United States v. Nathan Wagoner

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0676n.06

No. 19-5954

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 25, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
NATHAN WAGONER, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)

BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. On April 24, 2019, a jury found Nathan

Wagoner guilty of violating 21 U.S.C. § 841(a)(1) on two counts, (1) knowing and intentional

distribution of a substance containing methamphetamine and (2) simple possession of 50 grams or

more of methamphetamine. He now appeals. For the reasons laid out below, we affirm the district

court.

I.

In fall 2017, law enforcement officials were told that Nathan Wagoner was selling

methamphetamine in the Laurel County, Kentucky area. The informant, Glenn Purdy, then made

a controlled purchase of roughly one ounce from Wagoner on September 14, 2017. Purdy told

law enforcement on October 26 that Wagoner was either then in possession of a quantity of

methamphetamine or shortly would be. There was already an active arrest warrant for Wagoner,

so the Sheriff’s Office sent officers to Wagoner’s sister’s mobile home roughly an hour and a half

after receiving this information. There, they found Wagoner and his friend Roberta Ann Benge
No. 19-5954, United States v. Wagoner

smoking methamphetamine in a bedroom. The officers arrested Wagoner based on the warrant

and Benge based on the presence of drug paraphernalia in the bedroom. While three or four

officers remained behind to “maintain[] security in the residence,” Officer Richard Dalrymple left,

secured a warrant to search the home, and returned to the same mobile home. (DE67, Suppression

Hr’g Tr., Page ID 400−01, 404.) The search resulted in three ounces of methamphetamine (found

under the bed in the room where the two had been smoking), several sets of scales, pipes, and other

materials that indicated drug trafficking.

The search warrant stated that its target was “the residence of Nathan Wagoner at

7881 Barbourville Rd., London, KY.” (DE15-1, Search Warrant, Page ID 49.) It included an

attachment with greater detail. The attachment described and gave detailed directions to the place

to be searched:

From the junction of KY HWY 229 and U.S. 25 in London, travel south on KY
HWY 229 approximately 7.8 miles to the last lane on the right before Benge’s
market. Follow the one lane gravel drive to the end, approximately 1/10 mile to
beige siding mobile with blue shutters home with an attached covered front porch
and an attached wooden back porch sitting to the right of a white metal building.

(Id. at Page ID 51.)

But the search warrant in question was imperfect. The mobile home where the officers

found Wagoner, where they searched and recovered the evidence against him, was not beige; it

was gray. There were no blue shutters. 7881 was not the correct house number. In fact, there

were multiple buildings with separate addresses on the property, including one house, a garage

with an attached apartment, a single-wide mobile home, and the double-wide mobile home in

question. At the top of the driveway were four mailboxes, none of which sat in front of a building

or otherwise indicated the residence to which they belonged. The mailbox marked 7881 was

associated with the house on the property, not the searched mobile home. Finally, Wagoner

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actually lived in the apartment attached to the garage, not the mobile home. His sister, Stacy Allen,

owned the mobile home but was not living there at the time of Wagoner’s arrest.

At trial, Wagoner moved to suppress the evidence found during the search on the grounds

that the warrant lacked sufficient particularity because it “specified a different residence than the

one actually searched.” (DE 12, Mot. to Suppress, Page ID 32.) The magistrate judge

recommended that the motion be denied because “no reasonable probability existed that a mistaken

location would be searched.” (DE22, R.&R. Den. Mot. to Suppress, Page ID 75.) The district

court adopted the recommendation and denied the motion, and so the drugs, scales, pipes, and

other paraphernalia were submitted as evidence at trial.

Wagoner’s trial began on Tuesday, April 23, 2019, with voir dire. The juror pool consisted

of 51 jurors drawn randomly from the voter rolls of 22 surrounding counties. During voir dire,

the court learned that a number of the potential jurors had previously served on a jury together.

Two jurors had served on one criminal jury together, and a further 11 jurors had previously served

together during a different criminal trial. Neither the prosecution nor Wagoner’s attorney objected

to the jurors who had previously served together. The judge announced the thirteen members of

the final jury panel (twelve jurors and an alternate). The jury included four of the jurors who had

previously served together.

At the outset of trial, Wagoner conceded guilt as to Count One for selling

methamphetamine, as the controlled sale had been caught on video. However, he denied

possession under Count Two, arguing that the methamphetamine found in the search of the house

was not his.

At the close of the government’s case, Wagoner moved for a judgment of acquittal as to

Count Two on the basis of insufficiency of the evidence. Specifically, Wagoner argued that there

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No. 19-5954, United States v. Wagoner

was not enough evidence for a jury to conclude beyond a reasonable doubt that the drugs found

under the bed in the mobile home were his, and not Benge’s. The prosecution disagreed, arguing

that the evidence was sufficient because, among other things, it was found “in his home, under his

bed[,]” and it was clear from the video recording of the controlled buy that “[h]e obviously had

more” drugs than those he sold. (DE71, Trial Tr., Page ID 677−78.) The court denied Wagoner’s

motion, and the trial proceeded. After the defense rested, Wagoner renewed his motion, and the

court again denied it.

Following the two-day trial, the jury found Wagoner guilty of both counts under 21 U.S.C.

§ 841(a)(1): (1) knowing and intentional distribution of a substance containing methamphetamine

and (2) simple possession of 50 grams or more of methamphetamine. Wagoner timely appealed

to this court.

Wagoner makes four arguments on appeal: (1) that the district court erred in denying his

suppression motion, (2) that the jury selection process violated his Sixth Amendment right to a

jury representing a fair cross-section of the community, (3) that he was deprived of the effective

assistance of counsel, and (4) that his conviction was based on insufficient evidence. We will

address each argument in turn.

