NOT RECOMMENDED F OR P UBLICATION F ile Nam e: 12a0160n.06 No. 10-2636 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. DONAL D J AMES HOL L I N, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE WES TERN DI STRI CT OF MI CHI GAN
OPI NI ON
Before: COOK , WHITE , and DONALD, Circuit Judges.
BERNICE B. DONALD , Circuit Judge. Def endant- Appellant Donald J ames Hollin was convicted of sever al drug offe nses in the Western District of Michig an. Be cause Hollin had multipl e p ri or felony drug convictions, the district court sentenc ed him to life imprisonment on two of t h e counts. Hollin now appea ls his convic t i o n an d s en tence
. I n particula r, Hollin challeng es (1) the district court' s denial of a motion to suppress evidenc e seized pursuant to a sear ch wa

rra nt; (2) the district court' s decision to limi t cr o s s-examination of a Gover nment witness who identified fing erpr ints on seized items as belong ing to Hollin; and (3) the constitutionalit y of the life sentenc e. For the re asons assig ned her ein, we A FF I RM.No. 10-2636

United States v. Hollin I
. I n J une 2009, office rs with the Kalama zoo Valley Enforc ement Team and the Drug Enforc ement Administration beg an an investigation of Arthur An d er s o n for suspicion of drug traff icking in Kalama zoo, Michig an. On J une 4, they beg an surveiling Ander son and followed him from Kalama zoo to T &D Motors in Wy oming, Michig an. At T& D Motors, Ander son met Hollin, who enter ed Ander son' s vehicle. The office rs followed Ander son and Hollin to 2623 Walden Wood in Wy oming, Michig an (" the Apar tment")
. Hollin e ntere d the Apar tment but quickly exit ed it a nd
ree ntere d the ca

r. Hollin and Ande rson then re turned to T& D Motors.
The office rs continu ed t o follow Ander son as he left Wy oming and heade d back toward K a la ma zoo. When Ander son enter ed Kalama zoo County , the office rs pulled him over for display ing
an improper license plate. During the stop of Ander son' s vehicle, the office rs employ ed a drug -sniffing dog
. The dog indicated that drug s wer e located in the driver’ s side door. The office rs
sear ched the door, and in the storag e compar tment they found a substance rese mbling heroin. The office rs sent the substance to the Kalama zoo Department of Public Safety Crime L aboratory (the "Crime L ab" ), which c onfirmed that the substanc e wa s 49.95 g rams of he roin.
After the office rs sear ched Ander so n 's ca r and discovere d the heroin, they returne d to the Apar tment. When they arr ived they met Tene Redd outside the Apar tment. Redd, who lived in the Apar tment, informed the office rs that Hollin was her children' s g odfathe r. She told the office rs that Hollin had a key to the Apartment, could come and go as he plea sed, and ha d rec ently been in the
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United States v. Hollin Apar tment. The office rs asked Redd whether Hollin ha d ever asked he r to store a

ny thing for him, and she responde d that Hollin had stored a t h re e fo o t by four foot box in the Apar tment approximately

one month prior. Redd stated that she did not know what the box contained.
The office rs asked Redd whether they could sear ch the Apar tment to ensure no one else was inside. Redd consente d to the sear ch. When Redd enter ed the Apar tment she went to the bedroom closet and rea ched for a shopping bag
. Asked by the office rs about her action, Redd responde d that she wa s showing the m that no one was in the c loset.
As the office rs proce eded throug h Redd' s bedroom they noticed a small number of marijuana
roac hes, which Redd admitted was for her persona l use. The office rs asked Redd whether they could
sear ch the rest of the Apar tment for narc otics, but she would not consent, saying she had to g o pick up her c hildren. The of

fice rs then sec ured the Apar tment while they

obtained a se arc h war

rant.
After the encounte r with Redd at the Apar tment, Offic er Michae l Fe rguson soug ht a war rant from the Michig an Eig hth Judicial Court to searc h the Apar tment. Fer guson swore to a n aff idavit that summarized the officers' encounte r wit h Redd and the walk-through s ea rc h o f t he Apartment to which Redd consente d. Fe rguson then listed four nug g ets of information provided b y R edd to another office r on the sce ne:
1. Donald Hollin has neve r spent the nig ht at her a partment. 2. Approxim ately one month a g o, Reed [si c] allowed Donald Hollin to store a 3 foot by 4 foot box at her apar tment. Reed [si c] did not see wher e he put the box and did not know what wa s inside it. - 3 -No. 10-2636

