United States v. Moore

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0294p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-5663
v.
,
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Defendant-Appellant. -
ELCARDO MOORE,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 09-20430-001—Bernice B. Donald, District Judge.
Argued: October 12, 2011
Decided and Filed: November 22, 2011
Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.*

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COUNSEL
ARGUED: Needum L. Germany III, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:
Valentine C. Darker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant. Kevin G. Ritz, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ROGERS, J., delivered the opinion of the court, in which HOOD, D. J., joined.
MOORE, J. (pp. 9–12), delivered a separate opinion concurring in the judgment.

*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 11-5663 United States v. Moore Page 2

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OPINION
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ROGERS, Circuit Judge. Defendant Elcardo Moore was convicted in the District
Court for the Western District of Tennessee after pleading guilty to two counts of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On appeal, he
argues that the district court erred in denying his motion to suppress evidence, because
the search warrant used to seize the firearms was invalid and the good faith exception
to the exclusionary rule does not apply. The Government acknowledged at oral
argument that the affidavit supporting the warrant was imperfect:

[T]his was not a model affidavit. It was not written in detail, it did not
name the informant and the informant was not named to the magistrate,
there was no specific amount of cocaine, and there should have been
more in this affidavit . . . . This detective had more information, he could
have put it in the affidavit, I don’t have any reason to know. . .why he
didn’t . . . . If it were up to me these warrants would be drafted
differently. . . .

Despite these shortcomings, the warrant contains enough information to support the
magistrate’s finding of probable cause. It offers testimony from a confidential informant
and grounds for that informant’s reliability and basis for knowledge, its information is
recent enough to avoid staleness, and it establishes a proper nexus between the criminal
activity observed and the place to be searched. Although a more detailed affidavit would
have better served the purposes of the warrant requirement, the warrant in this case was
valid.

On October 25, 2008, officers of the Shelby County Sheriff’s Office received
information from a confidential informant (“CI”) that within the last five days, a man
known as “Little Toe” had been selling cocaine from an apartment in Memphis. Based
on this information, Detective Sathongnhoth, a member of the narcotics division of the
county sheriff’s office, applied for a search warrant. The warrant contained mostly
boilerplate language concerning Det. Sathongnhoth’s experience in law enforcement and
No. 11-5663 United States v. Moore Page 3

the traditional behavior of drug dealers, but did specify the apartment and the items to
be searched for, namely “Cocaine, Drug Records, Drug Proceeds, Drug Paraphernalia.”
The warrant also contained a description of “Lil Toe” as being a black male
“approximately 5’ 10” 180lbs about 37-38 yoa.” Finally, the warrant contained the
following paragraph:

On October, 25, 2008 Det. Sathongnhoth did speak with a reliable
informant who has given information in the past in regards to narcotics
trafficking resulting in two seizures of narcotics[. ]The reliable
informant stated that he/she has been at the above described residence
within the past five (5) days of October 25, 2008 and has seen the above
described storing and selling cocaine at the above named address.

The judicial commissioner (sometimes referred to in the record as a magistrate) did not
ask Det. Sathongnhoth any questions, and issued a search warrant based only on the
information contained in the affidavit.

That same day, Det. Sathongnhoth executed the warrant. At the apartment, he
found two firearms, various types of drugs, a scale, and $2,931 in cash. Moore arrived
at the apartment shortly after the detectives. After the search was complete, Moore was
arrested and brought to the police station for questioning, where he was advised of his
rights, signed a rights waiver form, and admitted ownership of the drugs and one of the
firearms. On October 27, 2009, Moore was indicted on two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g).