II.

A.

First, Wagoner argues that the district court erred in denying his motion to suppress the

evidence found in the mobile home, including three ounces of methamphetamine, scales, pipes,

and other materials “indicative of drug trafficking.” (Id. at Page ID 571.)

In reviewing a denial of a motion to suppress, “we review the district court’s findings of

fact under the clear-error standard and its conclusions of law de novo.” United States v. Quinney,

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No. 19-5954, United States v. Wagoner

583 F.3d 891, 893 (6th Cir. 2009). Specifically, “[t]he standard of review for . . . determining

whether a search warrant describe[d] the place to be searched with sufficient particularity is . . . de

novo.” United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989).

Wagoner concedes that the warrant was based on probable cause but argues that it was so

deficient in its description of the place to be searched as to violate the constitution. The magistrate

judge disagreed, recommending that the district court uphold the warrant because, despite

deficiencies in the description of the address and house, it “still provided law enforcement officers

with sufficient particularity to identify the property authorized to be searched.” (DE22, R. & R.

Den. Mot. to Suppress, PageID 81−82.) The district court agreed, finding that “[the magistrate

judge] ably analyzed and rejected Wagoner’s particularity challenge.” (DE24, Order Den. Mot. to

Suppress, Page ID 88.) We agree and affirm the district court’s holding that the warrant was not

deficient.

The Fourth Amendment to the United States Constitution mandates that a warrant be based

on probable cause and describe the place to be searched with “particularity.” U.S. CONST. amend.

IV. The reason for this requirement is clear; the “evil that the framers of the Constitution were

trying to eradicate . . . was the so-called general warrant that allowed officers to search at random.”

United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998). However, while it is clearly preferable

that a warrant be as accurate and specific as possible, this court does not require perfection. Rather,

the “test for determining whether a search warrant describes the premises to be searched with

sufficient particularity” is “whether the description is sufficient ‘to enable the executing officer to

locate and identify the premises with reasonable effort, and whether there is any reasonable

probability that another premises might be mistakenly searched.’” Id. at 465 (quoting United

States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989)).

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No. 19-5954, United States v. Wagoner

Accordingly, under this standard “[e]ven though a warrant containing the wrong address

can sometimes risk a mistaken search, such an ‘error does not invalidate a search warrant if the

warrant includes other specific descriptors that remove the probability that the wrong location

could be searched[.]’” United States v. Abdalla, 972 F.3d 838, 846 (6th Cir. 2020) (quoting United

States v. Crumpton, 824 F.3d 593, 612 (6th Cir. 2016)). Specifically, if the warrant contains errors

but the description would nonetheless direct the officers to the correct location or there are

additional circumstances that reduce the probability that the wrong location will be searched, then

the warrant is not necessarily invalid. See id. (holding that a warrant listing the incorrect address

was nonetheless valid because “most of the warrant unambiguously described [the correct

address]”); Durk, 149 F.3d at 466. An example of such an additional circumstance is if the

executing officer is also the affiant and had just come from the premise in question. Durk, 149 F.3d

at 466.

Here, many descriptors in the warrant did not point to the searched mobile home. Not only

did the warrant list the incorrect address, it also stated that the target was Wagoner’s residence and

described the target as beige with blue shutters. In fact, the mobile home was gray, did not have

blue shutters, and was not Wagoner’s residence.

But some specific descriptors in the warrant did point to the searched premises. The

warrant provided accurate and detailed instructions that indisputably applied only to the searched

premises, not the other structures on the property: “Follow the one lane gravel drive to the end,

approximately 1/10 mile to . . . mobile . . . home with an attached covered front porch and an

attached back porch sitting to the right of a white metal building.” (DE15-1, Search Warrant, Page

ID 51.) None of the other residential structures were at the end of the lane to the right of a metal

building —only the mobile home was. So this specific descriptor only applied to the double-wide

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No. 19-5954, United States v. Wagoner

mobile home. See United States v. Crumpton, 824 F.3d 593, 612–13 (6th Cir. 2016) (stating that

technical “error does not invalidate a search warrant if the warrant includes other specific

descriptors that remove the probability that the wrong location could be searched, especially when

the warrant affiant participates in the execution of the search” and citing cases relying on location

information to support that assertion). An officer who followed these directions would arrive at

the correct residence. Further, the warrant’s recitation of the wrong house number did not

appreciably increase the chance of an incorrect search in the context of this case because the houses

were not numbered. So this was not a case in which location information was of “limited

usefulness.” Knott v. Sullivan, 418 F.3d 561, 570 (6th Cir. 2005).

Additionally, the information in the warrant taken together did not accurately describe any

other building on the property, minimizing the chances of searching the wrong place given he

detailed location information. The other mobile home did not have blue shutters and was not

located at the end of the lane. And there is no evidence that the other mobile home was beige.

Although it is true that the parents’ house and Wagoner’s apartment were beige, neither had blue

shutters. Neither were mobile homes. And neither were even close to the end of the lane; the

house (located about fifty feet from the apartment) was “probably a couple football fields away.”

(DE67, Suppression Hr’g Tr., at Page ID 428, 423.)

Substantially decreasing the probability of a search of the wrong place, the executing

officer, Agent Dalrymple, was at the mobile home immediately before he went to obtain the

warrant. And officers remained at the mobile home until he returned to execute the warrant.

