United States v. Delvon Houser

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 28, 2018
• Docket: 18-3187
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0487n.06

No. 18-3187

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Sep 28, 2018 DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA, ) ) ON APPEAL FROM THE Plaintiff-Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE v. ) NORTHERN DISTRICT OF ) OHIO DELVON HOUSER, ) ) OPINION Defendant-Appellant. )

Before: GILMAN, KETHLEDGE, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. The only issue in this direct criminal appeal is the

validity of a search warrant. The warrant was based on an affidavit detailing, inter alia, the

affiant’s observation of the sale of a small amount of crack cocaine by defendant Delvon Houser

to a confidential informant, which occurred after Houser exited his apartment, met the informant

next to the apartment building to make the sale, and then returned to his apartment. The sole aspect

of the warrant that Houser challenges is the sufficiency of the nexus between the incriminating

evidence and the place to be searched. Houser pleaded guilty to one count of illegal possession of

a firearm by a convicted felon based on evidence discovered and seized pursuant to the warrant.

Because the warrant averred a sufficient nexus between the criminal activity and the residence to

be searched, the district court properly denied the motion to suppress. Thus, we AFFIRM the

judgment of the district court. No. 18-3187, United States v. Houser

I.

On January 18, 2017, Detective Jose Alcantara, a then thirteen-year veteran law

enforcement officer recently assigned as a detective in the Euclid Police Department Narcotics

Unit, applied for a search warrant in the Cuyahoga County Court of Common Pleas. According

to his supporting affidavit, on January 13, 2017, a confidential informant advised police that the

informant was purchasing crack cocaine from a black male in a particular area of Euclid, Ohio.

The informant told the police that the seller “drove a silver two door Chevy Monte Carlo bearing

[specific] Ohio registration” information1 and used a particular nickname, and the informant

provided detectives with Houser’s cellular phone number. Using this information, officers

conducted a traffic stop of a car with the same make, model, and Ohio registration information as

that supplied by the informant. Officers identified Houser as the driver of the vehicle and

determined that he had prior convictions including felony drug trafficking, robbery, felonious

assault, having weapons while under disability, possession of criminal tools, and tampering with

evidence.

Within 72 hours, an undercover detective and the confidential informant set up a controlled

buy of crack cocaine from Houser. First, the informant contacted Houser by telephone and advised

that the informant wanted to purchase crack cocaine. Next, the informant and the undercover

vehicle were searched before conducting the controlled buy, and, upon finding both drug-free, the

informant was provided with a sum of previously recorded buy money. Undercover officers placed

throughout Houser’s apartment building kept constant surveillance of Houser. Officers witnessed

Houser exit apartment “J” and meet the informant on the side of the apartment building. The

confidential informant handed Houser the money, and Houser handed the informant an amount of

1 This information was redacted in the affidavit attached in support of Defendant’s Motion to Suppress.

2 No. 18-3187, United States v. Houser

purported crack cocaine. Officers witnessed Houser immediately return to apartment “J” after

conducting the hand-to-hand transaction. The purported crack cocaine tested positive for .1 grams

of cocaine (enough for one-time personal use). Using surveillance photos and a Bureau of Motor

Vehicles photo, detectives “were able to determine that Houser was the male using the street name

[provided by the informant, and] was the individual who sold crack cocaine” to the informant and

undercover officer.

In the affidavit, Detective Alcantara further explained that, in his experience,

“persons who traffic [] illegal drugs frequently keep weapons, such as firearms, for use against law

enforcement officials, as well as other citizens. Therefore, it is also necessary to search for any

weapons that may be present in the above-described premises.” Moreover, Detective Alcantara

averred that “based upon the nature of the activity and criminal history of drug abuse and drug

trafficking” by the defendant, it is likely that the premises will contain controlled substances,

money, weapons, or other contraband.

The state court issued the warrant. The Euclid Police Department executed the search

warrant the next day. Inside apartment “J,” officers found a “Taurus .38 caliber revolver, loose

marijuana, digital scales, and .2 grams of crack cocaine residue.” The Taurus .38 caliber revolver

and the rounds of ammunition were manufactured in Brazil and traveled in interstate commerce.

Also, according to the Presentence Report,

[a] records check of the .38 Caliber Taurus revolver was conducted and it was discovered that the revolver had been stolen from the Village of Timberlake on April 22, 2016.

Houser admitted to the ownership of the drugs and digital scales recovered from the apartment. He also admitted to being a drug dealer, and he stated he purchased the .38 caliber revolver in the streets for protection.

