NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0415n.06 No. 09-5384 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. GA RY K EVIN ADK

INS, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE EASTE RN DISTRICT OF TENNESSE E

BEFORE: COLE, CLAY, and GILMA N, Circ uit Jud ges. CLAY, Circuit Judge. Def endant Gar

y Kevin Adkins was convicted, following a jury trial

o f: (1 ) conspiring to distribute, and possessing with intent to distribute, 500 g rams or more o f a mix ture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(b)( 1)(A) and 846; (2) aiding and abettin g the di stribution of a quantity of a mix ture and substance containing a detec table amount of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), (b)( 1)(C) and 18 U.S.C. § 2; (3) po s s essing with intent to distribute 500 g rams or more of a mi x ture and substance containing a detec table amount of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(A) ; (4) possessing two firea rms in further ance of a drug traff icking offe nse in violation of 18 U.S.C. § 924(c) (1)( A); and (5) possessing a quantity of a mix ture and substance containing a detec table amount of methamphetamine in violation of 21 U.S.C. § 844. The district court sentenc edNo. 09-5384

Def endant to a 262 month term of imprisonment for the drug convictions to run consec utively with an additional 60 month term of imprisonment for the firea rm convictions. Def endant now a

ppeals his conviction and se ntence

. For the re asons stated be low, we AF F IRM the district court’s judg ment.

STATE MENT OF F ACTS I n ear ly J uly 2007, a confide ntial informant informed Morristown, Tenne ssee police office rs that Def endant reg ularly sold me thamphetamine from his r esidenc e at 5957 Old Whit e Pine Road, Morristown, Tenne ssee. On J uly 6, 2007, the informant place d a call t o Def endant to arr ang e a controlled buy

of half a n ounce of

methamphetamine f

or $1,000. De fenda

nt told the informant to call back i n fiftee n minutes. Fifte en mi nutes later, the informant called De fe n dant a second tim e, at which tim e De fenda

nt stated that he was persona lly unavailable to deliver the drug s, but would send someone to meet the informant at a local Har dee’ s restaur ant t o d eliver the drug s. L aw enfor ceme nt office rs monitored and r ecor ded both ca lls. Whil e the informant was placing the two monitored ca lls to Defenda nt, Tennesse e B urea

u of I nvestig ation (“TB I ”) specia l a g ent J im Williams wa s conducting a surveillance of Def endant’ s residenc e. When the two calls wer e completed, Ag ent Wil liams followed a g ree n pick-up truck, reg istered to Def

endant, from Def

endant’ s residenc e to the desig nated Har dee’ s. Acc ompanied by TBI Special Ag ent Gre g g McNa mara , the informant t ra v el ed t o the Har dee’ s to execute the controlled buy

. En route, the informant place d a third monitored and rec orded call to Def endant in which Def

endant confirme d that Def endant’ s emissary would arr ive at the Har dee’ s in a g ree n pickup truck.

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Upon arr iving at t h e Har dee’ s, the informant exit ed the vehicle in which he arr ived with Ag ent McNa

mara , and g ot into the gre en pickup truck. After a short ti me, the informa nt returne d
to Ag ent McNa mara with a small plastic bag containing a substance t h at fi el d-tested positive for methamphetamine. A n ag ent followed the g ree n pickup truck ba ck to Def endant’ s residenc e. Ba s ed on this encounte r, Ag ent McNa mara prepa red an aff idavit for a war

rant t o s ea rc h De fendant’s residenc e. The same day , a Hamblin County , Tenne ssee judge g rante d the s ea rc h

war rant, and law enf

o rce ment ag ents executed it. Whil e ag ents wer e in the midst of their sear ch, Def endant arr ived at his residenc e, and TBI Special Ag ent Carl Richard Walker advised Def endant of his Miranda ri g hts. Def endant acknow ledg ed that he understood his rig hts, but never theless indicated that the ag ents would find additional methamphetamine in an outbuilding on his proper ty

