USA v. Ricky Brown
OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Eric L. Clay (DISSENTING) and Jane Branstetter Stranch (AUTHORING), Circuit Judges; Timothy S. Black, U.S. District Judge for the Southern District of Ohio, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0228p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cr-20281-1—Denise Page Hood, District Judge.
Argued: July 31, 2014
Decided and Filed: September 11, 2015
Before: CLAY and STRANCH, Circuit Judges; BLACK, District Judge.
ARGUED: Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland,
Ohio, for Appellant. Stephanie M. Hays, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: Dennis G. Terez, Melissa M. Salinas, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Stephanie M. Hays,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
STRANCH, J., delivered the opinion of the court in which BLACK, D.J., joined. CLAY,
J. (pp. 19–20), delivered a separate dissenting opinion.
The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting by
United States v. Brown
STRANCH, Circuit Judge. A jury convicted Ricky Brown of possession with intent to
distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and
possession of a firearm after a previous conviction of a felony offense. On appeal, Brown
challenges the denial of his motion to suppress evidence seized from his residence pursuant to a
search warrant and two evidentiary rulings made by the district court. Although we note our
concern that the search warrant affidavit supplied a tenuous nexus between drug trafficking and
Brown’s residence, we conclude under the totality of the circumstances that there was probable
cause for the magistrate judge to issue the warrant. We also hold that the district court properly
admitted a “drug ledger” into evidence at trial and excluded evidence concerning Brown’s
Michigan medical marijuana license. Accordingly, we AFFIRM the district court.
On March 30, 2011, DEA Agent Jeremy Fitch applied for a search warrant to search
Brown’s residence on Moross Road in Detroit, Michigan. The affidavit in support of the search
warrant provided the following facts.
On March 8, 2011, a cooperating witness, identified as DEA1, provided information
concerning the heroin trafficking activities of Marzell Middleton to DEA Detroit Agents and
Task Force Officers assigned to Enforcement Group 3. DEA1 identified Middleton as a heroin
trafficker in the Detroit metropolitan area and provided two cell phone numbers that DEA1 had
used to contact Middleton. DEA1 further identified Middleton’s residence on Helen Street in
Detroit and stated that this residence served as the drug distribution point for Middleton.
On March 8, at the direction of DEA agents, DEA1 made a series of consensually
recorded phone calls to Middleton to set up a purchase of one-half kilogram of heroin.
Surveillance units were posted at Middleton’s residence before, during, and after the phone calls
were made. At approximately 5:30 p.m., agents noticed a Chevrolet Silverado parked at the
United States v. Brown
residence. At approximately 5:46 p.m., Middleton agreed over the phone to deliver the heroin to
DEA1 at a predetermined location in Monroe, Michigan.
At approximately 7:52 p.m., DEA1 placed another consensually recorded phone call to
Middleton, who advised DEA1 that he was waiting for someone to arrive and then he would
leave in “ten minutes” to meet with DEA1 and deliver the heroin. At approximately 7:30 p.m.
(before the previously-described phone call), a Yukon Denali towing a black cargo trailer arrived
at Middleton’s Helen Street residence. Surveillance officers watched as three males got out of
the Yukon and entered the residence through the north entry door. At approximately 7:50 p.m.,
the three males left the residence through the same door. One man had a large, dark-colored
object in his hand, which he placed in the bed of the Chevrolet Silverado. The Silverado and the
Yukon departed the residence and traveled to a gas station. After both vehicles were fueled, the
men traveled together on Interstate 94 west to southbound I-75 into the Monroe, Michigan area.
Because the agents believed heroin was being transported to DEA1, they arranged for
Michigan State Police (MSP) Troopers working in marked cars to execute simultaneous traffic
stops of the Silverado and the Yukon. At approximately 9:00 p.m., MSP Trooper Peterson
conducted a probable cause traffic stop of the Silverado and identified the sole occupant as
Steven Patrick Woods. Woods was driving on a suspended Michigan driver’s license and
verbally consented to a search of the truck. A search revealed a black, plastic Dewalt power tool
case in the bed of the truck. Inside the case was a clear plastic bag containing an off-white
substance weighing approximately 565 gross grams. A field test indicated the presence of
heroin. Trooper Peterson placed Woods under arrest for possession of heroin.
At approximately 9:01 p.m., MSP Troopers Kiser and Ziecina stopped the Yukon Denali.
Trooper Ziecina identified the driver as Middleton and the passenger as the defendant, Brown.
Both were arrested for attempted delivery of the heroin transported by Woods in the Silverado.
Trooper Ziecina recovered four cell phones from the interior of the Yukon during an inventory
search. One phone was assigned (313) 449-6872, the number DEA1 had used to contact
Middleton to arrange the heroin delivery. Another phone was assigned the number DEA1 told
agents was Middleton’s second cell phone, (313) 461-4913. Agent Fitch concluded that the
United States v. Brown
other two cell phones, (313) 254-8330 and (313) 564-9054, belonged to Brown because one of
them, (313) 564-9054, listed Middleton’s two cell phone numbers as contacts under “M Z.”
