United States v. Michael Rogers ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0022n.06
Case No. 21-6134
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 11, 2023
)
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
MICHAEL ROGERS, ) TENNESSEE
Defendant-Appellant. ) OPINION
)
Before: BUSH, LARSEN, and MATHIS, Circuit Judges.
MATHIS, Circuit Judge. Michael Rogers appeals the district court’s decision denying
his motion to suppress evidence and challenges the reasonableness of his sentence. We affirm.
I.
In early August 2018, Special Agent Elizabeth White (“Agent White”) of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) received a tip that Rogers was growing
marijuana at 2267 Curve Nankipoo in Lauderdale County, Tennessee (“the Nankipoo residence”)
and was in possession of a firearm while on probation. To verify the tip, Agent White contacted
Rogers’s probation officer, who confirmed he was on probation. As part of his probation order,
Rogers agreed to a search provision that stated: “I agree to a search without a warrant of my person,
vehicle, property or place of residence by any probation, parole officer or law enforcement officer
at any time.” [R. 130, PageID 688].
Case No. 21-6134, United States v. Rogers
On August 9, 2018, Agent White, another ATF agent, and three other law enforcement
officers visited the Nankipoo residence. Lauderdale County Sheriff’s Office investigator James
Jones (“Jones”) was one of the officers present. Upon their arrival at the Nankipoo residence, a
dog outside started barking and Rogers came outside.
Jones told Rogers that the officers were there in response to a tip accusing Rogers of
growing marijuana on the property and possessing a firearm. In 2011, Jones had arrested Rogers
for growing marijuana. Rogers told Jones that he was “doing the same thing as last time.” [R.
121, PageID 479]. Rogers then explained to Jones where some of the marijuana plants were
growing around the property.
Once that conversation concluded, the officers began a warrantless search of the Nankipoo
residence. Meanwhile, Jones introduced Rogers to Agent White. Agent White read Rogers his
Miranda rights before questioning him. Rogers signed a form acknowleding that he had been read
his rights and was willing to answer questions without a lawyer present. Rogers also signed a form
consenting to the search of the Nankipoo residence. The officers ultimately recovered a .22-caliber
rifle, 0.30-06 ammunition, and multiple marijuana plants. Rogers admitted to borrowing the rifle
from his brother and growing marijuana at the Nankipoo residence during the previous several
months.
The officers then transported Rogers to the Lauderdale County Justice Center. There,
Agent White continued her interrogation of Rogers. Approximately three minutes into the
questioning, Agent White reminded Rogers of his Miranda rights. Rogers chose to continue the
interrogation. Rogers said that although he lived primarily with his mother, he had lived at the
Nankipoo residence part-time until May 2018. Rogers still had some of his furniture and clothes
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at the Nankipoo residence. Also, Rogers’s nephew lived at the Nankipoo residence as of August
2018.
A federal grand jury indicted Rogers for one count of felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) (“Count 1”), one count of felon in possession of ammunition in
violation of 18 U.S.C. § 922(g)(1) (“Count 2”), one count of possession with intent to distribute
less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) (“Count 3”), and one
count of possession of a firearm in furtherance of a drug trafficking offense in violation of 18
U.S.C. § 924(c)(1)(A) (“Count 4”). Rogers moved to suppress the evidence from the search of the
Nankipoo residence and his statements to Jones and Agent White at the Nankipoo residence. The
district court denied the motion to suppress. Counts 3 and 4 of the superseding indictment were
ultimately dismissed. After a jury trial, Rogers was found guilty on Counts 1 and 2.
At sentencing, Rogers contested the presentence report’s calculation of his base offense
level as 24 pursuant to U.S.S.G. § 2K2.1(a)(2), arguing that he did not have two prior convictions
for either a crime of violence or a controlled substance offense. Specifically, Rogers argued that
his prior Tennessee felony conviction for manufacturing marijuana was not a “controlled substance
offense” as that term is defined in the Sentencing Guidelines. The district court overruled Rogers’s
objection and sentenced him to 70 months of imprisonment.
II.
On appeal, Rogers argues that the district court erred in denying his motion to suppress the
search of the Nankipoo residence because: (1) he did not reside at the residence; (2) the officers
did not have reasonable suspicion to search the residence; and (3) to the extent the officers had
reasonable suspicion, the information they relied on was stale by the time they conducted the
search. Rogers further argues that the district court erred in finding that his Tennessee
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manufacturing marijuana conviction was a controlled substance offense. Finding that the district
court did not err, we affirm the denial of Rogers’s motion to suppress and affirm his sentence.