Where, as here, there are some accurate identifiers (mobile home, location information) and the

executing officer is the affiant and just came from the home in question, this court and the Eighth

Circuit have upheld a search warrant. Durk, 149 F.3d at 466; see also United States v. Hassell,

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No. 19-5954, United States v. Wagoner

427 F.2d 348, 349 (6th Cir. 1970) (upholding a warrant in part because “three officers were left at

the [premise] while one went to procure the search warrant”); United States v. Clement, 747 F.2d

460, 461 (8th Cir. 1984) (finding no probability that an incorrect location could be searched when

the officers personally knew the location to be searched); United States v. Gitcho, 601 F.2d 369,

372 (8th Cir. 1979), cert. denied, 444 U.S. 871 (1979) (“Of even greater importance is the fact that

the agents executing the warrant personally knew which premises were intended to be searched,

and those premises were under constant surveillance while the warrant was obtained”).

The question is whether there was a “reasonable probability” that another premise might

be searched under the warrant. Durk, 149 F.3d at 456−66. Because Dalrymple returned directly

to the same mobile home he had just left, the other officers waited there for the entire time, the

directions in the warrant would correctly lead an officer to the mobile home in question, and the

inaccurate information taken together did not clearly point to any other structure, there is no such

reasonable probability. Accordingly, we affirm the district court’s denial of Wagoner’s motion to

suppress.

B.

Wagoner next argues that the jury selection process violated his Sixth Amendment right to

a have a jury pool consisting of a fair cross-section of the community.

The general rule is that “[w]e review de novo whether a defendant has been denied his right

to a jury selected from a fair cross-section of the community.” United States v. Odeneal, 517 F.3d

406, 412 (6th Cir. 2008). Wagoner failed to object to the jury composition at trial, however, and

so we review his voir dire claim for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th

Cir. 2008) (“[A]t [every phase] of a criminal proceeding, each party has a duty to object to rulings

by a court in order to preserve them for appeal. . . . [a] party who neglects to make an objection,

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No. 19-5954, United States v. Wagoner

even after being given ‘an opportunity’ to do so, forfeits the argument and may obtain relief on

appeal only if the error is ‘plain’ and ‘affects substantial rights.’” (quoting FED. R. CRIM P. 52(b))).

To demonstrate plain error, Wagoner must show “(1) error (2) that ‘was obvious or clear,’ (3) that

‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public

reputation of the judicial proceedings.’” Id. at 386 (quoting United States v. Gardiner, 463 F.3d

445, 459 (6th Cir. 2006).

“[T]he selection of a petit jury from a representative cross section of the community is an

essential component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419 U.S.

522, 528 (1975). This right is most clearly violated when a jury pool consists “of only special

segments of the populace or if large, distinctive groups are excluded from the pool.” Id. at 530.

To establish a prima facie violation, the defendant must first show that “the group alleged to be

excluded is a ‘distinctive’ group in the community,” second “that the representation of this group

in venires from which juries are selected is not fair and reasonable in relation to the number of

such persons in the community,” and third “that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979).

Wagoner’s exact argument is unclear. To the extent that he argues that the members of the

former criminal jury are overrepresented, that does not align with the typical Sixth Amendment

claim, which is that some distinctive group is underrepresented. See id. (finding that women are

a distinctive group whose underrepresentation on the petit jury violates the fair cross-section

requirement); Ambrose v. Booker, 684 F.3d 638, 640 (6th Cir. 2012) (systematic exclusion of

African Americans from the petit jury would constitute a Sixth Amendment violation).

To the extent that this court could sustain a claim for systematic overinclusion of a segment

of the population that had previously served on juries together, it cannot sustain this one. There is

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No. 19-5954, United States v. Wagoner

no evidence in the record of the number of people in the community who have never served on a

jury together compared to the number of people who have, which would be required to fulfill the

second prong of the test. Duren, 439 U.S. at 364. Similarly, for the third and final prong, Wagoner

does not suggest that the inclusion of the eleven potential jurors who had previously served

together was “due to systemic exclusion” of any group in the jury selection process. Id. Indeed,

the petit jury was selected by “randomly draw[ing names] from the voter rolls in the” counties

surrounding the courthouse where Wagoner’s trial took place. (DE69, Voir Dire Tr., Page ID

449.) It is clear that there was no systematic failure to include a fair cross-section of jurors who

had not previously served together, even if that could be considered a “distinct” segment of the

population.

The district court did not err in permitting the eleven jurors to serve on Wagoner’s petit

jury. We do not, therefore, move forward with the plain error analysis to “consider whether such

error was obvious or clear, affected Defendant’s substantial rights, or affected the fairness,

integrity, or public reputation of the proceedings.” United States v. Igboba, 964 F.3d 501, 510

(6th Cir. 2020) (citing United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018)).

C.

Third, Wagoner brings a Strickland ineffective assistance of counsel claim, arguing that

his counsel’s performance was deficient in (1) failing to object to the presence of jurors who had

served together previously during voir dire, (2) opening the door to prejudicial evidence through

cross-examination of witnesses, (3) failing to object to other act evidence, specifically testimony

about Wagoner’s other drug activity, (4) failing to object to the introduction of the search warrant,

and (5) questioning law enforcement officers regarding his silence, contrary to his Fifth

Amendment rights. Generally, “[a] claim of ineffective assistance of counsel is a mixed question

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No. 19-5954, United States v. Wagoner

of law and fact that we review de novo.” McPhearson v. United States, 675 F.3d 553, 559 (6th Cir.

2012) (citing Short v. United States, 471 U.S. 686, 691 (6th Cir. 2006)). Wagoner, however, raises

this issue for the first time on direct appeal, and so we review “for plain error.” United States v.

Totten, 766 F. App’x 350, 354 (6th Cir. 2019) (citing United States v. Dedman, 527 F.3d 577, 591

(6th Cir. 2008).

To sustain an ineffective assistance of counsel claim, the defendant must first “show that

the counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

A performance is deficient when “counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Second, the defendant

must show that the deficient performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial . . . whose result is

reliable.” Id.

