USA v. Gregory Howard
OPINION filed : AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Eric L. Clay, Authoring Circuit Judge and Julia Smith Gibbons, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0773n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Nov 24, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
SILER, CLAY, and GIBBONS, Circuit Judges.
CLAY, Circuit Judge. Defendant Gregory Howard appeals from the March 26, 2014,
order entered by the district court denying his motion to suppress. Defendant’s motion argued
that the warrant to search his residence was not supported by probable cause. After the motion
was denied, Defendant pleaded guilty to one count of possession with intent to distribute
Oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). The plea
agreement reserved Defendant’s right to appeal the motion to suppress.
exercises that right.
For the reasons set forth below, we AFFIRM the district court’s order denying
Defendant’s motion to suppress.
On February 6, 2013, a Kentucky court issued a warrant to search Defendant Gregory
Howard’s residence. The affidavit supporting the warrant, written by Detective Willie Skeens of
the Kentucky State Police’s UNITE drug task force, stated in pertinent part:
On the 5th day of Feb. 2013, at approximately 5:45 p.m., affiant received
Shawn Compton that Brian Howard was currently conducting narcotics
deliveries for a variety of addicts in Magoffin Co[.] Shawn Compton states that
Brian Howard is receiving the narcotics from Greg Howard a relative of Brian
Howard at the location described herein and the photo attached hereto.
The witness states that Brian Howard does not have a vehicle and usually
borrows the purchasers vehicle and drives to the residence described herein to
pick up the pills for the addicts while leaving the addicts at Brians home located
on coon creek.
On 02-05-2013 myself and Det Adams met the witness at an undisclosed
location in Magoffin co and conducted a control buy from Brian Howard.
The witness stated they arrived at the residence of Brian Howard on Coon Creek
and Brian Howard took the witnesses money and vehicle and began pulling out
of the driveway and stopped[.] Brian exited the vehicle and told the witness that
Greg Howard had just contacted him and told him to wait 15 minutes before
leaving coon creek to come get the pills.
Durring [sic] the buy the witness stated that Brian Howard went to the residence
of Greg Howard described herein to purchase a quantity of Oxycodone pills for
the witness. Detectives also personally observed the witnesses vehicle leaving
the residence described herein.
The witness stated that when Brian returned with the pills that was purchased
that Brian Howard told the witness that he went to purchase the pills from Greg
Howard and further told the witness that Greg Howard was currently laying low
because he was scared of getting caught by Law Enforcement.
(R. 26-2, Search Warrant & Affidavit, Pg ID # 55.) On the following page, the affidavit states:
Acting on the information received, affiant conducted the following independent
UNITE and KSP have been receiving tips about Greg Howard and his Oxycodone
trafficking activities that has been directly linked to Howards Grocery located in
Magoffin County[.] Unite detectives have made controlled buys from the store
from individuals associated with Greg Howard.
(Id. at 56.)
Upon execution of the search warrant, officers found Defendant attempting to dispose of
pills in a bathroom sink.
The officers recovered a portion of the pills, which were later
determined to be Oxycodone. The officers also recovered $5,172 in currency from a bag inside
the residence, which included $340 in buy money used during the controlled buy between Brian
Howard and Shawn Compton.
Defendant was indicted on November 7, 2013, for conspiracy and intent to distribute
oxycodone pills, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), all in
violation of 21 U.S.C. § 846. On February 18, 2014, Defendant filed a motion to suppress
evidence seized from the search of his home pursuant to the warrant. The district court permitted
briefing on the motion and held a telephonic status conference on March 3, 2014, at which the
court determined that a hearing on the motion would not be necessary. On March 26, 2014, the
court issued an order denying Defendant’s motion. United States v. Howard, 2014 WL 1253123,
at *4 (E.D. Ky. 2014).
In its order, the district court held that Shawn Compton “was a named informant and his
statements are therefore generally considered to be reliable even without independent
corroboration to establish his credibility.”
