USA v. Deon Powell

Filing

OPINION filed : We AFFIRM the district court's judgment, decision not for publication. Damon J. Keith, Authoring Circuit Judge; Gilbert S. Merritt, Circuit Judge and Danny J. Boggs, Circuit Judge.

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0182n.06
Case No. 14-1366
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEON ARCHIE POWELL,
Defendant-Appellant.
____________________________________/

)
)
)
)
)
)
)
)
)
)
)

FILED
Mar 09, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

Before: KEITH, MERRITT, and BOGGS, Circuit Judges
DAMON J. KEITH, Circuit Judge.
The central issue in this case is whether the district court erred in denying the defendant’s
motion to suppress guns and ammunition seized pursuant to an allegedly stale search warrant.
Because the good-faith exception to the exclusionary rule applies to the government’s search and
seizure, we AFFIRM.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On May 6, 2011, a magistrate judge in the Eastern District of Michigan issued a search

warrant. Special Agent James Koss of the United States Drug Enforcement Agency submitted an

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 2

Case No. 14-1366, United States v. Powell
affidavit to support the search warrant application. See R. at 62.1 The affidavit details a drug
trafficking enterprise led by Anthony Edwards and Clarence Williamson. The warrant sought
documentary and physical (but non-narcotic) evidence of drug and firearm offenses, including
guns and ammunition. R. at 62, 73.
On May 17, 2011, pursuant to the issued search warrant, law enforcement agents
searched a residence located at 7324 Grandmont Avenue in Detroit, Michigan. The agents found
firearms and ammunition. See R. at 409. According to the affidavit, Powell resided at the
Grandmont address.
The United States charged Powell with one count of being a felon in possession of
firearms and one count of being a felon in possession of ammunition in violation of 18 U.S.C. §
922(g)(1). Powell filed a motion to suppress. See R. at 51. In his motion to suppress, Powell
argued that the government lacked probable cause to search the Grandmont residence. The
district court denied Powell’s motion to suppress. See R. at 545. The district court declined to
decide whether probable cause supported the search warrant, characterizing this question as
“very close.” R. at 561. However, the district court held that the evidence seized pursuant to the
search warrant was admissible under the good-faith exception to the exclusionary rule. See R. at
561–62.
Powell went to trial. The United States entered the guns and ammunition into evidence.
On September 25, 2013, the jury convicted Powell on both counts. R. at 112. The district court
entered final judgment in March of 2014. R. at 154. Powell appealed the district court’s
judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291.

“R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 62” refers to
PageID 62.
1

-2-

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 3

Case No. 14-1366, United States v. Powell
II.

ANALYSIS
Powell argues that the district court erred in denying his motion to suppress because

probable cause did not support the search warrant. Powell further argues that the good-faith
exception to the exclusionary rule does not apply because the affidavit supporting the search
warrant was so lacking in probable cause that no reasonable officer could have considered it
valid. We disagree with Powell’s second argument and hold that the good-faith exception to the
exclusionary rule applies in this case. Based on this disposition, we decline to consider whether
probable cause supported the search warrant. United States v. McCraven, 401 F.3d 693, 698 (6th
Cir. 2005).
Probable cause must support a search warrant. U.S. Const. amend. IV. Probable cause
supports a search warrant when the underlying affidavit creates “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). Where the affidavit underlying the search warrant fails to create such a fair
probability, courts ordinarily must suppress evidence obtained pursuant to the invalid search
warrant. See Davis v. United States, 131 S. Ct. 2419, 2426 (2011). This rule is called the
“exclusionary rule.”
The Supreme Court has created a “good-faith exception” to the exclusionary rule. Under
the good-faith exception, “[w]hen police act under a warrant that is invalid for lack of probable
cause, the exclusionary rule does not apply if the police acted in objectively reasonable reliance
on the subsequently invalidated search warrant. Herring v. United States, 555 U.S. 135, 142
(2009) (citation omitted) (internal quotation marks omitted). We review de novo the district
court’s legal conclusion that the good-faith exception applies. United States v. Helton, 314 F.3d
812, 824 (6th Cir. 2003) (citation omitted).

-3-

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 4

Case No. 14-1366, United States v. Powell
The Supreme Court has identified at least four situations in which the government’s
reliance on a subsequently invalidated search warrant is objectively unreasonable: (1) where “the
magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his reckless disregard of the truth”;
(2) “where the issuing magistrate wholly abandoned his [neutral and detached] judicial role”;
(3) where the warrant is “based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable”; and (4) where the warrant is so
“facially deficient . . . that the executing officers cannot reasonably presume it to be valid.”
United States v. Leon, 468 U.S. 897, 923 (1984) (citations omitted) (internal quotation marks
omitted).
The good-faith standard is “less demanding” than the “threshold required to prove the
existence of probable cause.” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en
banc) (citation omitted). Thus, the good-faith exception applies where “the affidavit contain[s] a
minimally sufficient nexus between the illegal activity and the place to be searched to support an
officer’s good-faith belief in the warrant’s validity.” Id. at 596 (citations omitted); see also
United States v. Laughton, 409 F.3d 744, 750 (6th Cir. 2005) (suggesting that the good-faith
exception applies when the affidavit underlying the warrant provides “some connection,
regardless of how remote it may have been, between the criminal activity at issue and the place
to be searched”).
The good-faith exception applies in this case. The affidavit created a minimally sufficient
nexus between the drug and firearm activity and the Grandmont residence for the executing
agents to reasonably believe that the residence contained evidence of drug and firearm offenses.
First, the agents had reason to believe that Powell resided at the Grandmont property because he

