USA v. Kevelin Noel
OPINION filed: The judgment of the district court is AFFIRMED. Decision not for publication. Eric L. Clay; John M. Rogers, (authoring); and David W. McKeague, Circuit Judges.
NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0499n.06
Aug 24, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
CLAY, ROGERS, and McKEAGUE, Circuit Judges.
ROGERS, Circuit Judge. In November 2013, Kevelin Noel’s parole supervisor received
a tip from an unnamed caller that Noel had a firearm in his house. An ensuing search revealed a
handgun hidden in the ceiling tiles of Noel’s residence. Noel pled guilty in federal court to being
a felon in possession of a firearm, reserving the right to appeal the denial of his motion to
suppress. As Noel sees things, the search was illegal and the handgun should have therefore
been suppressed as tainted fruit. Because the search was supported by reasonable suspicion,
however, it comported with the Fourth Amendment. Noel’s motion to suppress was therefore
Noel was paroled in 2012, following twelve years’ incarceration on a state sexual-assault
conviction. While on parole, Noel lived with his uncle in a house on Snowden Street in Detroit.
Noel’s parole conditions prohibited him from, among other things, possessing firearms and
United States v. Noel
controlled substances. As a parolee, Noel was also subject to a state administrative rule that
authorizes parole agents with the Michigan Department of Corrections (MDOC) to search a
parolee’s person or property if “there is reasonable cause to believe that a violation of parole
exists.” Mich. Admin. Code R. 791.7735(2). During the course of 2013, Noel tested positive for
marijuana on four occasions, in January, March, September, and November. Agent Mitchell,
Noel’s parole supervisor, testified at an evidentiary hearing that each marijuana violation
provided a basis for parole agents to search Noel’s residence. Id. None of the violations led to
an immediate search, however, and Noel remained on parole.
This appeal concerns a search of Noel’s residence on November 13, 2013, one week after
Noel’s most recent positive marijuana test. On either November 12 or November 13, Mitchell
received a call concerning Noel from a parole agent in another office. According to the other
agent, an unnamed caller had informed the agent that “Noel was in possession of a weapon in his
home.” On the afternoon of November 13, Mitchell received a direct call from “the caller,”
presumably the same one that had contacted the other agent. In that conversation, the caller
repeated that he was “aware that Mr. Noel had a weapon in the home,” and added “that [Noel]
had been assaultive towards his uncle who resided in the home.” Although the caller did not
provide a name, Mitchell did learn the location of the caller and his relationship to Noel. The
caller also disclosed that “he knew [Noel] and he knew [Noel’s] uncle, and he knew that [Noel]
had threatened the uncle and other family members.” Before Mitchell received that call, she
knew that Noel was living with his uncle.
Armed with the tip, Mitchell contacted Agent Rummel, an MDOC parole agent assigned
to an ATF task force charged with conducting home checks for parolees. After Mitchell gave
Noel’s address to Rummel, Mitchell called Noel, asking him to return to his residence. Rummel
United States v. Noel
went to the house with Detroit police officer Malone, who was also attached to the task force.
According to Malone’s testimony, Noel was entering the house through the front door when the
officers arrived, and Rummel walked up to the door. A brief conversation between Rummel and
Noel culminated in “Agent Rummel enter[ing] the dwelling.”
Rummel’s search of the house, he found hidden in the basement’s ceiling tiles a Ruger .22
caliber handgun with an obliterated serial number. Noel was arrested and taken to the parole
office, where he confessed to having possessed the gun for three months. A federal indictment
followed about four months later.
In the district court, Noel filed a motion to suppress the gun and his confession, arguing
that the search was illegal. The search was not supported by reasonable suspicion, Noel asserted,
because the tip from the unnamed caller was “anonymous” and because MDOC agents did not
corroborate the tip. Noel also contested the sufficiency of the evidence of consent.1 Both issues
were addressed at the evidentiary hearing that the district court held in September 2014, a
hearing that involved testimony from only two witnesses.
