NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0493n.06
No. 08-5663
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 15, 2009
UNITED STATES OF AMERICA, )
LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
BRIAN LAFONTA SMITH, ) TENNESSEE
)
Defendant-Appellant. )
)
Before: COLE and ROGERS, Circuit Judges; BARRETT, District Judge.*
BARRETT, District Judge. Defendant-Appellant Brian Smith (“Smith”) appeals his
conviction for possession with intent to distribute over five grams of cocaine base in violation of
Title 21 U.S.C. § 841(a)(1) and being a felon in possession of a firearm in violation of Title 18
U.S.C. § 922(g). Smith argues that the district court erred by not granting his motion to suppress in
that the affidavit used to secure the two search warrants did not establish probable cause. For the
reasons that follow, we affirm.
I.
Officer Eric Uselton obtained search warrants for a business located at 34 Williams Circle
and a residence located at 544 West Church Street. A single affidavit in support of the search
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 08-5663
United States of America v. Smith
warrants was presented to the circuit court judge. Both locations were related to defendant Smith.
The search warrants were executed and various drugs, including cocaine, and two handguns were
seized from the residential property. It is these items that provided the basis for the indictment
against Brian Smith.
Smith was indicted and subsequently filed a motion to suppress contending that the single
affidavit in support of the search warrants was insufficient to give the officers probable cause to
search the properties. A hearing was held wherein the government informed the district court that
it would be partially joining Smith’s motion to suppress as to the evidence seized from 34 Williams
Circle. Due to this concession, the district court only considered the search on the residence located
at 544 West Church Street.
At the hearing, the government presented the testimony of Officer Uselton. Officer Uselton
testified that he had received information from a confidential informant that drug sales were
occurring at 34 Williams Circle and 544 West Church Street in Alamo, Tennessee. Thereafter a
controlled purchase was made at each location. There were two controlled purchases made at 34
Williams Circle, one five days prior to the swearing of the affidavit and one within 72 hours.
However, the second purchase is not referenced in the affidavit. The controlled purchase at 544
West Church Street was within 72 hours and referenced in the affidavit.
According to the affidavit, Officer Uselton is a Special Agent of the 28th District of the West
Tennessee Violent Crime and Drug Task Force unit. He has been employed with the Crockett
County Sheriff’s Department for 13 years. Prior to his current assignment he was the Narcotics
Investigator and K-9 handler. The affidavit also sets forth the following: a confidential informant
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United States of America v. Smith
made two controlled purchases, one at 34 Williams Circle and the other at 544 West Church Street;
the vehicles used for the controlled purchases and the confidential informant were searched prior to
the purchases to ensure that no illegal substances were present in the vehicle or on the confidential
informant’s person; the confidential informant was provided with money to buy the crack cocaine;
the confidential informant was kept under constant visual surveillance during the entire time he was
going to and from the properties, the confidential informant then returned to Officer Uselton where
he turned over the drugs to Officer Uselton; the crack cocaine field-tested positive for cocaine; and
the confidential informant told Officer Uselton that he had purchased crack cocaine from Brian
Smith in the past on several occasions from both the residential and business locations. In addition,
Officer Uselton testified that he was familiar with the confidential informant and had used him
before.
Smith called his uncle Robert Cole to testify at the hearing. Mr. Cole testified that he worked
part time at the business located at 34 Williams Circle detailing automobiles and that during the five
day period before Smith’s arrest he did not see anything or know what went on there.
At the conclusion of the hearing, the district court denied the defendant’s motion to suppress
stating the following:
Defendant initially moved to suppress evidence obtained as a result of a search
warrant on 544 West Church Street in Alamo and 34 Williams Circle in Alamo. The
government indicates that they plan to use none of the evidence from 34 Williams
Circle, so my ruling will address only the admissibility of evidence received from
544 West Church Street. Defendant moves to suppress that evidence on the basis that
there was no probable cause for the issuing circuit judge to sign a search warrant. The
defendant contends that the information contained in the affidavit presented to the
circuit judge was insufficient to establish probable cause. ... Now, if the facts of this
case were that we had a confidential informant that came to the officer and said, I
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No. 08-5663
United States of America v. Smith
purchased crack cocaine at 544 West Church Street within the last three days, the
officer then went to the magistrate with that information in the affidavit, that would
clearly be insufficient to get a search warrant. But we have more than that in this
case. We have the confidential informant who says that he purchased crack cocaine
at 544 West Church Street; but, in addition to that, we have the observation of this
confidential informant going to and from West Church Street. We have testimony
that the confidential informant was searched before he went. He was searched after
he returned. He was given money to buy the crack cocaine with. Those are all
corroboration of the confidential informant’s statement that he purchased crack
cocaine. Under the authority of Coffee [United States v. Coffee, 434 F.3d 887 (6th
Cir. 2006)], although the facts in Coffee were different, there was a different kind of
and perhaps more corroboration than we have here, it's my conclusion that the search
of the confidential informant, the observation of the confidential informant going to
and from 544 West Church Street, the obtaining of crack cocaine from him after he
returned, coupled with his statement that he purchased crack cocaine at 544 West
Church Street, the court finds that that is sufficient corroboration and that the issuing
magistrate judge had probable cause to issue the search warrant on 544 West Church
Street. So the motion to suppress that evidence is denied.
(ROA, Tr. Vol. 2, 54-56).
