable.” United States v.

Damitz, 495 F.2d 50, 56 (9th Cir. 1974). In stark contrast, in this case the officer was immediately

suspicious of Lilly’s sobriety, J.A. at 39 (Uniform Offense Rep. at 3) (“When she opened the door

she appeared to possibly be under the influence of a narcotic.”), and quickly confirmed those

4
As a variant of the statement-against-penal-interest approach, some courts have found that
informants are reliable when they turn over narcotics to the police. See, e.g., United States v.
Damitz, 495 F.2d 50, 55 (9th Cir. 1974); Schmidt v. State, 253 N.W.2d 204, 208 (Wis. 1977); State
v. Gamage, 340 A.2d 1, 17 (Me. 1975); State v. Appleton, 297 A.2d 363, 369 (Me. 1972). Again,
just like with statements against penal interests, the assumption of reliability makes sense only where
the informant makes a willing and conscious decision. See Appleton, 297 A.2d at 369 (discussing
how an informant will turn over narcotics only when “he is certain in his own mind that his story
implicating the persons occupying the premises where the sale took place will withstand police
scrutiny”). Although Lilly did turn over to the police some crystal methamphetamine, J.A. at 39-40
(Uniform Offense Rep. at 3-4), her hallucinogenic state suggests she could not have made a
considered decision regarding the contraband.

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suspicions, id. Although our case law certainly does not require toxicology reports before an

informant can be considered reliable, I believe nothing in our precedent suggests that, when the

informant is clearly hallucinating, the police are justified in concluding that the informant is reliable.

Indeed, common sense compels the conclusion that clearly hallucinating informants are not reliable

and their accusations cannot serve as the basis for probable cause without independent corroboration.

See Illinois v. Gates, 462 U.S. 213, 230 (1983) (calling probable cause a “commonsense, practical

question”); Harris, 403 U.S. at 583-84 (Burger, C.J., plurality) (noting that the statement against an

informant’s penal interest is reliable because “[c]ommon sense in the important daily affairs of life

would induce a prudent and disinterested observer to credit these statements.” (emphasis added));

Armour, 492 F.2d at 1035 (holding that a statement against penal interest is only “sometimes

conclusive” and applying Harris’s common-sense standard to determine the existence of other

indicia of credibility); Wilson v. State, 314 A.2d 905, 907 (Del. 1973) (“[I]t appears that at the time

the informant related the information to the police she was hospitalized for a drug overdose.

Because her rationality and credibility could have been impaired thereby, it was incumbent upon the

police, in our opinion, to verify her statements . . . .”).

Lastly, in further support of finding the informant reliable, the majority opinion heavily cites

United States v. McCraven, 401 F.3d 693 (6th Cir. 2005), to assert that a statement against penal

interest connotes reliability. I believe this reliance is misplaced. First, McCraven contains only dicta

regarding an informant’s reliability. The McCraven court thought the sufficiency of the affidavit was

“a close question,” and instead of resolving the matter, simply decided that the search in question

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was in good-faith under United States v. Leon, 468 U.S. 897 (1984), and was therefore valid “even

if the affidavit be deemed insufficient.” McCraven, 401 F.3d at 698. Second, even if the McCraven

court had actually addressed the issue of probable cause, McCraven involved an unnamed,

confidential informant, so this court merely noted for the sake of comparison that being named is a

“predictor of reliability,” id. at 698, but never said naming an informant is sufficient for a finding

of reliability. Because McCraven is a Leon case and expressly declined to resolve whether the

affidavit was sufficient, its comments are dicta and the case is inapposite.

In contrast, I believe that this court’s precedent establishes that where an informant is

incapable of willingly considering the implications of admitting involvement in a crime to the police,

then the informant is not per se reliable. The magistrate must make “a balanced assessment of the

relative weights of all the various indicia of reliability (and unreliability) attending an informant’s

tip.” Gates, 462 U.S. at 234. In this case, because the police did nothing else other than rely on the

testimony of an unreliable and hallucinating informant, the affidavit failed to provide a substantial

basis for probable cause. For these reasons, I respectfully dissent.

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