A. Motion to suppress.
“In reviewing the denial of a motion to suppress, we review legal questions de novo and
the district court’s factual findings for clear error.” United States v. Cooper, 24 F.4th 1086, 1090–
91 (6th Cir. 2022) (citing United States v. Abdalla, 972 F.3d 838, 844 (6th Cir. 2020)). “A factual
finding will only be clearly erroneous when, although there may be evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009) (quoting United
States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). Because Rogers’s motion to
suppress was denied, “[w]e take the evidence in a light most favorable to the government.” United
States v. Sharp, 40 F.4th 749, 752 (6th Cir. 2022) (citing Abdalla, 972 F.3d at 844).
The Fourth Amendment forbids the government from conducting unreasonable searches
and seizures. U.S. Const. amend. IV; see also Riley v. California, 573 U.S. 373, 381 (2014). The
heart of the inquiry is whether a search was reasonable. United States v. Knights, 534 U.S. 112,
118–19 (2001). Specifically, the degree of the intrusion upon an individual’s privacy is weighed
against the degree to which the intrusion is needed for legitimate governmental interests. Id.Searches “inside a home without a warrant are presumptively unreasonable,” but “this presumption
may be overcome in some circumstances because ‘the ultimate touchstone of the Fourth
Amendment is reasonableness.’” Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)).
A warrantless search of a probationer’s residence may be reasonable based on the totality
of the circumstances. Sharp, 40 F.4th at 753 (citing Samson v. California, 547 U.S. 843, 848
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(2006); Knights, 534 U.S. at 118). “Relevant factors include: (1) a person’s position in the
continuum of criminal punishments; (2) the terms of the search condition communicated to the
person; and (3) the State’s interest in supervision.” Id. (internal citations and quotation marks
omitted).
The probationer’s exception applies because Rogers was subject to a warrantless search
provision and the officers had reasonable suspicion to search the Nankipoo residence. Applying
the relevant factors here: (1) Rogers was on probation at the time of the warrantless search; (2) he
was subject to a search condition plainly stated in his probation order that allowed warrantless
searches; and (3) the State of Tennessee has a strong interest in supervising probationers to ensure
they comply with the terms of their probation and to prevent recidivism. See Knights, 534 U.S. at120–21 (“The State has a dual concern with a probationer. On the one hand is the hope that he
will successfully complete probation . . . . On the other is the concern, quite justified, that he will
be more likely to engage in criminal conduct than an ordinary member of the community.”). As a
probationer subject to such a search condition, Rogers’s expectation of privacy was “significantly
diminished.” See id. at 120. “[T]he balance of these considerations requires no more than
reasonable suspicion to conduct a search of this probationer’s house.” Id. at 121.
Based on the totality of the circumstances, the officers had reasonable suspicion to search
the Nankipoo residence. “Reasonable suspicion exists if, based on the totality of the
circumstances, the officer’s suspicion has ‘a particularized and objective basis.’” Sharp, 40 F.4th
at 743 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Here, Agent White received
an anonymous tip that identified Rogers, alleged specific acts of criminal wrongdoing at the
Nankipoo residence, and correctly identified Rogers as someone on probation.
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Generally, an anonymous tip alone cannot establish reasonable suspicion. Florida v. J.L.,
529 U.S. 266, 270 (2000); Feathers v. Aey, 319 F.3d 843, 849 (6th Cir. 2003). However, if an
anonymous tip is supported by indicia of reliability or corroborated with police observation, it can
provide sufficient grounds for reasonable suspicion. See Feathers, 319 F.3d at 849 (holding that
an anonymous tip did not contain indicia of reliability when the police did not observe what the
tipster reported, and the tip did not predict future movements or indicate inside knowledge of the
criminal activity). Allegations of specific criminal activity in progress or a specific person
engaging in criminal acts are indicia of reliability. See United States v. Johnson, 620 F.3d 685,
690 (6th Cir. 2010). The call in this case identified Rogers and contained specific assertions of
illegality, including that Rogers was growing marijuana and that he was in possession of a firearm
while on probation. Further, the tip accurately referenced Rogers’s probation status and his
presence at the Nankipoo residence, which supports that the tipster had credible information about
Rogers and his activities. See J.L., 529 U.S. at 271. Additionally, Agent White was able to verify
that Rogers was on probation. Rogers was also present at the Nankipoo residence when the officers
arrived, and Rogers advised Jones he was “doing the same thing as last time.” These officer
observations provide further corroboration of the tip. Under the totality of the circumstances, the
facts of this case establish that the officers had reasonable suspicion to search the Nankipoo
residence.