. During their sear ch of Def endant’ s residenc e, ag ents seized approximately two pounds of methamphetamine, $125,000 in c ash, a ha ndwritten recipe for m ethampheta mine, and two loade d firea rms. The drug s and g uns wer e found in Def endant’ s outbuilding, wh i l e the curr ency and methamphetamine r ecipe wer e found inside De fenda nt’s residenc e. Ag ents arr ested Def

endant and transport ed h i m to the Morristown, Tenne ssee Police Depa rtment. At the station, A g ent Wil liams r ead Def endant his Miranda rig hts f or a second time, and Def endant signe d a form stating that he understood his rig hts. Def endant then waived his rig hts, and g ave a

statement deta iling his drug traff icking activities. Def endant was indicted on Dec ember 1 1 , 2007, and char g ed in a six count superc eding indictment on April 8, 2008. Def endant was char g ed with: (1) conspiring to distri b u t e, and po s s es s i n g with intent to distribute, 500 g rams or more of a mix ture and substance containing

3No. 09-5384

methamphet ami ne in violation of 21 U.S.C. §§ 841(b)( 1)(A) and 846; (2) aiding and abetting the distribut i o n o f a quantity of a mix ture and substance containing a detec table amount of metha mphetamine 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 g rams or more of a mix ture and s u b s tance containing a detec table

am o u n t of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(A) ; (4) and (5) posses s i n g two firea

rms in further ance of a drug traff icking offe nse in violation of 18 U.S.C. § 924(c) (1)( A); an d (6 ) possessing a quantity of a mix ture and substance containing a detec table amount of methamphe tamine in violation of 21 U.S.C. §§ 841(a)(1) and (b) (1)( C). On Marc h 17, 2008, Def

endant moved to suppress his J uly 6, 2007 statements, arg uing that the aff idavit in support of the sear ch war rant did not establish that probable cause exis ted for the

sear ch. The suppression question was ref err ed to a mag istrate judge who conducte d an evidentiar y hear ing. Ultimately , based on the mag istrate judge ’s repor t and rec ommendation, the district court denied Def

endant’ s suppression motion, finding that Ag ent McNa mara ’s corro b o ra t ion of the infomant’s informa tion reg arding Def endant’ s illega l activities constituted probable c ause. Def endant’ s case proce eded to jury trial on J uly 18, 2008. Severa l ag ents testified reg arding the details of the war

rant and attendant sear ch of Def endant’ s residenc e, and Def endant’ s voluntary waiver of his Miranda rig hts. At the trial’s close, the jury found De fenda

nt guilty on all counts. The district cour

t sentence d Def

endant on Marc h 31, 2009. The Prese ntence I nvestig ation Report (“PSR”) calc ulated Def endant’ s advisory g uidelines rang e as follows: 262 to 327 months of incar cer ation for counts one, two, and three ; 15 day s of incar cer ation for count s i x to be serve d

concur rent to the term of im p risonment for counts one throug h three ; and 60 months of

4No. 09-5384

imprisonment to be serve d consec utive with the other sentenc e as require d by 18 U.S.C. § 924(c)

. After discussing the sentenc ing options and the 18 U.S.C. § 3553(a) fac tors, the district court sentenc ed Def

endant to a 262 month term of imprisonment for the drug offe nses, to be followed by a statutorily -manda ted conse cutive 60 month term of imprisonment for the firea rms offe nses. Def endant timely

appea led. DISCUSSIO N I. Mandatory F ive Year Term of Imprisonm ent P ursuan t to 18 U.S.C. § 924(c) (1)( A) A. Stand ard of Review This Court revie ws questions of statutory interpre tation de novo . See United States v. Almany , 598 F.3d 238, 241 (6th Cir. 2010) ; United States v. Stephe ns , 118 F.3d 479, 481 (6th Cir. 1997). B. Analysis Pursuant to 18 U.S.C. § 924(c) (1)( A), the district court sentenc ed Def endant to a mandatory minimum 60 month term of incar cer ation to be serve d consec utive to Def endant’ s 262 month term of imprisonment for his drug convictions. Def endant c ontends that § 924(c) (1)( A) is inapplicable
to him beca

use he was subject to a 10 y ear statutory mandatory minimum sentenc e under 21 U.S.C. § 841, and, as a matter of statutory interpre tation, the district court err ed in imposing this additional
sentenc e on De fenda

nt. Section 942(c) (1)( A) states in re levant par t:

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Ex cept to the e x tent that a g rea ter minimum sentence is other wise provided by

this subsection or by any other provision of law, any person who, during and in rela tion to any crime of violence (including a crime of violence or drug traff icking crime that provides for an enhanc ed p unishment if committed by the use of a deadly or dang erous we apon or de vice) for which the per son may be prose cuted in a c ourt of the United States, uses or car ries a firea

rm, or who, in further ance of any such crime, possesses a firea

rm, shall, in addition to the punishment pr ovided for such crime of violence or

drugtraff

icking crime

– (i) be se ntence d to a term of imprisonment of not less than 5 y ear s. 18 U.S.C. § 924(c)(1) (A). I n its rec ent decision in Abbott v. United States , 131 S. Ct. 18 (2010), the Supr em e Court explained that by including the lang uag e “[e]x cept to the extent that a g rea ter minimum sentenc e is otherwise provided .

. . by any other provision of l aw,” i n § 924(c) (1)( A), “Congr ess m eant[,] [i ]f another provision of t h e United States Code mandates a punishment for using, car ry ing, or posses s i n g a firea

rm in connec tion with a drug traff icking crime or crime of violence, and that minimum sentenc e is longe r than the punishment applicable under § 924(c) , then the longe r sentenc e applies.” Abbott , 131 S. Ct . at 28. Ther efor e, the Supre me Court held that,

a defe ndant is subject to a mandatory consec utive sentenc e for a § 924(c) conviction, and is not spare d from that sentenc e by virtue of re ceiving a highe r mandatory minimum on a differ ent count of conviction. Under the “e x ce pt” clause

. . . a § 924(c) offe nder is not subject to stacke d sentenc es for violating § 924(c)

. . . . He is, howeve r, subject to the highe st ma ndatory minimum specifie d for his c onduct in § 924(c) , unless another provision of law direc ted to c onduct proscr ibed by § 924(c) imposes an eve n g rea

ter manda tory

minimum

. Id . at 23. Following Abbott , we explained that “the lang uag e of § 924(c) ref ers only to other provisions imposing longe r mandatory sentenc es for the conduct § 924(c) proscr ibes, i.e. , possessing a firea rm in connec tion with a predicate crime.” United St a t es v. Ham , 628 F.3d 801, 812 (6th Cir. 2011). 6No. 09-5384

Ba sed on this holding, we explained that “a mandatory minimum sentenc e under § 924(c) must run

consec utively with any mandatory sentenc e for predic ate cr i m es , as well as for other unrela ted crimes. Th e ‘except’ clause in § 924(c) prohibits only the imposit ion of multipl e consec utive mandatory sentenc es under § 924 for using a firea rm in the commission of a violent drug traff icking crime.” Id . at 813. I n its brief to this Court, the g overnme nt “conc ed[ed] that

. . . Def endant’ s sentenc e must be

vacated and rema

nded for rese ntencing .” (B r. of Appellee at 14.) The g overnme nt’s conclusion was based on this Court’s holding in United States v. Almany , 598 F. 3 d 2 38 (6th Cir. 2010), that “the plain lang uag e of [§ 924(c) ] forbids a cou rt fr o m s entencing a criminal defe ndant under both the mandatory minimum sentenc e found in the firea rm statute and another , g rea ter mandatory minimum
sentenc e in any other provision of law.” Id

. at 241. Howeve r, “[a]fter deciding Abbott , the Supreme Court g rante d cer

tiorari an d v ac at ed Almany .” Ham , 628 F.3d at 812. See also United States v. Almany , 131 S. Ct . 637 (2010). There fore , “[w]hi le [Defenda nt’s] ar g ument that the district court

err ed [i n] imposing consec utive mandatory minimum sentenc es pursuant to section 924(c) once had
trac tion, the S u p reme Court’s decision in Abbott

. . . fore close[d] any further discussion on this issue.” United States v. Clark , 634 F.3d 874, No. 08-6174, 2011 U.S. App. L EXI S 5987, at *7 (6th Cir. Mar. 24, 2011) ( internal c itations omi tted). The district court thus did not er r in sentenc ing Def endant to a five y ear term of imprisonment to run consecutive to his 262 month term of imprisonment. II. Suf

fi ciency of the Evidence for Conviction Und er 18 U .S.C. § 924(c) A. Stand ard of Review