First, Malone testified to the
circumstances surrounding the search, including his observation of Rummel talking with Noel on
the front porch of Noel’s house. Second, Noel’s parole supervisor, Mitchell, testified about the
November 13 tip, Noel’s parole conditions, and his parole history.
Mitchell also admitted that the parole-compliance search was based entirely on the unnamed
tipster’s calls, not Noel’s positive drug tests. Neither Rummel nor Noel testified.
According to the district court, Noel’s motion faltered on two grounds. In the first place,
the district court held that the tipster’s call, combined with Noel’s four marijuana violations,
provided reasonable suspicion for the search. The district court also held that Noel consented to
In the district court, Noel also challenged the voluntariness of his confession at the parole office. Because he does
not press that argument on appeal, the argument is abandoned.
United States v. Noel
the search, mistakenly asserting that Rummel had testified at the evidentiary hearing as to Noel’s
consent. That ruling eventually led to a Rule 11 guilty plea in March 2015, in which Noel
reserved the right to appeal the denial of the motion to suppress. This appeal followed.
The unnamed tipster’s telephone call to Mitchell on November 13 exhibited sufficient
indicia of reliability to justify a search. Because Mitchell was able to identify the caller, he was
not completely anonymous, and so he could be held accountable for any false allegations. As the
tip alone is sufficient to establish reasonable cause, we need not decide whether Mitchell’s
testimony concerning the basis for the search—the caller’s tip—precludes us from also taking
into account Noel’s four marijuana violations. Nor do we address whether the district court
clearly erred by holding that the search was supported in the alternative by consent.
As an initial matter, Rummel and Malone needed only reasonable suspicion and not
probable cause to search Noel’s residence for a firearm. In Michigan, parolee searches are
governed by Michigan Administrative Code Rule 791.7735(2), which allows for searches of “a
parolee’s person or property” if “there is reasonable cause to believe that a violation of parole
exists.” Because the Fourth Amendment’s warrant and probable-cause requirements do not
apply to parolees to the same extent as other citizens, see United States v. Smith, 526 F.3d 306,
308–09 (6th Cir. 2008), a regulation allowing for parolee searches based on reasonable cause
generally satisfies that Amendment, see United States v. Loney, 331 F.3d 516, 520–21 (6th Cir.
2003). The sole question in this case is whether the state complied with Rule 791.7735(2) in
conducting a so-called special-needs search pursuant to that rule. Cf. Griffin v. Wisconsin,
483 U.S. 868, 880 (1987).
The reasonable-cause requirement was met here, because the November 13 telephone call
to Mitchell provided an objective basis for suspecting that Noel possessed a firearm. The parties
United States v. Noel
agree that “reasonable cause” in Rule 791.7735(2) is identical to the “reasonable suspicion”
standard discussed in Terry v. Ohio, 392 U.S. 1 (1968) and its progeny. Appellant Noel Br. 17;
Appellee Gov’t Br. 15. Reasonable suspicion—a totality-of-the-circumstances inquiry—requires
investigating officers to have “‘articulable reasons’ and ‘a particularized and objective basis for
suspecting the particular person . . . of criminal activity.’” United States v. Lee, 793 F.3d 680,
686 (6th Cir. 2015) (quoting United States v. Payne, 181 F.3d 781, 788 (6th Cir. 1999)). A
caller’s tip concerning criminal activity may provide such a basis if the tip bears sufficient
indicia of reliability. See United States v. Atchley, 474 F.3d 840, 848 (6th Cir. 2007) (citing
Florida v. J.L., 529 U.S. 266, 270–72 (2000)). In this case, although the caller did not give his
name to Mitchell, the tip was reliable. Most significantly, Mitchell testified that she was able to
“identify” the caller based on information provided in the call about the caller’s “location” and
his “relationship” to Noel. That Mitchell knew the caller’s location suggests that she knew
where the caller lived, or at least where the caller could be found. Mitchell would have also been
justified in suspecting that the caller frequented the Snowden Street address, as some of the
information in the call—that “Noel had a weapon in the home” and that he lived with his uncle—
related to activity within the house.
