United States v. Gary Adkins , 429 F. App'x 471 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0415n.06
FILED
No. 09-5384
Jun 27, 2011
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
GARY KEVIN ADKINS, EASTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: COLE, CLAY, and GILMAN, Circuit Judges.
CLAY, Circuit Judge. Defendant Gary Kevin Adkins was convicted, following a jury trial
of: (1) conspiring to distribute, and possessing with intent to distribute, 500 grams or more of a
mixture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and
846; (2) aiding and abetting the distribution of a quantity of a mixture and substance containing a
detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18
U.S.C. § 2; (3) possessing with intent to distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A); (4) possessing two firearms in furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1)(A); and (5) possessing a quantity of a mixture and substance containing a
detectable amount of methamphetamine in violation of 21 U.S.C. § 844. The district court sentenced
No. 09-5384
Defendant to a 262 month term of imprisonment for the drug convictions to run consecutively with
an additional 60 month term of imprisonment for the firearm convictions.
Defendant now appeals his conviction and sentence.
For the reasons stated below, we AFFIRM the district court’s judgment.
STATEMENT OF FACTS
In early July 2007, a confidential informant informed Morristown, Tennessee police officers
that Defendant regularly sold methamphetamine from his residence at 5957 Old White Pine Road,
Morristown, Tennessee. On July 6, 2007, the informant placed a call to Defendant to arrange a
controlled buy of half an ounce of methamphetamine for $1,000. Defendant told the informant to
call back in fifteen minutes. Fifteen minutes later, the informant called Defendant a second time,
at which time Defendant stated that he was personally unavailable to deliver the drugs, but would
send someone to meet the informant at a local Hardee’s restaurant to deliver the drugs. Law
enforcement officers monitored and recorded both calls.
While the informant was placing the two monitored calls to Defendant, Tennessee Bureau
of Investigation (“TBI”) special agent Jim Williams was conducting a surveillance of Defendant’s
residence. When the two calls were completed, Agent Williams followed a green pick-up truck,
registered to Defendant, from Defendant’s residence to the designated Hardee’s. Accompanied by
TBI Special Agent Gregg McNamara, the informant traveled to the Hardee’s to execute the
controlled buy. En route, the informant placed a third monitored and recorded call to Defendant in
which Defendant confirmed that Defendant’s emissary would arrive at the Hardee’s in a green pick-
up truck.
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No. 09-5384
Upon arriving at the Hardee’s, the informant exited the vehicle in which he arrived with
Agent McNamara, and got into the green pickup truck. After a short time, the informant returned
to Agent McNamara with a small plastic bag containing a substance that field-tested positive for
methamphetamine. An agent followed the green pickup truck back to Defendant’s residence.
Based on this encounter, Agent McNamara prepared an affidavit for a warrant to search
Defendant’s residence. The same day, a Hamblin County, Tennessee judge granted the search
warrant, and law enforcement agents executed it. While agents were in the midst of their search,
Defendant arrived at his residence, and TBI Special Agent Carl Richard Walker advised Defendant
of his Miranda rights. Defendant acknowledged that he understood his rights, but nevertheless
indicated that the agents would find additional methamphetamine in an outbuilding on his property.
During their search of Defendant’s residence, agents seized approximately two pounds of
methamphetamine, $125,000 in cash, a handwritten recipe for methamphetamine, and two loaded
firearms. The drugs and guns were found in Defendant’s outbuilding, while the currency and
methamphetamine recipe were found inside Defendant’s residence.
Agents arrested Defendant and transported him to the Morristown, Tennessee Police
Department. At the station, Agent Williams read Defendant his Miranda rights for a second time,
and Defendant signed a form stating that he understood his rights. Defendant then waived his rights,
and gave a statement detailing his drug trafficking activities.
Defendant was indicted on December 11, 2007, and charged in a six count superceding
indictment on April 8, 2008. Defendant was charged with: (1) conspiring to distribute, and
possessing with intent to distribute, 500 grams or more of a mixture and substance containing
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No. 09-5384
methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; (2) aiding and abetting the
distribution of a quantity of a mixture and substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; (3) possessing
with intent to distribute 500 grams or more of a mixture and substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); (4) and (5)
possessing two firearms in furtherance of a drug trafficking offense in violation of 18 U.S.C. §
924(c)(1)(A); and (6) possessing a quantity of a mixture and substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
On March 17, 2008, Defendant moved to suppress his July 6, 2007 statements, arguing that
the affidavit in support of the search warrant did not establish that probable cause existed for the
search. The suppression question was referred to a magistrate judge who conducted an evidentiary
hearing. Ultimately, based on the magistrate judge’s report and recommendation, the district court
denied Defendant’s suppression motion, finding that Agent McNamara’s corroboration of the
infomant’s information regarding Defendant’s illegal activities constituted probable cause.