7No. 09-5384

We revie w a challeng e based on sufficie ncy of the evidenc e de novo . Un i t ed States v. Howard , 621 F.3d 433, 459 (6th Cir. 2010). Howeve r, when revie wing for the sufficie ncy of evidenc e in s u p p o rt o f a jury verdic t, we view the evidenc e in the light most favor able to the prosec ution and g ive the prosec ution the benef it of all rea sonable infere nces from the testimony

. The questio n we must ask i s whether any rational trier of fact could have found the essential elements of th e cr i m e b ey ond a rea sonable doubt. See United States v. Caver , 470 F.3d 220, 232 (6th Cir. 2006). “Where

. . . a defe ndant does not rende r his motion for judgme nt of acquittal for insufficienc y of the e vidence at the close of all of the proofs, appellate revie w is limited to de termining whether there was a manifest miscarr iag e of justice. A miscarr iag e of

justice exis ts when the rec ord is devoid of evide nce pointing to guilt.” United States v. Pe nney , 576 F.3d 297, 315 ( 6th Cir. 2009). I n this case , at the close of evidenc e Def endan t m oved for a judgme nt of acquittal on the firea rms char g es under 18 U.S.C. § 924(c)

. (R.61, Trial Tr. at 121.) Def endant’ s sufficie ncy of the evidenc e cla im is t hus proper ly prese rved f

or appe llate re view. B. Analysis As an initial matter, it is important to note that “a defe ndant claiming i n s u ff i ci en cy of the evidenc e bear s a very heavy burden.” United States v. Jack son , 473 F.3d 660, 669 (6th Cir. 2007). We “do not weig h the evidenc e, consider the cre dibilit y of witnesses or substitut e our judgme nt for that of the jury .” United States v. Hilliard , 11 F.3d 618, 620 (6th Cir. 1993). I nstead, this Court is “bound to make all rea sonable infere nces and cre dibilit y choice s in support of the jury ’s ver dict,” Jack son , 473 F. 3 d at 6 6 9-70, and “eve n circ umstantial evidenc e alone is sufficie nt to sustain a

8No. 09-5384

conviction and such evidence need not remove ever y rea sonable hy

pothesis ex cept that of guilt.” Hilliard , 11 F.3d a t 620. I n this case, De fenda

nt was convic ted of two c ounts of possessing a firea rm in further ance of a drug crime in violation of 18 U.S

. C

. § 9 24(c)

. Section 924(c) mandates that a minimum

s entence be imposed on “any person who, during and in rela tion to any crime of vio l en ce o r d ru g traff icking crime . . . use s or ca rries a firea rm, or who, in f

urthera nce of any such crime, posse sses

a firea rm, shall, in addition to the punishment provided for such crime of violence or drug traff icking crime.” Def

endant does not dispute his possession of the firea rms in question. Rather, he contends that his possession was not “in further ance ” of a drug traff

icking crime. We have explained that th e term “in further ance of,” as used in § 924(c) , “should be understood in its ordinary or natura l meaning , which

. . . i s a h el p i n g forwa rd: advanc ement, promotion. I n other words, the wea pon must promote or fac ilitate the crime.” United States v. Mack ey , 265 F.3d 457, 460-61 (6th Cir. 2001) (interna l citati o n s o mi tt e d ). There fore , “[b] y requiring that the possession be ‘in further ance of’ the crime, Congr ess intended a specific nexus betwee n the g un and the crime.” Id

. at 462. Mere “possession of a firea rm on the same premises as a drug
transac tion would not, without a showing of a connec tion betwee n the two, sustain a § 9 2 4 (c) conviction.” Penny , 576 F.3d a t 315. Acc ording to our expli cation of § 924(c) , to convict a de fenda nt of possessing a fire arm in further ance of a c onspiracy , [t ]he g overnme nt must clea rly show that a firea

rm was possessed to ad v an ce or promote the commission of the underly ing offe nse. The mere prese nce of a firea rm in an are a wher e a criminal act occur s is not a sufficie n t b asi s for imposing [a § 924(c) ] mandatory sentenc e. Rather, the g overnme nt must illust rate throug h specific 9No. 09-5384

fac ts, which tie the defe ndant to the firea rm, that t h e fi re ar m was possessed to advanc ed or pr omote the cr iminal activity