Following the arrests, all three men were booked at the MSP Post in Monroe. In answer
to standard booking questions, Brown provided a residential address on Moross Road in Detroit.
He possessed a Michigan driver’s license listing the Moross Road address as his residence.
Brown also possessed $4,813 in currency, which was seized for forfeiture under Michigan state
law. Agent Fitch averred, based on his training and experience, that the large amount of
unsecured cash found in Brown’s possession was consistent with drug trafficking proceeds.
Task Force Officer Powell obtained a state search warrant for Middleton’s residence on
Helen Street. The warrant was executed at approximately 3:10 a.m. on March 9. The search
turned up approximately 90 gross grams of suspected heroin. A 2002 GMC Yukon, bearing
Michigan license plate 3KHR97 and registered to Brown, was parked on the street in front of the
residence.1 MSP Trooper Unterbrink allowed a drug dog to walk around the vehicle and climb
into it. The dog alerted to the odor of narcotics inside Brown’s vehicle. Agents seized the
2002 Yukon under Michigan forfeiture laws.
On March 17, nine days after Brown was arrested, Agent Fitch obtained a federal search
warrant to search the contents of the four cell phones seized from the Yukon Denali on March 8.
On one of the phones believed to belong to Brown, (313) 254-8330, Agent Fitch located a text
message: “He said 1175 or 1125 for one.” Based on his training and experience, Agent Fitch
averred that the text message was consistent with Detroit-area pricing for one ounce of cocaine.
Sprint-Nextel disclosed that the subscriber information for the phone was “BOOST MOBILE.”
According to Agent Fitch, boost mobile phones do not require legitimate subscriber information
and can be purchased and used anonymously.
Agent Fitch further averred that he conducted a search of Brown’s criminal history using
the NCIC system. He learned that Brown was arrested by the Detroit Police in July 1996 for
delivery/manufacture of felony dangerous drugs, but he was acquitted on the charges. Brown
This Yukon was different from the Yukon Denali occupied by Middleton and Brown at the time of the
traffic stop on March 8.
United States v. Brown
was arrested by the Detroit FBI in May 1999 for conspiracy to distribute marijuana, was
convicted, and served time in federal prison.
To summarize the contents of his affidavit, Agent Fitch averred that Brown was an active
participant in the attempted delivery of heroin on March 8, 2011, he had a felony drug trafficking
history, he resided on Moross Road in Detroit, an MSP drug dog had alerted to the odor of
narcotics in Brown’s vehicle, and the vehicle was registered to Brown at his home on Moross
Road. Agent Fitch further averred that there was probable cause to believe that the residence on
Moross Road would contain the “fruits or other evidence of a conspiracy to distribute heroin”
involving Brown, Middleton, Woods, and other co-conspirators, in violation of federal law.
More specifically, Agent Fitch averred that there was probable cause to believe that the Moross
Road residence would contain:
illegal drugs, drug ledgers, wrappers and drug packaging from heroin distribution
that may have been divided up inside of the residence, documents identifying
ownership or occupancy of the residence, documents of ownership of vehicles
used by BROWN, documents and receipts for the purchase of cell phones used by
BROWN, cellular telephones, large amounts of currency, money counters,
financial instruments, firearms, scales, and drug related paraphernalia (further
described in Attachment B).
R. 15-1, Page ID 63. Attachment B described the items sought in greater detail.
Agent Fitch disclosed in the search warrant affidavit that he had been employed as a
DEA Special Agent for approximately eight months, and based on his training and experience
and that of other officers with whom he had discussed the case, drug traffickers tend to keep in
their residences and vehicles the types of items for which the search warrant was requested. In
paragraphs 2A. through 2J. of the affidavit, Agent Fitch described the manner and means by
which drug traffickers generate, maintain, and conceal evidence related to drug trafficking.
Attachment A to both the affidavit and the search warrant specifically described the residence on
Moross Road that was the “Target Premises” to be searched. A federal magistrate judge issued
the search warrant on March 30, 2011, twenty-two days after Brown’s arrest.
DEA agents executed the search warrant at Brown’s residence on March 31. On the floor
of the closet in the master bedroom, Agent Moore found a loaded 9 millimeter Smith and Weston
semiautomatic pistol with 15 live rounds in the magazine. In the same closet on a shelf to the
United States v. Brown
left, he located a glass jar containing stalks of marijuana and two or three clear plastic baggies
containing marijuana packaged for distribution. On another shelf on the opposite side of the
closet, Agent Moore found a second glass jar filled with loose marijuana. Together the two jars
held 60 grams of marijuana, enough for about 120 marijuana cigarettes. Also in the closet next
to one of the jars of marijuana, Agent Moore found a State Farm insurance document showing
Brown’s name, the Moross Road address, and the VIN number and registration for the
2002 Yukon that agents seized at Middleton’s home on Helen Street shortly after Brown’s arrest
on March 8.