Id. at *2. The court further held that, even if
Compton was not presumptively reliable, the detectives’ observations during the controlled buy
constituted sufficient corroboration to establish probable cause. Id. at *3. The court noted,
however, that the detectives’ independent investigation of Howards Grocery was “of limited
value.” Id. Finally, the court rejected Defendant’s argument that the warrant lacked sufficient
After the court denied his motion to suppress, Defendant entered a conditional guilty plea
that reserved the right to appeal the district court’s ruling on the motion to suppress. On October
15, 2014, the court accepted Defendant’s plea, and he was sentenced below the guidelines to
time served and placed on supervised release. Defendant timely appealed.
Standard of Review
In considering the denial of a motion to suppress, we review the district court’s findings
of fact for clear error and legal conclusions de novo. United States v. Smith, 594 F.3d 530, 535
(6th Cir. 2010). “[T]he district court’s application of the law to the facts, such as a finding of
probable cause, is [also] reviewed de novo.” United States v. Pasquarille, 20 F.3d 682, 685 (6th
Cir. 1994). “Where a district court denies a motion to suppress, this Court considers the
evidence in the light most favorable to the government.” United States v. Hinojosa, 606 F.3d
875, 880 (6th Cir. 2010) (internal brackets and quotation marks omitted) (quoting United States
v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc)).
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation . . . .” U.S. Const. amend. IV. In deciding whether the
affidavit supporting a warrant establishes probable cause, magistrates must consider “the totality
of the circumstances.” United States v. Allen, 211 F.3d 970, 972 (6th Cir. 2000) (en banc) (citing
Illinois v. Gates, 462 U.S. 213, 230–31 (1983)); see also United States v. Davidson, 936 F.2d
Defendant does not raise this argument on appeal.
856, 859 (6th Cir. 1991) (“Probable cause exists when there is a ‘fair probability,’ given the
totality of the circumstances, that contraband or evidence of a crime will be found in a particular
place.”). In turn, “[t]he duty of a reviewing court is simply to ensure that the magistrate had a
‘substantial basis’ for concluding that probable cause existed.” United States v. Gunter, 551 F.3d
472, 479 (6th Cir. 2009) (quoting Gates, 462 U.S. at 238–39).
A magistrate may rely on hearsay evidence provided by an informant when considering
whether probable cause exists to issue a warrant. United States v. Helton, 314 F.3d 812, 819 (6th
Cir. 2003). In so doing, the magistrate should
make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238.
Importantly, these indicia of an informant’s credibility—veracity and basis of
knowledge—provide only a framework for determining whether an informant’s tip creates
probable cause. See Helton, 314 F.3d at 819–20. In other words, the “veracity or reliability and .
. . basis of knowledge” of an informant should not be viewed “as entirely separate and
independent requirements to be rigidly exacted in every case.” Gates, 462 U.S. at 230, 233
(internal quotation marks omitted). Even so, “these factors remain highly relevant in the . . .
analysis under the ‘totality of the circumstances.’” United States v. Smith, 182 F.3d 473, 477
(6th Cir. 1999) (quoting Gates, 462 U.S. at 230).
In Gates, the Supreme Court provided examples of how the veracity/basis of knowledge
framework might play out:
If, for example, a particular informant is known for the unusual reliability of his
predictions of certain types of criminal activities in a locality, his failure, in a
particular case, to thoroughly set forth the basis of his knowledge surely should
not serve as an absolute bar to a finding of probable cause based on his tip. . . .
Likewise, if an unquestionably honest citizen comes forward with a report of
criminal activity—which if fabricated would subject him to criminal liability—we
have found rigorous scrutiny of the basis of his knowledge unnecessary. Adams
v. Williams, [407 U.S. 143 (1972)]. Conversely, even if we entertain some doubt
as to an informant’s motives, his explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed first-hand,
entitles his tip to greater weight than might otherwise be the case.
Id. at 233–34 (emphasizing the necessity of a “balanced assessment of the relative weights of all
the various indicia of reliability”). And regardless how an informant fares in this framework,
“corroboration through other sources of information” can provide “a substantial basis for
crediting” an informant’s tip. Id. at 244–45.