Defendant’s case proceeded to jury trial on July 18, 2008. Several agents testified regarding
the details of the warrant and attendant search of Defendant’s residence, and Defendant’s voluntary
waiver of his Miranda rights. At the trial’s close, the jury found Defendant guilty on all counts.
The district court sentenced Defendant on March 31, 2009. The Presentence Investigation
Report (“PSR”) calculated Defendant’s advisory guidelines range as follows: 262 to 327 months of
incarceration for counts one, two, and three; 15 days of incarceration for count six to be served
concurrent to the term of imprisonment for counts one through three; and 60 months of
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No. 09-5384
imprisonment to be served consecutive with the other sentence as required by 18 U.S.C. § 924(c).
After discussing the sentencing options and the 18 U.S.C. § 3553(a) factors, the district court
sentenced Defendant to a 262 month term of imprisonment for the drug offenses, to be followed by
a statutorily-mandated consecutive 60 month term of imprisonment for the firearms offenses.
Defendant timely appealed.
DISCUSSION
I. Mandatory Five Year Term of Imprisonment Pursuant to 18 U.S.C. §
924(c)(1)(A)
A. Standard of Review
This Court reviews questions of statutory interpretation de novo. See United States v.
Almany, 598 F.3d 238, 241 (6th Cir. 2010); United States v. Stephens, 118 F.3d 479, 481 (6th Cir.
1997).
B. Analysis
Pursuant to 18 U.S.C. § 924(c)(1)(A), the district court sentenced Defendant to a mandatory
minimum 60 month term of incarceration to be served consecutive to Defendant’s 262 month term
of imprisonment for his drug convictions. Defendant contends that § 924(c)(1)(A) is inapplicable
to him because he was subject to a 10 year statutory mandatory minimum sentence under 21 U.S.C.
§ 841, and, as a matter of statutory interpretation, the district court erred in imposing this additional
sentence on Defendant.
Section 942(c)(1)(A) states in relevant part:
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No. 09-5384
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation
to any crime of violence (including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime –
(i) be sentenced to a term of imprisonment of not less than 5 years.
18 U.S.C. § 924(c)(1)(A).
In its recent decision in Abbott v. United States, 131 S. Ct. 18 (2010), the Supreme Court
explained that by including the language “[e]xcept to the extent that a greater minimum sentence is
otherwise provided . . . by any other provision of law,” in § 924(c)(1)(A), “Congress meant[,] [i]f
another provision of the United States Code mandates a punishment for using, carrying, or
possessing a firearm in connection with a drug trafficking crime or crime of violence, and that
minimum sentence is longer than the punishment applicable under § 924(c), then the longer sentence
applies.” Abbott, 131 S. Ct. at 28. Therefore, the Supreme Court held that,
a defendant is subject to a mandatory consecutive sentence for a § 924(c) conviction,
and is not spared from that sentence by virtue of receiving a higher mandatory
minimum on a different count of conviction. Under the “except” clause . . . a §
924(c) offender is not subject to stacked sentences for violating § 924(c) . . . . He is,
however, subject to the highest mandatory minimum specified for his conduct in §
924(c), unless another provision of law directed to conduct proscribed by § 924(c)
imposes an even greater mandatory minimum.
Id. at 23.
Following Abbott, we explained that “the language of § 924(c) refers only to other provisions
imposing longer mandatory sentences for the conduct § 924(c) proscribes, i.e., possessing a firearm
in connection with a predicate crime.” United States v. Ham, 628 F.3d 801, 812 (6th Cir. 2011).
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No. 09-5384
Based on this holding, we explained that “a mandatory minimum sentence under § 924(c) must run
consecutively with any mandatory sentence for predicate crimes, as well as for other unrelated
crimes. The ‘except’ clause in § 924(c) prohibits only the imposition of multiple consecutive
mandatory sentences under § 924 for using a firearm in the commission of a violent drug trafficking
crime.” Id. at 813.
