NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0160n.06
FILED
No. 10-2636
Feb 08, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DONALD JAMES HOLLIN, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
) OPINION
Before: COOK, WHITE, and DONALD, Circuit Judges.
BERNICE B. DONALD, Circuit Judge. Defendant-Appellant Donald James Hollin was
convicted of several drug offenses in the Western District of Michigan. Because Hollin had multiple
prior felony drug convictions, the district court sentenced him to life imprisonment on two of the
counts. Hollin now appeals his conviction and sentence. In particular, Hollin challenges (1) the
district court's denial of a motion to suppress evidence seized pursuant to a search warrant; (2) the
district court's decision to limit cross-examination of a Government witness who identified
fingerprints on seized items as belonging to Hollin; and (3) the constitutionality of the life sentence.
For the reasons assigned herein, we AFFIRM.
No. 10-2636
United States v. Hollin
I.
In June 2009, officers with the Kalamazoo Valley Enforcement Team and the Drug
Enforcement Administration began an investigation of Arthur Anderson for suspicion of drug
trafficking in Kalamazoo, Michigan. On June 4, they began surveiling Anderson and followed him
from Kalamazoo to T&D Motors in Wyoming, Michigan. At T&D Motors, Anderson met Hollin,
who entered Anderson's vehicle. The officers followed Anderson and Hollin to 2623 Walden Wood
in Wyoming, Michigan ("the Apartment"). Hollin entered the Apartment but quickly exited it and
reentered the car. Hollin and Anderson then returned to T&D Motors.
The officers continued to follow Anderson as he left Wyoming and headed back toward
Kalamazoo. When Anderson entered Kalamazoo County, the officers pulled him over for displaying
an improper license plate. During the stop of Anderson's vehicle, the officers employed a
drug-sniffing dog. The dog indicated that drugs were located in the driver’s side door. The officers
searched the door, and in the storage compartment they found a substance resembling heroin. The
officers sent the substance to the Kalamazoo Department of Public Safety Crime Laboratory (the
"Crime Lab"), which confirmed that the substance was 49.95 grams of heroin.
After the officers searched Anderson's car and discovered the heroin, they returned to the
Apartment. When they arrived they met Tene Redd outside the Apartment. Redd, who lived in the
Apartment, informed the officers that Hollin was her children's godfather. She told the officers that
Hollin had a key to the Apartment, could come and go as he pleased, and had recently been in the
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United States v. Hollin
Apartment. The officers asked Redd whether Hollin had ever asked her to store anything for him,
and she responded that Hollin had stored a three foot by four foot box in the Apartment
approximately one month prior. Redd stated that she did not know what the box contained.
The officers asked Redd whether they could search the Apartment to ensure no one else was
inside. Redd consented to the search. When Redd entered the Apartment she went to the bedroom
closet and reached for a shopping bag. Asked by the officers about her action, Redd responded that
she was showing them that no one was in the closet.
As the officers proceeded through Redd's bedroom they noticed a small number of marijuana
roaches, which Redd admitted was for her personal use. The officers asked Redd whether they could
search the rest of the Apartment for narcotics, but she would not consent, saying she had to go pick
up her children. The officers then secured the Apartment while they obtained a search warrant.
After the encounter with Redd at the Apartment, Officer Michael Ferguson sought a warrant
from the Michigan Eighth Judicial Court to search the Apartment. Ferguson swore to an affidavit
that summarized the officers' encounter with Redd and the walk-through search of the Apartment
to which Redd consented. Ferguson then listed four nuggets of information provided by Redd to
another officer on the scene:
1. Donald Hollin has never spent the night at her apartment.
2. Approximately one month ago, Reed [sic] allowed Donald Hollin to store a
3 foot by 4 foot box at her apartment. Reed [sic] did not see where he put the
box and did not know what was inside it.
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United States v. Hollin
3. Since the agreement to store the box, Donald Hollin has been in possession
of keys to the apartment and can come and go as he pleases.