. Mack ey , 265 F.3d at 461. “[F]actors that may be rele vant to a deter mination of whether the wea pon

was possessed in further ance of the crime include whether the g un was loaded, the ty pe of wea pon, the leg ality of its possession, the ty pe of drug activity condu ct ed, and the time and circ umstances under w hich the fire arm wa s found.” Id . at 462. There fore , “[i] n order for the possession to be in further ance of a drug crime, t h e firea rm must be st rate g ically located so that it is quickly and easily available for use.” Id

. C o n s equently , this Court has stated that “althoug h possession of a fi re arm [o] n the same premises as the drug traff icking activities alone is insufficient to support a conviction under section 92 4 (c ), a j ury can

rea sonably infer that firea rms which are strateg ically located so as to provide defe nse or deter renc e i n fu rthera

nce of the drug trafficking are used i n further ance of a drug traff icking crime.” Un i t ed States v. Swafford , 385 F.3d 1026, 1029 ( 6th Cir. 2004). During Def

endant’ s trial, Ag ent Wil liams testified reg arding the g ener al role of firea rms in d ru g t rafficking

. Ag ent W illiams stated t hat t he purpose of guns i n drug traff icking is to “prote ct [drug traff icker s’] drug s and their assets, their money from other drug deale rs or any one . . . they may d ee m n ec es s ar y to need the wea pon for protec tion.” (R.61, Trial Tr. at 24.) When Def endant’ s counsel asked whether “it would be fair t o say g uns are used to protec t the drug traff icker himself or her self fr om being robbed, f rom whate ver ta ken fr om them, money drug s or whate ver? ” ( id . at 45), Ag ent Wil liams further aff irmed that drug traff

icker s ty pically use firea

rms to protec t themselves, their dr

ug s, and their a ssets during drug transac tions.

10No. 09-5384

Wit nesses also testified to sever al details reg arding the firea rms’ place ment and status when they wer e seized. Detec tive Mike Hurt, a narc otics office r with the Morristown Police Depa rtment, testified that he “first conducte d a sear ch of the trailer, the mobile home [Defenda nt’s residenc e], and later afte r that [he] conducte d a sea rch of an outbuilding” located on D efe ndant’s proper ty

. ( Id

. at 64.) De tective Hur

t testified that “a se t of dig ital scales . . . [and] a bag of meth,” ( id . at 65-66) a s well as “a larg e amount of cash” ( id

. at 68) wer e all “found in the o u t b u i lding.” ( Id

. at 66.) Also found in the outbuilding wer e “a black [D] err inge r handg un,” ( id .) “a semi-automatic handg un,” ( id

. at 72) specific ally , “a [ P] ho en i x ar m s . 2 2 caliber handg un,” ( id

. at 73) and “a m ag azine from the [phoenix ] handg un with 22 rounds in it.” ( Id

. at 74.) Detec tive Hurt fu rt her testified that upon discovery , the Der

ring er handg un “wa s loaded

. . . [wit h] two rounds,” ( id

. at 67), and the Phoenix handg un was a lso loaded. ( Id . at 61.) I n deny ing D efe ndant’s motion for ac quittal, the district court stated that, the evidenc e viewed most favor ably to the g overnme nt establishes that these firea rms wer e lo ca t ed o n premises which wer e at least under the constructive control of the De fe n d an t

. They wer e loaded firea rms, located in close proxi mity to drug s, also located on the same premises which wer e under the constructive control of the Def endant. The court has hear d testimony that firea rms are ty pically used to protec t drug deale rs, their product an d t h e p ro ceeds from the sale of those products

. . . . There wer e actua lly signific ant amounts of money found as well in c lose proxi mity to the firearms. I n short, there is sufficie nt eviden ce i n t h i s rec ord from which the jury could find all of the elements of the [§ 924(c) ] firea rms offe nses, and the motion [for acquittal] will be denied as to those counts. ( Id . at 122-23.) For these rea sons, a rational trier of fac t could have fo u n d t h at Def endant possessed the fi re arms “to advanc e or promote the commission of the [t he drug traff icking ] offe nse,” bey on d a

rea sonable doubt. Mack

ey , 265 F.3d a t 461. “ [V] iew[ing] the evidenc e in the light most favor able

11No. 09-5384

to the prosec ution an d gi v [ i ng ] the prosec ution the benef it of all rea sonable infere nces from the testimony ,” Caver , 470 F.3d at 232, the g overnme nt demonstrated the following piece s of evidenc e at trial: drug traff