United States v. Hollin 3. Since the ag ree ment to store the box, Donald Hollin has been in posse ssion of key s to the apar

tment and ca

n come a nd g o as he ple ases. 4. Donald Hollin may be b ring ing things into the apar tment without her knowledg e.
Unfortunately , the aff

idavit did not mention the ear lier observa tions of Ho l l in and Ander son, Hollin’s visit to the Apar

tment, or the seizure of c ocaine from Ande rson’s vehic le.
Fe rguson then rec ited a list of g ener al char acte ristics of drug traff icking ba s ed on his persona l
e x perie nce in drug investigations. Fr om this information, Fe rguson asser ted that there was " p r o b a

b le
cause to believe that marijuana can be found at [t he Apar tment] and that the occ upant is partaking in ong oing violations of the controlled substance act." The aff idavit listed the items to be seized as:
1. Any

forms of mar ijuana and a ny other c ontrolled substance s. 2. Any tools, equipment, rec ords, notes, tabulations and U.S. curr ency believed to be evidenc e and proce eds in manufa cturin g a n d /o r tr a fficking of controlled substances. 3. Any paper , bills, rec eipts showing residenc y or control of the above premises. 4. Any

and all fire arms located in the af oreme ntioned premises. The mag istrate issued the wa rra nt to searc h the Apar

tment for the a

bove-listed items.
When the office rs executed the se arc h war rant, they examined the shopping ba g for which Redd had reac hed. Inside they found a ble nder box containing a substance believed to be heroin. The substance was sent to the Crime L ab, which confirme d it to be 1,532 g rams of heroin. Offic ers

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United States v. Hollin also seized a box of sandwich bag s, a digital scale , and some latex g loves from the closet as well as the marijuana

roac hes in the bedr oom and some docume nts from the living r oom.
I n the Second Superseding I ndictment filed April 15, 2010, Hollin was ch ar ged wi t h one count of Conspiracy to Distribute and to Possess with I ntent to Distribute Her oin and Cocaine afte r two or m ore felony drug convictions, 21 U.S.C. § § 8 4 6 , 8 4 1(a) (1), (b)(1)( A)(I ), (b)(1)(B )(ii), one count of Possession with I ntent to Distribute Her oin, 21 U.S.C. § 841(a) (1), (b)(1)( A)(I ), an d one count of Distribution of H eroin, 21 U.S.C. § 841(a) (1), ( b)(1) (C). On Apr il 27, 2010, Hollin f iled
a motion to s uppress the e vidence seized from the Apar tment dur ing the sear ch on the g round that the sear ch war

rant did not show probable cause . On J une 25, 2010, the district court denied Hollin's motion to suppress. The district court found that the aff idavit supporting the war

rant demonstrated probable cause to se arc h the Apar tment f or two rea sons: ( 1) the prese nce of the marijuana roac hes supported a suspicion that other drug s would be prese nt; and (2) the statements by Redd sug g ested that additional contra

band would be unc overe d during a sea rch.
On J uly 19, 2010, the case proce eded to tr ial. The Gover nment produce d two witnesses to testify reg arding fing erpr int evidenc e. David Thomas testified about how he lifted an d p ro cesse d fing erpr ints found on the items s eized from the Apar tment, including fing erpr ints located on the blender box , plastic bag s, and a battery fro m the postal scale
. Ex hibits of these fing erpr ints wer e admit t ed wi thout objection. The Gover nment also called Marty J ohnson, who identified the fing erpr ints found on the items seized from the Apar tment as Hollin's. During the cross-e x amination of J ohnson, Hollin's counsel beg an asking quest ions about the reliability of J ohnson' s repor t and - 5 -No. 10-2636

United States v. Hollin when his repor

t was place d in the sy stem that g ener ates the master police repor t. The Gover

nment objected to this questioning, a nd the district c ourt sustained the objec tion, lim iting Hollin' s line of questioning t o t h e subject of what J ohnson did and whether he rec orded what he did for purposes of memory

ref reshment.
On J uly 22, 2010, the jury returne d a verdic t f inding Hollin guilty of conspirac y involving
one kilogr am or more of heroin; possession with intent to distribute one kilogr am or more of heroin; and distribution of heroin. The jury found Hollin not guilty

of conspira cy

involving coc aine.
On November 18, 2010, the district c ourt sentenc ed Hollin to life imprisonment on Counts 1 and 2 and a consec utive sentenc e of 360 months on Count 3. Hollin also rec eived a ten-y ear term of supervised rele ase for Counts 1 and 2, and a six -y ear term of supervised rele ase for Count 3. On Dec ember

1, 2010, Hollin tim ely

filed a N otice of A

ppeal.
I I
. The district court denied Hollin’ s m o t i o n to suppress beca use it found that Fe rguson’s aff idavit showed probable cause to sear ch the Apar tment. I t alternatively held that even if the sear ch
war rant was defe ctive, the g ood-fa ith e x ception to the exclusionary rule would nonetheless permit the introduction of the evidenc e discovere d during the sear ch. Be cause we find the g ood faith exception applicable in this case , we do not rea ch the question whether Fe rguson’s aff idavit showed probable cause to searc h the Apar tment.