In the top drawer of a dresser in the master bedroom, agents found two full boxes of
Remington 9 millimeter ammunition for pistols, one partial box of ammunition for a rifle or AK47, and a receipt for a $500 cash payment to the Michigan state treasury bearing Brown’s name.
In the second or third drawer of the dresser, agents found a digital scale, and on top of the dresser
they found a box of 12-gauge shotgun shells.
Elsewhere in the master bedroom, agents
discovered $5,805 cash in a small, black tote bag, a Michigan certificate of title for the 2002
Yukon in Brown’s name, a utility bill for the Moross Road residence in Brown’s name, and a
hand-written document—purportedly a drug ledger—listing names and what appeared to be
gram drug quantities. A loaded 12-gauge shotgun was found upstairs.
Brown moved to suppress the evidence seized during the search of his home on the
ground that Agent Fitch’s affidavit in support of the search warrant failed to establish probable
cause to search the residence and the information in the affidavit was stale. The district court
heard argument on the motion, but did not conduct an evidentiary hearing. Looking only to the
four corners of Agent Fitch’s affidavit, the district court denied the motion to suppress, finding
that the affidavit was sufficient to establish probable cause and that the evidence was not stale.
The district court further ruled that the Leon good faith exception would apply even if the
affidavit failed to establish probable cause.
Brown was tried before a jury on five charges: possession with intent to distribute
heroin, conspiracy to distribute heroin, possession of a firearm after a previous conviction of a
felony offense, possession with intent to distribute marijuana, and possession of a firearm in
furtherance of a drug trafficking crime. The jury acquitted Brown on the heroin charges, but
United States v. Brown
convicted him on the marijuana and firearm charges. The district court imposed a sentence of
117 months of imprisonment, and this appeal followed.
Brown raises three arguments on appeal. He contends that the district court erred in
denying his motion to suppress, the court erred in admitting the “drug ledger” into evidence at
trial because the government failed to authenticate it properly, and the court erred in excluding
evidence of Brown’s Michigan medical marijuana license. We turn first to the suppression issue.
A. Motion to Suppress
In reviewing the denial of a motion to suppress where the district court did not hold an
evidentiary hearing, we “review de novo the court’s legal conclusion that the affidavit provided
probable cause.” United States v. Brown, 732 F.3d 569, 572 (6th Cir. 2013). Given our de novo
standard and the fact that our review focuses on the probable cause determination of the
magistrate judge in issuing the search warrant, “we owe the district court’s conclusion no
Our court has “long held,” however, that the probable cause
determination of a magistrate judge should be reversed only if the court arbitrarily exercised its
discretion. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc).
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV. The “chief evil” deterred by the Fourth Amendment is the physical invasion
of the home. Payton v. New York, 445 U.S. 573, 585 (1980); Thacker v. City of Columbus,
328 F.3d 244, 252 (6th Cir. 2003). Indeed, the right of a citizen to retreat into the home and
“‘there be free from unreasonable governmental intrusion’” stands at the core of the Fourth
Amendment. Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States,
365 U.S. 505, 511 (1961)). “One of the touchstones of the reasonableness requirement is that the
police must generally obtain a warrant based upon a judicial determination of probable cause
before entering the home.” Ziegler v. Aukerman, 512 F.3d 777, 785 (6th Cir. 2008). The job of
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the magistrate judge presented with a search warrant application is “simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit . . . , there
is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Our duty as a reviewing court is “to ensure that the
magistrate had a substantial basis for . . . conclud[ing] that probable cause existed.” Id. (internal
quotation marks omitted).
1. Nexus Requirement
Because the Fourth Amendment requires a search warrant to describe particularly the
place to be searched and the persons or things to be seized, the affidavit supporting the search
warrant must demonstrate a nexus between the evidence sought and the place to be searched.
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). If the affidavit does not
present sufficient facts demonstrating why the police officer expects to find evidence in the
residence rather than in some other place, a magistrate judge may not find probable cause to
issue a search warrant. Id. Whether an affidavit establishes a proper nexus is a fact-intensive
question resolved by examining the totality of circumstances presented. See Gates, 462 U.S. at
238; Brown, 732 F.3d at 573.
