NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Case No. 17-2084
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 06, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF MICHAEL NATHANIEL BOYD, ) MICHIGAN ) Respondent-Appellant. ) ) )
BEFORE: BOGGS, SILER, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Anonymous tipsters told the Kalamazoo police that Michael
Boyd was selling drugs. The police enlisted an informant to confirm. The informant called Boyd
and set up a sale in a parking lot behind Boyd’s apartment. Police watched a person walk out of
Boyd’s apartment, approach the informant’s car, and sell him drugs. The informant gave the drugs
to the police and confirmed that Boyd sold them.
A state magistrate judge issued a warrant to search Boyd’s apartment. The search
uncovered drugs and guns. Boyd claims that the search violated his rights under the Fourth
Amendment. Because the police had ample grounds to establish a fair probability that Boyd’s
apartment harbored drugs, we disagree and affirm.
Officer Aaron Ham works for the Kalamazoo Valley Enforcement Team. He has
investigated drug crimes for over seventeen years. One day in May 2016, an informant told Officer Case No. 17-2084 United States v. Boyd Ham that Michael Boyd was selling drugs out of his apartment on McCourtie Street in Kalamazoo.
Officer Ham drove to McCourtie Street to verify the tip. He watched Boyd drive down McCourtie
Street and enter his upstairs apartment. But he did not see Boyd sell any drugs.
Over the next few months, Officer Ham received two more tips that Boyd was selling
drugs. On top of that, Officer Ham learned, Boyd carried a pistol for protection, despite prior
convictions that made that illegal. This time, Officer Ham decided that staking out Boyd’s
apartment would not suffice. He recruited one of the informants to catch Boyd in the act.
Officer Ham, the informant, and three other officers drove to Boyd’s apartment. The
informant called Boyd to set up a deal. Boyd agreed to meet the informant in a parking lot behind
Boyd’s apartment to sell him methamphetamine. After ensuring that the informant did not have
other sources of money or drugs on him or in his car, the police gave the informant police funds
and placed a wire on him. They saw a person matching Boyd’s description walk out of Boyd’s
apartment, approach the informant’s car, and sell him drugs. The informant returned to the
officers, turned over the drugs, and identified Boyd as the seller.
Officer Ham sought a warrant to search Boyd’s apartment for drugs and guns. He drafted
an affidavit describing the tips he received and the things he saw, including the fact that Boyd had
four outstanding warrants for his arrest at the time. A magistrate judge issued the warrant, and
police searched the apartment. The search turned up methamphetamine, marijuana, cocaine, pills,
a pill grinder, a digital scale dusted with drug residue, packaging materials, a stolen handgun, and
a shotgun. When asked about the items in his apartment, Boyd told officers “I do what I do.”
R. 75 at 5. “I know what I do is wrong,” he explained. Id. But “I’ll be accountable for my actions.”
Id.
2 Case No. 17-2084 United States v. Boyd After the federal government charged him with violating drug and gun laws, Boyd moved
to suppress the evidence obtained during the search, arguing that the statements in the affidavit
failed to establish probable cause. When that motion failed, he filed a motion to suppress the
evidence on the independent ground that some of the statements in the affidavit were false. The
district court denied the motion after concluding that the allegations did not merit an evidentiary
hearing. See Franks v. Delaware, 438 U.S. 154 (1978). Boyd pleaded guilty to distributing drugs
and possessing guns in furtherance of drug trafficking, though he reserved his right to challenge
the Fourth Amendment rulings. The court sentenced him to 20 years.
Boyd appeals both suppression rulings.
Probable cause. Probable cause exists if there “is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Bailey v. City of Ann Arbor, 860 F.3d
382, 387 (6th Cir. 2017) (quotation omitted). The affidavit contained ample information to
establish a fair probability that Boyd’s apartment harbored drugs. Three informants told the police
that Boyd dealt drugs from his McCourtie Street apartment. Officer Ham saw Boyd enter that
apartment in May. And in August the officers recruited an informant to buy drugs from Boyd.