After the district court denied his motion to suppress, Mr. Smith pled guilty, while expressly
reserving his right to appeal the district court’s denial of his Motion to Suppress. On May 23, 2008,
the district court sentenced the defendant to 180 months incarceration as to Count One of the
Indictment, and 120 months of incarceration on Count Two, to run concurrently. The district court
also sentenced the defendant to four years supervised release on Count One to run concurrently to
three years of supervised release on Count Two. This appeal followed.
II.
The standard of review on motions to suppress is to uphold the factual findings of the district
court unless clearly erroneous and to review legal conclusions de novo. United States v.
McPhearson, 469 F.3d 518, 523 (6th Cir. 2006) (citing United States v. Weaver, 99 F.3d 1372, 1376
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No. 08-5663
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(6th Cir. 1996)). “This court views the evidence ‘in the light most likely to support the district
court’s decision.’” Id. (quoting United States v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992)).
Smith argues that the affidavit used to support the issuance of the search warrant at 544 West
Church Street did not establish sufficient probable cause. Smith alleges that the affidavit failed to
indicate any reason why the officers considered the confidential informant to be reliable and that the
officers did not observe any drug transactions taking place inside of 544 West Church Street.
The Fourth Amendment guarantees that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation.” U.S. Const. amend. IV. “Probable cause is defined as reasonable
grounds for belief, supported by less than prima facie proof but more than mere suspicion, and is
said to exist 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.” United States v. Lattner, 385 F.3d 947,
951-52 (6th Cir. 2004) (internal citations and quotations omitted). A line-by-line scrutiny is not
appropriate. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006). Affidavits in support of
search warrants:
Must be tested and interpreted by magistrates and courts in a commonsense and
realistic fashion. They are normally drafted by nonlawyers in the midst and haste of
a criminal investigation. Technical requirements of elaborate specificity once exacted
under common law pleadings have no proper place in this area. A grudging or
negative attitude by reviewing courts toward warrants will tend to discourage police
officers from submitting their evidence to a judicial officer before acting.
United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741 (1965); Coffee, 434 F.3d at 892.
Smith relies heavily on United States v. Jackson, 470 F.3d 299 (6th Cir. 2006) to support his
argument that statements as to the reliability of the confidential informant need to be included in the
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United States of America v. Smith
affidavit for probable cause to exist. Smith cites Jackson for the proposition that “[a]n affidavit is
sufficient ‘where 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,
[such that] a neutral and detached magistrate may believe that evidence of a crime will be found.’”
Id. at 307 (quoting United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc)).
However, the Court in Jackson ultimately held that an affidavit that “supplies little
information concerning an informant’s reliability may support a finding of probable cause, under the
totality of the circumstance, if it includes sufficient corroborating information.” Id. at 307.
Furthermore, this court has held that “in the absence of any indicia of the informants’ reliability,
courts insist that the affidavit contain substantial independent police corroboration.” United States
v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005). This corroboration can be established by a police-
monitored controlled purchase. Coffee, 434 F.3d at 894 (affirming the district court’s conclusion
that even though there were no statements in the affidavit about the reliability of the confidential
informant (“CI”), “[the officer’s] statements that he set up the controlled buy and took necessary
precautions before and after the orchestrated purchase adequately corroborated the CI’s information
and, thus, provided sufficient probable cause for the issuance of the search warrant”); Jackson, 470
F.3d at 308 (concluding that “corroboration of events that occurred during the controlled buy, as set
forth in the affidavit, provide sufficient probable cause to sustain issuance of the search warrant”).
Here, although the affidavit did not contain information as to the informant’s reliability, it was based
upon the officer’s personal observations and control of the purchases that were conducted.
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Smith also argues that because the informant could not be observed at all times, specifically
inside the residence while actually making the purchase, that because he should have worn a wire,
and that because he should have been subjected to a cavity search, probable cause cannot exist. The
government opposes this argument because Officer Uselton testified that he had continuous visual
observation of the confidential informant throughout the entire purchase at the residence. However,
the affidavit states only that “[t]he confidential [informant] was kept under constant visual
surveillance during the entire time this confidential [informant] was going to and from 544 West
Church Street.” This statement is vague as to whether there was visual surveillance during the actual
purchase. Because “review of the sufficiency of the evidence supporting probable cause is limited
to the information presented in the four corners of the affidavit,” the Court will not consider this
testimony. Coffee, 434 F.3d at 892.
However, even looking at just the four corners, the proper measures were taken in this case
to ensure the reliability of the controlled purchases, including thoroughly searching the informant
and the vehicle used before the purchase and maintaining a visual on the confidential informant
going to and coming from the residence. Under the totality of the circumstances the affidavit
properly set forth the existence of probable cause. See United States v. Hawkins, 278 F. App’x. 629
(6th Cir. 2008) (unpublished), cert. denied, 129 S. Ct. 588 (2008) (two controlled purchases were
sufficient to corroborate the reliability of a confidential informant even though the informant did not
wear a wire during the purchases and was not observed actually purchasing the cocaine); United
States v. Henry, 299 F. App’x. 484 (6th Cir. 2008) (unpublished) (a single controlled purchase was
sufficient independent corroboration of the confidential informant even without taking into
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consideration the fact the CI wore a wire). Thus, the circuit judge had probable cause to issue the
search warrants and the district court did not err by denying the motion to suppress.
III.
The judgment of the district court is affirmed.
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