Here, the facts contained in the affidavit bolstered Compton’s veracity and, to a lesser
extent, his basis of knowledge.
In addition, the controlled buy described in the affidavit
corroborated Compton’s tip. For these reasons, we conclude that under the totality of the
circumstances, the magistrate had a substantial basis for concluding probable cause existed, and
that the district court’s order denying Defendant’s motion to suppress should therefore be
Veracity or Reliability
The “veracity or reliability” factor of the Gates framework concerns the individual
informant’s credibility as such. See Gates, 462 U.S. at 233–34. Generally, “[a]n affidavit . . .
must contain a statement about some of the underlying circumstances indicating the informant
was credible or that his information was reliable.” Smith, 182 F.3d at 477. What police know
about an individual informant plays a significant role in evaluation of her veracity. Tips from
anonymous persons, for example, “demand more stringent scrutiny of their veracity, reliability,
and basis of knowledge than reports from confidential informants.” Helton, 314 F.3d at 820; see
also United States v. Johnson, 364 F.3d 1185, 1190 (10th Cir. 2004) (“A tipster who refuses to
identify himself may simply be making up the story, perhaps trying to use the police to harass
The Supreme Court illustrated this principle in Florida v. J.L., 529 U.S. 266 (2000). In
that case, an anonymous caller informed police “that a young black male standing at a particular
bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268. Police discovered a person
matching this description at the indicated location, but did not see a firearm. Id. Even so,
officers frisked the suspect and discovered a gun in his pocket. Id. The Court held “that an
anonymous tip lacking indicia of reliability . . . does not justify a stop and frisk whenever and
however it alleges the illegal possession of a firearm.” Id. at 274. In so holding, the Court
observed that “[u]nlike a tip from a known informant whose reputation can be assessed and who
can be held responsible if her allegations turn out to be fabricated . . . an anonymous tip alone
seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at 270 (internal
quotation marks and citations omitted).
Florida v. J.L. thus suggests that where an informant is known to police, that informant’s
tip is entitled to more weight because (1) officers can assess the informant’s reputation or
otherwise evaluate her credibility, and (2) the threat of prosecution for filing a false statement is
circumstantial evidence of veracity. See id.; see also United States v. May, 399 F.3d 817, 824–
25 (6th Cir. 2005) (“The statements of an informant . . . whose identity was known to the police
and who would be subject to prosecution for making a false report, are thus entitled to far greater
weight than those of an anonymous source.”).
This Circuit has placed particular emphasis on the “informant’s reputation” factor
discussed in Florida v. J.L. In United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc), for
example, this Court held that where an informant “to whose reliability an officer attests with
some detail, states that he has seen a particular crime and particular evidence, in the recent past,”
such a statement may, on its own, be sufficient to establish probable cause. Id. at 976; see also
Smith, 182 F.3d at 483 (“[I]f the prior track record of an informant adequately substantiates his
credibility, other indicia of reliability are not necessarily required.”). But see Allen, 211 F.3d at
986–87 (Clay, J., dissenting) (arguing that a warrant “based simply upon a generalized assertion
regarding the reliability of the informant” is not supported by probable cause).
We have also accorded considerable weight to the threat of prosecution that a named
informant faces for filing a false police report. See, e g., United States v. Hodge, 714 F.3d 380,
384–85 (6th Cir. 2013) (“Statements from a source named in a warrant application . . . are
generally sufficient to establish probable cause without further corroboration because the legal
consequences of lying to law enforcement officials tend to ensure reliability.”); United States v.
Williams, 544 F.3d 683, 690 (6th Cir. 2008) (“the warrant here named the informants, and named
informants, unlike confidential informants, require little corroboration”). But see United States
v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005) (“An informant’s willingness to be named is not
necessarily a better predictor of reliability, in our view, than an informant’s having a track record
of providing reliable information.”). Relying on Hodge and Williams, the district court in this
case concluded, “Compton was a named informant and his statements are . . . generally
considered to be reliable even without independent corroboration to establish his credibility.”
