United States v. Gary Dewayne Pinson

321 F.3d 558
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 24, 2003
Docket01-6133
StatusPublished
Cited by83 cases

This text of 321 F.3d 558 (United States v. Gary Dewayne Pinson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gary Dewayne Pinson, 321 F.3d 558 (6th Cir. 2003).

Opinions

POLSTER, District Judge, delivered the opinion of the court, in which GIBBONS, Judge, joined. GILMAN, Judge (pp. 568— 569), delivered a separate concurring opinion.

OPINION

POLSTER, District Judge.

Defendant-Appellant, Gary DeWayne Pinson, pled guilty to violations of 18 U.S.C. § 922(g)(1) [felon in possession of a firearm]; 21 U.S.C. § 841 [possession with intent to sell cocaine in excess of 100 grams and cocaine base in excess of 50 grams]; and 18 U.S.C. § 924(c) [carrying or using a firearm during a drug trafficking crime]. Pinson reserved his right to appeal the district court’s order denying his motion to suppress evidence on the basis that the search warrant was not supported by probable cause and, even if it was, the officers violated the knoek-and-announce provisions of the Fourth Amendment to the United States Constitution. For the reasons set forth below, we AFFIRM the district court’s order denying Pinson’s motion to suppress the evidence.

I. BACKGROUND

A. Factual background

On August 19, 1999, Nashville Police Officer William Mackall appeared before a Davidson County General Sessions magistrate judge to apply for the issuance of a search warrant to allow him to search 2713 Torbett Street in Nashville, Tennessee. Officer Mackall provided the magistrate judge with an affidavit in support of his application for the search warrant. The affidavit in support of the search warrant read as follows:

This affidavit is made by Officer William Mackall who has 6 years of law enforcement experience as a sworn police officer and 4 years as a narcotics investigator, now testifies herein which is based upon information received from other law enforcement officers, unless otherwise stated, which your affiant believes to be true, and is as follows. Within the last 72 hours your affiant searched a reliable confidential informant hereafter referred to as “Cl” and found no illegal contraband and directed said Cl to go to stated address and purchase a quantity of cocaine which said Cl did. Your affi-ant gave said Cl some pre-photo copied buy money and observed said Cl enter through the front door of stated address and momentarily returned through the same door. Said Cl then walked direct[561]*561ly back to my vehicle turning over a large yellowish rock that later field tested positive for cocaine base. Said Cl is familiar with said drug from past experience and exposure. Your affiant knows said Cl is reliable from past information received from said Cl resulting in the lawful recovery of narcotics. Your affi-ant will only give said Cl’s name to the judge signing this warrant. The Cl wishes to remain anonymous for fear of reprisal. Your affiant wishes to search each person(s) on the above premises[.] From your Affiant’s experience and training, he has learned that most persons present at premises; where controlled substances are bought, sold and/or used, have controlled substances, paraphernalia, weapons or other evidence of criminal conduct secreted on their person.

In executing the warrant, Officer Mac-kall and other police officers pulled up in front of the residence in an unmarked van and got out of the vehicle. Officer Mackall believed there was also a marked police car present. From the sidewalk, where the officers got out of the van, to the front porch is ten to fifteen feet. As they approached the front door of the residence they noticed a woman on the front porch. They yelled, “Get on the ground, get on the ground, get on the ground;” the woman complied and was handcuffed.

Once at the front door, the officers knocked on the door and announced “Police, search warrant.” The confidential informant had told Officer Mackall that in order to purchase drugs at the residence, one needed to call before arriving because the residents would not respond to a knock on the door. The officers waited five to ten seconds before battering down the front metal security door with a ram. The officers also battered down an inner door. Upon entering the living room of the house, the officers discovered two women by a couch. Pinson was standing to the right of the officers in the doorway of a bedroom. The search of the house yielded a large quantity of crack and powder cocaine, Dilaudid and Valium pills, marijuana, scales, and several guns.

B. Procedural background

On August 23, 1999, Pinson was indicted and charged with (1) felony possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a); (2) possession with intent to distribute' schedule II controlled substances in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 2 and 924(c)(1); (4) possession of a destructive device in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 2 and 924(c)(1); and (5) knowing receipt and possession of a destructive device which was not registered to him in violation of 26 U.S.C. § 5861(d).

In a motion filed on March 26, 2000, Pinson moved to suppress the evidence as illegally seized, alleging that the search warrant was not based on probable cause and, even if it was, the agents and officers violated the “knock and announce” rule of the Fourth Amendment to the United States Constitution when effectuating the warrant. On April 27, 2001, an evidentiary hearing was held. At the close of the hearing, Pinson sought and obtained permission from the court to file a supplemental memorandum in support of his Motion to Suppress. On May 3, 2001, Pinson filed the memorandum and the government responded on the following day. The district court entered an order and memorandum denying the motion.

On May 21, 2001, Pinson entered pleas of guilty to Counts One, Two, and Three of the indictment, reserving for appeal the [562]*562issues raised in the suppression motion. On August 13, 2001, Pinson was sentenced to a total sentence on the three counts of one hundred and eighty-one (181) months’ imprisonment; the judgment was entered on September 4, 2001. On September 10, 2001, Pinson’s notice of appeal was timely filed.

II. ANALYSIS

A.

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Bluebook (online)
321 F.3d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-dewayne-pinson-ca6-2003.