United States v. Moore

Opinion

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Moore knowingly, voluntarily and intelligently waived his package containing the cocaine, and subsequently searched Miranda rights. 7KXV IRU WKH IRUHJRLQJ UHDVRQV ZH Miggins and McDaniels’ residence at 5161 Rice Road, $)),50WKHGLVWULFWFRXUW¶VMXGJPHQWV Apartment #139, Nashville, Tennessee, pursuant to a search warrant, seizing firearms and cocaine. In a seven-count indictment filed on April 12, 2000, Miggins, McDaniels and Watson were charged in the first six counts, and Moore was charged in the last count. Count I charged Miggins, McDaniels and Watson with conspiring to distribute over 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; Count II charged Miggins, McDaniels and Watson with possessing with intent to distribute over 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count III charged Miggins and McDaniels with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count IV charged Miggins and McDaniels with possession of a Taurus 9mm pistol, a Marlin 30/30 caliber rifle, and a Smith and Wesson .357 caliber pistol in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); Count V charged McDaniels with being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count VI charged Miggins with being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and Count VII charged Moore with being a convicted felon in possession of a firearm, a 9mm Ruger pistol, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court granted Moore’s motion to sever, and he was subsequently tried separately from Miggins, McDaniels and Watson. The Hearing on McDaniels’ Suppression Motion Before trial, McDaniels filed a motion to suppress the evidence seized from the apartment that he shared with Miggins. At the suppression hearing on August 14, 2000, Officer Greg Adams of the Nashville Metropolitan Police Department, the affiant on the search warrant, testified that he was notified by Deputy Kent Wegener of the Los Angeles  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

County Sheriff’s Department that a Federal Express package suppression hearing established that after Officer Adams containing cocaine was being sent to Nashville from orally advised Moore of his Miranda rights, Moore stated that California. When the package arrived in Nashville, a he understood them. Moore also agreed to answer Officer narcotics dog detected the presence of a controlled substance. Adams’ questions without first speaking to attorney. There Upon opening the package, the police found slightly over one is nothing in the record to indicate that Moore’s will was kilogram of cocaine in several cylindrically-shaped candles. overborne such that he was coerced into making statements to Officer Adams. Although Moore suggests that his waiver When the police conducted a controlled delivery of the was not knowingly, voluntarily and intelligently made package containing the cocaine to the address listed, 2335 because he did not sign a waiver form listing his rights, he Cooper Terrace in Nashville, Miggins, McDaniels and offers no authority, and none can be found, for the proposition Watson greeted the Federal Express van upon its arrival. that a written waiver is necessary to establish a knowing, After Miggins signed for the package, they immediately intelligent and voluntary waiver of Miranda rights. departed in a vehicle, but were soon stopped and arrested by the police. Upon their arrest, the police found out that III. Miggins and McDaniels lived together at 5161 Rice Road, Apartment # 139 in Nashville. In addition, Miggins was Moore finally claims that the evidence at trial was found with a piece of paper listing the Cooper Terrace address insufficient to prove that he knowingly possessed a firearm in and the names of "Tommy Lee" and "Keith Jackson." The violation of 18 U.S.C. §§ 922 and 924. Although Moore package containing the cocaine was addressed to "Tommy moved for a judgment of acquittal at the close of the Lee" and the sender was "Keith Jackson." Thereafter, Officer government’s case, he failed to renew his judgment of Adams also learned that Watson and Miggins were tied to the acquittal at the close of the proofs. Because Moore did not South Central Los Angeles area, with Watson and Miggins preserve this issue for appellate review, we will not review it admitting that they were members of the 190 Delamos Crips "absent DµPDQLIHVWPLVFDUULDJHRIMXVWLFH¶´United States v. gang from Los Angeles. Checking with Deputy Wegener of Swiden, 888 F.2d 1076, 1080 (6th Cir. 1989). Here, there was the Los Angeles County Sheriff’s Department, Officer Adams no "manifest miscarriage of justice," as the evidence was was further informed that Miggins had been previously clearly sufficient to convict him