NOT RECOMMENDED FOR FULL-TEXT PUBL ICATI ON File Name: 04a0015n.06 Filed: October 6, 2004 No. 03-6504 UNITED STATE S COURT OF APPEA LS FOR THE SIX TH CIRCUIT

DONALD GL

ENN TOLBERT, Petitioner – Appellant

v. UNITED STATES OF AMERI CA, Respondent – Appellee ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT F OR THE WESTERN

DIS T RICT OF KENTUCKY AT PADUCAH

BEFORE: MERRITT, M OORE and GILM AN, Circ uit Judges. MERRITT,Circuit Judge. This is a direc t crimina l appeal inwhich the defendant entered into a plea agreement

under Rule 11(a)(2), Fed. R. Crim. P., reserving the right to appeal the district court’s determination that evidence of drug distribution obtained under a search warra nt should not be suppressed. The defendant receive d a sentence of

75 months. The question before us is whether probable cause existed for t

he sear ch warr ant. For the rea sons state d below, w e AFFI RM. FACTS AND PROCEDURAL HISTORY Donald Tolbert lived

in a m obile home located in Livingston County , Kentucky. Tr ooper T.J. Williams (c

urrently with the K

entucky State Police but formerly a de puty sheriff

in Livingston Co un ty) testified that

Tolbert had been known to law enforcement since 1994 or 1995, when

police had executed a searc h warra nt at Tolbe

rt’s ear lier add ress and found drug

paraphe rnalia a nd possible1 Alth ough the affidavit is dated “20 day of July, 2000,” Trooper

Williams testified this was a mistake and that it was actually signed on July 20, 2001. J.A. Vol. I at 86. 2 methamphetamine residue. No arre sts were made at that time. I

n the month s leading

up to execution of the warrant in this case, police received ten to f ifteen anony mous phone

calls ab out drug

activity

an d vehicle t raffic at Tolbert’s house. Based on the se calls, Trooper Williams and other officers conducted

regular surveillance of the house over a three to f

our month period. This included observing and

counting cars, as well a s checki

ng lice nse plate s to deter

mine the id

entity of visitor s. Inthis way, so-called

“known drug users” were identified a t the house at least five to ten times. J.A. Vol. I. at 90-93. Th en, on J uly 20, 2001, the father of a teenage gir

l (either sixteen or seventeen) contacted police and

request ed assista nce with his daug hter who was rep ortedly

“out of c ontrol” a

nd possibly

on drugs. When Trooper Williams went to the home, the father also requested assistance i n identifying

the owner of a phone number that had appeared on his caller-I

D, who the father believed had been tal king with his daug hter. The

number w as later

identifie d as belon

ging to Tolbert. Trooper Williams requested that the juven ile and he r father accompany him back to the Sheriff’s offi ce, where he spoke with her for approximately 45 minutes. During this discussion, the gir l informed Williams that she had received methamphetamine from Tolbert both the day bef

ore and the day of the sta

tement. J.A. Vol. I at 95-97. Trooper Williams met with a state assistant district attorney who pr

epared an affidavit for Williams. The affidavit stated: On the 20 day of July , 2000 1 , at appr oximately 3:30p.m. Deputy T.J. Williams was given the following information from a juvenil e. The ju

venile sa id that Donald Tolbert gave Juvenile methamphetamine on the night of July 19, 2001. Juve nile received the meth while inside Donald Tolbert’s trailer on Harper Rd . Le db et te r, Ky. Also juvenile stated

that there was meth and marijuana inside the trailer on July 19, 2001. OnJuly 2 0, 2001 Juve nile state d that Juven

ile was a lso give n meth by Donald3

Tolbert while inside his trailer

today. Juvenile also saw more meth today inside his trailer. Deputy T.J. Williams has received information in the past 30 d ay s [ from] unknowncallers that Donald Tolbert was dealing drugs at his trailer

on Harper Rd. Led be tt er , K y. Acting on the information received, affiant conducted the following indepen dent investi gation: Tha t Donald and Beth Tolbert lives in the last trailer on the left on Harper Rd. Ledbetter, Ky (known as Harper Trailer Pk.). That Donald Tolber t’s blue ol de r c ou ga r i s a t h is tr ai le r o n H ar pe r R d. Led be tt er , K y. J.A. Vol. I at 30-31. Trooper Williams testified that he did not provide any additional background

information or evidence to the issuing trial commissioner at the time he sought the warrant, such as observa tions frompolice su

rveillan ce or the results of the sear ch in 1994 or 1995. Based on the affidavit, the trial commissioner

issued a search warrant, which wa s subsequently executed by p oli ce. They seized approxima

tely eleven g rams of me

thamphet amin e and three syringe s from Tolbert’ s bedroom

as well

as digital scales, a

calculator, and approximately 165 grams of methamphetamine from Tolbert’s van parked on the pre

mises. The district court

initially suppressed this evidence, ruling t hat the wa

rrant la cked pro bable cause and the Leon good-f aith exce ption did not apply. Howeve

r, on a Motion to Reconsider, the court reversed itself, holding that the Leon exception did apply. The court did n ot re consider its original determination that probable cause was lacking. Tolbert entered a conditional g uilty plea and now ap peals the di stri ct cou rt’s r ulin g. DISCUSSION

