NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0110n.06
Filed: February 20, 2008
No. 07-5271
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
CORNELL P. GUNTER, EASTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: SILER, CLAY and COOK, Circuit Judges.
CLAY, Circuit Judge. Defendant Cornell P. Gunter appeals his conviction, under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), for possession with intent to distribute more than five grams of crack
cocaine, and his conviction, under 18 U.S.C. § 924(c)(1)(B)(i), for possession of short-barreled
shotgun in furtherance of a drug trafficking crime. Specifically, Defendant argues that a warrant
authorizing a search of his residence was not supported by probable cause. Because the affidavit
describes a thorough investigation of Defendant, sufficient to establish probable cause to search his
home, we AFFIRM Defendant’s conviction.
STATEMENT OF FACTS
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While conducting an investigation of Defendant Cornell Gunter, Tennessee law enforcement
officers spoke with a confidential informant, who told them that he could potentially purchase
cocaine from Defendant; and on September 22, 2005, the informant placed a call to Defendant to
arrange a purchase. Agents of the Tennessee Bureau of Investigation (“TBI”) monitored this call as
the informant arranged to meet with Defendant later that day.
Under the supervision of the TBI, the informant made a controlled purchase of cocaine from
Defendant. Prior to the purchase, agents searched the informant’s person and vehicle to be certain
he was not carrying any controlled substances. The agents then provided the informant with a covert
transmitter and listened as the informant purchased approximately two ounces of cocaine from
Defendant. Upon completion of the transaction, the informant turned this cocaine over to the agents.
Four days later, a TBI agent conducted a driver’s license and vehicle registration inquiry on
Defendant. This inquiry revealed Defendant’s address in Niota, Tennessee, and indicated that he
owned several vehicles, including a Dodge RT and two Cadillacs.
On September 27, 2005, the TBI arranged another controlled purchase utilizing a confidential
informant. While TBI agents were surveilling the Niota residence, the informant called Defendant
to arrange the cocaine purchase. TBI agents monitored this call as Defendant told the informant that
he was traveling, but would meet the informant in nearby Athens, Tennessee. Around the same time
as this phone call, the agents watching Defendant’s Niota residence observed a green Cadillac,
driven by Defendant, arriving at that residence. The Cadillac remained at the residence for two to
three minutes. TBI agents then followed the Cadillac as it stopped at another residence, and
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eventually traveled to the site of the controlled purchase. Like the first purchase, this controlled
purchase was also monitored via transmitter by the TBI.
The next day, TBI Special Agent Bryan Freeman sought a warrant to search Defendant’s
residence for drugs, evidence of drug transactions and firearms. In addition to setting out the above
facts in an affidavit accompanying the warrant application, Agent Freeman also described his
significant experience in narcotics investigations, including over 100 investigations into drug
trafficking, and stated that in his experience “individuals involved in drug trafficking frequently
conceal, in their residence . . . caches of illicit drugs, large amounts of Unites [sic] States currency
and/or other illicit proceedings of drug transactions, as well as records of drug transactions.” (J.A.
34.) A photo of Defendant’s residence was also included in the affidavit to indicate the premises to
be searched. Based on this affidavit, a Tennessee state judge issued a warrant to search Defendant’s
home. The ensuing search uncovered narcotics, cash and firearms, as well as drug paraphernalia in
a Cadillac parked outside the residence.
DISCUSSION
Standard of Review
When reviewing a denial of a motion to suppress evidence, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. United States v. Jones, 159 F.3d
969, 974 (6th Cir. 1998). In reviewing the decision of the magistrate issuing the search warrant,
however, “we consider the evidence that the issuing magistrate had before him only ‘to ensure that
[he] ha[d] a substantial basis . . . for concluding that probable cause existed.’” Id. (quoting Illinois
v. Gates, 462 U.S. 213, 238-39 (1983)).
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Analysis
A warrant to search a residence may not issue except “upon probable cause, supported by
Oath or affirmation.” U.S. Const. amend. IV. To secure a search warrant, law enforcement must
present a neutral magistrate “evidence from which the magistrate judge can conclude from the
totality of the circumstances, ‘including the ‘veracity’ and ‘basis' of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place.’” United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)). Defendant alleges that the warrant affidavit in this case failed
to establish probable cause because it failed to establish the reliability of the confidential informants’
statements to police. Additionally, Defendant claims that the affidavit did not demonstrate a
sufficient nexus between his drug trafficking and his residence to allow a search of that residence.
We disagree.
A. The Reliability of the Confidential Informants
When, as here, a warrant affidavit provides no indicia of an informant’s reliability, “courts
insist that the affidavit contain substantial independent police corroboration.” United States v.
Frazier, 423 F.3d 526, 532 (6th Cir. 2005). Such independent corroboration may be established,
however, by a police monitored, controlled purchase, such as the two which occurred in this case.
In United States v. Coffee, 434 F.3d 887 (6th Cir. 2006), this Court considered a similar case
involving a confidential informant and a controlled purchase. The police in that case were told by
an informant that he had purchased drugs from the Coffee defendant. Id. at 893. Based on that
information, the police executed a controlled purchase similar to the one in the instant case. The
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informant was searched and made to wear a transmitter. Id. at 891. Police then monitored via the
transmitter a conversation between the informant and the Coffee defendant, and their ensuing drug
transaction. Id. Afterwards, police confiscated the drugs from the informant. Id. Based on this
controlled purchase, we concluded that the informant’s reliability in Coffee was sufficiently
corroborated, and thus rejected the defendant’s claim that the warrant affidavit did not demonstrate
probable cause. Id. at 894–95.