of being a felon in possession charged and convicted in California on "numerous cocaine of a firearm in violation of 18 U.S.C. §§ 922 and 924. charges." Officer Adams also testified that Moore, who lived at the 2335 Cooper Terrace address, is McDaniels’ brother, CONCLUSION and that Watson was then dating McDaniels and Moore’s sister. Based upon this information, Officer Adams secured Accordingly, the district court did not err in applying the a search warrant for Miggins and McDaniels’ residence at two-level increase to Miggins’ sentence under USSG 5161 Rice Road, Apartment #139, seizing 3.7 grams of § 2D.1.1(b)(1) for possession of a firearm and by enhancing cocaine base and three firearms. his punishment based upon a prior drug conviction. We also conclude that McDaniels’ suppression motion was properly At the conclusion of the hearing, the district court denied denied because there was probable cause for the issuance of McDaniels’ suppression motion, finding that while Officer a search warrant. Finally, the district court properly denied Adams did not have sufficient information to establish Moore’s suppression motions, finding that the triggering probable cause for the search of McDaniels and Miggins’ event of the anticipatory search warrant occurred and that  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

proper, we need not consider whether the search was valid apartment, the search was nonetheless valid under the good under the good faith exception set forth in Leon, 468 U.S. at faith exception stated in United States v. Leon, 468 U.S. 897 897. (1984). II. The Joint Trial of Miggins, McDaniels and Watson The district court also did not err in denying Moore’s At the trial for Miggins, McDaniels and Watson, Officer motion to suppress the statements that he made to Officer Adams testified in pertinent part that following their arrests, Adams after his arrest, finding that Moore knowingly, Miggins was found with a piece of paper in his pocket with voluntarily and intelligently waived his rights under Miranda. information listing "Darnel Smith" as the sender and "Keith In reviewing the district court’s denial of a defendant’s Jackson" as the recipient, as well as the name "Tommy Lee." motion to suppress, this Court reviews the district court’s When he signed for the package, Miggins used the name findings of fact for clear error and its conclusions of law de "Darnel Smith." Subsequently, during the search of 5161 Rice novo. United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir. Road, Apartment #139, the police found an airline ticket in 1996). The specific standard of review concerning a district Miggins’ name showing a flight from Los Angeles to court's conclusion about the voluntary nature of an Nashville, as well as a Western Union receipt for a money inculpatory statement was stated in United States v. Mahan, transfer listing the sender as "Darnel Smith" and the recipient 190 F.3d 416, 422 (6th Cir. 1999): as "Keith Jackson" and the payout location as Carson, California. A fully loaded .357 magnum revolver and 3.7 When a defendant claims that a confession was coerced, grams of crack cocaine were also recovered from a dresser the government bears the burden of proving by a drawer in the apartment. In addition, a loaded Taurus 9mm preponderance of the evidence that the confession was in semiautomatic pistol, along with electronic scales that are fact voluntary. This Court has established three commonly used to weigh drugs, were found in the residence. requirements for a finding that a confession was involuntary due to police coercion: (i) the police activity The jury returned its verdicts on September 8, 2000. was objectively coercive; (ii) the coercion in question Miggins was found guilty of conspiracy, possession with was sufficient to overbear the defendant's will; and intent to distribute cocaine and felon in possession of a (iii) the alleged police misconduct was the crucial firearm, but acquitted of the charges of possessing cocaine motivating factor in the defendant's decision to offer the base and possessing a firearm in furtherance of a drug statement. trafficking crime. McDaniels was convicted of being a felon in possession of a firearm, as well as the lesser included 190 F.3d at 422 (citations omitted). See also Machacek v. offense of possession of cocaine base, but was acquitted of Hofbauer, 213 F.3d 947, 954 (6th Cir. 2000) (setting forth the conspiracy, possession with intent to distribute cocaine, and factors for evaluating whether a defendant has knowingly, possession of a firearm in furtherance of a drug trafficking voluntarily and intelligently waived his Miranda rights). crime. Watson was acquitted of the charges against him. Both Miggins and McDaniels have appealed their In this case, the district court did not err in finding that convictions. Moore knowingly, voluntarily and intelligently waived his Miranda rights. The evidence presented at Moore’s  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

