United States v. Moore

661 F.3d 309, 2011 U.S. App. LEXIS 23344, 2011 WL 5839040
Court of Appeals for the Sixth Circuit·Decided November 22, 2011·No. 11-5663·Published·Cited by 25 cases

Opinions

OPINION

ROGERS, Circuit Judge.

Defendant Elcardo Moore was convicted in the District Court for the Western District of Tennessee after pleading guilty to [311]*311two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On appeal, he argues that the district court erred in denying his motion to suppress evidence, because the search warrant used to seize the firearms was invalid and the good faith exception to the exclusionary rule does not apply. The Government acknowledged at oral argument that the affidavit supporting the warrant was imperfect:

[T]his was not a model affidavit. It was not written in detail, it did not name the informant and the informant was not named to the magistrate, there was no specific amount of cocaine, and there should have been more in this affidavit.... This detective had more information, he could have put it in the affidavit, I don’t have any reason to know ... why he didn’t.... If it were up to me these warrants would be drafted differently. ...

Despite these shortcomings, the warrant contains enough information to support the magistrate’s finding of probable cause. It offers testimony from a confidential informant and grounds for that informant’s reliability and basis for knowledge, its information is recent enough to avoid staleness, and it establishes a proper nexus between the criminal activity observed and the place to be searched. Although a more detailed affidavit would have better served the purposes of the warrant requirement, the warrant in this case was valid.

On October 25, 2008, officers of the Shelby County Sheriffs Office received information from a confidential informant (“Cl”) that within the last five days, a man known as “Little Toe” had been selling cocaine from an apartment in Memphis. Based on this information, Detective Sathongnhoth, a member of the narcotics division of the county sheriffs office, applied for a search warrant. The warrant contained mostly boilerplate language concerning Det. Sathongnhoth’s experience in law enforcement and the traditional behavior of drug dealers, but did specify the apartment and the items to be searched for, namely “Cocaine, Drug Records, Drug Proceeds, Drug Paraphernalia.” The warrant also contained a description of “Lil Toe” as being a black male “approximately 5' 10" 1801bs about 37-38 yoa.” Finally, the warrant contained the following paragraph:

On October, 25, 2008 Det. Sathongnhoth did speak with a reliable informant who has given information in the past in regards to narcotics trafficking resulting in two seizures of nareoties[. ]The reliable informant stated that he/she has been at the above described residence within the past five (5) days of October 25, 2008 and has seen the above described storing and selling cocaine at the above named address.

The judicial commissioner (sometimes referred to in the record as a magistrate) did not ask Det. Sathongnhoth any questions, and issued a search warrant based only on the information contained in the affidavit.

That same day, Det. Sathongnhoth executed the warrant. At the apartment, he found two firearms, various types of drugs, a scale, and $2,931 in cash. Moore arrived at the apartment shortly after the detectives. After the search was complete, Moore was arrested and brought to the police station for questioning, where he was advised of his rights, signed a rights waiver form, and admitted ownership of the drugs and one of the firearms. On October 27, 2009, Moore was indicted on two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Moore filed a motion to suppress the evidence obtained during the search, as well as any subsequent statements he [312]*312made, on the ground that the warrant was invalid. At the motion hearing held July 2, 2010, Det. Sathongnhoth revealed further corroborating information to support the warrant, including: (1) that Det. Sathongnhoth had previously set up two undercover buys between the same Cl and an individual identified to him as “Little Toe” at the address given in the warrant on October 16 and 24, 2009; and (2) that he conducted surveillance on the location and attempted to confirm the identity of Moore as Little Toe by obtaining the utilities information of the apartment and attempting to obtain the registration of a vehicle matching the Cl’s description parked nearby. It was also revealed at the motion hearing that the Cl did not say anything to Detective Sathongnhoth specifically about drug storage, merely that he or she saw drugs of an unspecified quantity, that were not part of the buy, in plain view in the room.

The district court denied the motion to suppress. The court held that the magistrate judge found probable cause to issue the warrant. With regard to the issue of the word “storing,” the court pointed out that “it does appear there is nothing in the informant’s actions or words or otherwise that dealt with the storing[,]” but because “that word is just used in tandem with selling which was the applicable word in this ease[,]” any potential inaccuracy was not problematic.

Defendant filed a motion to reconsider, or in the alternative, for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which would allow him to challenge the sufficiency of the executed warrant by attacking statements made by the affiant in support of the warrant. The district court denied both requests. On December 17, 2010, Moore pled guilty to two counts of being a felon in possession of a firearm, and on June 3, 2011, he was sentenced to six months’ imprisonment and two years of supervised release. Moore timely appealed.

The search warrant was valid. On its face, it contained enough information for there to be a “substantial basis” on which the magistrate could conclude that probable cause existed to search the residence. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The “totality of the circumstances” approach supports a finding of probable cause. See United States v. Jenkins, 396 F.3d 751, 760 (6th Cir.2005). The affidavit identifies a reliable informant and establishes that informant’s basis for knowledge that drugs or drug paraphernalia will be found at the residence in question. The magistrate’s decision to issue a warrant on such an affidavit was not arbitrary, and so must be afforded deference by this court. See United States v. Johnson, 351 F.3d 254, 258 (6th Cir.2003).

This court’s precedent supports this holding, because in the vast majority of cases involving similarly worded search warrants, we have upheld the magistrate judge’s finding of probable cause after reviewing the district court’s legal conclusions de novo. For example, we upheld the validity of a warrant based on an affidavit that stated the defendant was seen by the Cl in possession of crack cocaine at the residence to be searched in the past 72 hours. See United States v. Williams,

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United States v. Moore, 661 F.3d 309, 2011 U.S. App. LEXIS 23344, 2011 WL 5839040 (6th Cir. 2011).

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