We have found adequate support for a search warrant where a confidential informant
made at least six drug purchases from the defendant and co-defendant, all recorded by the police;
the confidential informant was on the premises of the defendant’s residence on two occasions
when the police heard a drug transaction through monitored audio surveillance; and, in the
72 hours before the search warrant application, the confidential informant was on the defendant’s
premises and observed the defendant and a co-defendant possess a quantity of cocaine for
distribution. United States v. Jones, 159 F.3d 969, 974 (6th Cir. 1998). We upheld issuance of
the search warrant for the defendant’s residence because “[k]nowledge of illegal drug activities,
obtained by law enforcement officials through a confidential informant and independent
surveillance, supports a district court’s finding of probable cause to support the issuance of a
warrant.” Id. See also United States v. May, 399 F.3d 817, 823–25 (6th Cir. 2005) (upholding
search warrant where affidavit contained independent police corroboration of statements made
by confidential informant about drug trafficking taking place at defendant’s residence to be
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searched). Agent Fitch presented no such evidence to the magistrate judge to support the search
warrant issued in this case.
Nonetheless, we must judge the affidavit “on the adequacy of what it does contain, not on
what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975.
Agent Fitch’s affidavit disclosed to the magistrate judge that Brown had been arrested twentytwo days earlier on March 8, 2011, after he, Middleton, and Woods attempted to deliver one-half
kilogram of heroin to DEA1, a cooperating witness.
Police seized four cell phones from
Middleton and Brown during their arrests; two of the cell phones belonged to Middleton because
they matched the phone numbers used by DEA1 to contact Middleton to set up the drug
purchase; and the two cell phones believed to belong to Brown listed Middleton’s phone number
as a contact. Brown possessed $4,813 in currency at the time of his arrest. A search of
Middleton’s home pursuant to a state search warrant a few hours after the arrests uncovered
another 90 grams of heroin. The 2002 Yukon parked on the street outside Middleton’s residence
during the search was registered to Brown at the same address shown on Brown’s driver’s
license and given by Brown as he was booked following his arrest. During a search of Brown’s
Yukon, a drug dog alerted to the odor of narcotics inside the vehicle, and the NCIC database
showed that Brown had a previous federal drug conviction for conspiracy to distribute marijuana
and a previous felony drug arrest.2 We turn to our caselaw to determine whether these facts
demonstrate the necessary nexus between the evidence sought and the place to be searched.
Several of our cases recognize that a magistrate judge is entitled to draw a reasonable
inference that evidence of a crime is likely to be found where known drug traffickers reside. We
made this point in Jones, 159 F.3d at 974–75, and again in United States v. Miggins, 302 F.3d
384, 393–94 (6th Cir. 2002). In Miggins, we followed cases decided by several of our sister
circuits which permit the drawing of a reasonable inference that evidence of a crime is likely to
be discovered in the residences of known drug traffickers. Id. (and cases cited therein). We
reversed the suppression order in Miggins, finding a sufficient nexus between known drug
The dissent suggests that “[t]he only available bases for the search of Defendant’s residence were the fact
that Defendant is a previously convicted drug dealer, and the agent’s assertion that evidence of drug dealers’ illicit
activities can usually be found at their places of residence.” Dissent at 1. Were that the case before us, we would
agree that the affidavit was inadequate to show the requisite probable cause. That viewpoint, however, does not take
into account all of the relevant information known to Agent Fitch that we have just summarized.
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trafficking and the defendants’ apartment to warrant issuance of a search warrant. Id. We again
upheld a search warrant for a known drug dealer’s residence in United States v. Gunter, 551 F.3d
472, 481 (6th Cir. 2009), where we followed our prior decision in Jones. We also upheld a
search warrant for the residence of a methamphetamine manufacturer after he was arrested
working at a methamphetamine laboratory located on a different property. United States v.
Kenny, 505 F.3d 458, 461 (6th Cir. 2007) (relying on Miggins, where “we held, following a long
line of precedents, that a sufficient nexus existed to search the residence of a known drug dealer
after he had been arrested for possession of cocaine.”).
Our cases also illustrate situations in which the nexus is insufficient to support a search
warrant. In United States v. McPhearson, 469 F.3d 518, 524–25 (6th Cir. 2006), we affirmed a
suppression order where there was no evidence in the warrant affidavit that the defendant was a
known drug dealer and there was no evidence connecting drug trafficking to the defendant’s
residence. In that case, police went to McPhearson’s residence to arrest him on an outstanding
warrant for simple assault. Id. at 520. The police completed the arrest on the front porch and
escorted McPhearson to the squad car parked at the street. Id. There, the police searched
McPhearson incident to arrest and found crack cocaine in his pants pocket. Id. The officers
asked McPhearson to consent to a search of his house, but he refused. Id. at 520–21. The police
obtained a search warrant for the residence from a state juvenile court judge. Id. at 520, 522.
The district court suppressed the evidence obtained from McPhearson’s home, and we
affirmed that decision. Id. at 522, 527. Because the search warrant affidavit stated no more than
that McPhearson resided at the address and was arrested there on a non-drug offense with a
quantity of crack cocaine on his person, we concluded that “[t]hese averments were insufficient
to establish probable cause because they do not establish the requisite nexus between the place to
be searched and the evidence to be sought.” Id. at 524. We rejected the government’s argument
that McPhearson’s arrest outside his home with drugs in his pocket was sufficient to establish a
fair probability that police would find evidence of wrongdoing inside his home:
This inference can be drawn permissibly in some cases, as evidenced by United
States v. Miggins and the cases cited therein. 302 F.3d 384, 393–94 (6th Cir.