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United States v. Hollin The Supreme Court has identified an exception to the exclusionary ru l e i n circ umstances wher e an office r acts in go o d fa i t h when executing a war rant she rea sonably believes to be valid. United States v. Leon , 468 U.S. 897 (1984). Recog nizi ng that "the exclusionary rule is desig ned to deter police misconduct rathe r than to punish the err ors of judge s and mag istrates," the Court in Leon conclude d that the "ma

rg inal or nonexis tent benef its produce d by suppressing evidenc e obtained in objectively rea sonable relianc e on a subsequently invali d at ed sear ch war rant cannot justify the substantial costs of exclusion." Id. at 916, 922.
There are circ umstances, howe ver, where the g ood faith exception does not apply : 1) when the warrant is issued on the basis of a n aff idavit that the affiant knows (or is rec kless in not knowing ) contains false information; 2) when the issuing mag istrate ab andons his neutra l and detac hed role and serve s as a rubber stamp for police activities; 3) when the aff

idavit is so lacking in indicia of probable cause that a belief in its exis tence is objectively unrea sonable; and 4) when the war rant is so fa ci al ly defic ient that it cannot be r easona bly presumed to be valid.
United States v. Thomas , 605 F.3d 300, 311 (6th Cir. 2010) (citing United States v. Laughton , 409 F.3d 744, 748 ( 6th Cir. 2005) (citing Leon , 468 U.S. at 914-23))
. Hollin focuse s on the third exception to the g ood faith exception. "Under this exception, the executing office r must have had ' no rea sonable g rounds for believing that the war rant was proper ly issued.' " United States v. Hodson , 543 F.3d 286, 293 (6th Ci r. 2008) (quoting United States v. Helton , 314 F.3d 812, 824 (6th Cir. 2003) (citing Leon , 468 U.S. at 923)). The inquiry is “whe ther the fac eless, nameless ' rea sonably well-tra ined office r' in the field, upon looking at this war rant,
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United States v. Hollin would have rea liz ed that the sear ch descr ibed
. . . did not match the probable cause descr ibed
. . . and there fore the sea

rch w as illeg al, despite the ma g istrate' s decision to the contra ry ." Id.
Hollin first argues that the third exception to Leon applies beca use of "[t]he failure of the aff iant to tell the mag istrate what he rea lly was reque st i n g. " Be cause the subjective intent of the officer is irrele vant, this argument is without merit. See W hren v. United States , 517 U.S. 806 (1996); United States v. Sprague , 370 F. App’ x 638 (6th Cir. 2010).
Hollin also insists the affidavit supporting the sear ch warra nt is "ba re bones" beca

use "the available fac ts did not sup p o rt an y reasonable belief that additional contra band or evidenc e of a crime would be found in the apar tment." Ba

re bones aff

idavits are t h o s e that contain only "suspicions, beliefs, or conclusions, without providing some underly ing fac tual circ u m s t an ce s reg arding vera city , reliability , and basis of knowledg e. . . ." United States v. W eave r , 99 F.3d 1372, 1380 (6th Cir. 1998). Such aff idavits fall within the third exception to the Leon exception beca use they are "la cking in indicia of probable cause ." Laughton , 409 F.3d at 748. The deter mina t i on whether an objectively rea sonable office r would rec og nize that an aff idavit is bare bones is restric ted to the information included in the f our cor ners of the af fidavit. Id. at 751-52.
The aff idavit’s mention of the marijuana roac hes in the Apar tment defe ats Hollin's argument t h at t h e aff

idavit was a bare bones aff idavit. Whil e the inclusion of Redd' s statements and the boilerplate para g raphs on g ener ic drug traff icking situations sug g est only a s u s p icion of drug tr af fi ck i n g , the marijuana roac hes offe red a fac tual basis to believe the Apar tment contained
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United States v. Hollin
co n t ra b an d
. Thus, while the aff idavit was bare bones with reg ard to drug traffi cking , there was fac tual support to believe that mar ijuana could be found in the Apa rtment. Hollin's a

rgument that Fe rg uson' s aff

idavit was bar e bones in a ll respec ts is not persuasive. Finally , Hollin contends that the g ood-fa ith exception does not apply beca use Fe rguson, the aff iant for the war

rant, executed it, prec luding him from being able to claim g ood-fa ith relianc e on any defic iencies. Hollin directs the Court’s attention to Groh v. Ramire z , 540 U.S. 551 (2004). In Gr o h , t h e S upreme Court held that a war rant was invalid beca

use it did not descr ibe wi t h particula rity the things to be seized
. The Court also reje cted an office r' s argument that he rea sonably relied on the war