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Houser was prohibited from possessing a firearm because of his previous convictions for robbery

and felonious assault.

Accordingly, Houser was charged with one count of illegal possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g). He subsequently moved to suppress all

evidence seized from the search of apartment “J,” arguing that “the investigative activities of the

Euclid Police Department did not establish a sufficient nexus between [his] apartment and drug

dealing activity,” and that, accordingly, “there was insufficient probable cause for the magistrate

to issue a warrant to search [his] apartment.” (Mot. to Suppress, R. 16, Page ID # 51.) The district

court denied Houser’s motion, explaining that

the affidavit establishes that the drug dealing was occurring near defendant’s apartment and that the CI purchased drugs from defendant. In a transaction, monitored and verified by law enforcement, the CI purchased crack cocaine from defendant. To complete the transaction outside his apartment building, defendant was observed exiting his apartment and then returning to his apartment after conducting the transaction. On this basis, there was sufficient probable cause to search defendant’s residence.

(Order, R. 18, Page ID # 72.)

This ruling on the motion to suppress prompted Houser to enter into a plea agreement, but

in making the plea, Houser reserved his right to challenge the district court’s ruling. The district

court accepted the plea agreement and sentenced Houser to 92 months’ imprisonment. Houser

now appeals the district court’s denial of his motion to suppress.

II.

“The standard of review for determining the sufficiency of the affidavit is whether the

magistrate had a substantial basis for finding that the affidavit established probable cause to believe

that the evidence would be found at the place cited.” United States v. Rodriguez-Suazo, 346 F.3d

637, 643 (6th Cir. 2003) (internal quotation marks omitted). “[L]egal conclusions as to the

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existence of probable cause are reviewed de novo.” United States v. Combs, 369 F.3d 925, 937

(6th Cir. 2004). A judicial officer’s probable-cause determinations are entitled to great deference.

Rodriguez-Suazo, 346 F.3d at 643. When the district court denies a motion to suppress, this court

reviews all evidence in a light most favorable to the government. United States v. Galloway, 316

F.3d 624, 628 (6th Cir. 2003).

The district court properly denied Houser’s motion to suppress because the search warrant

was supported by probable cause. Probable cause existed for the search of Houser’s residence

because the warrant affidavit established a nexus between the place to be searched and the evidence

sought. See United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (holding that a search

warrant affidavit must establish a “nexus between the place to be searched and the evidence

sought” (quoting United States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998))). The

affidavit explained that days before the search, the confidential informant had purchased drugs

from Houser. The police corroborated the information the informant provided about Houser’s

nickname, phone number, car make and model, and Ohio registration information. The affidavit

also stated that Houser had a previous drug-trafficking conviction. Finally, undercover officers

watched Houser leave his apartment, walk directly to the informant and undercover officer who

were beside the building, engage in the drug transaction, and then re-enter the residence.

In United States v. Ellison, a case with similar facts, we held that

[t]hese incriminating actions are inextricably connected to the residence for which the search warrant was sought. From these actions, the affiant and the issuing judge could infer that there was a fair probability that drugs were being stored in the residence or that drug trafficking was taking place from the residence, such that a search of the residence would be likely to yield contraband or evidence of a crime. This showing of a fair probability is all that is required to justify the issuance of a search warrant.

5 No. 18-3187, United States v. Houser

632 F.3d 347, 349 (6th Cir. 2011); see also United States v. Jones, 159 F.3d 969, 974–75 (6th Cir.

1998) (“In this case, the fact that the incidents referred to in the affidavits took place on the

premises rather than inside the house does not invalidate the search of the house.”). In Ellison, a

reliable informant observed two individuals engage in a drug transaction outside of a residence.

632 F.3d at 348. The informant witnessed one individual, “Short,” exit the side door of a residence

and meet with another individual outside. Id. The informant observed “Short” give the other

individual a large quantity of cocaine in a plastic bag, and then “Short” returned to the residence.

Id. The informant provided this information to the police, the police obtained a search warrant for

the defendant’s residence, and they subsequently found incriminating evidence inside the home.

Id. The district court denied the motion to suppress, and we affirmed, holding that “[t]he affidavit

explained that a confidential informant had observed someone come out of [the defendant’s]

residence, engage in a drug transaction, and then return into the residence.” Id. at 349.

“Commission of a drug transaction outside of a house and one participant’s walking back into the

house . . . plainly demonstrated a sufficient nexus with the house.” Id.