-4-

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 5

Case No. 14-1366, United States v. Powell
listed it as his address, maintained its electric service in his name, and frequently parked two of
his cars there. R. at 70. Also, the affidavit states that a controlled buy transpired between
Edwards and a confidential informant at that address on September 30, 2010. During this
transaction, Edwards briefly entered the Grandmont residence and, upon exiting, supplied the
confidential informant with two ounces of heroin. R. at 68; see also United States v. Ellison,
632 F.3d 347, 349 (6th Cir. 2011) (“Commission of a drug transaction outside of a house and one
participant’s walking back into the house . . . plainly demonstrate[s] a sufficient nexus with the
house.”). Further, the affidavit states that Powell discussed both selling heroin to Edwards on
September 21, 2010 and buying marijuana from Edwards on September 25, 2010. R. at 66–67.
Thus, because the facts indicated that Powell lived at the Grandmont property, the agents could
have reasonably believed that he was using his “home[] to store drugs and otherwise further [his]
drug trafficking.” United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008). Additionally, the
affidavit states that, during a conversation on December 6, 2010, Williamson told Edwards that
he wanted to retrieve a bag of guns that Edwards was storing at “that house,” which Special
Agent Koss understood as a potential reference to the Grandmont property. See R. at 68–70; see
also United States v. Rodriguez-Suazo, 346 F.3d 637, 644 (6th Cir. 2003) (citation omitted)
(internal quotation marks omitted) (“The issuing judge or magistrate may give considerable
weight to the conclusion of experienced law enforcement officers regarding where evidence of a
crime is likely to be found and is entitled to draw reasonable inferences about where evidence is
likely to be kept.”). Also, we have recognized that “firearms are often used by narcotics
traffickers for protection, and people generally store their firearms at home.” United States v.
Chapman, 112 F. App’x 469, 472 (6th Cir. 2004). Accordingly, it was objectively reasonable for

-5-

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 6

Case No. 14-1366, United States v. Powell
the agents to believe that the Grandmont residence contained evidence of drug and firearm
offenses.
Powell argues that the affidavit failed to create a minimally sufficient nexus with the
Grandmont residence because it had gone stale by the time the agents executed the search. To
support this argument, Powell notes that the agents executed the search warrant approximately
eight months after some of the key drug activity detailed in the affidavit.
We consider four factors when analyzing whether an affidavit is stale: (1) whether the
crime is transitory or continuing; (2) whether the criminal is nomadic or stationary; (3) whether
the thing to be seized is perishable or durable; and (4) whether the place to be searched is a
forum of convenience or a secure operational base. See United States v. Abboud, 438 F.3d 554,
572–73 (6th Cir. 2006).
Here, the balance of the staleness factors weighs in the United States’ favor. The first
factor may favor Powell somewhat. Although the affidavit purports to describe a continuing drug
ring, the vast bulk of the activity relating to the Grandmont residence took place in the fall of
2010. See R. at 65–67. Factor two, however, favors the United States. The affidavit’s averments
support a reasonable belief that Powell was a stable resident at the Grandmont property. As for
factor three, the warrant targeted documentary and physical evidence of drug activity, including
firearms and ammunition. Although firearms are transferrable, we have nevertheless stated that
they “are durable goods and might well be expected to remain in a criminal’s possession for a
long period of time.” United States v. Pritchett, 40 F. App’x 901, 906 (6th Cir. 2002); see also
United States v. Vanderweele, 545 F. App’x 465, 469–70 (6th Cir. 2013) (holding that a sevenmonth delay in executing a search warrant for a silencer did not render it stale, partly because “a
silencer is like a gun, easily transferrable, but more commonly kept by its owner for a long

-6-

Case: 14-1366

Document: 29-1

Filed: 03/09/2015

Page: 7

Case No. 14-1366, United States v. Powell
time”). The final factor also favors the United States. The agents searched Powell’s home, which
is more like a secure operational base than a mere forum of convenience. See United States v.
Greene, 250 F.3d 471, 481 (6th Cir. 2001) (citation omitted) (internal quotation marks omitted)
(“The place to be searched was the defendant’s home, suggesting that there was some
permanence to the defendant’s base of operation.”). Accordingly, despite the eight-month time
lag, the affidavit was not sufficiently stale to vitiate the minimally sufficient nexus between the
Grandmont residence and the drug and firearm activity the affidavit outlines.
III.

CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.

-7-