4. Donald Hollin may be bringing things into the apartment without her
knowledge.
Unfortunately, the affidavit did not mention the earlier observations of Hollin and Anderson,
Hollin’s visit to the Apartment, or the seizure of cocaine from Anderson’s vehicle.
Ferguson then recited a list of general characteristics of drug trafficking based on his personal
experience in drug investigations. From this information, Ferguson asserted that there was "probable
cause to believe that marijuana can be found at [the Apartment] and that the occupant is partaking
in ongoing violations of the controlled substance act." The affidavit listed the items to be seized as:
1. Any forms of marijuana and any other controlled substances.
2. Any tools, equipment, records, notes, tabulations and U.S. currency believed
to be evidence and proceeds in manufacturing and/or trafficking of controlled
substances.
3. Any paper, bills, receipts showing residency or control of the above premises.
4. Any and all firearms located in the aforementioned premises.
The magistrate issued the warrant to search the Apartment for the above-listed items.
When the officers executed the search warrant, they examined the shopping bag for which
Redd had reached. Inside they found a blender box containing a substance believed to be heroin.
The substance was sent to the Crime Lab, which confirmed it to be 1,532 grams of heroin. Officers
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United States v. Hollin
also seized a box of sandwich bags, a digital scale, and some latex gloves from the closet as well as
the marijuana roaches in the bedroom and some documents from the living room.
In the Second Superseding Indictment filed April 15, 2010, Hollin was charged with one
count of Conspiracy to Distribute and to Possess with Intent to Distribute Heroin and Cocaine after
two or more felony drug convictions, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(I), (b)(1)(B)(ii), one
count of Possession with Intent to Distribute Heroin, 21 U.S.C. § 841(a)(1), (b)(1)(A)(I), and one
count of Distribution of Heroin, 21 U.S.C. § 841(a)(1), (b)(1)(C). On April 27, 2010, Hollin filed
a motion to suppress the evidence seized from the Apartment during the search on the ground that
the search warrant did not show probable cause. On June 25, 2010, the district court denied Hollin's
motion to suppress. The district court found that the affidavit supporting the warrant demonstrated
probable cause to search the Apartment for two reasons: (1) the presence of the marijuana roaches
supported a suspicion that other drugs would be present; and (2) the statements by Redd suggested
that additional contraband would be uncovered during a search.
On July 19, 2010, the case proceeded to trial. The Government produced two witnesses to
testify regarding fingerprint evidence. David Thomas testified about how he lifted and processed
fingerprints found on the items seized from the Apartment, including fingerprints located on the
blender box, plastic bags, and a battery from the postal scale. Exhibits of these fingerprints were
admitted without objection. The Government also called Marty Johnson, who identified the
fingerprints found on the items seized from the Apartment as Hollin's. During the cross-examination
of Johnson, Hollin's counsel began asking questions about the reliability of Johnson's report and
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No. 10-2636
United States v. Hollin
when his report was placed in the system that generates the master police report. The Government
objected to this questioning, and the district court sustained the objection, limiting Hollin's line of
questioning to the subject of what Johnson did and whether he recorded what he did for purposes
of memory refreshment.
On July 22, 2010, the jury returned a verdict finding Hollin guilty of conspiracy involving
one kilogram or more of heroin; possession with intent to distribute one kilogram or more of heroin;
and distribution of heroin. The jury found Hollin not guilty of conspiracy involving cocaine.
On November 18, 2010, the district court sentenced Hollin to life imprisonment on Counts
1 and 2 and a consecutive sentence of 360 months on Count 3. Hollin also received a ten-year term
of supervised release for Counts 1 and 2, and a six-year term of supervised release for Count 3. On
December 1, 2010, Hollin timely filed a Notice of Appeal.
II.