Moore filed a motion to suppress the evidence obtained during the search, as well
as any subsequent statements he made, on the ground that the warrant was invalid. At
the motion hearing held July 2, 2010, Det. Sathongnhoth revealed further corroborating
information to support the warrant, including: (1) that Det. Sathongnhoth had previously
set up two undercover buys between the same CI and an individual identified to him as
“Little Toe” at the address given in the warrant on October 16 and 24, 2009; and (2) that
he conducted surveillance on the location and attempted to confirm the identity of Moore
as Little Toe by obtaining the utilities information of the apartment and attempting to
obtain the registration of a vehicle matching the CI’s description parked nearby. It was
No. 11-5663 United States v. Moore Page 4

also revealed at the motion hearing that the CI did not say anything to Detective
Sathongnhoth specifically about drug storage, merely that he or she saw drugs of an
unspecified quantity, that were not part of the buy, in plain view in the room.

The district court denied the motion to suppress. The court held that the
magistrate judge found probable cause to issue the warrant. With regard to the issue of
the word “storing,” the court pointed out that “it does appear there is nothing in the
informant’s actions or words or otherwise that dealt with the storing[,]” but because “that
word is just used in tandem with selling which was the applicable word in this case[,]”
any potential inaccuracy was not problematic.

Defendant filed a motion to reconsider, or in the alternative, for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), which would allow him to
challenge the sufficiency of the executed warrant by attacking statements made by the
affiant in support of the warrant. The district court denied both requests. On December
17, 2010, Moore pled guilty to two counts of being a felon in possession of a firearm,
and on June 3, 2011, he was sentenced to six months’ imprisonment and two years of
supervised release. Moore timely appealed.

The search warrant was valid. On its face, it contained enough information for
there to be a “substantial basis” on which the magistrate could conclude that probable
cause existed to search the residence. See Illinois v. Gates, 462 U.S. 213, 236 (1983).
The “totality of the circumstances” approach supports a finding of probable cause. See
United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005). The affidavit identifies a
reliable informant and establishes that informant’s basis for knowledge that drugs or
drug paraphernalia will be found at the residence in question. The magistrate’s decision
to issue a warrant on such an affidavit was not arbitrary, and so must be afforded
deference by this court. See United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003).

This court’s precedent supports this holding, because in the vast majority of cases
involving similarly worded search warrants, we have upheld the magistrate judge’s
finding of probable cause after reviewing the district court’s legal conclusions de novo.
For example, we upheld the validity of a warrant based on an affidavit that stated the
No. 11-5663 United States v. Moore Page 5

defendant was seen by the CI in possession of crack cocaine at the residence to be
searched in the past 72 hours. See United States v. Williams, 224 F.3d 530, 531 (6th Cir.
2000). Sitting en banc, we upheld a warrant based on an affidavit that stated the
defendant was seen by a CI in possession of cocaine at the residence to be searched in
the past 72 hours. See United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc).
We have also upheld a warrant whose affidavit was remarkably similar to the one in this
case, which stated that the CI had been in the residence in the last five days and had seen
the defendant storing and selling cocaine. See United States v. Finch, 998 F.2d 349, 352
(6th Cir. 1993). Thus, although the warrant has scant information in it, the information
it does contain is enough to establish a “fair probability” that evidence of a crime will
be located on the premises of the proposed search. See Jenkins, 396 F.3d at 760 (internal
quotation marks omitted). The warrant provided a substantial basis for the magistrate’s
finding of probable cause, and so must be upheld.

The affiant’s statement that the CI saw drugs being stored and sold at the
residence was not false, contrary to Moore’s allegation. The district court determined
in its denial of the motion to reconsider that the drugs the CI saw in plain view at the
residence, that were not a part of the sale, were sufficient to make “storing” an accurate
description. It is reasonable to conclude that a small amount of drugs in an apartment
amounts to storage, and that factual finding is not clearly erroneous. See United States
v. Williams, 544 F.3d 683, 685 (6th Cir. 2008). Even were this court to determine
“storing” to be a false statement, the warrant still has enough information in it to support
a finding of probable cause.