Howard, 2014 WL 1253123, at *2.
We note, however, that the cases cited by the district court involved named informant tips
supported by other indicia of credibility. In Hodge, an informant named in the warrant affidavit
stated that he witnessed “the manufacture of methamphetamine, several firearms, and a bomb” at
the defendant’s residence.
714 F.3d at 382.
In addition to being named, however, the
informant’s tip contained significant details: the informant personally saw persons inside the
target residence “shaking ‘two sports drinks bottles’” and described the bottles’ peculiar
contents, which officers recognized as characteristic of a “one pot style methamphetamine cook.”
Furthermore, upon receiving the informant’s tip, officers “immediately set to work
corroborating” his story, id., and found substantial corroborating evidence in methamphetamine
ingredient purchase logs, police records, and “silent observer” tips. Id. at 385.
Similarly, in Williams, not only was the informant named; officers “corroborated the
information [the informant] provided through multiple sources, including [two cooperating
witnesses], who correctly identified [defendant’s] block.”
544 F.3d at 690.
investigating officer’s “own observations outside [defendant’s] residence substantiated [the
informant’s] statements.” Id.
Indeed, all our named informant cases share this common thread—affidavits containing
an informant’s name plus other indicia of reliability. See, e.g., United States v. Kinison, 710 F.3d
678, 683 (6th Cir. 2013) (holding probable cause existed based on informant’s “credibility as a
named informant along with [her] decidedly intimate relationship” with the suspect, as revealed
in a text-message log provided by the informant (emphasis added)); United States v. Combs, 369
F.3d 925, 938 (6th Cir. 2004) (noting informant “was known to the police . . . [had] informed
them that he had recently traded guns with [defendant] for OxyContin, and his statements
corroborated other information the police already had”); United States v. Miller, 314 F.3d 265,
269–70 (6th Cir. 2002) (noting named informant spoke to police on two occasions over the
telephone, drove with police to the location of the residence at which the informant alleged
illegal activity, and provided a detailed description of the defendant’s marijuana growing
operation); United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986) (“When a witness has
seen evidence in a specific location in the immediate past, and is willing to be named in the
affidavit, the ‘totality of the circumstances’ presents a ‘substantial basis’ for conducting a search
for that evidence.”).
Read in this light, our cases are more in step with the Supreme Court’s admonition that
courts evaluating probable cause must take into account the “totality of the circumstances,”
Gates, 462 U.S. at 230 (emphasis added), rather than implement bright-line rules. See, e.g.,
Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (observing that when evaluating probable cause,
“[w]e have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more
flexible, all-things-considered approach”); see also United States v. Spach, 518 F.2d 866, 870
(7th Cir. 1975) (“That a person is named is not alone sufficient grounds on which to credit an
informer, but it is one factor which may be weighed in determining the sufficiency of an
Certainly, we would run afoul of this admonition—and, indeed, the Fourth
Amendment—were we to declare that police can invade the sanctity of the home based on a
warrant containing only an informant’s name, full stop.2
Practical considerations also caution against giving dispositive weight to an informant’s
tip merely by virtue of her being named in the affidavit. Some classes of informants, named or
otherwise, are not renowned for their veracity. See, e.g., Jaben v. United States, 381 U.S. 214,
224 (1965) (noting that the credibility of narcotics informants “may often be suspect”); 2 Wayne
R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 3.4(a) (5th ed. 2012)
(collecting cases and discussing at length the relative veracity of citizen- and criminalinformants). Moreover, not all informants are aware that officers will use their statements in a
warrant. See Hodge, 714 F.3d at 385 (noting but declining to discuss the fact that the at-issue
“affidavit does not acknowledge that [the informant] was aware his statements would be used in
a warrant application”). And not all informants are aware that false statements might lead to
prosecution. See, e.g., United States v. Braden, 248 F. App’x 700, 706 (6th Cir. 2007) (Moore,
J., dissenting) (“a statement against penal interest can indicate reliability only where the
informant understands his statement as a threat against his penal interest and recognizes the
potential for prosecution.”). Finally, even assuming an informant is aware of the above, the
threat of perjury charges is not always an effective guarantor of veracity, as many trial attorneys
With these principles in mind, we turn to the case at hand.
