On September 15, 2022, the Sixth Circuit Court of Appeals decided the United States v. Dawson[i], which is instructive regarding what constitutes valid probable cause to support a search warrant. The relevant facts of Dawson are as follows:
FBI Agent James McCann spearheaded a year-long investigation into a drug conspiracy in Youngstown, Ohio. The investigation relied on wiretaps, confidential informants, and physical surveillance. With the information gathered from these efforts, Agent McCann determined that Dawson made up part of the base of a drug distribution pyramid that extended upward to his supplier, Sadiya Sow, and from Sow to her suppliers.
From 2016 to 2018, several confidential informants testified to Sow’s role in the conspiracy. In February 2018, officers seized an ounce of cocaine from a customer 20 minutes after he met with her. From November 2017 to May 2018, wiretap intercepts of Sow’s negotiations with her suppliers permitted law enforcement to watch her meet with suppliers to exchange drugs and drug proceeds.
Most of the evidence against Dawson stemmed from a wiretap on Sow’s phone between December 2017 and February 2018. Agent McCann, a 25-year veteran, translated the “code words and phrases” used by the dealers to interpret the calls and texts between Sow and Dawson. R.123-1 at 16. During the conversations, the pair used coded language to discuss the quality of drugs Sow had provided to Dawson, negotiate over Dawson’s payments for drugs Sow had supplied, and commiserate about Dawson’s cousin Darrell (who also obtained drugs from Sow to sell but did not diligently pay her back with the proceeds). Sow’s conversations with Dawson and Darrell frequently referenced quantities of cash including “the two thousand dollars,” id. at 24, “5,000 there, 5,000 there,” id. at 29, “three grand,” id. at 31, “2-4,” id. at 36, and “6,” id. at 38.
The taped conversations, together with Sow and Dawson’s frequent negotiations over payment, enabled officers to identify three occasions in January 2018 when Dawson delivered suspected drug proceeds from his home to Sow. Before one occasion, Dawson texted that “I’m bout to bring u that change.” Id. at 36. In another text to Dawson, Sow pushed for payment because “[o]ur friend said he’ll be in town around 1.” Id. at 25. The next day, Sow received a text from one of her drug suppliers (from whom officers would later seize four kilos of cocaine), confirming their one o’clock meeting. Sow then texted Dawson that she was “[w]aiting on [him],” after which he drove directly from his home to hers. Id. at 25. Within hours, Sow’s supplier arrived for their planned meeting, which lasted for a few minutes.
The investigation culminated in Agent McCann’s 71-page affidavit in support of a warrant to search multiple locations, including Dawson’s home. A federal magistrate granted the search warrant in May 2018. Officers executed it the next day. At Dawson’s home, officers found multiple guns, thousands of dollars, digital scales, and crack cocaine. Dawson, Sow, and other participants in the drug ring were charged with myriad gun and drug related offenses.[ii]
Dawson filed a motion to suppress and argued that the evidence described in the search warrant affidavit did not support probable cause for the issuance of the warrant. The district court denied the motion and Dawson pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. He reserved the right to appeal the denial of his motion to suppress. He then filed a timely appeal with the Sixth Circuit Court of Appeals.
The issue on appeal was whether the evidence described in the search warrant affidavit provided sufficient probable cause to support the issuance of the search warrant.
The court of appeals first examined the relevant legal principles and stated
The Fourth Amendment says that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. In evaluating a request for a search warrant, a court asks whether “there is a fair probability” that “evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). That requires officers both to establish probable cause of criminal activity and to demonstrate a connection between the criminal activity and the site to be searched. United States v. Ardd, 911 F.3d 348, 351 (6th Cir. 2018).[iii]
The court of appeals also examined the United States v. White, in which the Sixth Circuit previously
[U]pheld residential searches where a defendant drives directly from his home to a drug sale, sells drugs immediately after leaving his house, or returns home after collecting drug proceeds.[iv]
The court noted that the same principle applies “when a dealer goes directly from his home to a supplier’s residence after discussing the transfer of drug proceeds.”[v]
The court then examined the evidence contained in the search warrant affidavit in light of the principles above. First, the court noted that the affidavit contained ample evidence that Sow participated in a drug conspiracy. Second, the court noted that Agent McCann described the language heard during the wiretap as discussions about a drug trafficking enterprise. The court also considered the fact that Agent McCann had over 25 years of experience in investigations of drug crimes. Third, Agent McCann described three instances in which Dawson delivered drug proceeds from his residence to Sow. This established the nexus to tie Dawson’s residence to the drug trafficking enterprise. The court then held that the above evidence was sufficient to show that there was a “fair probability” that evidence of drug trafficking would be located in Dawson’s residence.
Dawson raised several arguments that the court addressed. First, Dawson argued that the last of his deliveries to Sow occurred in January and the search warrant was issued in May. As such, he argued the evidence was stale. However, the court noted that the wiretap warrant expired in February. Further, a pen register showed that between April and the May, Dawson and Sow exchanged 82 text messages and 61 phone calls. The agent characterized this level of communication consistent with an ongoing drug enterprise.
Dawson argued that the calls and texts in April and May were social in nature. However, the court noted that the calls and texts between Dawson and Sow during the wiretap were drug related, and there was no evidence as to why, after the expiration of the wiretap, the subsequent calls and text would suddenly change to all social in nature.
Lastly, Dawson argued that the affidavit failed to contain evidence of his criminal history or controlled buys of narcotics. However, the court of appeals noted that what the affidavit did contain supported the finding of probable cause. Additionally, the absence of the use of the word “drugs,” or any specific type of drug was not relevant. The court stated
[D]rug traffickers frequently use “code words and phrases” to evade detection. In an intercepted call, Sow even chastised one of her suppliers for “texting this shit to my phone” because “we don’t do all this talking on our phones.” Id. at 65. Officers need not hear “magic words” before seeking a warrant. Cf. United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc).[vi]
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 21-4142 (6th Cir. Decided September 15, 2022 Unpublished)
[ii] Id. at 1-4
[iii] Id. at 4 (emphasis added)
[v] Id. at 6
[vi] Id. at 7-8 (emphasis added)