The affidavit was based on information obtained from a CI whose reliability and
basis for knowledge was provided. The warrant stated that the CI had given information
in the past that had led to two drug seizures, and that the CI had personally been at the
residence and seen the drugs. These facts satisfy the requirement that a CI’s information
be bolstered by additional information in an affidavit. See United States v. Ferguson,
252 F. App’x 714, 721 (6th Cir. 2007). So long as the magistrate “was informed of some
of the underlying circumstances from which the informant concluded evidence of a
No. 11-5663 United States v. Moore Page 6

crime is where he claimed it would be found, and some of the underlying circumstances
from which the officer concluded that the informant, whose identity need not be
disclosed, was reliable,” there is sufficient support. United States v. Smith, 182 F.3d
473, 478 (6th Cir. 1999). This affidavit included information on both of these points,
and therefore provided sufficient information for the court to consider the informant’s
“veracity, reliability, and basis of knowledge,” particularly under the “fluid totality of
circumstances” standard that controls here. See United States v. Rodriguez-Suazo, 346
F.3d 637, 646 (6th Cir. 2003) (internal quotation marks omitted). Indeed, in Allen, 211
F.3d at 976, we stated that additional corroboration is not necessary when the CI is
personally known to the detective and “[t]he information alleged was of direct personal
observation of criminal activity.” The information provided in the affidavit concerning
the CI’s reliability and basis of knowledge was sufficient for the magistrate to conclude
that there was probable cause for a warrant. We have repeatedly upheld probable cause
based on similar corroboration. See, e.g., United States v. Pinson, 321 F.3d 558, 564-66
(6th Cir. 2003); Smith, 182 F.3d at 478-79.

A period of less than five days between the CI’s information about the presence
of drugs and the application for and execution of the warrant does not make the
information stale. It is close enough to support “the likelihood that evidence of a crime
may presently be found at [the named] location.” United States v. Hython, 443 F.3d 480,
485 (6th Cir. 2006). Significantly longer periods between observation of drugs and
application for a warrant have been upheld. For instance, in United States v. Hammond,
351 F.3d 765, 771 (6th Cir. 2003), we held that a tip that there was dope on a
defendant’s property was not stale although offered five months before the warrant. In
Allen, 211 F.3d at 972, a warrant based on a tip that the defendant had been on the
premises within the past 72 hours in possession of drugs was upheld, with no mention
of storage. In United States v. Spikes, 158 F.3d 913 (6th Cir. 1998), we found relevant
a number of factors in determining staleness, including “the thing to be seized
(perishable and easily transferable or of enduring utility to its holder?), [and] the place
to be searched (mere criminal forum of convenience or secure operational base?).”
Spikes, 158 F.3d at 923. The warrant implies that the apartment is a base of drug
No. 11-5663 United States v. Moore Page 7

trafficking from the word “storing,” as well as by including in its purview the remnants
of drug activity, including records and proceeds. The affidavit supports the belief that
criminal activity would be found at the apartment at the time the warrant was issued.

The affidavit also established a proper nexus, a connection between “the criminal
activity observed and the [residence to be searched].” United States v. Washington, 380
F.3d 236, 240 (6th Cir. 2004). Nexus is usually an issue when the criminal activity was
not witnessed in the residence. For example, in United States v. McPhearson, 469 F.3d
518 (6th Cir. 2006), there was no nexus because a search of a residence was based on
finding drugs on the owner’s person. In Washington, 380 F.3d at 238, the drugs were
observed in a car parked outside the residence. In this case, the residence to be searched
was the residence in which the drugs were observed. The affidavit stated that the CI had
been at the residence and had seen a drug sale there. A sufficient nexus existed.

Our holding does not mean that the magistrate was required to issue the warrant,
particularly since the affidavit was minimal in the ways conceded by government
counsel at argument. The warrant requirement puts primary responsibility on the
magistrate to determine probable cause, and if the affiants repeatedly provide the
minimum of information, magistrates would be acting within their discretion to demand
more.