I. Standard fo r Dete rmining P robable Ca use In Illinois v. Gates , the Supre me Court a

dopted a “

totality of the ci rcums t ances” test for determining probable

cause, d escribin g it as a “pract ical, non technic al conce

ption” tha t deals wi th4

p robabilities and the “practical considerations of ever yday life on which reasonab le and prudent men , notlegal technicians, act.” 462 U.S. 213, 231 (1983). I n reviewing the s ufficie ncy of proba ble cause, a court is limited to evidence that was ac tually pr esented to the issuing judge. Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971). Infinding a lack

of probable cause, the district court relied on the 6th Circuit’s interpre tation of Gates as articulated in Wea ver , which re quired the consideration of two factors for finding probable cause from an informant’s statement: “1) an explicit and detailed desc ription of a llege d wrongd oing, along with a statement that the event was observed firsthand, entitles [the informant’s tip] to greater weight

thanmight otherwise be the case; and, 2) corr oboration of the tip through the officer’s independ

ent i n vestigative work is significant.” United States v. Weaver , 99 F.3d 1372, 1377 (6th Cir. 1996) . In applying this standar d, the district court noted “the information [provided by the juven ile] was re

markabl y de void of de

tail” and containe d very

little information th at would allow one to determine the juvenile’s veracity or reliability. J.A. Vol. I at 43-44. Weaver has been modified, however, in the en banc decis ion of United States v. Allen , in whichthe Court m ade it cle ar that th e two-fa ctor test from Weaver

is not a rigid cons tit utional requirement

. 211 F. 3d 970, 974 (6th Cir. 2000). While the factors identified in Wea ver do contribu te to the con s titutional

“totality of the ci rcumstan ces” analy sis, they

are not necessa

rily determinative. Where other circumstances provide reason to find an infor mant credible and reliable, the factors may take on less sig nificance. The asse ssment of p robable cause is a highly fact-sp ecific inquiry and depends on a

n analysis of the par

ticular case. II. Under Allen , Trooper Wilson’s Affida

vit Was Suffici ent to Est ablish Pr obable Cause2 “She did not pro vide a de scription of the inte

rior or exterior of

the trail er; she d

id not state why she was in the trailer or

how she came to know defendant; she did not state how she got to the trailer or if she had

been there on earlier occa sions; she did not state where in the trailer defendant kept the drugs or the quantity or type of drug s that were present; she did not state how she was familiar with or ab le to identify methamphetamine or marijuana; and she did not provide a phy sical description of defendant in even the most gener al terms.” J.A. Vol. I at 43-44. 5 Infinding that the affidavit failed to establish probable cau se, the district court provided a laundry list of possible details that either the juvenile had failed to provide to Trooper Williams or that Trooper Williams had

failed to include i n his aff idavit. 2 Referencing

the Weaver

factor s, J udge Johnstone stated, “[i]n short, the information she provided certainly was not an

‘explicit and detailed descriptionof alleged wrongdoing .’” J.A. Vol. I at 44. I n contrast, in Allen , the Court stated, “[t]he affida vit is judge d on the ad

equacy of what it

does con tain, not o n what it la

cks, or on what a critic might say sho uld have been add ed.” Allen , 211 F.3d at 975. The proper starting point is the informat ion that was included in the af fidavit. 1. Juvenile’s identity was known to police

. It was clear f rom the context in the affidavit that Trooper Williams received the information directly from the juvenile, even though her name wa s not mentioned. Trooper Williams testified that it is stan dard procedur e in the sheriff’s office and the county attorne y’ s office to exclude

juvenile s’ names

from sea rch war rants in o rder to protect

their identitie s. Also, by stating that the infor mation was received from “a Juvenile,” it was clear that the informant was not a

nony mous. She w as not a pe rson who sent an anony mous letter or made an anonymous telephone call. She gave the informat ion directly t

o Williams. He knew

who she w as. The Court in Miller refused to view a named informant who had no re cord of providing the police with infor

mation with

the same skepticis m as an anonymous one . United States v. Miller , 314 F.3d 265, 269- 70 (6th