Notably, the affidavit
provided the magistrate with no information regarding Compton’s history as an informant. Even
so, that Compton faced the threat of prosecution for filing a false police report bolstered his
See K.R.S. § 519.040 (establishing criminal penalties for “falsely reporting an
Defendant’s principal argument on appeal is that the typical presumption of veracity for
named informants ought not apply to Compton because he did not subject himself to liability for
filing a false report. Specifically, Defendant argues that because Compton’s account of what
happened during the controlled buy was based on Brian Howard’s hearsay and not Compton’s
own personal knowledge, Compton could not be charged with “knowingly” filing a false report
because he had no real “knowledge.” We reject this argument for two reasons. First, as a factual
matter, the controlled buy was preceded by Compton’s original tip to police about Defendant and
Brian Howard’s drug dealing operation.
Though Defendant is correct that Compton’s
knowledge of Brian Howard’s actions during the controlled buy were largely based on Brian’s
own hearsay, Defendant cannot attack the original tip in the same manner.
Second, Defendant provides no authority for the proposition that prosecution for falsely
reporting an incident under K.R.S. § 519.040 is impossible where a report is based on hearsay.
That section of the Kentucky Penal Code provides:
(1) A person is guilty of falsely reporting an incident when he:
(b) Reports to law enforcement authorities an offense or incident within their
official concern knowing that it did not occur; or
will surely attest.
(c) Furnishes law enforcement authorities with information allegedly relating
to an offense or incident within their official concern when he knows he has
no information relating to such offense or incident; or
(d) Knowingly gives false information to any law enforcement officer with
intent to implicate another . . . .
K.R.S. § 519.040. A hearsay statement—especially one concerning the declarant’s own illegal
activity—almost certainly constitutes an “incident” or “information” that can both “relate to an
offense” or implicate the declarant in illegal activity. It follows that fabricating such a hearsay
statement would violate the statute. See id.
More importantly, even assuming Compton’s tip did not subject him to the threat of
criminal prosecution, the affidavit provided additional indicia of Compton’s veracity: as with the
informant in Miller, Compton worked with police to corroborate his own tip. See Miller,
314 F.3d at 270. Indeed, Compton went a step further than the informant in Miller. In that case,
the informant merely drove to the defendant’s house with police to confirm its location and
appearance. Id. Here, Compton participated in a controlled buy, perhaps putting himself at
significant risk had his relationship with police been discovered. That Compton so substantively
participated in the investigation lent him some measure of credibility.
For these reasons, we conclude that the indicia of Compton’s veracity contained in the
affidavit lent his tip considerable weight in the totality of the circumstances analysis.
Basis of Knowledge
The “basis of knowledge” factor of the Gates framework “refers to the particular means
by which an informant obtained his information.” Smith, 182 F.3d at 477 (citing Gates, 462 U.S.
at 228). Generally speaking,
[t]here must be sufficient indication of the underlying circumstances from which
an informant could reasonably conclude illegal activity is afoot. . . . In assessing
an informant’s “basis of knowledge,” the degree of detail contained in a tip may
be used to infer whether the informant had a reliable basis for making his
statements. . . . An explicit and detailed description of the alleged wrongdoing
allows a magistrate to “reasonably infer that the informant had gained his
information in a reliable way.”
Id. (quoting Spinelli v. United States, 393 U.S. 410, 416 (1969)); see also Gates, 462 U.S. at
233–34 (suggesting an informant’s “explicit and detailed description of alleged wrongdoing” is
relevant to basis of knowledge analysis). In Smith, for example, an informant told police that he
personally saw the defendant, who was a felon, carrying two specific guns at a specific address
within 48 hours before the warrant was issued. 182 F.3d at 480. The Court held that the
“informant’s basis of knowledge was firsthand, and there was no need for the informant to
speculate further about whether a crime was being committed because mere gun possession by a
felon constitutes a felony.” Id.