Officers listened as the informant called Boyd to set up the sale. They searched the informant and
his car for drugs and money before sending him in. They watched someone matching Boyd’s
description walk out of Boyd’s apartment, approach the informant, and sell him drugs. The
informant turned the drugs over to the police and confirmed that Boyd sold the drugs. All evidence
considered, the investigation yielded sufficient information for the officers to conclude that Boyd
had drugs in his apartment.
United States v. Coffee, 434 F.3d 887 (6th Cir. 2006), provides a useful comparison.
Officers received a tip that Coffee sold drugs out of his residence. Id. at 891. They used the
3 Case No. 17-2084 United States v. Boyd informant to verify the tip. Id. The officers fitted the informant with a wire and watched as he
entered the home. Id. They listened as he bought drugs from Coffee. Id. Based on this
information, the court held that the magistrate could properly conclude that there was a fair
probability that officers would find more drugs in Coffee’s home. Id. at 894–95. What was true
for Coffee is true for Boyd.
Boyd complains that the affidavit did not contain any statements about the confidential
informant’s reliability, faulting Officer Ham for failing to include information about the
informant’s identity, the length of their relationship, and the accuracy of past tips. But an affidavit
is evaluated on the “adequacy of what it does contain,” not “what a critic might say should have
been added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc). The officers’
first-hand observations of the drug sale established probable cause that Boyd’s apartment
contained drugs, making it unnecessary to prove that the informant was reliable as well.
For what it’s worth, facts that establish an informant’s reliability “need not take any
particular form.” United States v. McCraven, 401 F.3d 693, 697 (6th Cir. 2005). One way to
establish an informant’s reliability is to corroborate the details of his tip. Id. That’s what happened
here. After the informant told Officer Ham that Boyd sold drugs out of his apartment, the officer
recruited the informant to buy drugs from Boyd. Both the phone call setting up the sale and the
sale itself corroborated the informant’s observation: that Boyd sold drugs out of his apartment.
Shifting gears, Boyd argues that the affidavit failed to establish a sufficient “nexus”
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Case No. 17-2084
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 06, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF MICHAEL NATHANIEL BOYD, ) MICHIGAN ) Respondent-Appellant. ) ) )
BEFORE: BOGGS, SILER, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Anonymous tipsters told the Kalamazoo police that Michael
Boyd was selling drugs. The police enlisted an informant to confirm. The informant called Boyd
and set up a sale in a parking lot behind Boyd’s apartment. Police watched a person walk out of
Boyd’s apartment, approach the informant’s car, and sell him drugs. The informant gave the drugs
to the police and confirmed that Boyd sold them.
A state magistrate judge issued a warrant to search Boyd’s apartment. The search
uncovered drugs and guns. Boyd claims that the search violated his rights under the Fourth
Amendment. Because the police had ample grounds to establish a fair probability that Boyd’s
apartment harbored drugs, we disagree and affirm.
Officer Aaron Ham works for the Kalamazoo Valley Enforcement Team. He has
investigated drug crimes for over seventeen years. One day in May 2016, an informant told Officer Case No. 17-2084 United States v. Boyd Ham that Michael Boyd was selling drugs out of his apartment on McCourtie Street in Kalamazoo.
Officer Ham drove to McCourtie Street to verify the tip. He watched Boyd drive down McCourtie
Street and enter his upstairs apartment. But he did not see Boyd sell any drugs.
Over the next few months, Officer Ham received two more tips that Boyd was selling
drugs. On top of that, Officer Ham learned, Boyd carried a pistol for protection, despite prior
convictions that made that illegal. This time, Officer Ham decided that staking out Boyd’s
apartment would not suffice. He recruited one of the informants to catch Boyd in the act.
