NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0421n.06
No. 08-3489 FILED
Jun 12, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) SOUTHERN DISTRICT OF
FABIAN ROBERSON, ) OHIO
)
Defendant-Appellant. )
)
BEFORE: SILER, COOK, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Fabian Roberson entered a conditional guilty plea to possession with intent to
distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and carrying a
firearm in furtherance of a drug trafficking crime, contrary to 18 U.S.C. § 924(c)(1)(A)(i). The
district court sentenced Roberson to a total term of 180 months of imprisonment on both counts.
Roberson now appeals the district court’s order denying his motion to suppress evidence obtained
during the execution of a search warrant at his girlfriend’s residence. He contends that information
contained in the police officer’s affidavit underlying the search warrant was insufficient to establish
the requisite probable cause to justify issuance of the warrant. For the following reasons, we affirm.
I.
No. 08-3489
United States v. Roberson
In the affidavit used to obtain a search warrant leading to Roberson’s arrest on drug
possession and firearm charges, Hamilton County Regional Enforcement Narcotics Unit (“RENU”)
Officer Paul Fangman set forth the following information and allegations. On February 20, 2007,
law enforcement authorities received information from a “confidential” [sic]1 source alleging that
Roberson was manufacturing and trafficking in large amounts of crack cocaine from a specific
address, 3665 Hillside Avenue, in Cincinnati, Ohio. The tipster gave a physical description of
Roberson, stated that Roberson used a blue Cadillac to facilitate his drug trafficking operation, and
indicated that Roberson lived at the single-family residence with Shaunte Martin. The source further
stated that Roberson had, in the past, transported large amounts of cocaine to this address, where he
allegedly manufactured cocaine and crack cocaine and prepared it for further distribution. The
tipster claimed that he/she had been in the residence within the past 72 hours and observed Roberson
in possession of a quantity of crack cocaine and with several dogs and guns inside the residence to
provide protection for his drug trafficking operation. The tipster stated that he/she was familiar with
the appearance of crack cocaine due to past contacts with crack cocaine drug abusers and traffickers.
Officer Fangman, with over nineteen years of law enforcement experience, nine of which were spent
as a narcotics investigator, was assigned to investigate the tip and, if warranted, to prepare an
application for a search warrant of 3665 Hillside Avenue.
On the same day that the tip was received, Officer Fangman began an investigation to verify
the information. A check of public records revealed that ownership of the residence, as well as
1
As discussed infra, the informant was anonymous, not confidential.
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United States v. Roberson
utility service, was in the name of Shaunte Martin. The check also showed a prior utilities account
in the name of Shaunte Martin at 5457 Hillside Avenue, identified as the prior address of Roberson.
Officer Fangman’s review of criminal records indicated that Roberson had a 1995 felony drug
trafficking conviction, a 1995 resisting arrest conviction, and a 1998 corrupting a minor with drugs
conviction.
Fangman and other officers established surveillance of 3665 Hillside. According to one
neighbor canvassed by the officers, there had been recent and numerous transactions in front of the
residence and heavy traffic in and out of 3665 Hillside. The officers observed a blue Cadillac,
matching the description given by the tipster, parked on the premises. The officers observed
Roberson exit the front door and stand briefly on the porch before reentering the residence. Officer
Fangman noticed that trash was deposited at the curb in front of the residence and, after ascertaining
that February 20, 2007, was the regularly scheduled date for trash collection in the neighborhood,
the officers retrieved several plastic garbage bags from the curb directly in front of 3665 Hillside and
examined them. A search of the trash revealed the following items: personal paperwork and mail
in the name of Shaunte Martin; a baking soda box which Officer Fangman noted through his
experience is often used by drug traffickers as an ingredient in the manufacture of crack cocaine;
several whole and partial plastic baggies similar to those commonly used by cocaine traffickers to
package and distribute cocaine for sale; a white powder residue on the lining of some of the baggies
which field-tested positive for cocaine; at least one plastic baggie that had been clipped or torn in
a manner consistent with those often found in the possession of drug traffickers; and dog feces.
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United States v. Roberson
Based upon the above information, Officer Fangman prepared an affidavit for a search
warrant. However, the affidavit contained two inaccuracies – Officer Fangman characterized the
tipster as a “confidential source of information,” rather than an anonymous source, and, although he
mentioned the tipster’s information regarding a blue Cadillac, in another portion of the affidavit he
requested permission to conduct a search of a red Cadillac on the premises.
A search warrant was approved by a Hamilton County Municipal Court judge on
February 20, 2007, the same day that the tip was received and the investigation was conducted. The
search warrant was executed at 3665 Hillside, yielding drug and weapons contraband and resulting
in Roberson’s arrest.2
Roberson moved to suppress the seized evidence on the ground that Officer Fangman’s
affidavit contained false statements, which were either knowingly, intentionally, or recklessly made.