Yet even if the warrant was not valid, the search is valid under the good faith
exception to the warrant requirement as established by United States v. Leon, 468 U.S.
897 (1984). None of the four exceptions listed in Leon apply to this case. First,
Detective Sathongnhoth’s affidavit did not contain information that he knew or was
reckless in not knowing was false. Second, the affidavit contained enough information
that the magistrate could make a determination to issue it without becoming “a rubber
stamp” for police activities. See id. at 914. Third, the affidavit was not so conclusory
as to constitute a “bare bones” affidavit. See id. at 915. It contained information about
the reliability of the CI and the basis of his/her information. This is not a situation in
which the warrant “states suspicions, beliefs, or conclusions, without providing some
underlying factual circumstances regarding veracity, reliability, and basis of
No. 11-5663 United States v. Moore Page 8

knowledge.” United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Finally, the
warrant is not so facially deficient that it cannot be presumed to be valid. Leon, 468 U.S.
at 923. Similar warrants have been upheld in numerous cases. Even if the warrant in
this case did not meet the threshold of probable cause, it certainly satisfies the “less
demanding showing” required under the good faith exception. See United States v.
Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (internal citation and quotation marks
omitted). There is no reason to suspect that “a reasonably trained police officer would
have known that the search was illegal despite the magistrate’s authorization.” Leon,
468 U.S. at 922 n.23. The good faith exception would apply in this case.

For the reasons outlined above, we affirm the judgment of the district court.
No. 11-5663 United States v. Moore Page 9

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CONCURRING IN JUDGMENT
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KAREN NELSON MOORE, Circuit Judge, concurring in judgment. While I
agree with the majority that the validity of the search should be upheld, I conclude that
the proper ground for doing so is the good-faith exception. See United States v. Leon,
468 U.S. 897, 913 (1984). Because this Circuit has previously upheld a similar affidavit
as sufficient to satisfy probable cause, I cannot conclude that the officer’s reliance on the
magistrate’s issuance of the warrant was unreasonable. See United States v. Finch, 998
F.2d 349, 352 (6th Cir. 1993).1 However, the majority’s opinion does not constitute an
open invitation to continue blind reliance on warrants of this nature. The inadequacies
of the present warrant have been recognized both by counsel for the United States and
by the majority. Such recognition provides notice that continued reliance on similar
warrants, based on form affidavits with little to no particularized detail, may in the future
result in inadmissible evidence without the backstop of the good-faith exception.

Elcardo Moore rightly identified that the affidavit before this court is essentially
a form affidavit widely used in Shelby County, Tennessee. The affidavit principally
premises probable cause on a tip from a confidential informant unnamed in the affidavit.
Prior to the en banc decision in United States v. Allen, 211 F.3d 970 (6th Cir. 2000), this
Circuit upheld iterations of this form affidavit on a number of occasions. See, e.g.,
Finch, 998 F.2d at 352; United States v. Cummings, No. 90-5127, 1991 WL 41552, at
*1-*2 (6th Cir. 1991) (unpublished); United States v. Chalmers, No. 89-5925, 1990 WL
66817, at *2 (6th Cir. 1990) (unpublished). However, the form affidavit’s repeated
use—with minimal to no unique detail and no further explanation under oath to the
issuing magistrate—has persisted to the point of constitutional concern. Moreover, the
iteration of the affidavit before this court provides even sparser grounds for probable
cause than its predecessors.

1
Indeed, a recent panel of this Circuit reached the same result, though for slightly different
reasons. See United States v. McCraven, 401 F.3d 693, 695, 698 (6th Cir. 2005) (upholding similar
affidavit under the good-faith exception).
No. 11-5663 United States v. Moore Page 10

The affidavit in this case purports to establish probable cause based on an
uncorroborated tip from an unnamed informant without the affiant even attesting to
personal knowledge of the confidential informant’s past reliability. R. 29 (Search
Warrant at 3); cf. Finch, 998 F.2d at 352. This Circuit has recognized that an affiant’s
personal knowledge of an informant’s reliability is important to the probable-cause
determination. See United States v. Hammond, 351 F.3d 765, 772 (6th Cir. 2003)
(finding probable cause lacking with respect to informant tip where detective “did not
state how long [police officer] knew [informant], or if [police officer], himself, knew
[informant]”). Thus, when an affiant has no personal knowledge of a confidential
informant’s past reliability, there generally must be other indicia of reliability, such as
independent corroboration, to support a finding of probable cause. See, e.g., United
States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (finding that “although details
concerning the informant’s reliability gleaned from past encounters are lacking” there
was a sufficient basis for probable cause “based on the affiant’s personal knowledge and
observations” and independent corroboration of a controlled buy).