The Hearing on Moore’s Suppression Motions be able to evade the effects of a warrant simply by getting rid of the supposed contraband or its container" and that "an Thereafter, on October 12, 2000, Moore filed motions to anticipatory warrant whose perfection requires no more than suppress the evidence found as a result of the execution of the the delivery of a package to, or in the presence of, the suspect, anticipatory search warrant at his residence on December 2, is not invalidated because the parcel is taken off the premises 1999 and the statements that he made to Officer Adams after delivery." Id. at 671; see also Gendron, 18 F.3d at 966 during questioning after the execution of the anticipatory (finding that the triggering language that a search was search warrant. At the hearing on Moore’s suppression authorized after the parcel "is delivered by mail and taken into motions, Officer Adams, the affiant of the search warrant, the residence" by the defendant was not ambiguous under the testified that the application for the search warrant provided background facts of the case, distinguishing Ricciardelli, that a package would be delivered to 2335 Cooper Terrace by which found an anticipatory search warrant containing similar officers via a Federal Express van, and that "[w]hen it is triggering event language to be invalid). delivered to this address and possession of the package is taken by someone inside 2335 Cooper Terrace, as is As in Jackson and Becerra where the search warrants were anticipated, then and only then will the search warrant be found not to be invalid just because they did not require the executed." Officer Damion Huggins, who participated in the package to remain on the premises, the search warrant in this surveillance of Moore’s residence at 2335 Cooper Terrace and case was not invalid just because it failed to require that the execution of the search warrant at the same residence, someone who accepted the package be indoors when the gave testimony that during the course of his surveillance, he package was delivered and remain indoors after accepting the saw Miggins, McDaniels and Watson enter and exit Moore’s package. Under a commonsense reading, it was sufficient for residence before the delivery of the package. When the the triggering event of the anticipatory search warrant to be Federal Express van arrived with the package, Miggins, fulfilled when the package was taken by someone who had McDaniels and Watson were outside, and Miggins signed for been inside the premises just prior to the delivery of the it, using a false name. According to Officer Huggins, package. This reading makes sense from a practical Defendants did not go back inside the residence with the perspective, especially considering the provenance of the package, but immediately left the premises in a vehicle. At package and the quantity of cocaine contained therein, the hearing, Derek Watson gave contrary testimony, stating because it sufficiently establishes a connection between the that neither he nor his two co-defendants had a key to parcel and someone who has access to the residence to which Moore’s residence and that none of them entered Moore’s the parcel is addressed. Here, there was sufficient contact residence before they left with the package. between the parcel that was addressed to Moore’s residence and Miggins, who was identified with this residence and who After the delivery of the package, the police executed the signed for the parcel, so as to satisfy the triggering event of anticipatory search warrant, finding a firearm in Moore’s the anticipatory search warrant. residence. While the search was in progress, Moore returned to his residence and was arrested. Before questioning Moore Because the triggering event of the anticipatory search about the package that was delivered to his residence and his warrant requiring delivery and receipt of the package at his relationship to Miggins, McDaniels and Watson, Officer residence was met, the district court did not err in denying Adams orally advised Moore of his rights under Miranda v. Moore’s motion to suppress the evidence of the firearm found Arizona, 384 U.S. 436 (1966), and Moore acknowledged that during a search of his residence. Given that the search was  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

