NOT RECOMMENDED FOR PUBLICATION File Name: 23a0022n.06
Case No. 21

- 6134
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
MICHAEL ROGERS , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE OPINION

B efore : 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.
I n 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 w as in possession of a firearm while on probation. To verify the tip, Agent White contacted Roger s ’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 searc h 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

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On August 9, 2018, Agent White, another ATF agent, and three other law enforcement of ficers visited the Nankipoo residence. Lauderdale County Sheriff’s Office i nvestigator 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 tol d 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 th at conversation concluded, the officers began a warrantless search of the Nankipoo residence . Meanwhile, Jones introduced Roger s 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 ans wer questions without a lawyer present. Rogers also signed a form consenting to the search of the Nankipoo residence. The officer s 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 i nterrogation 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
Na nkipoo residence part

- time until May 2018. Rogers still had some of his furniture and clothesCase No. 21

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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 felo n in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (“Count 1”), one count of f elon in p ossession of a mmunition in violation of 18 U.S.C. § 922(g)(1) (“Count 2”), one count of p ossession with i ntent to d istribute less than 50 k ilograms of m a rijuana in violation of 21 U.S.C. § 841(a)(1) (“Count 3”), and one
count of p ossession of a f irearm in f

urtherance of a d rug t rafficking o ffense 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 su ppress. 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 hi s 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 informat ion they relied on was stale by the time they conducted the search. Rogers further argues that the district court erred in finding that his TennesseeCase No. 21

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manufacturing marijuana conviction was a controlled substance offense. Finding that the district court d id not err, we affirm the denial of Rogers’s motion to suppress and affirm his sentence. A. Motion to s uppress . “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.” Unit ed 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 Roger s ’s motion to suppress was denied, “ [w] e take the evidence in a light most favorable to the government.” Uni ted 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
Amen dment 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, 848Case No. 21

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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 ; a nd (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 th e warrantless search ; (2) he was subject to a search condition plainly stated in his probation order that allowed warrantless searche s ; and (3) the S tate 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. at
120

– 21 (“The State has a dual concern with a probatione r. 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 i d . 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, t he officers had reasonable suspicion to search the Nankipoo reside nce. “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 r eceived

a n anonymous tip that identified Rogers, alleged specific acts of criminal wrongdoing at the Nankipoo residence, and correctly identified Rogers as someone on probation.Case No. 21

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Generally, an anonymous tip alone cannot establish reasonable suspicion. Fl orida 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 susp icion. 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,
69 0 (6th Cir. 2010). T he call in this case identified Rogers and contained specific assertion s of illegality , including that Rogers was growing marijuana and that he was in possession of a firearm while on probation . Further, the tip accurately reference d Rogers’ s probation status and his presence at the Nan kipoo residence , which supports that the tipster had credible information about Rogers and his activities

. See J.L. , 529 U.S. at 271. Additional l y , Agent White was able to verify that Rogers was on probation

. Rogers was also present at the Nankipoo resi dence 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
add ress listed on his probation order

. T he 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 residen ce. See, e.g. , United States v.Case No. 21

- 6134 , United States v. Rogers

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Henry , 429 F.3d 603, 611 (6th Cir. 20 05 ). And considering the totality of the circumstances, officers reasonably concluded Rogers lived at the Nankipoo residence rather than his mother’s
home. T he officers received a tip alleging that Rogers lived at the Nankipoo residence and conduct ed 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 a nd 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. N othing 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 conclu de that Rogers was living at the Nankipoo residence. Next, Rogers argues for the first time on appeal that Agent White’s information was stale

a nd could not support a finding of reasonable suspicion to justify the search of the Nankipoo residence. See U

nited 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 mar ijuana, 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 i f 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).Case No. 21

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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.
T he 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 deny ing 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 felon y convictions for controlled substance offenses or crimes of violence

. See U.S.S.G. § 2K2.1(a)(2). Specifically, Rogers contends that his 20 11 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 the ir respective definitions of marijuana to exclude hemp. See 21 U.S.C. § 802(16); Tenn. Code Ann. §§ 39

- 17

- 402(16)(C), 43

- 27

- 1 0 1 (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, t he day after he filed his opening appella te brief, we decided United States v. Clark , 46 F.4th 404 (6th Cir. 2022). In Clark , we held that the sentenci ng 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 th at issue.Case No. 21

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if a defendant was convicted of a “controlled substance offense” for purposes of the G uidelines. 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 plac e 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 t he reasons stated above, we affirm.