Similarly, here, the warrant affidavit averred that officers witnessed Houser leave from and

then return to his apartment immediately before and after selling crack cocaine, thus establishing

a sufficient nexus to search the residence. Although in the instant case the quantity of drugs sold

in the transaction triggering the home’s search is less than in Ellison, here, the affidavit contains

additional evidence supporting a nexus of drug dealing to the searched residence that the affidavit

in Ellison lacked. For instance, in Ellison, the informant was the one who witnessed the defendant

engage in a drug transaction and return to the residence; here, undercover officers witnessed

Houser leave his apartment, engage in the transaction, and then return to his apartment. See United

6 No. 18-3187, United States v. Houser

States v. Boyd, 735 F. App’x 202, 205 (6th Cir. 2018) (“The officers’ first-hand observations of

the drug sale established probable cause that [the defendant’s] apartment contained drugs . . . .”).

Houser claims that the affidavit was deficient because it did not establish that Houser was

a known drug dealer, such as “indicating that, for example, he regularly sold drugs, possessed large

amounts of cash, paraphernalia, or other signs of trafficking, or was a member of a larger drug

organization.” (Appellant Br. 8.) Houser points to no authority requiring this particular

information to determine an individual’s status as a drug dealer. Moreover, under the totality of

the circumstances, the information in the affidavit was sufficient to establish that Houser was

engaged in dealing drugs. Not only does it state that Houser had been convicted of a drug

trafficking offense, but also that the informant advised police that the informant was purchasing

crack-cocaine from an individual (verified as Houser by the police), and officers set up a controlled

buy within 72 hours in which Houser again dealt drugs to the informant and undercover officer.

See United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (noting that we have found a

sufficient nexus between illegal drug activity and a residence when “the affidavits contained an

additional fact that permitted the magistrate to draw the inference that evidence of wrongdoing

would be found in the defendant’s homes—namely, the independently corroborated fact that the

defendants were known drug dealers at the time police sought to search their homes”). Thus,

evidence of Houser’s multiple instances of drug dealing, including the controlled buy beside his

apartment building 72 hours before issuance of the warrant, established that Houser was suspected

of involvement in drug trafficking and that there was “a fair probability” that evidence of his crimes

would be found in his residence. Carpenter, 360 F.3d at 594.

Houser points to United States v. Brown as authority establishing that his status as a known

drug dealer cannot provide probable cause to search his home. In Brown, we explained that “[w]e

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have never held . . . that a suspect’s ‘status as a drug dealer, standing alone, gives rise to a fair

probability that drugs will be found in his home.’” 828 F.3d 375, 383 (6th Cir. 2016) (emphasis

added). In the instant case, the affidavit avers more than Houser’s status as a drug dealer. The

warrant affidavit here established exactly what was missing in Brown: undercover officers, as well

as the informant, actually observed a drug deal occurring beside Houser’s residence, thus

independently corroborating Houser’s status as a dealer. That officers witnessed Houser depart

from and reenter his apartment, while dealing drugs to the informant next to his apartment building,

establishes the requisite nexus to search his residence.

Houser contends that the small quantity of drugs he sold fails to create probable cause

because in McPhearson, the suspect was arrested on his front porch with 6.4 grams of crack

cocaine and this court held that the warrant affidavit was insufficient to establish the requisite

nexus. 469 F.3d at 520–21. Houser misconstrues the holding in McPhearson. There, we held that

the warrant was deficient not based on the quantity of drugs the defendant possessed but because

the affidavit in support of the warrant to search the defendant’s home failed to show that the

defendant was a drug dealer. Id. at 525–26. The affidavit explained only that officers found drugs

in the defendant’s pocket when they arrested him on an assault charge. Id. at 525. Unlike in

McPhearson, as explained earlier, the facts in the affidavit demonstrated Houser was dealing

drugs. Houser not only sold crack cocaine during the controlled buy, but the informant also told

officers that the informant had previously purchased crack cocaine from Houser. Thus, because

the affidavit attests that Houser engaged in drug transactions on at least two occasions, coupled

with Houser’s previous drug trafficking conviction, as well as the officers’ own observations of

8 No. 18-3187, United States v. Houser

Houser departing his apartment, selling the crack cocaine on the side of his building, and returning

to his apartment, the affidavit sufficiently satisfies the nexus requirement.2

Accordingly, we AFFIRM the district court’s judgment.

2 Because we find that the warrant affidavit was valid, we need not address the alternative good faith argument briefed by the parties.