Conversely, in Helton, the Court evaluated the statements of an anonymous tipster
regarding a house being used for illegal activity. Helton, 314 F.3d at 816. The Court held that
the affidavit did not sufficiently demonstrate the tipster’s basis of knowledge where: the tipster’s
knowledge was based on hearsay and, in some cases, double hearsay (making the affiant’s
knowledge two or three degrees removed); the tipster’s reports were two months old and
therefore stale; and the tipster failed to provide basic details regarding his or her visit to the
defendant’s residence, such as which rooms were visited or where the evidence of criminal
activity was spotted. Id. at 822. These deficiencies, combined with a lack of corroboration on
the part of police, meant that the tip itself failed to make up for the anonymous informant’s
inherent lack of credibility. See id. at 823.
The affidavit in this case states that, according to Compton:
Brian Howard was currently conducting narcotics deliveries for a variety of
addicts in Magoffin Co . . . Brian Howard is receiving narcotics from [Defendant]
a relative of Brian Howard at [Defendant’s residence].
[Compton] states that Brian Howard does not have a vehicle and usually borrows
the purchasers vehicle and drivers to [Defendant’s residence] to pick up the pills
for the addicts while leaving the addicts at Brians home . . . .
(R. 26-2, Pg ID # 55.)
These statements do little to establish Compton’s basis of knowledge. The affidavit does
not state how Compton knows any of this; the credibility gained from professed firsthand
knowledge is absent. See Smith, 182 F.3d at 480. But see Allen, 211 F.3d at 975 (“[An] affidavit
is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might
say should have been added.”). Thus, the only means of judging Compton’s basis of knowledge
came from the detail provided in his tip.
Unfortunately, Compton’s tip was largely devoid of detail.
The first paragraph,
especially, contains little that would substantiate a particularized basis of knowledge: the use of a
middleman and stash house in the sale of drugs is not unique. The names and relationship of the
suspects likewise suggest only a basic familiarity with the operation. The second paragraph does
a bit more work: that Brian Howard would leave “addicts” at his house and use their cars to drive
to Defendant’s house is, we assume, an unusual way to operate as a middleman. Compton’s
inclusion of these details regarding Brian Howard’s modus operandi thus suggested some
particularized basis of knowledge. And, as discussed below, these details provided investigators
with the opportunity to corroborate Compton’s tip.
In all, however, Compton’s tip as described in the affidavit was largely devoid of detail,
and the affidavit failed to state how Compton came to his knowledge of Defendant’s operation.
For those reasons, Compton’s basis of knowledge did little to bolster the credibility of his tip.
See Helton, 314 F.3d at 822.
Where the veracity and basis of knowledge of an informant have been thoroughly
established, corroboration of the tip may not be necessary. See Allen, 211 F.3d at 976 (holding
“[c]orroboration is not a necessity” where confidential informant’s reliability was well
established and his tip was based on “direct personal observation of criminal activity.”);
Williams, 544 F.3d at 690 (“named informants, unlike confidential informants, require little
corroboration.”). What an informant and her tip lack in intrinsic indicia of credibility, however,
police must make up for in corroboration. See, e.g., United States v. Woosley, 361 F.3d 924, 927
(6th Cir. 2004) (“an affidavit that supplies little information concerning an informant’s reliability
may support a finding of probable cause, under the totality of the circumstances, if it includes
sufficient corroborating information”); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000)
(“information received from an informant whose reliability is not established may be sufficient
to create probable cause when there is some independent corroboration by the police of the
Here, in addition to the indicia of reliability discussed above, the affidavit described two
possible instances of corroboration: first, the controlled buy; second, the independent
investigation into drug sales at a grocery store associated with Defendant. Each is addressed in
The Controlled Buy
When an informant’s statement contains a prediction about criminal behavior, such a
prediction provides officers with an opportunity to “test the informant’s knowledge or
credibility.” Florida v. J.L., 529 U.S. at 271. For example, in Alabama v. White, 496 U.S. 325
(1990), the police received an anonymous tip stating that a woman was in possession of cocaine
and predicting that “she would leave an apartment building at a specified time, get into a car
matching a particular description, and drive to a named motel.” Florida v. J.L., 529 U.S. at 270
(summarizing White, 496 U.S. at 327). The Court held that when police observed the behavior
as predicted, the anonymous tipster’s credibility was bolstered enough to establish reasonable
suspicion to make a Terry stop. White, 496 U.S. at 332. Similarly, in Gates, police received an
anonymous letter describing in some detail the logistics of the defendants’ drug trafficking
scheme. 462 U.S. at 225. The Court held that because officers corroborated multiple details in
the letter, such as the defendants’ peculiar itinerary, “[t]he judge, in deciding to issue the
warrant, could have determined that the modus operandi of the [defendants] had been
substantially corroborated.” Id. at 226.