agents of the United States Drug Enforcement Administration he understood them. According to Officer Adams, Moore did ("DEA") were informed that a package shipped by DHL not request to speak to an attorney, was not forced to answer Airways from Lagos, Nigeria to an address in Cleveland, any questions and did not refuse to answer any questions. Ohio contained heroin. The DEA agents obtained an When questioned about the 9mm Ruger firearm found in his anticipatory search warrant, stating that its execution would residence, Moore stated that it was for his protection. After take place "if, and only if, the package is accepted and taken Officer Adams informed Moore that, as a convicted felon, he inside the subject premises." In Jackson, a customs agent, could not legally possess a firearm, Moore remarked that the dressed as a DHL driver, delivered the package to a co- gun was not his, but belonged to his brother, Edward defendant who signed for it and took the package inside the McDaniels. residence. After a SWAT unit entered the home announcing that they had a search warrant, agents apprehended the fleeing At the conclusion of the hearing on October 17, 2000, the defendant in possession of the package as he was attempting district court denied Moore’s motions to suppress. First, the to scale a backyard fence. In Jackson, this Court found that district court determined that there was probable cause for an the search pursuant to the stated condition in the anticipatory anticipatory search warrant, and that the "triggering event" search warrant did not violate the Fourth Amendment "simply occurred, specifically finding that Officer Huggins’ testimony because Jackson absconded with the package," concluding that Miggins, McDaniels and Watson "went in and out of the that "the search warrant was not invalid simply because it residence" was more reliable than co-defendant Watson’s failed to require the package to remain on the premises." Id. testimony that "none of the three individuals entered the at 1224. residence prior to the issuance of the search warrant." The district court further found that even if the triggering event of The reasoning and result of United States v. Becerra, 97 the anticipatory search warrant were not met, the search was F.3d 669 (2d Cir. 1996) also supports our conclusion that the proper under the good faith exception in United States v. triggering event of the anticipatory search warrant in this case Leon, 468 U.S. 897 (1984). The district court also denied was fulfilled. In Becerra, customs agents intercepted a Moore’s motion to suppress the statements that he made to package from Cali, Columbia containing cocaine that was Officer Adams after his arrest, finding that it was undisputed addressed to Olga Morena. The magistrate granted the that Moore received his Miranda warnings, that he government’s application for an anticipatory search warrant, understood the warnings and that he waived his rights which, "by its terms, would be triggered by the delivery of the "knowingly, intelligently and voluntarily." parcel." Id. at 670. Shortly after a customs agent, posing as a Federal Express employee, delivered the package to Olga Moore’s Trial Morena, who signed for it and accepted it, the defendant left the premises carrying the parcel. In Becerra, the Second At Moore’s jury trial on the charge of being a felon in Circuit rejected as lacking merit the defendant’s contention possession of a firearm, it was stipulated that he was that the warrant became invalid when he took the package off convicted on May 28, 1998 in the Criminal Court of the premises. Specifically, the Second Circuit in Becerra Davidson County, Tennessee of a crime punishable by a term found that the anticipatory search warrant explicitly stated of imprisonment exceeding one year. Officer Huggins that it was triggered by the delivery of the parcel, and "was in testified that during the search of Moore’s residence, he found no way conditioned on the continued presence of package," a Sturm Ruger pistol underneath the bottom drawer of a noting that "common sense dictates that a suspect should not dresser in a bedroom. Officer Adams also testified that when  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

he questioned Moore about the pistol, Moore first told him According to the testimony of Officer Huggins, however, that the pistol was for his protection, but then claimed that it Miggins, McDaniels and Watson went in and out of Moore’s belonged to his brother, Defendant McDaniels, after being residence before Miggins signed for the package. Although told that, as a convicted felon, he could not legally possess a Watson testified at the suppression hearing that he and his weapon. Special Agent Mark Hoback of the Bureau of codefendants never entered Moore’s residence, the district Alcohol, Tobacco and Firearms also testified that the firearm court found Officer Huggins’ testimony that they went in and found in Moore’s residence was not manufactured in out of the residence to be more credible than Watson’s Tennessee, and