Cir. 2002). Similarly, we do not treat an unnamed j uvenile, whose ide ntity3 See K Y . R EV . S T AT . A NN . § 519.040 (2004) (“A person is guilty of falsely r

eporting an incident when he . . . knowingly gives false information to any law enforcement officer with the intent to implicate another . . . .”). 6 is known to the polic e, the sa me as an a nony mous tipste

r simply because her name is excluded from the affidavit under routine police procedures to protect the conf identiali ty o f minors. T

he relia bility that comes from kn owing an infor mant’s identity is not based on inclusion of her name in the affida vit, but rathe

r on the f act that i f she is lying she

may be prose cuted under state laws for making

a false statement to police. 3 Miller , 314 F.3d at 270. The Supreme Court implici tly adopted this position in United Sta tes v. Ha rris . 403 U.S. 573, 584-85 (1971) ( “Nor is it especially sig nificant that neither the name nor the person of the informant was produced before the mag istrate. The police themselves almost certainly kne w his name . . . .”). 2. Juvenile’s account was first-hand, recent and spec ific . The juvenile reported that she had received me th am ph et am in e f

ro m T ol be rt bo th on th e p re vi ou s d ay, July 19, 2001, and on the day of the report, July 20, 2001. She reported that she had bee n inside his trailer and had personally seen both meth and

marijuana present in the trailer on that day. Such specif

ic, personal, and first-hand

accoun ts have been considered reliable. “In a practical sense, there could hardly be more substantial evidence of the existence of the material sought and its relevance to a crime

than [the in formant’ s] direct viewing of mariju ana in [the

defenda nt’s] house.” United States v. Pelham , 801 F.2d 875, 878 (6th Cir. 1986) . The Cour

t in Allen also a ddres sed th is is sue, s tati ng: “The inf ormation a

lleged [in the af fi da vi t] wa s o f d ir ec t p er so na l o bs er va ti on of cr im in al ac ti vi ty. Corrobor ation is no t a nece ssity in such a case.” Allen , 211 F.3d at 976. 3. Juvenile’s

statemen t was ag ainst pen al intere st . By admitting to police that she h a d received illega l drugs from To lbert, the juvenile exposed herself to the possibility of cr iminal4 See K Y . R EV . S TAT . ANN . § 640.030 (2004) (allowing juveniles convicted of felony offenses to be treated to the same sentencing proc edures as adults). 7 prosecution

in Kentucky’ s juvenile

court sy stem. 4 There is no evidence in the record that the police made any offe

rs of immunity or

leniency for

the juvenile’s cooperation. She was no t under a rrest, nor do es it a ppear f

rom th e recor d that she was in po lice c usto dy or rest rained from l eavin g. Th e Supr eme Court emphasized the credibility that such a n admission brings to an informan t’s state ment, notin

g: “People d

o not ligh tly admit a cr

ime and pl ace cr

itical ev idence i n the hands of the police in the form of their own admissions. Admissions of crime, like admissions agains t propr ietary

interest s, carr

y th eir own in

dicia of credibi lity

– suffic ient at le ast to supp ort a finding of probable cause to searc h.” Harris , 403 U.S. at 583. 4. Juvenile’s statement was corroborated through r ecen tly r eceive d anony

mous reports to police

. Althou gh the C ourt in Allen held that corroboration is not necessarily required when informan ts are not anony

mous, Trooper

Williams nevertheless did provide corroborating evidence inhis aff i davit. He stated that in the prior 30 day s he had received anony mous phone calls that Tolbert was dealing drugs from his trailer a t the same address where the juvenile claimed she had receive d drugs from Tolbert. Williams also confirmed that the location described by the juven il e was in fa ct the re sidence

of the Tol

berts. As the Supreme Court stated in Gates , “[i]t is enou gh, for purposes of asses sing pro

bable cause, that ‘corroboration through other sources of

information reduced the chances of a r eckless or prevaricating

tale,’” thus providing “a substantial basis for crediting the hearsay .” Gates , 462 U.S. at 244-45 (internal citations omitted). Here, the police had alrea dy rece ived anonymousphone ca lls that Tolbert w as deali

ng in dru gs. The se anony

mous tips al one wer

e not suff ic ient t o establish8

probable cause. The officers waited until someone with rec ent, first-ha nd k nowledge presented herself before they

sought a search warrant. The juvenile’s testimony wasconsistent with other tips and was accurate in describing the location of Tolbert’s residence. Taken a s a

whole, the evidence presented to the issuing judg e in this case was adequa te to find probable cause, and therefore the district c ourt’s op inion is AFFI RMED . We need n ot discuss the Leon good-faith exception as an alternative basis for upholding the decision below.