In this case, detectives attempted to corroborate Compton’s tip by staging a controlled
buy. As Defendant notes, however, the controlled buy had little corroborative value; this is so
for two reasons. First, what happened during the controlled buy was relayed almost entirely by
Compton himself: no undercover officers participated in the buy, Compton did not wear a wire,
and there was limited surveillance. Thus, to the extent discussion of the controlled buy in the
affidavit was an attempt to bolster Compton’s otherwise unknown credibility, the magistrate was
forced to rely on Compton to verify his own veracity.
Furthermore, the details of Brian
Howard’s movements during the encounter—including the fact that he procured the drugs from
Defendant’s residence—were twice removed from Detective Skeens: because Compton did not
accompany Brian Howard to Defendant’s residence, “all Shawn Compton knew [about that part
of the buy] was what Brian Howard told him.” (Def.’s Br. at 14.)
Even so, the affidavit contains one important fact: during the controlled buy, detectives
witnessed Compton’s car leaving Defendant’s residence.
This fact was important in two
respects. First, it substantiated Compton’s prediction that his own vehicle would be used to pick
up the drugs. Second, it linked the alleged criminal activity to Defendant’s residence.
Certainly, the detectives’ observation would have gone further in corroborating
Compton’s tip if, for example, Brian Howard had been seen behind the wheel of the vehicle as it
left Defendant’s residence. We reiterate, however, that an “affidavit is judged 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. And, importantly, the controlled buy does not stand on its own;
rather, it serves to bolster Compton’s credibility as an informant. “It is enough, for purposes of
assessing probable cause, that ‘corroboration through other sources of information reduced the
chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the
[informant’s] hearsay.’” Gates, 462 U.S. at 244–45 (quoting Jones v. United States, 362 U.S.
257, 269, 271 (1960)). By substantiating one detail of Compton’s story—a detail, moreover,
unique to Brian Howard’s modus operandi—the controlled buy reduced the chance that
Compton’s tip was a “reckless or prevaricating tale.” Id.; see also Gunter, 551 F.3d at 480–81
(holding corroboration of named informant’s statements, some of which included suspect’s
hearsay, enhanced informant’s reliability).
For this reason, we find unavailing Defendant’s assertion that the controlled buy was of
no value because “Compton had no personal knowledge as to what occurred inside [Defendant’s]
residence.” (Def.’s Br. at 18.) The magistrate that issued the warrant did not need corroboration
of what happened inside Defendant’s residence; the magistrate needed only enough information
to verify Compton’s credibility as an informant. United States v. McCraven, 401 F.3d 693, 697
(6th Cir. 2005) (“As long as the issuing judge can conclude independently that the informant is
reliable, an affidavit based on the informant’s tip will support a finding of probable cause.”).
The controlled buy provided a basis for doing just that.
For these reasons, we conclude that the investigator’s corroboration of Compton’s tip lent
that tip additional credibility.