Specifically, he challenged the information that the tipster claimed to have been in the residence
within 72 hours and also noted the discrepancy in the description of the Cadillac. In support of his
motion, Roberson furnished the affidavit of Shaunte Martin, in which she averred that she knew the
identity of the tipster and, to her personal knowledge, even though she worked outside of the home,
this individual had not been in her home in the 72 hours preceding the search. Roberson maintained
that once this false information was excluded from consideration, the remaining facts cited in Officer
Fangman’s affidavit were insufficient to establish probable cause to search the residence. Defense
2
The warrant also refers to a red, not blue, Cadillac.
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No. 08-3489
United States v. Roberson
counsel requested that the district court hold a Franks hearing to determine the veracity of Officer
Fangman’s statements in the affidavit.3
On September 24, 2007, the district court conducted an evidentiary hearing on Roberson’s
motion to suppress. Two witnesses testified – Shaunte Martin and Officer Fangman. Shaunte
Martin, a nurse, stated that she lived at 3665 Hillside with Roberson and their four children. She
claimed that she learned the identity of the tipster through conversations the source had with a
mutual acquaintance. Martin identified the tipster as Michael Peterson, a former friend of Roberson,
but she explained that due to a feud with Roberson, Peterson had not been permitted in her home for
at least a year prior to the execution of the search warrant in February 2007. She claimed that only
two other adults – Roberson’s grandfather and another individual, David Wilson, whom she was
“pretty sure” was not the tipster because he was a close family friend – were in her home in the
relevant 72-hour period preceding execution of the search warrant. Martin further testified that the
blue Cadillac described in the affidavit had been inoperable for six months or more and was on jacks
for transmission repairs at the rear of the residence. She admitted that because she worked eight-
hour days at a nursing home, she had no knowledge regarding who was in the house while she was
at work.
Officer Fangman testified at the hearing and reiterated the details of his investigation leading
up to the application for and execution of the search warrant. He acknowledged inaccuracies in the
3
Under Franks v. Delaware, 438 U.S. 154 (1978), a reviewing court must strike from the
affidavit false statements made deliberately or with reckless disregard for the truth. See generally
United States v. Graham, 275 F.3d 490, 504-05 (6th Cir. 2001); United States v. Hill, 142 F.3d 305,
310 (6th Cir. 1998).
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affidavit regarding the color of the Cadillac and the fact that the tipster was actually an anonymous
person, not a “confidential source,” as described in the affidavit.
Following the hearing, the district court issued an Opinion and Order denying Roberson’s
suppression motion. The court “conclude[d] that the information provided by the anonymous source
should not have been described as coming from a ‘confidential source of information’ in the
Affidavit.” Moreover, “at least a portion of the information supplied to law enforcement through
the anonymous tip was either stale or inaccurate and not reliable.” The court did not identify the
questionable evidence but held, in any event, that “even if [it] were [to] find the statements in the
Affidavit from the ‘source’ were false and the Court disregarded the information obtained from the
‘source,’ . . . there remains sufficient content in the Affidavit to support a finding of probable cause.”
In so concluding, the court took note of (1) the same-day temporal connection between the trash pull
and the request for a search warrant; (2) the fact that there was evidence of drug trafficking obtained
from the trash pull, i.e., a box of baking soda, several whole and partial plastic baggies, some of
which contained white powder residue which field-tested positive for cocaine, and one of the baggies
had been clipped and torn in a manner consistent with the practice of drug handlers; (3) the
neighbor’s observations concerning high traffic and transactions in the front of the residence; and
(4) the fact that the officers appropriately linked Roberson to the residence. The district court
therefore concluded that probable cause existed for issuance of the search warrant and denied
defendant’s motion to suppress.
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United States v. Roberson
Following the denial of his motion, Roberson conditionally pled guilty to the drug possession
and firearm counts pursuant to a plea agreement that reserved his right to appeal the decision on the
suppression motion. Following the district court’s imposition of a sentence of 180 months’
imprisonment on both counts, Roberson now timely appeals and raises his preserved challenge to
the order denying his motion to suppress evidence.
II.
Roberson contends that the district court erred when it held that the redacted affidavit
established probable cause for the police to search the home in which he lived. We disagree.
The district court’s denial of a motion to suppress is reviewed by this court for clear error
with regard to the court’s factual findings and de novo with respect to conclusions of law. United
States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006). We afford great deference to the magistrate’s
determination of probable cause, and we will reverse the ruling only if it is arbitrarily made. Id. In
our review, we consider the evidence in the light most favorable to the government. Id. at 306-07.