Because this claim requires development of the record, “[t]he usual rule is that a defendant

may not raise claims for ineffective assistance of counsel on direct appeal.” United States v.

Sullivan, 431 F.3d 976, 986 (6th Cir. 2005) (citing United States v. Williams, 176 F.3d 301, 312

(6th Cir. 1999)). Instead, the “preferable route for raising an ineffective assistance of counsel

claim is in a post-conviction proceeding,” which allows for development of an adequate record.

Id. (quoting United States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997)). This is not always the

case; “[o]n occasion this court has departed from the usual rule to address the merits of an

ineffective assistance of counsel claim on direct appeal, but only when the record is adequate to

address the claim.” Id.

Wagoner argues that this is one such rare occasion. Specifically, he argues that “all of his

claims are supported by the current record” and are thus appropriate for review on direct appeal.

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No. 19-5954, United States v. Wagoner

We disagree. None of Wagoner’s counsel’s reasoning is apparent in the current record, and

“[w]ithout an explanation from trial counsel as to why [they]” proceeded the way that they did,

“we have no basis to determine whether [their] decision was the result of inadequate representation

or reasonable trial strategy.” Sullivan, 431 F.3d, at 986. This claim is more properly brought

under § 2255, and so we do not reach Wagoner’s ineffective assistance of counsel claims on direct

review.

D.

Finally, Wagoner argues that the district court erred in denying his motion for judgment of

acquittal of Count Two, possessing 50 grams or more of methamphetamine, based on insufficiency

of the evidence. We review the district court’s denial of Wagoner’s motion to acquit de novo.

United States v. Howard, 947 F.3d 936, 947 (6th Cir. 2020). “When reviewing the sufficiency of

the evidence, we assess whether ‘any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Id. (quoting United States v. Houston, 792 F.3d 663,

669 (6th Cir. 2015)). Because there is more than enough evidence to sustain Wagoner’s conviction

on Count Two, we affirm the district court.

Wagoner argues that there was not sufficient evidence to find that he knowingly possessed

the drugs found during the search of the mobile home. Because he was with Benge, also a user of

methamphetamine, at the time that the drugs were found, he argues that it cannot be determined

beyond a reasonable doubt to whom the drugs belonged. We start by examining the evidence that

was before the district court and the jury.

Officer Mitchell testified that he was working with a confidential source, Glenn Purdy,

who informed him “that they thought they could buy ounce size quantities from Mr. Wagoner.”

(DE70, Trial Tr., Page ID 582.) He also testified that Purdy completed a controlled purchase of

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one ounce of methamphetamine from Wagoner from the same location where the drugs in question

were recovered. During this controlled purchase, Wagoner gave Purdy drugs from a bag, and

Purdy saw that after the transfer “[t]here was still more [meth] in the bag.” (Id. at Page ID 623.)

A couple of weeks later, Purdy called Mitchell to say that “he had just been to [Wagoner’s]

residence and that he believed that Mr. Wagoner was either in possession of at that time or was

receiving” more methamphetamine. (Id. at Page ID 597.)

Based on this tip, and because there was an active arrest warrant for Wagoner for violation

of his house arrest, the officers at that time went to the mobile home to arrest him. When the

officers entered to execute the warrant, they found Wagoner and Benge in the bedroom, where

they observed “drug paraphernalia [ ] in plain view,” and Wagoner told them that the two had just

been smoking methamphetamine. (Id. at Page ID 598.) After securing a warrant, the officers

searched and found a bag of drugs under the bed where Benge and Wagoner had been, along with

scales, pipes, and plastic baggies. These drugs were, therefore, found on Wagoner’s family

property in the same mobile home from which Mr. Purdy had bought methamphetamine from

Wagoner a couple of weeks previously. At trial, Benge testified that the drugs belonged to

Wagoner and that she had not brought any drugs to the house with her. While Wagoner correctly

points out that there was no fingerprint analysis done of the evidence recovered from this search,

a rational jury could still have found beyond a reasonable doubt that Wagoner knowingly

possessed the drugs. See United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)

(“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not

remove every reasonable hypothesis except that of guilt” (citing United States v. Stone, 748 F.2d

361 (6th Cir.1984)).

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Wagoner points to other facts in the record that he says create reasonable doubt. First,

Benge told Stacie Allen, Wagoner’s sister, that she would hire a lawyer for him. Second, Wagoner

claims Purdy was unreliable because he was a paid informant and drug user himself. Third, Benge

and Purdy had conflicting stories about whether or not they knew each other. Fourth and finally,

Benge rented the mobile home for a short period of time after this incident and her subsequent

incarceration. We are not persuaded. First, Benge offering to “take care” of Wagoner is not

necessarily indicative of a guilty conscience; the two were in a romantic relationship. (DE71, Trial

Tr., Page ID 664−65.) Second, while Wagoner’s arguments as to Purdy’s credibility are not

implausible or irrelevant, they are insufficient to create reasonable doubt because the credibility of

a witness is properly for the jury to determine. Stone, 487 F.2d at 512. Similarly, it was for the

jury determine whether to credit Benge’s testimony that she did not know Purdy. Id. Finally, the

fact that Benge rented the mobile home after Wagoner’s arrest is irrelevant; the drugs in question

were found the night that Wagoner was arrested.

Because there was enough evidence for a rational trier of fact to convict Wagoner, the

district court did not err in denying his motion to acquit.

III.

Because the district court did not err, we affirm Wagoner’s conviction.