thus had traveled in interstate or foreign testimony that they did not enter the residence. We find no commerce. At the close of the government’s proofs, Moore clear error in the district court’s factual determination in this moved for a judgment of acquittal, which was denied by the respect. district court. At the close of the proofs, the jury found Moore guilty of the charge of being a felon in possession of Accordingly, based upon this determination of the facts, we a firearm. believe that the triggering event for the anticipatory search warrant was met. Here, the triggering event required the DISCUSSION delivery and acceptance of the package by someone inside the residence. On its face, the affidavit does not require that the Miggins’ Appeal person receiving the package actually be inside the residence when the package is delivered or that the person receiving the I. package take it inside the residence and remain indoors. See Garcia, 882 F.2d at 704 ("Nowhere did the warrant require Miggins first argues that at sentencing the district court that Wilson-Grant or any one else take possession of the erred in applying the two-level increase to his sentence under cocaine, nor was there even any requirement that Hooks and USSG § 2D1.1(b)(1) for possession of a firearm. We review Oliver give up possession.") Read in a commonsense fashion, a district court’s factual findings under USSG § 2D1.1(b)(1) and avoiding a "hypertechnical" construction, we believe that for clear error. United States v. Williams, 176 F.3d 301, 307 the triggering event language of the affidavit was satisfied if (6th Cir. 1999). A district court’s legal conclusions regarding the package was taken by someone who had been inside the the application of the sentencing guidelines are reviewed de residence just prior to its delivery. See Gendron, 18 F.3d at novo. United States v. Saikaly, 207 F.3d 363, 367 (6th Cir. 966 (reading triggering language of an anticipatory search 2000). warrant "in a commonsense fashion" to conclude that condition of search warrant was met when package was USSG § 2D1.1(b)(1) provides for a two-level increase to delivered and received by the defendant). Because there was the base offense level for a person convicted of certain drug sufficient delivery of the parcel to Moore’s residence to fulfill trafficking offenses "[i]f a dangerous weapon (including a the condition of the anticipatory search warrant, the police firearm) was possessed." Note 3 to the commentary section were thus authorized to search Moore’s residence. Id. of USSG § 2D1.1(b)(1) states in pertinent part: Our conclusion that the triggering event of the anticipatory The enhancement for weapon possession reflects the search warrant was met when the package was taken by increased danger of violence when drug traffickers someone who had been inside the residence is consistent with possess weapons. The adjustment should be applied if this Court’s reasoning and result in Jackson. In that case,  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

Watson were outside the house when the Federal Express van the weapon was present, unless it is clearly improbable delivered the package and immediately left the premises with that the weapon was connected with the offense. For the package after Miggins signed for it and accepted delivery, example, the enhancement would not be applied if the Moore argues that the search of his residence pursuant to the defendant, arrested at his residence, had an unloaded search warrant was unauthorized because the warrant failed hunting rifle in the closet. . . . to satisfy the triggering event language. USSG § 2D1.1(b)(1), n.3. To enhance a sentence under This Circuit, like other circuits, has approved of USSG § 2D1.1(b)(1), the government must show by a anticipatory search warrants. United States v. Jackson, 55 preponderance of the evidence that the defendant possessed F.3d 1219, 1223 (6th Cir. 1995); United States v. Lawson, the firearm during the drug trafficking offense. United States 999 F.2d 985, 987-88 (6th Cir. 1993); United States v. Rey, v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991). Once the 923 F.2d 1217, 1220-21 (6th Cir. 1991). An anticipatory government satisfies its burden, "a presumption arises that search warrant is a search warrant that "by its terms [takes] such possession was connected to the offense." Id. effect not upon issuance but at a specified future time." Possession may be actual or constructive. United States v. Jackson, 55 F.3d at 1223. Although courts have required that Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994). To establish conditions triggering the anticipatory search warrant be constructive possession, the government must show that the "explicit, clear, and narrowly drawn," United States