United States v. Porter

99 F. App'x 672
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 24, 2004
DocketNo. 03-5350
StatusPublished
Cited by1 cases

This text of 99 F. App'x 672 (United States v. Porter) 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. Porter, 99 F. App'x 672 (6th Cir. 2004).

Opinion

OPINION

BARZILAY, Judge.

Defendant-Appellant David Wayne Porter appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime as well as the district court’s denial of his motion to suppress evidence seized by LaVergne, Tennessee police during a search of his residence. For the reasons set forth below, we affirm both the conviction under 18 U.S.C. § 924(c) and the district court’s denial of the motion to suppress.

I. Background.

Acting in an undercover capacity, a police lieutenant of the LaVergne Police Department obtained information that a local video store owner was being supplied with illegal narcotics for distribution from the Appellant. After corroborating this information with independent sources and confirming Porter’s address, the lieutenant directed the preparation of an Affidavit and Search Warrant to search Porter’s residence. Another LaVergne Police Department employee used a standard computerized form to type the information supplied, and because there was a concern that evidence could be destroyed, did so in an “urgent” manner. Although the person and place to be searched were correctly identified in both the affidavit and search warrant, the documents also contained a number of typographical errors, attributed to a failure to clear the computerized search form before entering the new information. At one place, the affidavit mistakenly referenced another individual’s resi[674]*674dence and incorrectly referred to Porter’s residence as a mobile home. Additionally, the search warrant exempted the officers from complying with the rule that they knock and announce their presence prior to entering the residence and executing the search warrant.

On Friday, December 3,1999, the affidavit supporting the search warrant was presented to a judge of the Rutherford County Circuit Court, who issued the search warrant after finding facts sufficient to establish probable cause. Later that day, at about 5 p.m., at least five members of the LaVergne Police Department executed the search warrant. According to the government, these police officers approached the front door of Appellant’s house. One of them, a Sgt. Watson, testified that he then knocked on the door and announced: “Police, search warrant.” The government further maintains that the Appellant’s future wife and later ex-wife, opened the door, at which time Sgt. Watson repeated: “Police, search warrant. Everybody down.” Sgt. Watson testified that after entering the residence through the front door into the living room, he secured Appellant’s wife and sat her on a couch.

A search of the house revealed that it contained three separate bedrooms. In a closet in the master bedroom, the officers found a safe which contained 330.5 MDMA pills, 60 gelatin squares of LSD, money and jewelry. In that same bedroom, under the mattress, police found a loaded Heckler & Koch .40 caliber semi-automatic pistol. In a closet in the hallway near another bedroom, the officers found another semi-automatic’ .40 caliber pistol. At trial it was revealed that ammunition was interchangeable between the two pistols. Down the hallway, in another closet, the officers found 9.3 pounds of marijuana. In addition, scales used for weighing drugs to be distributed were found at the residence. At trial, Tony Porter, the brother of the Appellant, testified that he had been house-sitting for the Appellant when the search warrant was executed, and that he had been there since one week prior to the search. Tony Porter stated that the two guns confiscated during the search were his, and that he had brought them with him while he was staying at his brother’s house in order to clean them, and for personal protection. Tony Porter further testified that he had placed the guns under the mattress and in the hallway closet, and that he had no knowledge of any controlled substances in his brother’s home.

Porter argues that he was wrongfully convicted for violation of 18 U.S.C. § 924(c) and that the trial court wrongfully denied his motion to suppress all evidence obtained pursuant to a search warrant executed at his home.

II. Analysis.

A. 18 U.S.C. § 924(c) Conviction

First, we address Porter’s argument that insufficient evidence supported his firearms conviction for violating 18 U.S.C. § 924(c). This Court, in reviewing a claim of insufficient evidence, must examine the evidence most favorable to the United States and determine whether “any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” United States v. Davis, 306 F.3d 398, 408 (6th Cir.2002) (internal quotations omitted). Section 924(c) provides:

any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— [675]*675(i) be sentenced to a term of imprisonment of not less than 5 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). In order to prove that a defendant has violated section 924(c), the United States must prove that the “ ‘firearm was possessed to advance or promote’ ” the commission of the underlying crime. United States v. Mackey, 265 F.3d 457, 461 (6th Cir.2001) (quoting H.R.Rep. No. 105-344 (1997), 1997 WL 668339, at *11-12). In other words, the United States must prove a “nexus between the gun and the crime charged.” Id. at 462. Although possession of a firearm on the same premises as the drug trafficking crime alone is insufficient to support a conviction under section 924(c), a jury can reasonably infer such a nexus based upon the firearm’s strategic location, whether the gun was loaded, the type of weapon, the legality of its possession, the type of drug activity conducted, and the time and circumstances under which the firearm was found. Id. at 462-63 (citations omitted).

In the case at bar, Porter does not contest that, at the time the search warrant was executed, he either possessed or constructively possessed the two handguns. Rather, he merely argues that they belonged to his brother, Tony Porter. At trial, the government established that the guns were found near large quantities of drugs and cash. One gun was found loaded under the mattress in the master bedroom. In a closet attached to this same room, the safe containing cash, MDMA, and LSD — valued at over $10,000 — was found. The second gun was found in a closet in the same hallway as another closet containing 9.3 pounds of marijuana. Furthermore, testimony at trial established that ammunition was interchangeable between the two guns.

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Bluebook (online)
99 F. App'x 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-porter-ca6-2004.