rant. "[B]ec ause petitioner himself prepa red the invalid war

rant,” the Court noted, “he may not argue that he rea sonably relied on the Mag istrate' s assura nce that the war

rant contained
an adequa te descr iption of the things to be seized and was there fore valid." Id. at 564. Hollin insists that since Fe rguson prepa red the aff

idavit, obtained the war

rant, and executed it, he, like the office r in Groh , cannot argue any err or was made in g ood faith and rea sonable relianc e on the mag istrate’s
assura nce of probable cause . Hollin also points to Hodson , 543 F.3d 286, wher e the Six th Circuit found that Leon did not apply when an aff

idavit established probable cause for evidenc e of child molestation but the war rant descr ibed a se arc h for e vidence of child pornog raphy . The c ourt explained that
the onl y rea son that the officer ex ecuting the s ear ch warra nt in this case , Detec tive Pickrell, did not rec og nize the insufficienc y of the war rant was that Detec tive Pi c k r ell was also the i nvestig ating office r who prepar ed the a ffidavit, obtained the war rant, and had s p ec ialized, subjective knowledg e about these kinds of criminal offe nses, - 9 -No. 10-2636

United States v. Hollin this sear ch and this case . But, as the Supreme Court has made clea r, such subjective knowledg e is not sufficient to satisfy a findingof objec tive g ood faith.
Hodson , 543 F.3d at 293 (citing Groh , 540 U.S. at 564).
Groh and Hodson are distinguishable f rom this case. B oth involved a disconnec t betwee n the probable cause provided in the aff idavit and the items to be sear ched. That situation is not prese nt here
. Whil e it was objectively unrea sonable for the office r in Groh to rely on a war rant without a particula rized descr iption of what was to be sear ched, and it was unrea sonable for the office r in Hodson to rely on a wa rr ant that descr ibed a sear ch for one crime when the aff idavit descr ibed probable cause for a differ ent crime, it was not objectively unrea sonable for the office rs in this case to think they had probable cause to sear ch for marijuana based on Fe rguson’s aff idavit beca

use the aff idavit expl ained that mar ijuana roa ches w ere discovere d in the Apar tment.
Ba sed on the aff

idavit, the office rs arguably had no objective basis to believe that there was p ro b ab l e ca u s e to sear ch the Apar tment for evidenc e of drug traff icking
. The discovery of th e marijuana roac hes in pla in vie w provided a basis to be lieve there was probable cause to se arc h the Apar tment. Even if, arguendo , probable cause was ultimately lacking , it is u n l i k ely that “a
rea sonably well trained office r would have known that the sear ch was illega l despite the mag istrate’s decision.” Leon , 468 U.S. at 923 n.23. Suppressing this evidenc e would not further the exclusionary rule’s purpose of deter

ring police misconduct. Be cause the Leon exception applies here , the district court did not err in denying Hollin’s motion to suppress and allowing t h e introduction of the evidenc e discove red dur ing the sear ch of the Apar tment. - 10 -No. 10-2636

United States v. Hollin I I I
. Hollin’s second assig nment of err or is that the district court improperly limit ed his counsel’s
cross-e x amination of the g overnme nt’s fing erpr int witness. A limit ation on cross-e x amination that violates the Confrontation Clause is subject to harmless err or analy sis. United States v . W illiams , 431 F. App’x 404, 408 (6th Cir. 2011). Whether an err or is h ar m l es s depends on sever al fac tors, including “the importance of the witness’ testimony in the prosec ution’s case , whether the testimony was cumulative, the pre sence or abse nce of evidenc e cor

roborating or contra dicting the testimony of the witness on materia l points, the extent of cross-e x amination otherwise p er m i t t ed , and, of
course , the overa ll streng th of the prosec ution’s case .” Delaware v. Van Arsdell , 475 U.S. 673, 684 (1986).
A revie w of the trial transcr ipt reve als that Ho l l i n ’s counsel continued to ask questions reg arding the wit ness’s report and when it was placed in the m aster police report, and the witness
answe red these questions. There fore , to the exten t the district court err ed in sustaining the g overnme nt’s objection to the cross-e x amination, it was harmless err or beca use it did not substantively

impact Hollin’s ability

to elicit information from the witness.

I V.
Holli n ’s fi n al argume nt is that his life sentenc e pursuant to 21 U.S.C. § 841(b)( 1)(A) is unconstitutional. We have repe atedly held that § 841(b)( 1)(A) is constitutional. See United States

- 11 -No. 10-2636

United States v. Hollin
v. Senter , 424 F. App’x 443 (6th Cir. 2011); United States v. W ettstain , 618 F.3d 577 (6th Cir. 2010). Hollin’s argument is theref ore w ithout merit.
V.
For the re asons assig ned above , we AF FI RM Hollin’s conviction and sentenc e.

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