In its brief to this Court, the government “conced[ed] that . . . Defendant’s sentence must be
vacated and remanded for resentencing.” (Br. of Appellee at 14.) The government’s conclusion was
based on this Court’s holding in United States v. Almany, 598 F.3d 238 (6th Cir. 2010), that “the
plain language of [§ 924(c)] forbids a court from sentencing a criminal defendant under both the
mandatory minimum sentence found in the firearm statute and another, greater mandatory minimum
sentence in any other provision of law.” Id. at 241. However, “[a]fter deciding Abbott, the Supreme
Court granted certiorari and vacated Almany.” Ham, 628 F.3d at 812. See also United States v.
Almany, 131 S. Ct. 637 (2010). Therefore, “[w]hile [Defendant’s] argument that the district court
erred [in] imposing consecutive mandatory minimum sentences pursuant to section 924(c) once had
traction, the Supreme Court’s decision in Abbott . . . foreclose[d] any further discussion on this
issue.” United States v. Clark, 634 F.3d 874, No. 08-6174, 2011 U.S. App. LEXIS 5987, at *7 (6th
Cir. Mar. 24, 2011) (internal citations omitted).
The district court thus did not err in sentencing Defendant to a five year term of
imprisonment to run consecutive to his 262 month term of imprisonment.
II. Sufficiency of the Evidence for Conviction Under 18 U.S.C. § 924(c)
A. Standard of Review
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No. 09-5384
We review a challenge based on sufficiency of the evidence de novo. United States v.
Howard, 621 F.3d 433, 459 (6th Cir. 2010). However, when reviewing for the sufficiency of
evidence in support of a jury verdict, we view the evidence in the light most favorable to the
prosecution and give the prosecution the benefit of all reasonable inferences from the testimony. The
question we must ask is whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. See United States v. Caver, 470 F.3d 220, 232 (6th Cir.
2006). “Where . . . a defendant does not render his motion for judgment of acquittal for insufficiency
of the evidence at the close of all of the proofs, appellate review is limited to determining whether
there was a manifest miscarriage of justice. A miscarriage of justice exists when the record is devoid
of evidence pointing to guilt.” United States v. Penney, 576 F.3d 297, 315 (6th Cir. 2009).
In this case, at the close of evidence Defendant moved for a judgment of acquittal on the
firearms charges under 18 U.S.C. § 924(c). (R.61, Trial Tr. at 121.) Defendant’s sufficiency of the
evidence claim is thus properly preserved for appellate review.
B. Analysis
As an initial matter, it is important to note that “a defendant claiming insufficiency of the
evidence bears a very heavy burden.” United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007).
We “do not weigh the evidence, consider the credibility of witnesses or substitute our judgment for
that of the jury.” United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Instead, this Court is
“bound to make all reasonable inferences and credibility choices in support of the jury’s verdict,”
Jackson, 473 F.3d at 669-70, and “even circumstantial evidence alone is sufficient to sustain a
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No. 09-5384
conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”
Hilliard, 11 F.3d at 620.
In this case, Defendant was convicted of two counts of possessing a firearm in furtherance
of a drug crime in violation of 18 U.S.C. § 924(c). Section 924(c) mandates that a minimum
sentence be imposed on “any person who, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses
a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking
crime.” Defendant does not dispute his possession of the firearms in question. Rather, he contends
that his possession was not “in furtherance” of a drug trafficking crime.
We have explained that the term “in furtherance of,” as used in § 924(c), “should be
understood in its ordinary or natural meaning, which . . . is a helping forward: advancement,
promotion. In other words, the weapon must promote or facilitate the crime.” United States v.
Mackey, 265 F.3d 457, 460-61 (6th Cir. 2001) (internal citations omitted). Therefore, “[b]y requiring
that the possession be ‘in furtherance of’ the crime, Congress intended a specific nexus between the
gun and the crime.” Id. at 462. Mere “possession of a firearm on the same premises as a drug
transaction would not, without a showing of a connection between the two, sustain a § 924(c)
conviction.” Penny, 576 F.3d at 315.
According to our explication of § 924(c), to convict a defendant of possessing a firearm in
furtherance of a conspiracy,
[t]he government must clearly show that a firearm was possessed to advance or
promote the commission of the underlying offense. The mere presence of a firearm
in an area where a criminal act occurs is not a sufficient basis for imposing [a §
924(c)] mandatory sentence. Rather, the government must illustrate through specific
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No. 09-5384
facts, which tie the defendant to the firearm, that the firearm was possessed to
advanced or promote the criminal activity.
Mackey, 265 F.3d at 461. “[F]actors that may be relevant to a determination of whether the weapon
was possessed in furtherance of the crime include whether the gun was loaded, the type of weapon,
the legality of its possession, the type of drug activity conducted, and the time and circumstances
under which the firearm was found.” Id. at 462.
