||SIXTH CIRCUIT DISCUSSES CONFIDENTIAL INFORMANTS, OFFICER OBSERVATION AND PROBABLE CAUSE

SIXTH CIRCUIT DISCUSSES CONFIDENTIAL INFORMANTS, OFFICER OBSERVATION AND PROBABLE CAUSE

On June 6, 2018, the Sixth Circuit Court of Appeals decided the United States v. Boyd[i], in which the court discussed whether probable cause existed, based on an informant’s undercover drug purchase and officer observations, to justify a search of the defendant’s apartment for drugs.  The relevant facts of Boyd are as follows:

Officer Aaron Ham works for the Kalamazoo Valley Enforcement Team. He has investigated drug crimes for over seventeen years. One day in May 2016, an informant told Officer Ham that Michael Boyd was selling drugs out of his apartment on McCourtie Street in Kalamazoo. Officer Ham drove to McCourtie Street to verify the tip. He watched Boyd drive down McCourtie Street and enter his upstairs apartment. But he did not see Boyd sell any drugs.

Over the next few months, Officer Ham received two more tips that Boyd was selling drugs. On top of that, Officer Ham learned, Boyd carried a pistol for protection, despite prior convictions that made that illegal. This time, Officer Ham decided that staking out Boyd’s apartment would not suffice. He recruited one of the informants to catch Boyd in the act.

Officer Ham, the informant, and three other officers drove to Boyd’s apartment. The informant called Boyd to set up a deal. Boyd agreed to meet the informant in a parking lot behind Boyd’s apartment to sell him methamphetamine. After ensuring that the informant did not have other sources of money or drugs on him or in his car, the police gave the informant police funds and placed a wire on him. They saw a person matching Boyd’s description walk out of Boyd’s apartment, approach the informant’s car, and sell him drugs. The informant returned to the officers, turned over the drugs, and identified Boyd as the seller.

Officer Ham sought a warrant to search Boyd’s apartment for drugs and guns. He drafted an affidavit describing the tips he received and the things he saw, including the fact that Boyd had four outstanding warrants for his arrest at the time. A magistrate judge issued the warrant, and police searched the apartment. The search turned up methamphetamine, marijuana, cocaine, pills, a pill grinder, a digital scale dusted with drug residue, packaging materials, a stolen handgun, and a shotgun. When asked about the items in his apartment, Boyd told officers “I do what I do.” “I know what I do is wrong,” he explained. But “I’ll be accountable for my actions.”[ii]

Ultimately, Boyd was charged under federal law for drug and gun violations.  He filed a motion to suppress and argued that the officer’s statements in the affidavit failed to establish probable cause for the search warrant of his apartment.  The district court denied the motion.  Boyd filed another motion to suppress and argued that some of the statements in the search warrant affidavit were false.  The district court denied motion for a hearing on this argument.  Boyd pleaded guilty with the right to appeal the denial of his motions to suppress.  He then filed a timely appeal with the Sixth Circuit Court of Appeals.

The court of appeals first defined “probable cause” and stated

Probable cause exists if there “is a fair probability that contraband or evidence of a crime will be found in a particular place.” Bailey v. City of Ann Arbor, 860 F.3d 382, 387 (6th Cir. 2017) (quotation omitted).[iii] [emphasis added]

The court then noted a “fair probability” that contraband would be found in Boyd’s apartment was established by the following: (1) three informants had previously told police that Boyd sold drugs out of his apartment; (2) an officer had previously seen Boyd enter his apartment; (3) officers recruited one the informants to purchase drugs from Boyd and they listened to him set up the sale by phone; (4) officers searched the informant and his vehicle to ensure there was no contraband present prior to the sale; (5) officers observed a person meeting Boyd’s description walk out of his apartment, approach the informant and sell him drugs; and (6) the informant turned the drugs over to the officers and stated Boyd was the person that sold the drugs to him.  Based on this, the court stated that there was ample evidence that there existed a “fair probability” that there were drugs in Boyd’s apartment.

Boyd argued that there was not enough information in the affidavit regarding the informant’s identity, the length of time the person had been an informant, and the accuracy of past tips.  However, the court noted that affidavits are judged on what they do contain, rather than what they do not contain.  Furthermore, the court stated that an informant’s reliability can be established based on the observations of the officers, such as here, when they observed Boyd sell drugs to the informant.

Boyd also argued that the officers failed to establish a “nexus” between the location of the drug sale and his apartment.  The court disagreed and noted that the three informants stated that Boyd sold drugs out of his apartment, and officers observed Boyd emerge from the apartment before the sale and return to it after the sale.  Additionally, the sale took place in the parking lot behind Boyd’s apartment.  This was a sufficient nexus to Boyd’s apartment.

Lastly, Boyd argued that the officers lied to obtain the search warrant.  To obtain a hearing for providing false information, also known as a Franks hearing,

[A] defendant must make a preliminary showing that (1) the affiant knowingly or recklessly included a false statement in the search warrant affidavit, and (2) the false statement was necessary to the probable cause finding. United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013).[iv] [emphasis added]

Regarding Boyd’s specific allegations of false information, he first alleged that that the geography of his apartment complex would have prevented offices from seeing both him leaving his apartment and conducting the sale.  However, the court noted that with two officers it would be possible; further, surveillance equipment would also make this possible.

Boyd also argued that the officer lied when he said that the informant did not possess “other contraband or currency.”  Specifically, the informant had ten dollars in his possession; however, the court noted that this was leftover “buy money” provided by the police.  Thus, “other contraband or currency” referred to items other than those provided by the police.

Lastly, Boyd argued that the affidavit omitted that the informant interacted with a third party after the drug deal.  However, there is no information that the officer did so to mislead the judge and the omission of that information would not have negated probable cause.

Therefore, the court of appeals affirmed the denial of the motions to suppress.

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CITATIONS:

[i] No. 17-2084 (6th Cir. Decided June 6, 2018 Unpublished)

[ii] Id. at 1-2

[iii] Id. at 3

[iv] Id. at 5

By |2018-12-04T16:25:11+00:00December 4th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.