v. defendant had "‘ownership, dominion, or control’ over the Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993) (quoting United [firearm] or ‘dominion over the premises’ where the [firearm] States v. Garcia, 882 F.2d 699, 703-04 (2d Cir. 1989)), is located." Id. (quoting United States v. Synder, 913 F.2d warrants and their supporting documents are to be read "not 300, 304 (6th Cir. 1990)). Circumstantial evidence is ‘hypertechnical[ly],’ but in a ‘commonsense’ fashion." United sufficient to establish constructive possession. United States States v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994) (quoting v. Hough, 276 F.3d 884, 894 (6th Cir. 2002). If the from United States v. Ventresca, 380 U.S. 102, 109 (1965)). government satisfies its initial burden of showing that the In this case, the affidavit attached in support of the warrant defendant was in possession of a weapon during the offense, specified the triggering event. Although the search warrant then the burden shifts to the defendant to demonstrate that it did not contain the triggering event, the search warrant was clearly improbable that the weapon was connected to the constituted a valid anticipatory search warrant, as it offense. Sanchez, 928 F.2d at 1460. If the defendant fails to incorporated the affidavit. See United States v. Vigneau, 187 make such a showing, then enhancement under USSG F.3d 70, 79 (1st Cir. 1999) (citing United States v. Dennis, § 2D1.1(b)(1) is appropriate. United States v. McGhee, 882 115 F.3d 524, 529 (7th Cir. 1997)); see also United States v. F.2d 1095, 1097-98 (6th Cir. 1989). Hugoboom, 112 F.3d 1081, 1087 (10th Cir. 1997); United States v. Moetamedi, 46 F.3d 225, 228-29 (2d Cir. 1995); Miggins was acquitted of possessing a Taurus 9mm pistol, United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. a Marlin 30/30 caliber rifle, and a Smith and Wesson .357 1993). caliber pistol in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) (Count IV), but was found guilty of being In this case, the package containing the cocaine was a felon in possession of a firearm (Count VI). delivered by a police officer posing as a Federal Express Notwithstanding, the jury’s verdict of acquittal on the 18 driver, who was met by Miggins, McDaniels and Watson in U.S.C. § 924(c) firearm possession charge does not prevent front of Moore’s residence at 2335 Cooper Terrace. the sentencing court from considering conduct underlying the  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

charge of which Miggins was acquitted, so long as that dealer’s house); United States v. Williams, 974 F.2d 480, 482 conduct has been proved by a preponderance of the evidence. (4th Cir. 1992) (per curiam) (finding that affidavit United States v. Watts, 519 U.S. 148, 157 (1997) (holding that establishing that known drug dealer resided in motel was acquittal on a 18 U.S.C. § 924(c) offense did not prevent the sufficient to show probable cause to search motel room for sentencing court from considering under USSG § 2D1.1 drug paraphernalia); United States v. Davidson, 936 F.2d 856, whether the firearm was possessed in connection with the 859-60 (6th Cir. 1991) (holding that the police had probable drug trafficking offense). cause for the issuance of a search warrant since the affidavit revealed a substantial basis for concluding that a search of the In this case, the government established by a preponderance defendant’s residence would uncover evidence of of the evidence that Miggins possessed a weapon in wrongdoing); United States v. Cruz, 785 F.2d 399, 406 (2d connection with the drug trafficking activity. During the Cir. 1986) (finding probable cause for search of drug dealer’s search of the apartment shared by Miggins and McDaniels, apartment, even though he was not seen using the apartment). the police found three weapons: a rifle was found in McDaniels’ bedroom; a .357 revolver was found in a chest of Because there was probable cause supporting the issuance drawers in McDaniels’ bedroom; and a 9mm pistol was found of a search warrant for McDaniels and Miggins’ apartment at on a chair in the living room, near the front door. While no 5161 Rice Road, we need not consider whether the search was evidence was introduced into the record about the ownership proper under the good faith exception stated in Leon. of the weapons seized from the apartment, the government Accordingly, the denial of McDaniels’ suppression motion presented evidence that Miggins was involved in a conspiracy was proper. to distribute cocaine, and that the apartment was used to store items relating to Defendants’ drug trafficking activity. Moore’s Appeal Besides the firearms, the police recovered scales, baggies used for packaging drugs, crack cocaine, and a receipt I. showing the transfer of funds using