Therefore, “[i]n order for the possession to be in furtherance of a drug crime, the firearm
must be strategically located so that it is quickly and easily available for use.” Id. Consequently,
this Court has stated that “although possession of a firearm [o]n the same premises as the drug
trafficking activities alone is insufficient to support a conviction under section 924(c), a jury can
reasonably infer that firearms which are strategically located so as to provide defense or deterrence
in furtherance of the drug trafficking are used in furtherance of a drug trafficking crime.” United
States v. Swafford, 385 F.3d 1026, 1029 (6th Cir. 2004).
During Defendant’s trial, Agent Williams testified regarding the general role of firearms in
drug trafficking. Agent Williams stated that the purpose of guns in drug trafficking is to “protect
[drug traffickers’] drugs and their assets, their money from other drug dealers or anyone . . . they may
deem necessary to need the weapon for protection.” (R.61, Trial Tr. at 24.) When Defendant’s
counsel asked whether “it would be fair to say guns are used to protect the drug trafficker himself
or herself from being robbed, from whatever taken from them, money drugs or whatever?” (id. at
45), Agent Williams further affirmed that drug traffickers typically use firearms to protect
themselves, their drugs, and their assets during drug transactions.
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No. 09-5384
Witnesses also testified to several details regarding the firearms’ placement and status when
they were seized. Detective Mike Hurt, a narcotics officer with the Morristown Police Department,
testified that he “first conducted a search of the trailer, the mobile home [Defendant’s residence], and
later after that [he] conducted a search of an outbuilding” located on Defendant’s property. (Id. at
64.) Detective Hurt testified that “a set of digital scales . . . [and] a bag of meth,” (id. at 65-66) as
well as “a large amount of cash” (id. at 68) were all “found in the outbuilding.” (Id. at 66.) Also
found in the outbuilding were “a black [D]erringer handgun,” (id.) “a semi-automatic handgun,” (id.
at 72) specifically, “a [P]hoenix arms .22 caliber handgun,” (id. at 73) and “a magazine from the
[phoenix] handgun with 22 rounds in it.” (Id. at 74.) Detective Hurt further testified that upon
discovery, the Derringer handgun “was loaded . . . [with] two rounds,” (id. at 67), and the Phoenix
handgun was also loaded. (Id. at 61.)
In denying Defendant’s motion for acquittal, the district court stated that,
the evidence viewed most favorably to the government establishes that these firearms
were located on premises which were at least under the constructive control of the
Defendant. They were loaded firearms, located in close proximity to drugs, also
located on the same premises which were under the constructive control of the
Defendant. The court has heard testimony that firearms are typically used to protect
drug dealers, their product and the proceeds from the sale of those products . . . .
There were actually significant amounts of money found as well in close proximity
to the firearms. In short, there is sufficient evidence in this record from which the
jury could find all of the elements of the [§ 924(c)] firearms offenses, and the motion
[for acquittal] will be denied as to those counts.
(Id. at 122-23.)
For these reasons, a rational trier of fact could have found that Defendant possessed the
firearms “to advance or promote the commission of the [the drug trafficking] offense,” beyond a
reasonable doubt. Mackey, 265 F.3d at 461. “[V]iew[ing] the evidence in the light most favorable
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No. 09-5384
to the prosecution and giv[ing] the prosecution the benefit of all reasonable inferences from the
testimony,” Caver, 470 F.3d at 232, the government demonstrated the following pieces of evidence
at trial: drug traffickers generally use firearms to protect their drugs and money during drug
transactions; law enforcement agents found two firearms in an outbuilding on Defendant’s property;
the firearms were loaded; and agents also found a large amount of methamphetamine in the
outbuilding. In the aggregate, these facts suggest a “specific nexus,” Mackey, 265 F.3d at 462,
between Defendant’s firearms and his drug trafficking offenses, namely that Defendant maintained
his firearms in his outbuilding with his methamphetamine to protect Defendant, and his drugs, when
transacting business in his outbuilding.
A reasonable jury could have found that Defendant’s firearms were advancing Defendant’s
drug trafficking activities, and thus that Defendant possessed the firearms “in furtherance” of drug
trafficking crimes.
III. Motion to Suppress
A. Standard of Review
“When reviewing the denial of a motion to suppress evidence, this Court reviews the district
court’s findings of fact for clear error and its conclusions of law de novo. A factual finding is clearly
erroneous when a court, on reviewing the evidence, is left with the definite and firm conviction that
a mistake has been committed.” United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009).