The Independent Investigation
The affidavit in this case also contained facts about an “independent investigation”
conducted by investigators. This section of the affidavit states that police:
[had] been receiving tips about [Defendant] and his Oxycodone trafficking
activities that has been directly linked to Howard’s Grocery located in Magoffin
County . . . detectives have made controlled buys from the store from individuals
associated with [Defendant].
(R. 26-2, Pg ID # 56.) The United States argues that this independent investigation lends weight
to the affidavit because it suggests that Defendant is a drug dealer, and the magistrate was
allowed to infer “that evidence of wrongdoing will be found in a drug dealer’s residence.”
(Pet’r’s Br. at 8 (citing United States v. McPhearson, 469 F.3d 518, 524–25 (6th Cir. 2006)).)
The district court, on the other hand, held that this evidence was “of limited value.” Howard,
2014 WL 1253123, at *3. “While it adds reason to believe that [Defendant] is engaged in drug
trafficking, the fact that these other controlled buys were at the grocery store greatly diminishes
their value in assessing the search warrant targeting the residence.” Id.
We agree with the district court’s assessment. The affidavit supporting a warrant “must
suggest ‘that there is reasonable cause to believe that the specific “things” to be searched for and
seized are located on the property to which entry is sought’ and not merely ‘that the owner of
property is suspected of crime.’” McPhearson, 469 F.3d at 524 (quoting Zurcher v. Stanford
Daily, 436 U.S. 547, 556 (1978)); see also United States v. Gunter, 266 F. App’x 415, 418 (6th
Cir. 2008) (“The mere fact that someone is a drug dealer is not alone sufficient to establish
probable cause to search their home.”). And while some cases suggest that
observation of drug trafficking outside of the dealer’s home can provide probable
cause to search the dealer’s house[,] . . . [n]one of these cases . . . 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.
United States v. Frazier, 423 F.3d 526, 532–33 (6th Cir. 2005) (collecting cases).
In this case, the independent investigation did little to confirm, on its own, that drugs
would be found in Defendant’s residence. The investigation’s sole value, therefore, was in
corroborating Compton’s tip that Defendant was a drug dealer. But, as the district court noted,
the investigation provides little in this respect: it suggests only that drugs were purchased at a
grocery store associated with Defendant from persons associated with Defendant.
information is several inferences removed from corroborating Compton’s tip that Defendant was
dealing drugs out of his home through Brian Howard.
For these reasons, we conclude that the independent investigation described in the
warrant is worth little weight in the totality of the circumstances analysis.
Notwithstanding the fact that named informants possess some inherent credibility by
virtue of the consequences of lying to law enforcement, see Hodge, 714 F.3d at 384–85, that
Compton was named in the at-issue affidavit was not, by itself, enough to establish probable
cause. But the affidavit relied on more than the threat of prosecution to establish Compton’s
credibility: it stated that he worked with police to conduct a controlled buy; his tip suggested at
least a limited basis of knowledge by providing details about Brian Howard’s modus operandi;
and investigators personally substantiated one of those details during the course of the controlled
buy. Given these facts, we conclude that the totality of the circumstances “provide[d] the
magistrate with a substantial basis for determining the existence of probable cause.” Gates,
462 U.S. at 239.
Nevertheless, our holding should not be taken as an invitation for investigators to draft—
or for executing officers to rely upon—similarly threadbare affidavits. We are well aware that
affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal
investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965). Even so, we are confident
that no significant harm would have befallen UNITE’s investigation of Defendant had a few selfevidently important details been added to the affidavit—for example, whether investigators
actually recovered any controlled substances from Compton after the controlled buy. And as we
have previously warned, “[p]olice should be aware that failure to corroborate all that can easily
be corroborated . . . risk[s] the loss, at trial or on appeal, of what has been gained with effort in
the field.” Allen, 211 F.3d at 976. Had investigators taken a few simple precautions when
preparing the warrant to search Defendant’s home, this case might not be before us.
For the foregoing reasons, we AFFIRM the district court’s order denying Defendant’s
motion to suppress.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?