icker s g ener ally use firea rms to protec t their d ru gs an d money during drug
transac tions; law enfor ceme nt ag ents found two firea rms in an outbuilding on Def endant’ s proper

ty ; the firea rms wer e loaded; and ag ents also fo u n d a l ar ge amount of methamphetamine in the outbuilding. I n the ag g reg ate, these fac ts sug g est a “spec ific n ex u s , ” Ma cke y , 265 F.3d at 462, betwee n Def

endant’ s firea

rms and his dr

ug traff icking offe nses, namely that Def endant maintained his firea rms in his outbuilding with his methamphetamine to protec t Def endant, and his drug s, when
transac ting business in his outbuilding. A re asonable jury could have found t hat Defenda nt’s firea rms wer e adva

ncing Def endant’ s drug traff icking activities, and th u s that Def endant possessed the firearms “in further ance ” of drug traff icking crimes. III. Motion to Supp ress

A. Stand ard of Review “When revie wing the denial of a motion to suppress evidenc e, this Court revie ws the district court’s finding s of fac t for clea r err or and its conclusions of law de novo . A fac tual finding is clea rly

err oneous when a court, on revie wing the evidenc e, is left with the definite and firm conviction that a mistake ha s been c ommitt ed.” United States v. Gunte r , 551 F.3d 472, 479 ( 6th Cir. 2009). “The duty of a revie wing court is simply to ensure that the mag istrate had a substantial basis for concluding that probable cause exis ted.” Id

. “The district court’s finding that there was probable

cause to support the war

rant is revie wed de novo .” United States v. Higgins , 557 F.3d 381, 389 (6th

12No. 09-5384

Cir. 2009). Moreove r, in r eviewing a district c ourt’s denial of a motion to suppress, we “re view all evidenc e in the lig ht most favorable to the g overnme nt.” Gunter , 551 F.3d a t 479.

B. Analysis Def endant co n t en ds that the aff idavit supporting the J uly 6, 2007 war rant to sear ch his residenc e at 5957 Old Whit e Pine Road, Morristown, Ten nessee , was insufficient to establish probable cause that evidenc e of criminal activity would be found. Def endant contends that “the aff idavit s u p p o rt i ng the war rant to sear ch [Defenda

nt’s] person and proper

ty was based only on a g ener al statement by an u n i dentified confide ntial informant with no indicia of reliability and contained insufficient corr oborating evidenc e.” (B r. of Appellant at 2.) There fore , Def endant arg ues that the district court err ed in failing to suppress the evidenc e seized at his residenc e pursuant to the

sear ch wa rra nt, and Def

endant’ s J uly

6, 2007 statements. The F ourth Amendment to the Constituti on states: “[t] he right of the people to be secur e in their p er s o n s , h o uses, paper s, and eff ects, ag ainst unrea sonable sear ches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause , supported by Oath or aff irmation, and particula rly descr ibing the place to be sear ched, and the persons or things to be seized.” U.S. Const. amend. I V. To satisfy the Four th Amendment’s war

rant require ment, a mag istrate issuing a war rant must be satisfied that proba ble ca use exists for a

sear ch. “[W hen] an aff

idavit is the basis for a probable cause dete rm i nation, that aff idavit must provide the mag istrate with a substanti al b as i s fo r deter mining the exis tence of probable cause .” United States v. Helton , 314 F.3d 812, 819 (6th Cir. 2003). I n such a case , revie w of the sufficie ncy

13No. 09-5384

of the evidenc e supporting probable cause , “is limit ed to the information prese nted in the four corne rs of the a ffidavit.” United States v. Coffee , 434 F.3d 887, 892 ( 6th Cir. 2006). I n issuing a war

rant, the mag istrate must “make a prac tical, common sense decision whether , g iven all the cir cumstance s set forth in t he affidavit before him, including the vera city and basis of knowledg e of persons supply ing hear say information, there is a fair probability that contra band or evidenc e of a crime will be found in a particula r 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. “I n o rder for a judicial office r to issue a war