The district court denied Hollin’s motion to suppress because it found that Ferguson’s
affidavit showed probable cause to search the Apartment. It alternatively held that even if the search
warrant was defective, the good-faith exception to the exclusionary rule would nonetheless permit
the introduction of the evidence discovered during the search. Because we find the good faith
exception applicable in this case, we do not reach the question whether Ferguson’s affidavit showed
probable cause to search the Apartment.
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No. 10-2636
United States v. Hollin
The Supreme Court has identified an exception to the exclusionary rule in circumstances
where an officer acts in good faith when executing a warrant she reasonably believes to be valid.
United States v. Leon, 468 U.S. 897 (1984). Recognizing that "the exclusionary rule is designed to
deter police misconduct rather than to punish the errors of judges and magistrates," the Court in Leon
concluded that the "marginal or nonexistent benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the
substantial costs of exclusion." Id. at 916, 922.
There are circumstances, however, where the good faith exception does not apply:
1) when the warrant is issued on the basis of an affidavit that the affiant knows (or
is reckless in not knowing) contains false information; 2) when the issuing magistrate
abandons his neutral and detached role and serves as a rubber stamp for police
activities; 3) when the affidavit is so lacking in indicia of probable cause that a belief
in its existence is objectively unreasonable; and 4) when the warrant is so facially
deficient that it cannot be reasonably presumed to be valid.
United States v. Thomas, 605 F.3d 300, 311 (6th Cir. 2010) (citing United States v. Laughton, 409
F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at 914-23)).
Hollin focuses on the third exception to the good faith exception. "Under this exception, the
executing officer must have had 'no reasonable grounds for believing that the warrant was properly
issued.'" United States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008) (quoting United States v.
Helton, 314 F.3d 812, 824 (6th Cir. 2003) (citing Leon, 468 U.S. at 923)). The inquiry is “whether
the faceless, nameless 'reasonably well-trained officer' in the field, upon looking at this warrant,
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No. 10-2636
United States v. Hollin
would have realized that the search described . . . did not match the probable cause described . . . and
therefore the search was illegal, despite the magistrate's decision to the contrary." Id.
Hollin first argues that the third exception to Leon applies because of "[t]he failure of the
affiant to tell the magistrate what he really was requesting." Because the subjective intent of the
officer is irrelevant, this argument is without merit. See Whren v. United States, 517 U.S. 806
(1996); United States v. Sprague, 370 F. App’x 638 (6th Cir. 2010).
Hollin also insists the affidavit supporting the search warrant is "bare bones" because "the
available facts did not support any reasonable belief that additional contraband or evidence of a
crime would be found in the apartment." Bare bones affidavits are those that contain only
"suspicions, beliefs, or conclusions, without providing some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge. . . ." United States v. Weaver, 99 F.3d 1372,
1380 (6th Cir. 1998). Such affidavits fall within the third exception to the Leon exception because
they are "lacking in indicia of probable cause." Laughton, 409 F.3d at 748. The determination
whether an objectively reasonable officer would recognize that an affidavit is bare bones is restricted
to the information included in the four corners of the affidavit. Id. at 751-52.
The affidavit’s mention of the marijuana roaches in the Apartment defeats Hollin's argument
that the affidavit was a bare bones affidavit. While the inclusion of Redd's statements and the
boilerplate paragraphs on generic drug trafficking situations suggest only a suspicion of drug
trafficking, the marijuana roaches offered a factual basis to believe the Apartment contained
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No. 10-2636
United States v. Hollin
contraband. Thus, while the affidavit was bare bones with regard to drug trafficking, there was
factual support to believe that marijuana could be found in the Apartment. Hollin's argument that
Ferguson's affidavit was bare bones in all respects is not persuasive.