2002). But in all those cases, the affidavits contained an additional fact that
permitted the magistrate to draw the inference that evidence of wrongdoing would
be found in the defendants’ homes—namely, the independently corroborated fact
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that the defendants were known drug dealers at the time the police sought to
search their homes. See, e.g., United States v. Feliz, 182 F.3d 82, 87–88 (1st Cir.
1999) (finding it reasonable to infer that a known drug dealer would store
evidence of his trade at home); United States v. McClellan, 165 F.3d 535, 546
(7th Cir. 1999) (“[I]n issuing a search warrant, a magistrate is entitled to draw
reasonable inferences about where the evidence is likely to be kept . . . and . . . in
the case of drug dealers evidence is likely to be found where the dealers live.”).
That fact was absent from the affidavit in this case. McPhearson was not a known
drug dealer: his prior convictions were for property crimes, and the warrant on
which the police arrested him was for simple assault. In the absence of any facts
connecting McPhearson to drug trafficking, the affidavit in this case cannot
support the inference that evidence of wrongdoing would be found in
McPhearson’s home because drugs were found on his person.
Id. at 524–25.
In United States v. Frazier, 423 F.3d 526, 529–30 (6th Cir. 2005), the police employed
confidential informants to make controlled drug purchases from the residence of a suspected
drug trafficker, Christopher Frazier. Although one of the confidential informants had worn a
wire and recorded two of the controlled buys, the search warrant affidavit did not contain this
information, and the agent inadvertently failed to add it to the affidavit as directed by the
magistrate judge. Id. at 530. On a challenge to the search and seizure of evidence pursuant to
the search warrant, we concluded that the affidavit failed to contain facts supporting the
reliability of the confidential informants or to provide independent corroboration of the
information given by them. Id. at 532. Distinguishing Miggins, Jones, and other cases, we
stated that none of them “supports the proposition that the defendant’s status as a drug dealer,
standing alone, gives rise to a fair probability that drugs will be found in his home.” Id. at 533.
“Where, as here, the warrant affidavit is based almost exclusively on the uncorroborated
testimony of unproven confidential informants (none of whom witnesses illegal activity on the
premises of the proposed search), the allegation that the defendant is a drug dealer, without more,
is insufficient to tie the alleged criminal activity to the defendant’s residence.”
nonetheless upheld the search and seizure under the Leon good faith exception. Id. at 533–38.
It is a close question whether Agent Fitch’s affidavit sets forth a sufficient nexus between
drug trafficking and Brown’s residence to support issuance of the search warrant. The affidavit
contained no evidence that Brown distributed narcotics from his home, that he used the residence
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to store narcotics, or that any suspicious activity had taken place there. The affidavit did not
suggest that a reliable confidential informant had purchased drugs there, that the police had ever
conducted surveillance at Brown’s home, or that the recorded telephone conversations linked
drug trafficking to Brown’s residence.
Unlike the affidavits discussed in Frazier and McPhearson, however, Agent Fitch’s
affidavit presented the magistrate judge with more than an uncorroborated suspicion that Brown
was a drug dealer.
Key to the issuance of this search warrant was Brown’s status as a
previously-convicted drug dealer, coupled with the police investigation of Brown’s involvement
in ongoing trafficking of heroin and possibly cocaine, the drug dog’s detection of narcotic odor
in Brown’s 2002 Yukon that was parked at Middleton’s house on the night of Brown’s arrest,
and the registration of the 2002 Yukon to Brown at the Moross Road residence. Under our
cases, the magistrate judge could reasonably infer from these facts that Brown had recently used
the Yukon registered to his home on Moross Road to ferry narcotics and that there was a fair
probability that a search of his residence would turn up contraband or evidence of a crime.
Though a close question, under these circumstances, we find that the affidavit was not
based on the singular fact of Brown’s previous drug conviction but included adequate reliable
evidence providing the necessary connection between ongoing drug activity and Brown’s home.
See Gates, 462 U.S. at 238. See also United States v. Gunter, 266 F. App’x 415, 419 (6th Cir.
2008) (“[T]his Court’s precedents establish that a nexus exists between a known drug dealer’s
criminal activity and the dealer’s residence when some reliable evidence exists connecting the
criminal activity with the residence. . . . When, however, the only evidence of a connection
between illegal activity and the residence is unreliable, such as uncorroborated statements by a
confidential informant, then a warrant may not issue allowing the search of the residence.”). We
conclude, under the totality of the circumstances, that the affidavit was sufficient to provide
probable cause to support issuance of the search warrant.