Officer Ham, the informant, and three other officers drove to Boyd’s apartment. The
informant called Boyd to set up a deal. Boyd agreed to meet the informant in a parking lot behind
Boyd’s apartment to sell him methamphetamine. After ensuring that the informant did not have
other sources of money or drugs on him or in his car, the police gave the informant police funds
and placed a wire on him. They saw a person matching Boyd’s description walk out of Boyd’s
apartment, approach the informant’s car, and sell him drugs. The informant returned to the
officers, turned over the drugs, and identified Boyd as the seller.
Officer Ham sought a warrant to search Boyd’s apartment for drugs and guns. He drafted
an affidavit describing the tips he received and the things he saw, including the fact that Boyd had
four outstanding warrants for his arrest at the time. A magistrate judge issued the warrant, and
police searched the apartment. The search turned up methamphetamine, marijuana, cocaine, pills,
a pill grinder, a digital scale dusted with drug residue, packaging materials, a stolen handgun, and
a shotgun. When asked about the items in his apartment, Boyd told officers “I do what I do.”
R. 75 at 5. “I know what I do is wrong,” he explained. Id. But “I’ll be accountable for my actions.”
Id.
2 Case No. 17-2084 United States v. Boyd After the federal government charged him with violating drug and gun laws, Boyd moved
to suppress the evidence obtained during the search, arguing that the statements in the affidavit
failed to establish probable cause. When that motion failed, he filed a motion to suppress the
evidence on the independent ground that some of the statements in the affidavit were false. The
district court denied the motion after concluding that the allegations did not merit an evidentiary
hearing. See Franks v. Delaware, 438 U.S. 154 (1978). Boyd pleaded guilty to distributing drugs
and possessing guns in furtherance of drug trafficking, though he reserved his right to challenge
the Fourth Amendment rulings. The court sentenced him to 20 years.
Boyd appeals both suppression rulings.
Probable cause. Probable cause exists if there “is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Bailey v. City of Ann Arbor, 860 F.3d
382, 387 (6th Cir. 2017) (quotation omitted). The affidavit contained ample information to
establish a fair probability that Boyd’s apartment harbored drugs. Three informants told the police
that Boyd dealt drugs from his McCourtie Street apartment. Officer Ham saw Boyd enter that
apartment in May. And in August the officers recruited an informant to buy drugs from Boyd.
Officers listened as the informant called Boyd to set up the sale. They searched the informant and
his car for drugs and money before sending him in. They watched someone matching Boyd’s
description walk out of Boyd’s apartment, approach the informant, and sell him drugs. The
informant turned the drugs over to the police and confirmed that Boyd sold the drugs. All evidence
considered, the investigation yielded sufficient information for the officers to conclude that Boyd
had drugs in his apartment.
United States v. Coffee, 434 F.3d 887 (6th Cir. 2006), provides a useful comparison.
Officers received a tip that Coffee sold drugs out of his residence. Id. at 891. They used the
3 Case No. 17-2084 United States v. Boyd informant to verify the tip. Id. The officers fitted the informant with a wire and watched as he
entered the home. Id. They listened as he bought drugs from Coffee. Id. Based on this
information, the court held that the magistrate could properly conclude that there was a fair
probability that officers would find more drugs in Coffee’s home. Id. at 894–95. What was true
for Coffee is true for Boyd.
Boyd complains that the affidavit did not contain any statements about the confidential
informant’s reliability, faulting Officer Ham for failing to include information about the
informant’s identity, the length of their relationship, and the accuracy of past tips. But an affidavit
is evaluated on the “adequacy of what it does contain,” not “what a critic might say should have
been added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc). The officers’
first-hand observations of the drug sale established probable cause that Boyd’s apartment
contained drugs, making it unnecessary to prove that the informant was reliable as well.
For what it’s worth, facts that establish an informant’s reliability “need not take any
particular form.” United States v. McCraven, 401 F.3d 693, 697 (6th Cir. 2005). One way to
establish an informant’s reliability is to corroborate the details of his tip. Id. That’s what happened
here. After the informant told Officer Ham that Boyd sold drugs out of his apartment, the officer
recruited the informant to buy drugs from Boyd. Both the phone call setting up the sale and the
sale itself corroborated the informant’s observation: that Boyd sold drugs out of his apartment.