rant, law enfor ceme nt officia ls must prese nt evidenc e from which the mag istrate judge can conclude from the totality of the circ umstances, including the v er ac i t y and basis of knowledg e of persons supply ing hear say information, there is a fair probability that contra band or evidenc e of a crime will be found in a particula r place .” United States v. Jack son , 470 F.3d 299, 306 (6th Cir. 2006). Howeve r, we have stated that “indepe ndent corr obo ra t i o n o f a confide ntial informant’s story

is not a sine qua non to a finding of proba ble ca use.” Id . at 307. “As long a s the issuing judg e ca

n conclude independe ntly that the i nformation is reliable , an affidavit based on the informant’s tip will support a finding of proba ble ca use.” Coffee , 434 F.3d a

t 893. There fore , “in the absence of any indicia of the informant’ s reliability , courts insist that the aff idavit contain substantial independe nt police corr oboration.” Jack son , 470 F.3d at 307. “[A]n aff idavit that supplies littl e information conce rning an informant’s reliability may support a finding of probable cause , under the totality of the circ umstances, if it includes sufficie nt corr oboration.” Id

. “I n sum, an aff

idavit that supplies littl e information conce rning an informant’s reliability may support

14No. 09-5384

a finding of probable cause , under the totality of t h e circ umstances, if it includes sufficie nt

corr oborating information.” Coffee , 434 F.3d a t 893. We have found that an aff idavit contained sufficie nt corr oborating information wh en “t h e details of the controlled purcha se, and its c onnection to [the place to be sear ched], wer e spelled out in the aff idavit.” Id

. at 894. An aff idavit in which the aff

iant “desc ribed the controlled purcha se that [t he aff iant] org anized to corr oborate the informant’s information

. . . [which] was controlled and witnessed by [t he aff

iant], who sear ched the [i nformant] for money or contra band, provided the [i nformant] with pre- rec orded funds, observe d the [i nformant] enter and exit defe ndant’s house, and then observe d and tested the [contraband] the [i nformant] purcha sed from defe ndant,” id ., included sufficie nt corr oborating information to support probable cause . Simi larly , this Court has found that

an aff idavit that “conta ined [t he aff iant’s] persona l observa tion, his pat down of the informant befor e and afte r the purcha se of the narc otics, and the fac t t h at t h e drug s purcha sed by the confide ntial informant wer e later tested positive for [contraband],” United States v. Pinson , 321 F.3d 558, 563 (6th Cir. 2003), stated sufficie nt fac ts from which a mag istrate judge could deter mine that probable cause exis ted. I n this case, the a ffidavit at issue state d, in releva nt part, This affidavit is m ade by

TBI specia l Ag ent Gre g g McNa mara .

. . . [Your aff iant] met with [the informant] .

. . on J uly 6, 2007, and that [t he informant] provided information reg arding illega l activity , to wit: Gar y Adkins was selling methamphetamine in Ha

melin County

. The [i nformant] state[d] that Gar y Adkins routinely distributes methamphetamine from 5957 Old Whit e Pine Road[,] Morristown, Tenne ssee. On J u l y 6 , 2 0 07, [t he 15No. 09-5384

informant] place d a rec orded phone call to Gar y Adkin s . . . . T he purpose of this phone call was to arr ang e the purcha se of 1⁄2 ounce of methamphetamine from Gary Adkins for the price of $1,000.00. On ce [t he informant] made contac t with Gar y Adkins, Adkins instructed [the informant] to call back in fiftee n minutes. The [ informant] called back in fiftee n minutes and was informed by Gar y Adkins that he would not be able to meet [t he informant], but he would send someone else to meet [t he informant] at the Har dee’ s on highw ay 25E Morristown, Tenne ssee. Shortly afte r [t he informant] contac ted Gar y Adkins, surveillance

. . . TBI [Age nt] J im Wil liams, observe d a g ree n Dodg e pick[-] up truck

. . . reg istered to Gar y Adkins trave l from 5957 Old Whit e P i n e R o ad t o the parking lot of Har dee’ s on highw ay 25E Morristown, Tenne ssee. Your aff iant place d a digital rec ording device on the [i nformant’ s] person. Your aff iant and [t he informant ] d ro v e from the Hamblen County jail parking lot to the Har dee’ s on Hig hway 25E Morristown, Tenne ssee. During the trave l to the Har dee’ s the [i nformant] place d a call to Gar y Adkins stating [t he informant] w as g oing to be late arr iving at the Har dee’ s and to confirm the descr iption of the v eh i cl e the [i nformant] was to meet with. [The informant] was i n fo rm ed the person the [i nformant] was t o m ee t wi th was at the Har dee’ s parking lot and driving a g ree n pick[-] up truck. Upon arr ival at the Har dee’ s on 25E Morristown, Tenne ssee, the [i nformant] g ot into the g ree n pick[-] up truck with an unknown white male. After a short meeting with the unknown male, the [informant] returne d to y our af fiant’s ve hicle and tur