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CLAY, Circuit Judge, dissenting. The majority holds that a warrant riddled with errors

satisfies the Fourth Amendment’s particularity requirement—even when the errors describe the

defendant’s home for which it is undisputed that no probable cause existed to perform a search—

as long as there is some possible basis to believe that law enforcement will not search the wrong

premises. The majority’s holding threatens to read the particularity requirement out of the Fourth

Amendment.

BACKGROUND

The problems with this case are best illustrated by a review of the facts and circumstances

surrounding the search.

At the head of a single lane gravel drive in London, Kentucky stood four mailboxes. The

first building on the drive was a beige house. About 50 to 60 feet past the house was a beige garage,

and Defendant Nathan Wagoner lived in an apartment attached to the garage. Both the house and

the apartment had the address of 7881 Barbourville Road, and one of the mailboxes was labeled

7881. At the end of the drive was a metal garage. About 150 feet to the right of the metal garage

was a gray double wide mobile home. The mobile home had a street address of 7887 Barbourville

Road and was owned by Wagoner’s sister, Stacy Allen. However, Allen had not lived in the trailer

for some time. None of the buildings had visible street numbers.

In the fall of 2017, Glenn Purdy, a confidential source for the United States Drug

Enforcement Administration (“DEA”), informed DEA Agent Brad Mitchell that he thought he

could buy ounce size quantities of methamphetamine from Wagoner. Following an exchange of

messages between Wagoner and Purdy, on September 14, 2017, Purdy went to the mobile home

and purchased a baggie of crystal meth from Wagoner. During the controlled buy, Purdy wore a

recording device, provided by the DEA, that captured the transaction.

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A little over a month later, on October 26, 2017, Purdy informed Agent Mitchell that

“Wagoner was either in possession of at that time or was receiving . . . a load or an unknown

amount of methamphetamine.” (Trial Tr., R.70 at PageID #597.) As there was an active warrant

for Wagoner’s arrest based on a violation of a sentence of home confinement that Wagoner was

serving, Agent Mitchell, accompanied by various other law enforcement members, went to the

mobile home to arrest Wagoner.

The arresting officers entered the mobile home and found Wagoner in the bedroom.

Wagoner’s romantic partner was also in the room. The officers observed drug paraphernalia in

plain view in the bedroom and Wagoner informed one of the officers that they had just finished

smoking methamphetamine. While other officers remained on the scene, Officer Richard

Dalrymple left to apply for a warrant to search the mobile home. Based on Officer Dalrymple’s

affidavit, a search warrant authorizing a search of “the residence of Nathan Wagner at 7881

Barbourville Rd., London, Kentucky” was granted.1 (Search Warrant, R.15-1, at PageID #49.) An

attachment to the warrant “more particularly described” the location to be searched as:

From the junction of KY HWY 229 and U.S. 25 in London, travel south on KY HWY
229 approximately 7.8 miles to the last lane on the right before Benge’s market. Follow
the one lane gravel drive to the end, approximately 1/10 mile to beige siding mobile
with blue shutters home with an attached covered front porch and an attached back
porch sitting to the right of a white metal building.

(Search Warrant, R.15-1, at PageID ##49–51.) However, this description contained numerous

errors. The street number of the mobile home was 7887 Barbourville Road, the mobile home was

not beige, it did not have blue shutters, and Wagoner did not reside there.2

1
The search warrant misspelled Defendant’s last name as “Wagner,” but Wagoner has not challenged this
typographical error.
2
Although Wagoner was in the mobile home when he sold the methamphetamine to Purdy and when the
officers arrived to arrest him, Wagoner has testified, and the government has not disputed, that
7881 Barbourville Road was the address listed for his house arrest, and that he told the arresting officers
that the mobile home was not his residence.
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When Officer Dalrymple returned, the officers executed the search warrant. During the

search, the officers found a container under the bed holding methamphetamine, three sets of digital

scales, three glass pipes believed to be methamphetamine pipes, and numerous plastic baggies.

For the September 14, 2017 controlled buy, Wagoner was charged with knowingly and

intentionally distributing a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count 1), and, for the methamphetamine

found in the mobile home on October 26, 2017, with knowingly and intentionally possessing with

intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

(Count 2). Based on the errors in the search warrant, Wagoner filed a pretrial motion to suppress

the evidence obtained during the search of the mobile home. Following an evidentiary hearing,

and after acknowledging the defects in the search warrant, the assigned magistrate judge

recommended that the district court deny the motion to suppress. The district court adopted the

magistrate judge’s recommendation.

Wagoner’s jury trial began on April 23, 2019. The next day, the jury returned a verdict of

guilty on both counts. This timely appeal followed.

DISCUSSION

The Fourth Amendment to the Constitution “was the founding generation’s response to the

reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British

officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

Riley v. California, 573 U.S. 373, 403 (2014). As ratified, the Fourth Amendment provides: “The

right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the

17
No. 19-5954, United States v. Wagoner

persons or things to be seized.” U.S. CONST. amend. IV. “The uniformly applied rule is that a

search conducted pursuant to a warrant that fails to conform to the particularity requirement of the

Fourth Amendment is unconstitutional.” Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984)

(citations omitted). Not all errors in a warrant, however, violate the particularity requirement. The

Supreme Court has explained that “the purpose of the particularity requirement” is both to prevent

“general searches” and to “assure[] the individual whose property is searched or seized of the

lawful authority of the executing officer, his need to search, and the limits of his power to search.”

Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting United States v. Chadwick, 433 U.S. 1, 9

(1977)). Therefore, a warrant containing an error in its description will not be invalid so long as

the purposes of the particularity requirement are nonetheless served.

This Court has explained that “[t]he test for determining whether a search warrant describes

the premises to be searched with sufficient particularity [is] . . . whether the description is sufficient

‘to enable the executing officer to locate and identify the premises with reasonable effort, and

whether there is any reasonable probability that another premises might be mistakenly searched.”’