Shifting gears, Boyd argues that the affidavit failed to establish a sufficient “nexus”
between Boyd’s apartment and the site of the illegal activity. United States v. Carpenter, 360 F.3d
591, 594–95 (6th Cir. 2004) (en banc). But that pushes the facts farther than they can go. Officer
Ham received three tips that Boyd sold drugs out of the McCourtie Street apartment. In May, he
saw Boyd leave and return to the apartment. The drug sale took place in a parking lot behind the
4 Case No. 17-2084 United States v. Boyd apartment. Officers watched the drug dealer walk out of the apartment. And the confidential
informant confirmed that Boyd was the seller. All of that adequately linked Boyd’s apartment to
the illegal deeds. See United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009).
Not one of the cases cited by Boyd helps his cause. United States v. Washington
“assume[d] without deciding that probable cause did not exist.” 380 F.3d 236, 240 (6th Cir. 2004).
That assumption tells us nothing. The affidavit in United States v. Brown stated that officers
detected the odor of drugs in Brown’s car and that Brown might have dealt drugs. 828 F.3d 375,
382–83 (6th Cir. 2016). But it contained no evidence that Brown distributed drugs from his home
or that the police conducted surveillance of it. Id. The affidavit in United States v. McPhearson
stated only that officers found a small amount of cocaine in the suspect’s pocket when they arrested
him in front of his house on an unrelated charge. 469 F.3d 518, 520–21 (6th Cir. 2006). But that
affidavit, unlike the one here, contained no evidence that the suspect sold drugs. Id. at 524–25.
Franks hearing. Boyd separately argues that he is entitled to a Franks hearing to determine
if Officer Ham lied to obtain the search warrant. See Franks v. Delaware, 438 U.S. 154 (1978).
To obtain such a hearing, a defendant must make a preliminary showing that (1) the affiant
knowingly or recklessly included a false statement in the search warrant affidavit, and (2) the false
statement was necessary to the probable cause finding. United States v. Rose, 714 F.3d 362, 370
(6th Cir. 2013). Not one of Boyd’s allegations merits a hearing.
Boyd first claims that the geographical features of the apartment complex made it
impossible for the officers to observe Boyd’s apartment and the confidential informant at the same
time, as the affidavit claimed they did. But he has not made a substantial preliminary showing that
the claim was false. The affidavit explained that there were two officers involved in the
surveillance: Officer Ham and Sergeant Ferguson. The district court also found that the officers
5 Case No. 17-2084 United States v. Boyd could have used video and audio technology to monitor both locations. It was thus quite possible
for the police to watch both locations at the same time.
Boyd adds that Officer Ham lied when he stated in the affidavit that the officers did not
locate “other contraband and/or US Currency” on the informant after the drug deal. R. 23-1 at 4.
Boyd points out that the informant had $10 on him, suggesting that the informant was tainted. But
as the district court explained, the money was merely leftover police money from the drug deal.
The affidavit stated only that the informant had no “other . . . US Currency” on him—no more
money in other words from any other sources on him. Here too Boyd has not made a substantial
preliminary showing that this statement was false.
Boyd claims last of all that the affidavit omitted information that the confidential informant
interacted with an unknown third party after the drug deal. But Franks is generally inapplicable
to omissions, save in the “very rare case” where the affiant excluded critical information
intentionally to mislead the judge. Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998).
Boyd does not allege that Officer Ham omitted this information to mislead the judge, and at any
rate he presents no such evidence. It’s doubtful that the omitted information would have changed
the probable cause calculus anyway. It would not have changed the fact that three informants
accused Boyd of selling drugs out of his apartment. It would not have changed the fact that police
caught Boyd arranging a drug sale on his phone. And it would not have changed the informant’s
allegation that Boyd sold him drugs. This alleged omission does not merit a Franks hearing. See
Hale v. Kart, 396 F.3d 721, 727 (6th Cir. 2005).
We affirm.