“The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis
for concluding that probable cause existed.” Id. “The district court’s finding that there was probable
cause to support the warrant is reviewed de novo.” United States v. Higgins, 557 F.3d 381, 389 (6th
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No. 09-5384
Cir. 2009). Moreover, in reviewing a district court’s denial of a motion to suppress, we “review all
evidence in the light most favorable to the government.” Gunter, 551 F.3d at 479.
B. Analysis
Defendant contends that the affidavit supporting the July 6, 2007 warrant to search his
residence at 5957 Old White Pine Road, Morristown, Tennessee, was insufficient to establish
probable cause that evidence of criminal activity would be found. Defendant contends that “the
affidavit supporting the warrant to search [Defendant’s] person and property was based only on a
general statement by an unidentified confidential informant with no indicia of reliability and
contained insufficient corroborating evidence.” (Br. of Appellant at 2.) Therefore, Defendant argues
that the district court erred in failing to suppress the evidence seized at his residence pursuant to the
search warrant, and Defendant’s July 6, 2007 statements.
The Fourth Amendment to the Constitution states: “[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. To satisfy the Fourth Amendment’s warrant requirement, a magistrate issuing a warrant
must be satisfied that probable cause exists for a search.
“[When] an affidavit is the basis for a probable cause determination, that affidavit must
provide the magistrate with a substantial basis for determining the existence of probable cause.”
United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). In such a case, review of the sufficiency
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No. 09-5384
of the evidence supporting probable cause, “is limited to the information presented in the four corners
of the affidavit.” United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006).
In issuing a warrant, the magistrate must “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.” Gunter, 551 F.3d at 479 (quoting Illinois v.
Gates, 462 U.S. 213, 238-39 (1983)); see also Higgins, 557 F.3d at 389. “In order for a judicial
officer to issue a warrant, law enforcement officials must present evidence from which the magistrate
judge can conclude from the totality of the circumstances, 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.” United States v. Jackson, 470 F.3d 299, 306
(6th Cir. 2006). However, we have stated that “independent corroboration of a confidential
informant’s story is not a sine qua non to a finding of probable cause.” Id. at 307. “As long as the
issuing judge can conclude independently that the information is reliable, an affidavit based on the
informant’s tip will support a finding of probable cause.” Coffee, 434 F.3d at 893.
Therefore, “in the absence of any indicia of the informant’s reliability, courts insist that the
affidavit contain substantial independent police corroboration.” Jackson, 470 F.3d at 307. “[A]n
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 corroboration.” Id.
“In sum, an affidavit that supplies little information concerning an informant’s reliability may support
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No. 09-5384
a finding of probable cause, under the totality of the circumstances, if it includes sufficient
corroborating information.” Coffee, 434 F.3d at 893.
We have found that an affidavit contained sufficient corroborating information when “the
details of the controlled purchase, and its connection to [the place to be searched], were spelled out
in the affidavit.” Id. at 894. An affidavit in which the affiant “described the controlled purchase that
[the affiant] organized to corroborate the informant’s information . . . [which] was controlled and
witnessed by [the affiant], who searched the [informant] for money or contraband, provided the
[informant] with pre-recorded funds, observed the [informant] enter and exit defendant’s house, and
then observed and tested the [contraband] the [informant] purchased from defendant,” id., included
sufficient corroborating information to support probable cause. Similarly, this Court has found that
an affidavit that “contained [the affiant’s] personal observation, his pat down of the informant before
and after the purchase of the narcotics, and the fact that the drugs purchased by the confidential
informant were later tested positive for [contraband],” United States v. Pinson, 321 F.3d 558, 563 (6th
Cir. 2003), stated sufficient facts from which a magistrate judge could determine that probable cause
existed.
In this case, the affidavit at issue stated, in relevant part,
This affidavit is made by TBI special Agent Gregg McNamara.
...
[Your affiant] met with [the informant] . . . on July 6, 2007, and that [the informant]
provided information regarding illegal activity, to wit: Gary Adkins was selling
methamphetamine in Hamelin County.
The [informant] state[d] that Gary Adkins routinely distributes methamphetamine
from 5957 Old White Pine Road[,] Morristown, Tennessee. On July 6, 2007, [the
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No. 09-5384
informant] placed a recorded phone call to Gary Adkins . . . . The purpose of this
phone call was to arrange the purchase of ½ ounce of methamphetamine from Gary
Adkins for the price of $1,000.00. Once [the informant] made contact with Gary
Adkins, Adkins instructed [the informant] to call back in fifteen minutes.