In the instant case, the TBI conducted not just one but two controlled purchases, using similar
procedures to those used by the police in Coffee. If one such purchase was sufficient to corroborate
an informant’s statements in Coffee, then two purchases will more than suffice in the instant case.
Accordingly, we hold that the warrant affidavit was not deficient for failing to establish the reliability
of an informant.
B. The Nexus Between Defendant’s Drug Trafficking and His Residence
Defendant next argues that, as the warrant affidavit only described drug sales outside his
residence, it failed to establish a sufficient nexus between his illegal activity and his residence to
allow a search of that residence. See Frazier, 423 F.3d at 532 (“There must be a ‘nexus between the
place to be searched and the evidence to be sought.’” (quoting United States v. Carpenter, 360 F.3d
591, 594 (6th Cir. 2004)). To establish such a nexus, a warrant application must show more than
just that “the owner of the property is suspected of crime,” but instead must establish “that there is
reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the
property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). The mere
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fact that someone is a drug dealer is not alone sufficient to establish probable cause to search their
home. See Frazier, 423 F.3d at 533.
Defendant argues that the warrant affidavit failed to establish a nexus between his residence
and his drug trafficking because the confidential informant “provided no reliable information to
establish a nexus and the facts fail to establish any such nexus as well.” (Plaintiff’s Br. at 17.) As
the district court correctly noted, the best case for Defendant’s position is this Court’s decision in
Frazier. Frazier involved a federal investigation of a drug conspiracy involving about 25 people.
423 F.3d at 530. Law enforcement agents learned that the Frazier defendant was involved in drug
trafficking through confidential informants, who also informed them that the defendant was selling
drugs from his home. Although the agents conducted several controlled purchases to establish the
reliability of their informants, they neglected to mention in their affidavit accompanying the
application for a warrant that these purchases were recorded via transmitter. Id. Lacking such
corroboration of the informant’s reliability, we held that when “the warrant affidavit is based almost
exclusively on the uncorroborated testimony of unproven confidential informants . . . the allegation
that the defendant is a drug dealer, without more, is insufficient to tie the alleged criminal activity
to the defendant's residence.” Id. at 533.
Frazier, however, is distinguishable from previous Sixth Circuit cases which upheld a search
of a drug dealer’s residence even though police observed no illegal activity at that residence. In
United States v. Miggins, 302 F.3d 384 (6th Cir. 2002), for example, police arrested one member of
a drug conspiracy when he signed for a package under the assumed name “Darnel Smith.” Id. at 393.
The package was addressed to “Tommy Lee,” and the sender was “Keith Jackson,” both assumed
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No. 07-5271
names of his co-conspirators. Id. In a search pursuant to their arrest of the so-called “Darnel Smith,”
police discovered a piece of paper which listed all three assumed names along with an address,
which turned out to be the defendant’s residence. Noting the discovery of this address along with
aliases associated with the drug conspiracy, we held that police had probable cause to search the
defendant’s residence. Id.
Similarly, in United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996), we upheld a warrant
authorizing a search of a residence despite only a limited connection between the residence and drug
related activity. The Caicedo defendant was arrested while traveling with a friend who was carrying
cocaine in his backpack. Id. at 1193. While he was being questioned by police, the defendant lied
about his address. Id. Given this lie, we held that a warrant affidavit sworn by an experienced
narcotics officer, which stated that “the reason for hiding the correct residence could be that further
evidence may be located at this location which could be used against Ryan in this particular
investigation,” established a sufficient nexus between the defendant and his residence to allow a
search of that residence. Id. (emphasis in original).
Reading Frazier, Miggins and Caicedo together, this Court’s precedents establish that a
nexus exists between a known drug dealer’s criminal activity and the dealer’s residence when some
reliable evidence exists connecting the criminal activity with the residence. See, e.g., Miggins, 302
F.3d at 393; Caicedo, 85 F.3d at 1193. When, however, the only evidence of a connection between
illegal activity and the residence is unreliable, such as uncorroborated statements by a confidential
informant, then a warrant may not issue allowing the search of the residence. Frazier, 423 F.3d at
533.
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Applying this framework to the instant case, we conclude that the instant warrant affidavit
described sufficient facts to establish a nexus between Defendant’s drug trafficking and his
residence. The warrant affidavit described the investigating law enforcement agent’s significant
experience in narcotics investigations—including over 100 investigations into drug trafficking—and
stated that in that agent’s experience drug dealers typically keep evidence of their crime in their
residence. Moreover, unlike Frazier, where the warrant affidavit relied entirely on statements of
confidential informants to establish a connection between the defendant and his residence, the instant
affidavit describes an incident where law enforcement agents observed Defendant visiting his
residence right before he traveled to the site of a drug sale. This visit provided a neutral magistrate
with a substantial basis to conclude that Defendant may have stopped at his residence to pick up
some of his merchandise before meeting his customer at another location. This evidence, combined
with the affiant’s statements that he has significant experience in narcotics investigations, is
sufficient to establish a nexus between Defendant’s illegal activities and his residence. See Caicedo,
85 F.3d at 1193. Accordingly, we affirm the decision of the district court admitting evidence seized
in the search of Defendant’s residence.
Because we hold that probable cause supported the warrant, we do not address Defendant’s
challenge to the district court’s alternative grounds for denying suppression—the good-faith
exception to the probable cause requirement.
CONCLUSION
The warrant to search Defendant’s home was issued upon probable cause. The warrant
affidavit described sufficient evidence to corroborate statements by confidential informants and the
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affidavit showed a nexus between Defendant’s illegal activities and his residence. Accordingly, we
AFFIRM Defendant’s conviction.
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