United States v. Abdalla, 972 F. 3d 838, 846 (6th Cir. 2020) (quoting United States v. Pelayo-

Landero, 285 F.3d 491, 496 (6th Cir. 2002)); see also United States v. Crumpton, 824 F.3d 593,

612 (6th Cir. 2016) (quoting Knott v. Sullivan, 418 F.3d 561, 568 (6th Cir. 2005)). We have also

explained that a search warrant containing an incorrect address is only valid if it contains “specific

descriptors that remove the probability that the wrong location could be searched.” Crumpton, 824

F.3d at 612 (citing United States v. Hang Le–Thy Tran, 433 F.3d 472, 480 (6th Cir. 2006); Pelayo-

Landero, 285 F.3d at 497).

For example, in Abdalla, the officer drafting the search warrant accidentally listed an

address in the wrong county due to “using a previous warrant as a template and failing to erase all

18
No. 19-5954, United States v. Wagoner

vestiges of that document.” 972 F.3d at 842. Although the “warrant gave detailed directions to

Abdalla’s property and contained unique identifiers of Abdalla’s residence, such as his trailer’s

color, the property’s layout, an American flag in front of the home, and an auto detail sign at the

driveway’s entrance,” the defendant claimed that the warrant was defective because it did not

describe his property with particularity. Id. However, we held that “the likelihood of a mistaken

search was practically nil” because “details about a white trailer with a green porch, a black shingle

roof, and a unique sign in the driveway constitute unique identifiers . . . . So even if officers arrived

at 254 Carey Road, the mistaken address listed in the warrant, there was almost no chance that the

property located there would at all resemble the description in the warrant.” Id. at 846; see also

United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998) (holding that a warrant was sufficient

notwithstanding the incorrect address because of the warrant’s description of an “unusual feature:

a ten by fifteen foot metal storage shed, the entrance of which is secured by a plastic tie.”); Pelayo-

Landero, 285 F.3d at 497 (explaining that a warrant with a possibly incorrect address satisfied the

particularity requirement because the directions to the trailer were accurate, there was a correct

description of the trailer, and “the warrant include[d] an unusual feature of the trailer, the number

954 displayed under a window air conditioner on the right end of the trailer.”); Hang Le–Thy Tran,

433 F.3d 472, 480 (holding that an incorrect address in a warrant was not fatal because the other

descriptors, which included that the area to be searched was “a portioned off storage room in the

lower level,” correctly described the proper premises and removed the probability that the incorrect

address would be searched).

Because the warrant used in this case to search the mobile home stated an incorrect address,

it only satisfies the Fourth Amendment if it contained “specific descriptors that remove[d] the

probability that the wrong location could be searched.” Crumpton, 824 F.3d at 612. However,

19
No. 19-5954, United States v. Wagoner

although the directions to the mobile home were correct, the unique descriptors in the warrant did

not describe the proper location. The mobile home was not beige. It did not have blue shutters.

And Wagoner did not reside there.3

Even worse, two of these descriptors—the color and Wagoner’s residence—matched the

incorrect street address. Law enforcement arriving at the gravel drive to execute the search warrant

had two options. Either they could ignore the incorrect street address, the incorrect color, the lack

of blue shutters, and Wagoner’s lack of residency and strictly follow the directions to the mobile

home, or they could search the nearby home and apartment that had the correct street address, that

was the correct color, and that was Wagoner’s residence. See Knott, 418 F.3d at 569 (holding that

a search warrant was insufficient when “virtually every descriptor of the vehicle included in the

search warrant and accompanying affidavit was incorrect” and the descriptors accurately described

another vehicle owned by a member of the plaintiff’s family). This Catch-22—to blindly follow

the precise directions to the mobile home or to follow the street address and the majority of the

descriptors to the house or apartment—created a reasonable probability that the wrong location

would be searched. See id. at 570.

The majority argues that the warrant satisfied the particularity requirement because “some

specific descriptors in the warrant did point to the searched premises.” Maj Op. at 6. But the

problem with the warrant was that other specific descriptors pointed to Wagoner’s home. To be

sure, some officers would blindly follow the instructions in the warrant and ignore that the mobile

home was the wrong color and lacked blue shutters. There is a reasonable probability, however,

that other officers would end up searching Wagoner’s home. An officer who did not ignore the

address and the descriptors provided in the warrant, say, an officer using GPS technology to locate

3
As all the buildings on the gravel drive had front and back porches, this descriptor did nothing to mitigate
the risk that the wrong building would be searched.
20
No. 19-5954, United States v. Wagoner

the premises, would arrive at Wagoner’s home and see unique descriptors matching those

contained in the warrant.4 Another officer who knew from arrest records that Wagoner’s home was

7881 Barbourville Road might follow the directions in the warrant to the mobile home and, upon

seeing that the mobile home was not beige and did not have blue shutters, might assume that the

warrant was intended to allow a search of Wagoner’s beige home. This is especially so because

the warrant provided for a search of a “beige siding mobile with blue shutters home.” Considering

the incorrect address, the incorrect color, the lack of blue shutters, and the references to Wagoner’s

residence, there is a reasonable probability that an officer would assume that the word “mobile”

was an inadvertent addition to the warrant.