We do not agree with Brown that the information in Agent Fitch’s affidavit was stale.
Staleness is measured by the circumstances of the case, not by the passage of time alone. Sgro v.
United States, 287 U.S. 206, 210–11 (1932). We examine several variables, including “the
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character of the crime (chance encounter in the night or regenerating conspiracy?), the criminal
(nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of
enduring utility to its holder?), [and] the place to be searched (mere criminal forum of
convenience or secure operational base?).” United States v. Spikes, 158 F.3d 913, 923 (6th Cir.
1998) (internal quotation marks omitted).
The character of the crime suggests an ongoing drug trafficking conspiracy, of which
Brown was a member.
See United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001)
(“Evidence of ongoing criminal activity will generally defeat a claim of staleness.”). Brown was
not nomadic; rather, he appeared to be entrenched in a secure operational base located on Moross
Road, the residence he listed on his driver’s license and gave to the booking officer following his
arrest. In addition to drugs and firearms, Agent Fitch sought business records tying Brown to the
2002 Yukon and to drug trafficking. Business records are a type of evidence that an agent
ordinarily could expect would be kept for long periods of time. See United States v. Abboud, 438
F.3d 554, 573–74 (6th Cir. 2006). In light of the pertinent factors, we conclude that the
information known to Agent Fitch did not become stale in the 22 days between Brown’s March 8
arrest and the March 30 application for a search warrant.
See Spikes, 158 F.3d at 924
(determining that information obtained “over a four-year period of time” was not stale where
officers provided recent corroboration of ongoing drug trafficking activity).
3. Good faith exception
Even if Agent Fitch’s affidavit lacked sufficient facts to establish probable cause to
search Brown’s home, we nonetheless conclude that the warrant was not “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.” United States
v. Leon, 468 U.S. 897, 923 (1984). The officers who executed the search relied in good faith on
the search warrant issued by a neutral and detached magistrate judge. Id. at 922; Carpenter,
360 F.3d at 595–97.
“[W]hen an agent acts with an objectively reasonable good faith belief that his conduct is
lawful or when his conduct involves simple, isolated negligence, the exclusionary rule’s
deterrence rationale “cannot pay its way.” Davis v. United States, 131 S. Ct. 2419, 2427–28
(2011) (internal quotation marks omitted).
But “[w]hen the police exhibit ‘deliberate,’
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‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of
exclusion [of evidence] is strong and tends to outweigh the resulting costs.” Id. at 2427 (quoting
Herring v. United States, 555 U.S. 135, 144 (2009)). In Davis, the Supreme Court held that the
exclusionary rule does not apply if a police officer conducts a search in objectively reasonable
reliance on binding appellate precedent. Id. at 2428–29. When Agent Fitch sought the search
warrant for Brown’s residence, our cases taught (as they do still) that the police may seek a
warrant to search the residence of a known drug dealer where evidence—such as involvement in
ongoing drug trafficking—ties the alleged criminal activity to the dealer’s residence because that
nexus results in a fair probability that contraband or evidence of a crime will be found in the
home. See Gunter, 551 F.3d at 481; Miggins, 302 F.3d at 393–94; Jones, 159 F.3d at 974.
This is not a case like McPhearson, where the good faith exception did not apply because
the affidavit supporting the search warrant was “so vague as to be conclusory or meaningless.”
McPhearson, 469 F.3d at 527 (internal quotation marks omitted). The case is also not like
United States v. Hython, 443 F.3d 480, 489 (6th Cir. 2006), where the search warrant affidavit
was so “patently insufficient” that “[n]o well-trained officer could have reasonably relied on” it,
or United States v. Laughton, 409 F.3d 744, 748, 751 (6th Cir. 2005), where “[n]o reasonable
officer could have believed” that the “bare bones” affidavit was sufficient to establish probable
cause to search. Although Agent Fitch’s affidavit presents a close case, we do not find it to be
Moreover, Brown produced no evidence that Agent Fitch committed any misconduct in
applying for the search warrant or even that he acted negligently. See Davis, 131 S. Ct. at 2428.
Accordingly, the Leon good faith exception applies. See id. at 2427–29; Herring, 555 U.S. at
147–48; United States v. Kinison, 710 F.3d 678, 685–86 (6th Cir. 2013) (applying Davis); United
States v. Fisher, 745 F.3d 200, 203 (6th Cir. 2014) (same).
In light of our precedents, the affidavit provided sufficient facts to permit the magistrate
judge to issue the search warrant.
Because Brown has not persuaded us that reversal is
warranted, we affirm the district court’s decision to deny the motion to suppress.
United States v. Brown
B. Evidentiary rulings at trial
Brown makes three challenges to the trial evidence. He argues that the government did
not properly authenticate a “drug ledger” under Federal Rule of Evidence 901(a), and he
contends, for the first time on appeal, that the document was inadmissible hearsay. He also
argues that the district court should have allowed him to introduce evidence of his Michigan
medical marijuana license because it was relevant to the issue of intent.