In determining whether to issue a search warrant on the basis of a particular affidavit, the
magistrate must “make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying the hearsay information,’ there is probable cause.” United States v. Smith, 510 F.3d 641,
652 (6th Cir. 2007) (quoting United States v. King, 227 F.3d 732, 740 (6th Cir. 2000)). “The
affidavit underlying a search warrant is sufficient to support a finding of probable cause if, based on
the totality of the circumstances, it provided the magistrate with a substantial basis for concluding
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United States v. Roberson
that there was probable cause to issue the warrant.” United States v. Fowler, 535 F.3d 408, 414 (6th
Cir. 2008) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). “Probable cause is defined as
reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion,
and is found to exist when there is a fair probability that evidence of a crime will be located on the
premises of the proposed search.” Jackson, 470 F.3d at 306 (internal citations and quotation marks
omitted). Because “[r]equirements for searches based on an anonymous tip are significantly more
stringent than those based on a confidential informant with a reliable track record vouched for by law
enforcement officials,” United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001), substantial
independent police corroboration is typically essential. Jackson, 470 F.3d at 307.
In the present case, we need not address the propriety of the district court’s imprecise Franks
ruling because, like the district court, we agree that even if the information obtained from the
anonymous source is excised from the affidavit, the evidence gathered from the officers’ independent
investigation and surveillance of 3665 Hillside as set forth in the affidavit is sufficient to establish
probable cause for the issuance of a warrant.
During the investigation, completed from start to finish on the same day that the anonymous
tip was received, Officer Fangman, a seasoned member of the RENU investigative force, surveilled
the address, canvassed the neighbors, checked official records, and conducted a so-called “trash
pull.” The investigation produced numerous incriminating indicators of drug trafficking. As set
forth in the affidavit, Officer Fangman determined that Roberson and Martin lived at 3665 Hillside
Avenue; indeed, he saw Roberson emerge briefly from the residence. A records check disclosed that
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United States v. Roberson
Roberson had prior drug-related convictions. Officer Fangman learned from a neighbor that high-
volume traffic occurred around the house in a manner consistent with drug trafficking. An analysis
of the trash from the residence revealed a box of baking soda, which is often used in cocaine
trafficking, as well as plastic baggies, one of which was clipped at the corner in a manner consistent
with cocaine packaging. Significantly, the baggies field-tested positive for cocaine residue. The
totality of these circumstances provided the magistrate with a substantial basis to conclude that there
was probable cause to issue the warrant.
Indeed, under analogous circumstances, we have affirmed the existence of probable cause.
See United States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002) (holding that the district court
acted within its discretion in not allowing a confidential informant to testify in support of the
defendant’s suppression motion because, even if the informant’s statements regarding drug activity
were excised from the search warrant affidavit, the remaining information obtained through a trash
pull, which revealed plastic bags containing wrappers with cocaine residue, supplied sufficient
probable cause for the search warrant); Hill, 142 F.3d at 310-11 (affirming decision finding probable
cause to issue a search warrant where the affidavit established that the affiant was an experienced
narcotics investigator; the defendant had prior drug trafficking convictions; information from a
confidential informant indicated that the defendant engaged in drug trafficking on a regular basis and
maintained drugs and weapons at the location to be searched; periodic surveillance corroborated the
informant’s information; and marijuana and cocaine residue, and packaging materials, were found
inside trash bags left on the defendant’s lawn within twenty-four hours before preparation of the
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No. 08-3489
United States v. Roberson
affidavit); United States v. Wingate, 191 F.3d 454, 1999 WL 775917, at *3-4 (6th Cir. Sept. 24,
1999) (table decision) (holding that traffic around the searched residence, the presence of a known
drug dealer, and trash pulls that revealed cut straws, torn plastic baggies, marijuana stems, and one
baggie with cocaine residue, constituted substantial basis for magistrate’s probable cause
determination); see also United States v. Allebach, 526 F.3d 385, 387 (8th Cir. 2008) (“We have
little hesitancy in concluding a reasonable magistrate would conclude the materials found in the trash
– two plastic bags with cocaine residue, two corners torn from plastic bags, Brillo pads, a film
canister with white residue – were sufficient to establish probable cause that cocaine was being
possessed and consumed in Allebach’s residence.”) (internal footnotes omitted).
Thus, even striking the anonymous tipster’s statements entirely from the affidavit, the
remaining corroborating information of drug activity at 3665 Hillside Avenue obtained by Officer
Fangman through the same-day investigation provided probable cause for the warrant’s issuance.
Roberson’s remaining argument – that the affidavit insufficiently linked him to the residence
because the “police simply did not know if Roberson or Martin placed the incriminating evidence
in the trash” – is without merit. The search warrant was directed at the residence, not defendant’s
person, Hill, 142 F.3d at 311, and there was, in this case, an established nexus between the place to
be searched and the evidence sought. United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005).
“[A]n affidavit in support of a search warrant does not need to name or describe the person who sold
the drugs or name the owner of the property.” United States v. Pinson, 321 F.3d 558, 564 (6th Cir.
2003). “‘While probable cause for arrest requires information justifying a reasonable belief that a
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crime has been committed and that a particular person committed it, a search warrant may be issued
on a complaint which does not identify any particular person as the likely offender.’” Id. (quoting
Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)).
III.
For all of these reasons, we affirm the district court’s order denying defendant’s motion to
suppress the evidence and the judgment of conviction.
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