Finally, Hollin contends that the good-faith exception does not apply because Ferguson, the
affiant for the warrant, executed it, precluding him from being able to claim good-faith reliance on
any deficiencies. Hollin directs the Court’s attention to Groh v. Ramirez, 540 U.S. 551 (2004). In
Groh, the Supreme Court held that a warrant was invalid because it did not describe with
particularity the things to be seized . The Court also rejected an officer's argument that he reasonably
relied on the warrant. "[B]ecause petitioner himself prepared the invalid warrant,” the Court noted,
“he may not argue that he reasonably relied on the Magistrate's assurance that the warrant contained
an adequate description of the things to be seized and was therefore valid." Id. at 564. Hollin insists
that since Ferguson prepared the affidavit, obtained the warrant, and executed it, he, like the officer
in Groh, cannot argue any error was made in good faith and reasonable reliance on the magistrate’s
assurance of probable cause.
Hollin also points to Hodson, 543 F.3d 286, where the Sixth Circuit found that Leon did not
apply when an affidavit established probable cause for evidence of child molestation but the warrant
described a search for evidence of child pornography. The court explained that
the only reason that the officer executing the search warrant in this case, Detective
Pickrell, did not recognize the insufficiency of the warrant was that Detective Pickrell
was also the investigating officer who prepared the affidavit, obtained the warrant,
and had specialized, subjective knowledge about these kinds of criminal offenses,
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United States v. Hollin
this search and this case. But, as the Supreme Court has made clear, such subjective
knowledge is not sufficient to satisfy a finding of objective good faith.
Hodson, 543 F.3d at 293 (citing Groh, 540 U.S. at 564).
Groh and Hodson are distinguishable from this case. Both involved a disconnect between
the probable cause provided in the affidavit and the items to be searched. That situation is not present
here. While it was objectively unreasonable for the officer in Groh to rely on a warrant without a
particularized description of what was to be searched, and it was unreasonable for the officer in
Hodson to rely on a warrant that described a search for one crime when the affidavit described
probable cause for a different crime, it was not objectively unreasonable for the officers in this case
to think they had probable cause to search for marijuana based on Ferguson’s affidavit because the
affidavit explained that marijuana roaches were discovered in the Apartment.
Based on the affidavit, the officers arguably had no objective basis to believe that there was
probable cause to search the Apartment for evidence of drug trafficking. The discovery of the
marijuana roaches in plain view provided a basis to believe there was probable cause to search the
Apartment. Even if, arguendo, probable cause was ultimately lacking, it is unlikely that “a
reasonably well trained officer would have known that the search was illegal despite the magistrate’s
decision.” Leon, 468 U.S. at 923 n.23. Suppressing this evidence would not further the exclusionary
rule’s purpose of deterring police misconduct. Because the Leon exception applies here, the district
court did not err in denying Hollin’s motion to suppress and allowing the introduction of the
evidence discovered during the search of the Apartment.
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No. 10-2636
United States v. Hollin
III.
Hollin’s second assignment of error is that the district court improperly limited his counsel’s
cross-examination of the government’s fingerprint witness. A limitation on cross-examination that
violates the Confrontation Clause is subject to harmless error analysis. United States v. Williams, 431
F. App’x 404, 408 (6th Cir. 2011). Whether an error is harmless depends on several factors,
including “the importance of the witness’ testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdell, 475 U.S. 673, 684
(1986).
A review of the trial transcript reveals that Hollin’s counsel continued to ask questions
regarding the witness’s report and when it was placed in the master police report, and the witness
answered these questions. Therefore, to the extent the district court erred in sustaining the
government’s objection to the cross-examination, it was harmless error because it did not
substantively impact Hollin’s ability to elicit information from the witness.
IV.
Hollin’s final argument is that his life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) is
unconstitutional. We have repeatedly held that § 841(b)(1)(A) is constitutional. See United States
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No. 10-2636
United States v. Hollin
v. Senter, 424 F. App’x 443 (6th Cir. 2011); United States v. Wettstain, 618 F.3d 577 (6th Cir. 2010).
Hollin’s argument is therefore without merit.
V.
For the reasons assigned above, we AFFIRM Hollin’s conviction and sentence.
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