The majority also argues that the probability of a search of the wrong place was decreased

because Officer Dalrymple had been at the mobile home prior to obtaining the warrant and other

officers remained at the mobile home until he returned. However, the majority misstates the

significance of such evidence. This Court has only characterized such evidence as “additional

circumstances” that support holding that a warrant with an incorrect address is valid in cases where,

unlike here, the warrant contains correct unique descriptors of the property to be searched that

remove the probability of the wrong location being searched. See Durk, 149 F.3d at 466; Hang

Le–Thy Tran, 433 F.3d at 480; Pelayo-Landero, 285 F.3d at 497; United States v. Bucio-Cabrales,

635 F. App’x 324, 332 (6th Cir. 2016). For example, in Durk, we explained that a warrant with an

incorrect address satisfied the particularity requirement because, in addition to correctly describing

the house to be searched “as a single-family red brick ranch home on the north side of Fulton street,

4
The majority argues “that the warrant’s recitation of the wrong house number did not appreciably increase
the chance of an incorrect search in the context of this case because the houses were not numbered.” Maj.
Op. at 7. This argument completely ignores the prevalence of GPS technology, which directs users to a
specific address even if the house lacks a visible number. There is a reasonable probability that a police
officer seeking the house described in the warrant would plug 7881 Barbourville Road into their GPS and
would pay no attention to the turn-by-turn instructions provided in the warrant.
21
No. 19-5954, United States v. Wagoner

. . . the warrant also describe[d] a more unusual feature: a ten by fifteen foot metal storage shed,

the entrance of which is secured by a plastic tie.” 149 F.3d at 466. Only after concluding that the

warrant’s unique descriptors removed the possibility of searching the wrong premises did we state

that “[m]oreover, additional circumstances”—including that “the executing officer . . . was also

the affiant and had just come from [the] home” and that another officer remained at the home while

the executing officer procured the search warrant—“make clear that the inaccuracies in the warrant

here would not lead to a mistaken search of other premises.” Id.; see also Abdalla, 972 F.3d at

846–47 (after holding that the unique descriptors reduced “the likelihood of a mistaken search [to]

practically nil,” stating that “[w]hat is more, . . . Agent Gooch’s dual role as the affiant and the

executing officer, although not dispositive, reduced the likelihood of a mistaken search.”).

Nonetheless, the majority holds that “[w]here, as here, there are some accurate identifiers

(mobile home, location information) and the executing officer is the affiant and just came from the

home in question, this court and the Eighth Circuit have upheld a search warrant.”5 Maj. Op. at 8.

However, “some accurate identifiers” are not enough. Every single one of our cases to uphold a

warrant with an incorrect address has relied on correct unique descriptors in the warrant. When

such warrants have contained correct unique descriptors, we have occasionally relied on evidence

that the executing officer left the correct premises to obtain the warrant while other officers

remained at the premises as “additional circumstances” supporting a determination that there was

no reasonable probability that the wrong premises would be searched. In Durk, police arriving at

the incorrect address would have undoubtedly realized there was a mistake because they would

5
The majority’s reliance on two Eighth Circuit cases is misplaced. Those cases are both not controlling and
distinguishable. In United States v. Gitcho, 601 F.2d 369 (8th Cir. 1979), “[t]he address stated in the warrant
[did] not exist, making the mistaken search of the wrong premises unlikely.” Id. at 372. And in United
States v. Clement, 747 F.2d 460 (8th Cir. 1984), the warrant correctly specified whose residence was to be
searched, unlike the warrant here which incorrectly described the mobile home as Wagoner’s residence.
See id. at 461.
22
No. 19-5954, United States v. Wagoner

not have seen “a ten by fifteen foot metal storage shed, the entrance of which is secured by a plastic

tie.” 149 F.3d at 466. In Pelayo-Landero, police would not have seen “the number 954 displayed

under a window air conditioner on the right end of the trailer.” 285 F.3d at 497. In Hang Le–Thy

Tran, police would not have seen “a portioned off storage room in the lower level” that they were

supposed to search. 433 F.3d at 480. In Crumpton, police would not have seen the building and

“additional sub-structure present [at] the rear of the location” that was visible in the picture with

which they were provided of the proper location.6 824 F.3d at 613. And in Abdalla, police would

not have seen “an American flag in front of the home, and an auto detail sign at the driveway’s

entrance,” 972 F.3d at 842. But here, there were specific descriptors that confirmed Wagoner’s

home as the place to be searched. Therefore, the “additional circumstances” relied on in those

cases cannot cure the warrant that described equally the mobile home and Wagoner’s home. See

Florida v. Jardines, 569 U.S. 1, 6 (2013) (“[W]hen it comes to the Fourth Amendment, the home

is first among equals.”).

Our decision in Knott is illustrative. In Knott, “virtually every descriptor of the vehicle

included in the search warrant and accompanying affidavit was incorrect: the vehicle’s make and

model were wrong, the vehicle identification number was wrong, and the vehicle’s license plate

number was wrong. Indeed, the only portion of the description contained in the warrant that

appears to have been correct is the statement that the vehicle was ‘[l]ocated at the ACSO [Athens

County Sheriff’s Office] garage.”’ 418 F.3d at 569. “Notwithstanding the extensive errors in the

6
The majority references Crumpton as a case in which we cited cases “relying on location information” to
support the assertion that an incorrect address “does not invalidate a search warrant if the warrant includes
other specific descriptors that remove the probability that the wrong location could be searched, especially
when the warrant affiant participates in the execution of the search.” Maj. Op. at 6–7. However, Crumpton
cited Hang Le–Thy Tran and Pelayo-Landero—both cases in which we relied on location information in
combination with correct specific descriptors as removing the probability that police showing up at the
wrong address would search that location. No case holds that location information is enough when the
specific descriptors in the warrant match the incorrect address.
23
No. 19-5954, United States v. Wagoner

search warrant and affidavit, the district court concluded that the Defendants’ execution of the

search warrant was still constitutionally permissible because Defendant Flickinger, the police

officer who prepared the search warrant and affidavit, also participated in the execution of the

search.” Id. In other words, in Knott, there were some accurate identifiers—the warrant authorized

the search of a car and provided the proper location—and the police officer who obtained the

warrant participated in the search.