We review a district court’s evidentiary ruling for an abuse of discretion if an objection
has been preserved. United States v. Clay, 667 F.3d 660, 666 (6th Cir. 2009). We review for
plain error if no objection is made. United States v. Lopez-Medina, 461 F.3d 724, 746 (6th Cir.
2006). Plain error exists if there is an “(1) error (2) that was obvious or clear; (3) that affected
defendant’s substantial rights; and (4) that affected the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008).
Having examined the trial record, we are persuaded that the government offered the
“drug ledger” as circumstantial evidence of a “tool of the trade” to prove that Brown was
involved in illegal drug trafficking. See United States v. Mendez, 514 F.3d 1035, 1045 (10th Cir.
2008); United States v. Goshen, No. 91-3905, 1993 WL 503728, *5 (6th Cir. Dec. 8, 1993).
Because the government did not offer the document for the truth of the matter asserted, it was not
hearsay and the district court did not plainly err in admitting it into evidence. Cf. Lopez-Medina,
461 F.3d at 746 (observing drug ledger was offered for truth of the matter asserted because
government used it to prove that the names and numbers listed represented actual sales of the
listed quantity of drugs to the specified person).
Several circuits have employed similar
reasoning to affirm the admission of drug ledgers into evidence. See United States v. Gonzales,
307 F.3d 906, 910 (9th Cir. 2002); United States v. Echeverri, 982 F.2d 675, 680 (1st Cir. 1993);
United States v. Bohmont, 413 F. App’x 946, 955–56 (8th Cir. 2010) (per curiam); United States
v. Charles, 366 F. App’x 532, 543 (5th Cir. 2010).
Having concluded that the document was not hearsay, we need not address Brown’s
argument that no hearsay exception applied. Further, because Brown concedes that the “drug
United States v. Brown
ledger” is nontestimonial in character, the Confrontation Clause, which applies only to
testimonial evidence, is inapplicable and the rules of evidence alone govern the document’s
admissibility. See Davis v. Washington, 547 U.S. 813, 823–25 (2006); United States v. Johnson,
581 F.3d 320, 325 (6th Cir. 2009); United States v. Arnold, 486 F.3d 177, 192–93 (6th Cir. 2007)
Brown next challenges the district court’s ruling that the identity of the person who
drafted or kept the handwritten “drug ledger” went to the weight, not the admissibility, of the
evidence. Rule 901(a) requires the proponent of a document to “produce evidence sufficient to
support a finding that the item is what the proponent claims it is.”
A document can be
authenticated by evidence of “[t]he appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.” Fed. R. Evid.
901(b)(1), (4). “[A] document . . . may be shown to have emanated from a particular person by
virtue of its disclosing knowledge of facts known peculiarly to him.” Fed. R. Evid. 901(b)(4)
advisory committee note; United States v. Jones, 107 F.3d 1147, 1149 (6th Cir. 1997).
An agent who participated in the search of Brown’s residence identified the “drug ledger”
as a document recovered from the master bedroom, where law enforcement officers also
recovered marijuana packaged for sale, a loaded handgun in close proximity to the marijuana,
ammunition, a digital scale, receipts and bills bearing Brown’s name, and various insurance and
vehicle documents in Brown’s name tying him to the 2002 Yukon found parked at Middleton’s
home. An agent with extensive experience in examining drug ledgers described for the jury the
characteristics of the document that indicated it was a “drug ledger,” and another agent linked
Brown to the document through testimony that several contacts listed in one of Brown’s cell
phones matched names listed on the “drug ledger.” The government thus produced sufficient
circumstantial evidence to authenticate the “drug ledger” and justify its admission into evidence.
See United States v. Crosgrove, 637 F.3d 646, 658 (6th Cir. 2011). An expert opinion finding
that the handwriting on the document was Brown’s was not necessary to authenticate the
document. See United States v. Kalymon, 541 F.3d 624, 632 (6th Cir. 2008).
United States v. Brown
Finally, we address Brown’s argument that the district court erred in excluding evidence
of his Michigan medical marijuana license. He argues for the first time on appeal that the
evidence was relevant to the mens rea element of possession with intent to distribute marijuana.
While we could decline to reach this argument, we will address it briefly.
The federal Controlled Substances Act classifies marijuana as a Schedule I drug because
of its “high potential for abuse, lack of any accepted medical use, and absence of any accepted
safety for use in medically supervised treatment.” Gonzales v. Raich, 545 U.S. 1, 14 (2005)
(citing 21 U.S.C. §§ 812(b)(1) & (c)). Because marijuana is listed as a Schedule I drug, “the
manufacture, distribution, or possession of marijuana [is] a criminal offense, with the sole
exception being use of the drug as part of a Food and Drug Administration preapproved research
study.” Id. (citing 21 U.S.C. §§ 823(f), 841(a)(1), 844(a)). Although state law may permit
marijuana use for medicinal purposes under defined circumstances, federal law treats any
possession, distribution, or manufacture of marijuana as a federal offense, and medical necessity
is not a defense to a federal criminal prosecution for manufacturing or distributing marijuana.
