United States v. Alcorn

9 F. App'x 426
Court of Appeals for the Sixth Circuit·Decided May 16, 2001·No. No. 99-6565·Published·Cited by 1 cases

Opinion

KENNEDY, Circuit Judge.

On July 16, 1998, a federal grand jury returned a three count indictment against defendant Glen Ray Alcorn which included charges of conspiring with others to possess with intent to distribute methamphetamine and of possession with intent to distribute methamphetamine. A jury ultimately found defendant guilty on all three counts. Prior to trial, defendant filed a motion to suppress evidence that was retrieved from his residence pursuant to a search warrant obtained during the police investigation. The district court denied his motion to suppress. Defendant now brings this appeal, alleging that the search warrant was invalid because: (1) the affidavit in support of the warrant contained insufficient information to support probable cause, and (2) the warrant was not obtained in accordance with Federal Rule of Criminal Procedure 41(a). For the reasons stated below, we deny defendant’s claims on appeal and affirm the district court’s judgment that the evidence was properly admissible at trial.

I.

On June 17, 1998, Deputies Clifford Meyer and John Holland of the Coffee County, Tennessee Sheriffs Office stopped a 1989 Chevrolet pick-up truck for various traffic violations. Co-defendant Anthony Woolbright was driving the truck, defendant Alcorn was seated in the right front passenger seat and Georgia Moss was seated between them. Deputy Meyer asked the driver to step out of the car, and as he did, Deputy Meyer saw drug paraphernalia and a pistol inside the vehicle. Meyer also noticed that the driver appeared nervous and sweaty, that his pupils were dilated, and that his face was red. In response to Meyer’s question, the driver denied that there were any drugs in the car. The drug-detection dog patrolling with the officers alerted on both front doors and the underside of a tool box in the bed of the truck. After again denying the presence of any drugs in the truck, the driver gave consent for the officers to [428] search the vehicle. The deputies removed the passengers from the truck and searched it.

The officers discovered a pistol, drug paraphernalia and a plastic baggie containing large chunks of white powder. As a result of the search, defendant and the other two individuals were all placed under arrest. A further search of the vehicle was conducted later at the Coffee County Sheriffs Department and additional plastic bags of white powder, later determined to be methamphetamine, were discovered. The deputies recovered a total of 162.09 grams of methamphetamine from the vehicle.

Deputy Meyer contacted the federal Drug Enforcement Agency (DEA) regarding the discovery of the methamphetamine. DEA Agent John Hardcastle interviewed the three individuals arrested. Agent Hardcastle obtained information from co-defendant Anthony Woolbright about defendant Alcorn’s drug trafficking. Hardcastle then passed that information on to Agent Steve Taylor of the Cooke-ville, Tennessee Police Department, who was familiar with defendant and had previously obtained other information regarding defendant’s drug trafficking activities.

On June 19, 1998, Agent Taylor requested a warrant from the Putnam County Court of General Sessions to search defendant’s home at 5155 Penthouse Rd, Putnam County, Tennessee. In his affidavit, Agent Taylor listed the following reasons for his belief that defendant possessed the items for which the officers wanted to search: (1) a February 1998 interview with a confidential informant who stated that he had been inside defendant’s house, that he had seen multiple ounces of methamphetamine in the house in February 1998, that defendant hid methamphetamine in false bottom containers throughout the house, and that defendant had installed video surveillance around his house to protect against police action; (2) interviews by Agent Taylor and another agent of five other confidential informants over the previous ten-month period, each of whom described-defendant’s manufacture and distribution of methamphetamine; and (3) the facts surrounding the arrest of defendant on June 17, 1998, including the recovery of methamphetamine from the truck and the statements of co-defendant Woolbright that he assisted defendant Alcorn in transporting the methamphetamine found in the vehicle. On June 19, 1998, General Sessions Judge John Hudson signed the search warrant and Agent Taylor, federal Agent Hardcastle, and other officers executed the search. The officers recovered 49.7 grams of methamphetamine, pharmaceutical drugs, drug paraphernalia and surveillance equipment from defendant’s residence.

At the district court, defendant Alcorn moved to suppress the evidence recovered from the search of his home on two grounds. First, he alleged that the evidence should be suppressed because the warrant was not specific enough in stating the items to be seized. Secondly, he alleged that the warrant was invalid under Fed.R.Crim.P. 41(a), because it was approved by a judge from the Court of General Sessions which is not a court of record. The district court denied defendant’s motions, ruling that the items sought were reasonably relevant to the reason for the search and that the officers executed the search in good faith, and holding that Federal Rule 41 did not apply because the warrant was requested by a state officer from a judge specifically authorized to issue warrants. Defendant now appeals the admission of evidence obtained from the search of his residence, alleging for the first time that (1) the affidavit requesting the search warrant was lacking in suffi[429] cient information to support probable cause, and (2) the search warrant was invalid under Fed.R.Crim.P. 41(a).

Defendant first alleges that the evidence uncovered during the search of his home should be suppressed because the affidavit requesting the warrant did not state sufficient information to support probable cause. Defendant did not raise this claim before the district court. There, defendant argued that the warrant lacked specificity in stating what the officers could reasonably search for and seize, but defendant made no claim as to the sufficiency of the evidence to support probable cause.

As a general rule, appellants cannot raise claims before the appellate court that were not raised before the district court. In United States v. Bonds, 12 F.3d 540 (6th Cir.1993), this court held that defendant’s failure to challenge the sufficiency of the affidavit in a motion to suppress evidence constituted a waiver of the right to appeal that issue. Id. at 569. Because defendant did not raise this issue before the district court, he must demonstrate the existence of plain error in order to justify the relief he requests. United States v. Bray, 139 F.3d 1104, 1110 (6th Cir.1998); Fed.R.Evid. 103(a)(1) and (d); Fed. R.Crim.P. 52(b). We conclude that defendant has failed to demonstrate plain error.

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