We reversed. Although we recognized that this Court had “previously upheld searches

conducted pursuant to warrants listing incorrect addresses or property descriptions in part because

the police officers involved in executing the search had also served as affiants or were otherwise

familiar with the location to be searched,” we explained that “the risk of misidentification created

by the defective warrants in those cases was markedly less severe” because the warrants in those

cases contained unique descriptors that removed the probability that the wrong location would be

searched. Id. at 568–570. As the unique descriptors in the warrant obtained by Officer Dalrymple

were incorrect (and actually identified the defendant’s home for which there existed no probable

cause to search), Officer Dalrymple’s familiarity with the mobile home and the fact that other

officers remained there while he procured the search warrant did not overcome the warrant’s

defects.

Although the particularity requirement is intended to constrain law enforcement from

conducting general searches, the majority’s conception of the requirement threatens to provide law

enforcement with unlimited discretion in executing search warrants. Almost no particularity is

required in a warrant, according to the majority, so long as some aspect of the warrant is correct

and law enforcement appears to have a familiarity with the premises they are authorized to search.

Allowing law enforcement to provide ambiguous descriptors that could allow for the search of

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No. 19-5954, United States v. Wagoner

premises for which there is no probable cause would eviscerate the particularity requirement. Of

course, in this case, even though the warrant described Wagoner’s home, the police officers

restrained themselves and only searched the mobile home. However, “the inescapable fact is that

this restraint was imposed by the agents themselves, not by a judicial officer.” Groh, 540 U.S. at

561 (quoting Katz v. United States, 389 U.S. 347, 356 (1967)).

Similarly, the particularity requirement helps to ensure that police officers do not

mistakenly search areas for which there is no probable cause. Suppose Officer Dalrymple had

decided to seek a search warrant for both the mobile home and Wagoner’s residence based on the

mistaken assumption that probable cause existed to search both premises. The judicial officer

could have then issued a warrant intending to limit the scope to the mobile home. See id. (“The

mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the

scope of the search should be as broad as the affiant’s request.”). But based on the incorrect

descriptors provided by Officer Dalrymple, it is likely that the officers would have assumed that

they possessed a warrant allowing them to also search Wagoner’s residence. The particularity

requirement seeks to ensure that such mistakes do not happen.

Moreover, even assuming that the officers would not have relied on the incorrect

descriptors in the warrant as a basis to search Wagoner’s home, the many errors in the warrant

meant that Wagoner was not provided with any assurance of which property would be searched

and “[of] the limits of [the executing officers’] power to search.” Id. at 561 (quoting Chadwick,

433 U.S. at 9). When Wagoner read the 7881 Barbourville Road address in the search warrant and

saw no unique descriptors making it clear that only 7887 Barbourville Road would be searched,

he had no assurance that his home would not also be searched.

25
No. 19-5954, United States v. Wagoner

“[I]n light of the profound errors contained in the search warrant and affidavit, the search

of [the mobile home] cannot be upheld as the lawful execution of a valid search warrant.” Knott,

418 F.3d at 570. A warrant containing an incorrect address and descriptors that describe a place

other than the one to be lawfully searched does not satisfy the Fourth Amendment’s requirement

that it “particularly describ[e] the place to be searched.” U.S. CONST. amend. IV. Because there

was a reasonable probability that Wagoner’s actual residence—the beige apartment—or the

accompanying beige house could have been searched, the warrant used to search the mobile home

was invalid.

There is one more issue to resolve before determining that the district court’s denial of

Wagoner’s motion to suppress should be reversed. Wagoner argued that, if the Court determined

that the warrant was invalid, the good faith exception to the exclusionary rule set forth in United

States v. Leon, 468 U.S. 897 (1984) should not apply. The government’s only reference in its briefs

to the good faith exception is that “[b]ecause these discrepancies are not fatal and the warrant

remained valid, there is no need for this Court to address the good faith exception.” (Appellee

Brief at 9.) Accordingly, the argument is waived. See United States v. Ford, 184 F.3d 566, 578 n.3

(6th Cir. 1999) (citations omitted) (holding that the government waived the argument that

documents seized in violation of the Fourth Amendment should be admitted under the good faith

exception to the exclusionary rule because the government failed to brief the argument); see also

Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999) (citations omitted); Willis v. Jones,

329 F. App’x 7, 15 (6th Cir. 2009). In any event, the Supreme Court has explained that “a warrant

may be so facially deficient—i.e., in failing to particularize the place to be searched or the things

to be seized—that the executing officers cannot reasonably presume it to be valid.” Groh, 540 U.S.

at 565 (quoting Leon, 468 U.S. at 923). Considering the extent of the warrant’s failure to properly

26
No. 19-5954, United States v. Wagoner

particularize the mobile home as the place to be searched, the executing officers could not have

reasonably believed the warrant to be valid. Therefore, the district court’s denial of Wagoner’s

motion to suppress should be reversed.

CONCLUSION

For the Fourth Amendment’s particularity requirement to be more than a dead letter it must

provide that a warrant listing the defendant’s home address as the place to be searched, and

including several unique descriptors matching the defendant’s home, cannot be valid when there

was undisputedly no probable cause to search the defendant’s home. Accordingly, I would reverse

the district court’s order denying Wagoner’s motion to suppress the evidence found in the mobile

home.7

7
Because the district court erred in denying Wagoner’s motion to suppress, there is no need to determine
whether Wagoner’s other claims have merit.
27