United States v. Oakland Cannabis Buyers’ Co-op, 532 U.S. 483, 493–494 (2001).
Brown’s objective in admitting his medical marijuana license into evidence was to
convince the jury that he intended to use the marijuana himself and he did not intend to distribute
it to others. In light of Oakland Cannabis, the district court did not abuse its discretion in
excluding the license, particularly where the government presented significant evidence that
Brown possessed the marijuana with intent to distribute it. Some of the marijuana was packaged
for distribution and placed near a loaded handgun. Agents found a large quantity of cash, a
digital scale, and a “drug ledger” in the same bedroom where they found the marijuana and
firearm, but the agents discovered no evidence that anyone used marijuana inside the home. In
view of the evidence presented to the jury, we cannot conclude that it is more probable than not
that any error in excluding evidence of Brown’s Michigan medical marijuana license materially
affected the verdict. See United States v. Dimora, 750 F.3d 619, 628 (6th Cir. 2014).
United States v. Brown
For all of these reasons, we AFFIRM the judgment of the district court.
United States v. Brown
CLAY, Circuit Judge, dissenting. Despite the majority’s assertion to the contrary, this is
not, in fact, a close case. Because the affidavit in support of the search warrant for Defendant’s
home failed to make the requisite showing of probable cause to support the search, I respectfully
The Fourth Amendment safeguards individuals’ right “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
“‘At the very core’” of this right “‘stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.’” Kyllo v. United States, 533 U.S. 27,
31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). The Constitution
makes clear that no search warrant for a residence may issue except “upon probable cause,
supported by Oath or affirmation.” U.S. Const. amend. IV. In furtherance of this guarantee, a
search warrant will be granted only if there is a “nexus between the place to be searched and the
evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004).
It is axiomatic that to establish the requisite nexus, “a warrant application must show
more than just that ‘the owner of the property is suspected of crime.’” United States v. Gunter,
266 F. App’x 415, 418 (6th Cir. 2008) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556
(1978)). And no citation should be required to establish that “[t]he mere fact that someone is a
drug dealer”—much less a former drug dealer, or an associate of a suspected drug dealer—“is
not alone sufficient to establish probable cause to search their home.” Id.; see also United States
v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Today’s opinion fails to substantiate the existence
of the requisite probable cause necessary to justify granting the warrant application.
What is missing here is the existence of any evidence that Defendant’s residence was
used for drug transactions. The only available bases for the search of Defendant’s residence
were the fact that Defendant is a previously convicted drug dealer, and the agent’s assertion that
evidence of drug dealers’ illicit activities can usually be found at their places of residence. These
United States v. Brown
are wholly inadequate bases for issuance of a search warrant. Indeed, the majority’s reasoning
would be persuasive only if there were two standards under the Fourth Amendment for granting
search warrant applications: one for suspected drug dealers, and one for everyone else.
After summarizing the type of evidence that we have previously deemed adequate to
support a search warrant, the majority aptly states that “Agent Fitch presented no such evidence
to the magistrate judge to support the search warrant in this case.” Maj. Op. at 9. The opinion
goes on to explain that:
The affidavit contained no evidence that Brown distributed narcotics from his
home, that he used the residence to store narcotics, or that any suspicious activity
had taken place there. The affidavit did not suggest that a reliable confidential
informant had purchased drugs there, that the police had ever conducted
surveillance at Brown’s home, or that the recorded telephone conversations linked
drug trafficking to Brown’s residence.
Id. at 11–12. Despite these concessions, the majority characterizes this case as presenting “a
close question” and seeks to describe the sparse facts that were included in the affidavit as
establishing a sufficient nexus to Brown’s home. See id. at 12. To the contrary, the search
warrant in this case was issued based on little more than Brown’s arrest, his conviction for an
unrelated drug offense twelve years earlier, his acquittal on other drug charges, and information
related to the police investigation of another individual. Because the affidavit supporting the
search warrant was devoid of information establishing a nexus between the alleged illegal
activity and Defendant’s home, I respectfully dissent.1
The majority insists that the dissent fails to “take into account all of the relevant information known to
Agent Fitch.” Maj. Op. at 9 n.2. The problem with this assertion is that Agent Fitch was in possession of no
information that would have established the requisite nexus between Brown’s alleged illegal activity and his home.
Presumably, the majority is referring to the fact that Brown possessed a large amount of cash at the time of his
arrest, and that a police dog alerted to the odor of narcotics inside an unoccupied car registered to Brown when the
car was parked outside another individual’s residence. None of this information establishes the necessary nexus
with Brown’s home.
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