The [ informant] called back in fifteen minutes and was informed by Gary Adkins that
he would not be able to meet [the informant], but he would send someone else to meet
[the informant] at the Hardee’s on highway 25E Morristown, Tennessee. Shortly after
[the informant] contacted Gary Adkins, surveillance . . . TBI [Agent] Jim Williams,
observed a green Dodge pick[-]up truck . . . registered to Gary Adkins travel from
5957 Old White Pine Road to the parking lot of Hardee’s on highway 25E
Morristown, Tennessee.
Your affiant placed a digital recording device on the [informant’s] person. Your
affiant and [the informant] drove from the Hamblen County jail parking lot to the
Hardee’s on Highway 25E Morristown, Tennessee. During the travel to the Hardee’s
the [informant] placed a call to Gary Adkins stating [the informant] was going to be
late arriving at the Hardee’s and to confirm the description of the vehicle the
[informant] was to meet with. [The informant] was informed the person the
[informant] was to meet with was at the Hardee’s parking lot and driving a green
pick[-]up truck.
Upon arrival at the Hardee’s on 25E Morristown, Tennessee, the [informant] got into
the green pick[-]up truck with an unknown white male. After a short meeting with the
unknown male, the [informant] returned to your affiant’s vehicle and turned over to
your affiant a red shop cloth containing a small plastic baggie that contained a crystal
like substance, which field tested positive as methamphetamine. Your affiant and [the
informant] returned to the Hamblen County Jail.
Once the green Dodge pick[-]up truck left the parking lot of the Hardee’s it was
observed by surveillance . . . returning to 5957 Old White Pine Road[,] Morristown,
Tennessee.
(R. 16-1, Aff. in Supp. of Search Warrant at 13.)
Although the affidavit in this case did not discuss the informant’s reliability, like the affidavits
in Coffee and Pinson, it detailed the agent’s first-hand observation of a controlled buy linked to both
Defendant and Defendant’s residence. The affidavit described the following facts sufficient to
support probable cause: three recorded calls, monitored by Agent McNamara in which the informant
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No. 09-5384
arranged a controlled buy with Defendant and confirmed that the informant would buy
methamphetamine from Defendant’s emissary who was driving a green pickup truck; Agent Williams
observed a green pickup truck leave Defendant’s residence, drive to the site of the controlled buy, and
return to Defendant’s residence after the controlled buy; Agent McNamara observed the informant
transact the controlled buy in the green pickup truck; and the informant returned to Agent McNamara
after the controlled buy with a plastic bag containing a substance that field tested positive for
methamphetamine.
The police officers’ first-hand observations of contraband circumstantially linked to
Defendant’s residence provide sufficient basis for a magistrate judge to conclude that there was “a
fair probability that contraband or evidence of a crime will be found in [Defendant’s residence].”
Jackson, 470 F.3d at 306. The district judge thus did not err in denying Defendant’s motion to
suppress evidence seized pursuant to the July 6, 2007 search warrant.
Defendant additionally contends that the district court erred in refusing to suppress statements
he made on July 6, 2007, after officers searched his house and arrested him. Defendant argues that
his statements should be suppressed because “confessions made during or shortly after [an] illegal
. . . search are tainted . . . and involuntary and should be suppressed.” (Br. of Appellant at 17.) To
be clear, Defendant admits that officers advised him of his Miranda rights prior to his confession.
Defendant does not argue that his Fifth Amendment rights were violated; Defendant contends only
that his Fourth Amendment rights were violated.
This Court has explained that under Fourth Amendment jurisprudence, “[t]he exclusionary
rule generally bars the admissibility at trial of tangible evidence, as well as verbal statements,
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No. 09-5384
acquired through unconstitutional means.” United States v. Akridge, 346 F.3d 618, 623 (6th Cir.
2003). This rule extends to “not only primary evidence obtained as a direct result of an illegal search
or seizure, but also evidence later discovered and found to be derivative of an illegality or fruit of a
poisonous tree.” Id.
As discussed above, in this case, the July 6, 2007 search of Defendant’s residence was based
on a warrant supported by probable cause. The search did not violate Defendant’s Fourth
Amendment rights. Therefore, because Defendant’s July 6, 2007 confession was not tainted by a
Fourth Amendment violation, Defendant’s confession was admissible.
The district court did not err in denying Defendant’s motion to suppress his July 6, 2007
confession.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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