the same names as those on the package containing the kilogram of cocaine received In his appeal, Moore first challenges the district court’s by Defendants. See United States v. Quarles, 2002 WL denial of his motion to suppress the evidence of the firearm 228144, at *4 (6th Cir. Feb. 13, 2002) (citing United States v. seized from his residence, arguing that the search pursuant to Payne, 805 F.2d 1062, 1065 (D.C. Cir. 1986) (recognizing an anticipatory search warrant violated his Fourth that weapons are as common as drug paraphernalia as tools of Amendment rights. Specifically, Moore claims that the the drug trafficking trade). triggering event condition was not fulfilled. The affidavit appended to the search warrant of Moore’s residence Thus, there was sufficient circumstantial evidence provided in pertinent part: "When [the package containing the establishing Miggins’ constructive possession of a firearm to cocaine] is delivered to this address and possession of the support enhancement under USSG § 2D1.1(b)(1). See package is taken by someone inside 2335 Cooper Terrace, as Hough, 276 F.3d at 894 (finding sufficient circumstantial is anticipated, then and only then will the search warrant be evidence establishing constructive possession as to support executed." According to Moore, the district court erred in enhancement under USSG § 2D1.1(b)(1)). Specifically, the finding that the triggering event of the anticipatory search circumstantial evidence in this case is sufficient to establish warrant occurred because no one inside the house took Miggins’ constructive possession of the 9 mm pistol found on delivery of the package. Since Miggins, McDaniels and  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

information that both Miggins and McDaniels were involved a chair in the living room, if not the rifle found in McDaniels’ in drug trafficking. $FFRUGLQJWRWKHLQIRUPDWLRQVXSSOLHGE\ bedroom and the .357 revolver found in the chest of drawers .HQW :HJHQHU RI WKH /RV $QJHOHV &RXQW\ 6KHULII¶V in his bedroom. Contrary to Miggins’ claim, it was not 'HSDUWPHQW 0LJJLQV ZKR SUHYLRXVO\ UHVLGHG LQ Carson, "clearly improbable" that he possessed the firearm(s) during California, KDG EHHQ FRQYLFWHG RQ ³QXPHURXV FRFDLQH the offense. USSG § 2D1.1(b)(1), n.3. FKDUJHV´ LQ &DOLIRUQLD  :KLOH WKH UHFRUG LQGLFDWHG WKDW 0LJJLQVKDGEHHQFKDUJHGDQGFRQYLFWHGRIRQO\RQHFRFDLQH In this regard, we note that there is no merit to Miggins’ RIIHQVH LQ &DOLIRUQLD, that factual error by itself does not contention that there is no support for his sentence detract from the police having probable cause to believe that enhancement for firearm possession because "the nexus "other narcotics and equipment used in the distribution of between the Rice Road apartment and the Cooper narcotics [would be] located at [McDaniels and Miggins’] Terrace/FedEX delivery point were . . . attenuated." As the apartment." government points out, other circuits have applied the enhancement for possession of a firearm under USSG Here, the district court erred in finding that there was an § 2D1.1 in circumstances similar to this case. See United insufficient nexus between the two locations so as to establish States v. Hunter, 172 F.3d 1307, 1308-09 (11th Cir. 1999) probable cause for a search of McDaniels and Miggins’ (finding that enhancement under USSG § 2D1.1 was proper apartment at 5161 Rice Road. See United States v. Feliz, 182 where drug paraphernalia and firearms were found at the F.3d 82, 87-88 (1st Cir. 1999) (finding that it was reasonable defendant’s residence located 100 miles from the scene of his to suppose that drug dealer stored evidence of dealing at arrest); United States v. Stewart, 926 F.2d 899, 901-02 (9th home, even though no drug trafficking was observed to occur Cir. 1991) (applying enhancement under USSG § 2D1.1 even there); United States v. McClellan, 165 F.3d 535, 546 (7th though the firearm was possessed 15 miles away from the site Cir. 1999) ("[I]n issuing a search warrant, a magistrate is of the drug transaction); United States v. Durrive, 902 F.2d entitled to draw reasonable inferences about where the 1221, 1231-32 (7th Cir. 1990) (finding enhancement for evidence is likely to be kept . . . and . . . in the case of drug possession of a firearm under USSG § 2D1.1 was applicable dealers evidence is likely to be found where the dealers live.") to a defendant charged with conspiracy, even though no drugs (quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th were recovered from the apartment, which was used in the Cir. 1996)); United States v. Henson, 123 F.3d 1226, 1239 course of the conspiracy). Accordingly, the district court did (9th Cir. 1997) ("In the case of drug dealers, evidence is not err in applying the two-level increase to Miggins’ likely to be found where