As this Circuit has recognized, “[o]ur post-Allen confidential informant cases”2
have “demand[ed] that an affidavit demonstrate more than simply blind faith in the
words of an affiant who claims his unnamed informant is reliable.” United States v.
Ferguson, 252 F. App’x 714, 721 (6th Cir. 2007) (unpublished); see also United States
v. May, 399 F.3d 817, 823 (6th Cir. 2005) (“An informant’s tip is considered to have
greater reliability, and therefore to be more supportive of a finding of probable cause,
if the affidavit avers that the name of the confidential informant has been disclosed to
the issuing judge.”). Thus, when the identity of the informant has not been disclosed in
the affidavit or to the magistrate, other indicia of reliability beyond the affiant’s personal
knowledge of past reliability—such as corroboration or a substantially detailed
description of the alleged conduct—have also generally been required. See, e.g., United

2
Allen does not control the outcome in this case because its holding was expressly limited to “an
affidavit based upon personal observation of criminal activity by a confidential informant who has been
named to the magistrate and who, as the affidavit avers, has provided reliable information to the police
in the past about criminal activity . . . .” Allen, 211 F.3d at 971 (emphasis added). It is undisputed that
the informant in this case was neither named in the affidavit nor disclosed to the magistrate.
No. 11-5663 United States v. Moore Page 11

States v. Rodriguez-Suazo, 346 F.3d 637, 646 (6th Cir. 2003) (upholding probable cause
when informant’s reliability was based on three prior tips leading to arrest and
conviction, informant provided detailed reports of criminal wrongdoing, and police
conducted minimum corroboration); United States v. Williams, 224 F.3d 530, 531, 533
(6th Cir. 2000) (upholding probable cause when police officer explained to judge
additional steps taken to corroborate unidentified informant’s tip through surveillance).

Though not disclosed in the supporting affidavit or to the magistrate, the officer
in this case did in fact take independent steps to corroborate the informant’s tip. Though
we do not know why the officer did not include this information in the affidavit, the fact
that he failed to do so is not inconsequential. In fact, it may suggest that a practice of
blind reliance on form affidavits, which reviewing magistrates “rubber stamp,” has
developed in Shelby County and that police officers have become lackadaisical in the
important task of ensuring that all warrants contain sufficiently particularized facts to
support a finding of probable cause. That the magistrate in this instance issued the
warrant without asking the police officer a single question lends further support to this
inference.

The deficiencies identified here are easily remedied without imposing any
hardship on law enforcement. As the en banc opinion in Allen recognized, the fact that
an affidavit contains some “boilerplate” language is not per se problematic so long as the
affidavit also contains sufficient “specificity” to satisfy probable cause. Allen, 211 F.3d
at 975. “The Fourth Amendment does not require an officer to reinvent the wheel with
each search warrant application.” United States v. Weaver, 99 F.3d 1372, 1381 (6th Cir.
1996). However, the Fourth Amendment does require that officers provide sufficiently
specific facts to support a particularized showing of probable cause. If this is not done
within the four corners of the affidavit, then the officer must do so orally under oath to
the issuing magistrate. United States v. Hang Le-Thy Tran, 433 F.3d 472, 482 (6th Cir.
2006) (“The Fourth Amendment does not require that the basis for probable cause be
established in a written affidavit; it merely requires that the information be given by
‘Oath or affirmation’ before a judicial officer.”) (quoting U.S. CONST. AMEND. IV). The
No. 11-5663 United States v. Moore Page 12

practice of skirting this constitutional requirement in Shelby County is unacceptable and
unsustainable. Should officers wish to continue relying in good faith on issued warrants,
they must conform their conduct to the Fourth Amendment’s requirements.

Accordingly, I concur in the judgment.