Rogers argues the probationer’s exception cannot apply because he was not living at the
Nankipoo residence at the time of the search, and the address for his mother’s house was the
address listed on his probation order. The residence searched pursuant to a warrantless-search
provision in a probation order need not be the address listed on the probation order if officers
reasonably conclude the probationer resides at a different residence. See, e.g., United States v.
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Henry, 429 F.3d 603, 611 (6th Cir. 2005). And considering the totality of the circumstances,
officers reasonably concluded Rogers lived at the Nankipoo residence rather than his mother’s
home. The officers received a tip alleging that Rogers lived at the Nankipoo residence and
conducted illegal activities there. The tip was corroborated when Officer White verified Rogers
was on probation, and when the officers arrived, Rogers was at the Nankipoo residence. Rogers’s
dog and the dog’s kennel were there, which further supported that Rogers lived at the Nankipoo
residence. Additionally, some of Rogers’s furniture and clothing were at the residence. Nothing
in the record suggests that Rogers informed the officers before they began the search that he did
not reside at the house. And in fact, Rogers gave officers consent to search the residence.
Altogether, the officers had a reasonable basis to conclude that Rogers was living at the Nankipoo
residence.
Next, Rogers argues for the first time on appeal that Agent White’s information was stale
and could not support a finding of reasonable suspicion to justify the search of the Nankipoo
residence. See United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010).1 The exact number of
days between when Agent White received the tip and when the officers conducted the search is
not entirely clear. But the district court found, and Rogers does not appear to dispute, that Agent
White received the tip “several days” before the August 9 search. [R. 130, PageID 688; D. 56 at
19-20]. Regardless, Rogers’s voluntary admission prior to the search that he was doing the “same
thing as last time,” that is, growing marijuana, corroborated and refreshed the tip, rendering it
1
Because Rogers did not raise his staleness argument below, we review his staleness challenge for plain error. United
States v. Doxey, 833 F.3d 692, 702 (6th Cir. 2016). Therefore, Rogers will only prevail if the error “is obvious, affects
substantial rights, and seriously affects the fairness or integrity of judicial proceedings.” United States v. Lopez-
Medina, 461 F.3d 724, 739 (6th Cir. 2006).
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support for reasonable suspicion. See United States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998).
Thus, Rogers’s staleness argument is unavailing.
The search of the Nankipoo residence was supported with reasonable suspicion and the
warrantless-search provision in the probation order. Thus, the district court did not err in denying
Rogers’s motion to suppress.2
B. Sentencing.
Rogers argues that the district court erred in finding he had a base offense level of 24 based
on having two prior felony convictions for controlled substance offenses or crimes of violence.
See U.S.S.G. § 2K2.1(a)(2). Specifically, Rogers contends that his 2011 conviction for
manufacturing marijuana in violation of Tenn. Code Ann. § 39-17-417 is no longer a controlled
substance offense because the Tennessee General Assembly and Congress have narrowed their
respective definitions of marijuana to exclude hemp. See 21 U.S.C. § 802(16); Tenn. Code Ann.
§§ 39-17-402(16)(C), 43-27-101(3). Rogers claims that because his prior conviction for
manufacturing marijuana may have been for manufacturing hemp (we presume the conviction was
for the least criminalized act), and because manufacturing hemp is no longer a controlled substance
offense, the district court erred in counting the manufacturing marijuana conviction as a prior
controlled substance offense. See United States v. Burris, 912 F.3d 386, 406 (6th Cir. 2019) (en
banc).
Unfortunately for Rogers, the day after he filed his opening appellate brief, we decided
United States v. Clark, 46 F.4th 404 (6th Cir. 2022). In Clark, we held that the sentencing court
should look to the drug schedules in place at the time of the prior convictions at issue to determine
2
On appeal, Rogers does not challenge the district court’s finding that his statements to officers at the Nankipoo
residence and later at the Lauderdale County Justice Center were admissible. Thus, we do not review that issue.
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if a defendant was convicted of a “controlled substance offense” for purposes of the Guidelines.
Id. at 406. Clark involved a similar question of whether a prior Tennessee marijuana conviction
was a “controlled substance offense” under the Guidelines after the subsequent change of state and
federal law excluded hemp from the definitions of marijuana. Id. at 406–08. We ultimately found
that “courts must define the term ‘controlled substance offense’ in the Guidelines with reference
to the law in place at the time of the prior conviction at issue.” Id. at 415. Rogers’s manufacturing
marijuana conviction was a controlled substance offense in 2011; therefore, it was still a controlled
substance offense when he was sentenced in this case.
III.
For the reasons stated above, we affirm.
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