the dealers live.") (italics in original) sentence under USSG § 2D1.1(b)(1) for possession of a (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 firearm. (9th Cir. 1986)); United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994) (ruling that observations of drug trafficking II. occurring away from the dealer’s residence, coupled with officer’s statement in his affidavit that drug dealers often store Miggins also contends that, under Apprendi v. New Jersey, evidence of drug dealing in their residences, provided 530 U.S. 466 (2000), the district court erred by enhancing his probable cause for search of dealer’s house); United States v. punishment based upon a prior drug conviction, since the Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam) government did not plead his prior drug conviction in the (concluding that observations of drug trafficking away from indictment, and the matter was not submitted to the jury to dealer’s residence can provide probable cause to search the decide whether it was proved beyond a reasonable doubt.  8QLWHG6WDWHVY 1RV 1RV 8QLWHG6WDWHVY  0LJJLQVHWDO 0LJJLQVHWDO

Here, there was no error because a prior conviction of a crime evidence of wrongdoing.’" United States v. King, 227 F.3d may be treated as a sentencing factor to be determined by the 732, 739 (6th Cir. 2000) (quoting Illinois v. Gates, 462 U.S. court. United States v. Gatewood, 230 F.3d 186, 192 (6th Cir. 213, 236 (1983)). 2000)(en banc) (rejecting the argument that Apprendi overruled Almendarez-Torres v. United States, 523 U.S. 224 The applicable standard of review of a suppression motion (1998), which held that a defendant’s prior convictions may concerning whether there is probable cause for the issuance be treated as a sentencing factor to be determined by the of a search warrant is stated in United States v. Watkins, 179 court). Thus, the district court did not err by enhancing F.3d 489, 494 (6th Cir. 1999): Miggins’ sentence on the basis of his prior felony drug conviction. When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court McDaniels’ Appeal unless clearly erroneous, while legal conclusions are reviewed de novo. McDaniels argues that even though the district court found that probable cause did not exist for the issuance of the search The standard of review for this Court in determining warrant of his apartment, it erred in finding that the search of whether a search warrant describes the place to be his residence was valid under the good faith exception of searched with sufficient particularity is a de novo review. United States v. Leon, 468 U.S. 897 (1984). Thus, McDaniels Whether the good-faith exception of United States v. claims that the district court erred in denying his motion to Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.2d 677 suppress the evidence found in the search of his apartment. (1984), applies to a search is also reviewed de novo. The Fourth Amendment provides that "no warrant shall Watkins, 179 F.3d at 494 (internal quotation marks and issue, but upon probable cause, supported by oath or citations omitted). affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. In this case, probable cause existed for the issuance of a amend. IV; see United States v. Murphy, 241 F.3d 447, 457 search warrant for McDaniels and Miggins’ apartment at (6th Cir. 2001). To satisfy the warrant requirement, police 5161 Rice Road. As set forth in the affidavit attached to the must have probable cause to conduct a search. See Warden v. search warrant, the facts clearly established a connection Hayden, 387 U.S. 294, 301-02 (1967). "The test for probable between Moore’s residence at 2335 Cooper Terrace, where cause is simply whether there is a fair probability that the package from Los Angeles containing one kilogram of contraband or evidence of a crime will be found in a cocaine was delivered, and McDaniels and Miggins’ particular place." Murphy, 241 F.3d at 457 (citation omitted). apartment. When arrested, Miggins, who signed for the A magistrate must make an "informed and deliberate" package under the assumed name of "Darnel Smith," was assessment regarding probable cause. Aguilar v. Texas, 378 found with a piece of paper in his pocket listing the Cooper U.S. 108, 110 (1964). When reviewing a magistrate’s Terrace address and the names of "Darnel Smith," "Keith determination that probable cause existed for the issuance of Jackson" and "Tommy Lee." The package containing the a search warrant, this Court must determine, under a totality cocaine was addressed to "Tommy Lee" and the sender was of the circumstances, whether "the magistrate had a "Keith Jackson." After the police found out that Miggins and substantial basis for concluding that ‘a search would uncover McDaniels were living together, they also obtained