As for the caller’s relationship to Noel, Mitchell’s
knowledge of that information strongly supports the notion that the caller was readily
identifiable. Although Mitchell’s testimony does not disclose what type of relationship the caller
had with Noel, Mitchell’s use of the word “relationship” suggests that the connection between
the caller and Noel was a close one. A parole agent would probably not testify that a caller’s
relationship to a parolee allowed the agent to ascertain the caller’s “identity” if the parolee knew
the caller only as an acquaintance. Moreover, the caller told Mitchell that Noel lived with his
uncle, that Noel had threatened or assaulted the uncle, and that the caller personally knew both
United States v. Noel
Noel and his uncle. That information, in addition to the caller’s relationship and location, would
have allowed Mitchell to narrow down the class of potential callers.
The fact that the caller was ascertainable makes a world of difference. The chief reason
for disfavoring anonymous tips is that unidentified callers can fib with impunity. See United
States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003) (citing J.L., 529 U.S. at 270).
That was the Court’s concern in J.L., where the anonymous tipster—who told police that the
defendant was toting a gun at a bus stop—could have been any citizen in Miami-Dade County.
529 U.S. at 268, 271. The complete anonymity of the caller in J.L. puts distance between that
case and this one. “[A] tip might be anonymous in some sense yet have certain other features,
either supporting reliability or narrowing the likely class of informants, so that the tip does
provide the lawful basis for some police action.”
Id. at 275 (Kennedy, J., concurring).
Mitchell’s knowledge about the caller’s identity—location and relationship to Noel—
significantly increased the chance that the caller could be tracked down and held accountable for
false accusations. This risk therefore increased the caller’s reliability.
Other aspects of the tip also support the conclusion that reasonable suspicion existed. In
the first place, the caller’s awareness that Noel lived with his uncle and the caller’s report of
Noel’s threats suggested that the caller had a basis for knowing that Noel had a gun. This was
not a case where a caller provided barebones information about only the alleged criminal activity
that ultimately resulted in police action. Moreover, the tipster called a parole agent directly, and
so he likely knew that Noel was on parole. This supports reasonable suspicion as well. See
United States v. Yeager, 351 F. App’x 718, 720 (3d Cir. 2009). Also reinforcing reasonable
suspicion is the fact that the tipster called twice in the span of one or two days, talking to two
different parole agents. Because a caller concocting a story would probably be wary about
United States v. Noel
risking identification by calling twice, the fact that this tipster did so increases the likelihood that
he was reporting a legitimate tip.
All told, Mitchell gleaned the following information from the call: (1) the caller knew
Noel and his uncle; (2) the caller knew that Noel lived with his uncle; (3) the caller knew that
Noel was a parolee; (4) the caller believed that Noel had threatened his uncle; and (5) the caller
believed that Noel was in possession of a handgun. In addition, Mitchell learned (6) the caller’s
location and (7) the caller’s relationship to Noel. Finally, Mitchell knew that (8) the caller had
already called a parole office once before, and had reported the same information. On appeal of
a motion-to-suppress denial, the evidence must be viewed “in a light most favorable to the
Government.” Loney, 331 F.3d at 520 (quoting United States v. Galloway, 316 F.3d 624, 628
(6th Cir. 2003)). In this case, the state officers acted on a fresh tip that bore moderate indicia of
Under these circumstances, Mitchell reasonably suspected that Noel was in
possession of a handgun.
To be sure, the tip could have contained more details. For instance, the caller could have
told Mitchell where the gun was hidden in the house, and he could have described the make and
model of the gun. However, reasonable suspicion does not require a microscopic level of detail,
but “only a moderate chance of finding evidence of wrongdoing.” United States v. Hilton, 625 F.
App’x 754, 758 (6th Cir. 2015) (citation and internal quotation marks omitted). That chance was
The judgment of the district court is affirmed.
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