ned over to y our aff iant a red shop cloth containing a small plastic bag g ie that contained a cry stal like substance, which field tested positive as methamphetamine. Your aff iant and [t he informant] returne d to the Hamblen County J ail. Once the g ree n Dod ge p i ck [ -] u p truck left the parking lot of the Har dee’ s it was observe d by surveillance

. . . returning to 5957 Old Whit e Pine Road[,] Morristown, Tenne ssee. (R. 16-1, Aff

. in Supp. of Search War

rant a t 13.) Although the aff

idavit in this case did not discuss the informant’s reliability , like the aff idavits in Coffee and Pinson , it detailed the ag ent’s first-hand observa tion of a controlled buy linked to both De fe ndant and Def

endant’ s residenc e. The aff idavit descr ibed the following fac ts sufficie nt t o support probable cause : three rec orded calls, monitored by Ag ent McNa mara in which the informant 16No. 09-5384

arr ang ed a controlled buy with Def endant and confirme d that the i n fo rmant would buy methamphetamine fro m D e f e n d ant’s emissary who was driving a g ree n pickup truck; Ag ent Wil liams observe d a g ree n pickup truck leave Def endant’ s residenc e, drive to the site of the controlled buy , and
return to Def

endant’ s residenc e after the controlled buy ; Ag ent McNa mara observe d the i nformant
transac t the controlled buy in the g ree n pickup truck; and the informant returne d to Ag ent McNa mara afte r the controlled buy with a plas t i c bag containing a substance that field tested positive for methamphetamine. The police office rs’ first-hand observa tions of contra band circ umst antially linked to Def endant’ s residenc e provide sufficie nt basis for a mag istrate judge to conclude that there was “a fair probability that contra band or ev i d en ce o f a crime will be found in [Defenda nt’s residenc e].” Jack son , 470 F.3d at 306. The dist ri ct judge thus did not err in deny ing Def endant’ s motion to suppress evide nce se ized pursuant to the J uly 6, 2007 sear ch wa

rra nt. Def endant additionally contends that the district court err ed in ref using to suppress statements he made on J uly 6, 2007, afte r office rs sear ched his house and arr ested him. Defe ndant ar g ues that his statements s hould be suppressed because “confe ssions made during or sho rt l y af t er [an] illega l

. . . sear ch ar e tainted . . . a nd involuntary

and should be suppre ssed.” ( Br . of Appe llant at 17.) To be cle ar, D efe ndant admit s that office rs advised him of hi s Miranda rig hts prior to hi s confe ssion. Def endant does not a

rg ue that his Fifth Ame ndment rig hts were violated; Def endant c ontends only that his Fourth Amendme nt rig hts were violated. This Court has ex plained that under Fourth Am endment jurisprudence, “[t] he ex clusionary rule g ener ally bars t h e admissibili ty at trial of tang ible evidenc e, as well as verba l statements,

17No. 09-5384

acquir ed throug h unconstitutional m ea n s . ” United States v. Akridge , 346 F.3d 618, 623 (6th Cir. 2003). This rule extends to “not only primary evidenc e obtained as a direc t result of an illega l sear ch or seizure, but also evidenc e later discovere d and found to be deriva tive of an illega lity or fruit of a poisonous tree.” Id

. As discussed above, in this case , the J uly 6, 2007 sear ch of Def endant’ s residenc e was based

on a war rant supported by probable cause . The sear ch did not violate Def endant’ s Four

th Amendment rig hts. There fore , beca use Def endant’ s J uly 6, 2007 confe ssi o n was not tainted by a Four th Amendment violation, Defe ndant’s conf ession was a dmissibl e. The district court did not err in deny ing Def endant’ s motion to suppres s h i s J uly 6, 2007 confe ssion. CONCLUSION For the fore g oing r easons, we AF F IRM the district court’s judg ment.

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