United States v. Oliver Higgins

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0069p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-5114

v.

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Defendant-Appellant. -

OLIVER HIGGINS,

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Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 06-10004-001—James D. Todd, District Judge.

Argued: January 21, 2009

Decided and Filed: February 26, 2009

Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: Keith E. Golden, GOLDEN & MEIZLISH, Columbus, Ohio, for Appellant.

Jerry R. Kitchen, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for

Appellee. ON BRIEF: Keith E. Golden, GOLDEN & MEIZLISH, Columbus, Ohio, for

Appellant. Jerry R. Kitchen, ASSISTANT UNITED STATES ATTORNEY, Jackson,

Tennessee, for Appellee.

MOORE, J., delivered the opinion of the court. CLAY, J. (pp. 24-26), delivered a

separate opinion which joins Part II.A.2.a but dissents from Part II.A.2.b. KETHLEDGE,

J. (pp. 27-28), delivered a separate opinion which joins all but Part II.A.2.a.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. In 2006, Oliver Higgins (“Higgins”)

was indicted and charged with six counts: possession with intent to distribute cocaine base,

possession with intent to distribute cocaine, possession with intent to distribute marijuana,

1

No. 08-5114 United States v. Higgins Page 2

possession of counterfeit currency with intent to defraud, felon in possession of a firearm,

and possession of a firearm in connection with a drug-trafficking crime. Before trial,

Higgins moved to suppress all of the evidence stemming from the search of his apartment

on the grounds that the warrant lacked probable cause. The district court denied this motion.

At trial, the jury convicted Higgins of five of the six counts (all of the counts except the

third, marijuana-based crime). The district court sentenced Higgins to an effective sentence

of life imprisonment plus five years.

On appeal, Higgins raises two arguments. First, Higgins asserts that the district court

erred in denying his motion to suppress because the search warrant lacked probable cause.

Second, Higgins presents three arguments for why the district court erred in imposing a

sentence of life imprisonment: (1) although the jury convicted Higgins of an offense

involving cocaine base, his sentence violated the Sixth Amendment because it was based on

a judicial finding that the offense involved crack cocaine; (2) Higgins’s sentence was greater

than necessary, and the district court failed to consider mitigating factors; and (3) the district

court improperly enhanced Higgins’s sentence based on prior convictions. For the reasons

discussed below, we AFFIRM Higgins’s conviction and sentence.

I. BACKGROUND

The chain of events leading to Higgins’s conviction began in 2005, when an

investigator with the Jackson Police Department and an Assistant District Attorney contacted

Investigator William Carneal (“Carneal”) at the Madison County Sheriff’s Department. The

investigator told Carneal that an officer with the Henderson Police Department had

information about drugs being sold in Madison County. Carneal explained the events that

transpired in his affidavit supporting the application for a search warrant:

On September 9, 2005, Sgt. Carneal received information from the

Henderson Police Department (Chester County) regarding a traffic stop

conducted in that jurisdiction in which Officer Phil Willis of the Henderson

Police Department recovered a large amount of cocaine and cocaine base.

Officer Willis stated that he stopped a suspect for driving under the

influence. Officer Willis informed Sgt. Carneal that the suspect had

approximately 15 grams of powder cocaine, along with 26 grams of cocaine

base. (Both substances field tested positive for cocaine). The suspect also

had two additional passengers in the vehicle. All three individuals were

separated and interviewed separately at the Chester County Sheriff’s

No. 08-5114 United States v. Higgins Page 3

Department. The driver of the vehicle, whose name has been disclosed to

the Judge, stated he picked up the cocaine from a location in Madison

County and gave an address of 1336 Campbell Street, Apartment 5, Jackson,

Tennessee, as the pick up location for the narcotics. He also identified the

person selling the narcotics as Oliver Higgins. This information was

corroborated by both passengers of the vehicle who stated they rode with the

driver to the Campbell Street location. Officers from Metro Narcotics did

transport the driver of the vehicle to the Campbell Street address to confirm

the exact location of the transaction. Officers with the Metro Narcotics Unit

corroborated the address given by the driver of the vehicle, along with the

description of a motorcycle which belonged to Oliver Higgins. Officers with

Metro Narcotics did identify the motorcycle as belonging to Oliver Higgins

and which was located at 1336 Campbell Street, Apartment 5, Jackson,

Tennessee. The driver stated he had purchased narcotics from this location

previously and had purchased the cocaine in his vehicle on September 9,

2005 from Oliver Higgins. A check of the criminal history of Oliver

Higgins showed two prior felony convictions for narcotics trafficking in

Hardin County, Tennessee, in 1990 and 1998.

Joint Appendix (“J.A.”) at 36 (Carneal Aff.).

Based solely on this affidavit, the Madison County General Sessions Judge issued

a warrant to search apartment 5 at 1336 Campbell Street. According to Carneal’s trial

testimony, when the police searched this apartment, they found crack cocaine, powder

cocaine, marijuana, money, a gun, digital scales, rolling papers, and mail addressed to

Higgins. After the officers discovered more than 100 grams of crack cocaine, they arrested

Higgins and took him to the Criminal Justice Complex.

Based on the contraband discovered during this search, a federal grand jury delivered

a superseding indictment charging Higgins with six counts: possession with intent to

distribute 531.8 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1); possession with

intent to distribute 250.1 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); possession

with intent to distribute 62 grams of marijuana in violation of 21 U.S.C. § 841(a)(1);

possession of counterfeit currency with intent to defraud in violation of 18 U.S.C. § 472;

felon in possession of a firearm in violation of 18 U.S.C. § 922(g); and possession of a

firearm in connection with a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(2).

After he was indicted, Higgins moved to suppress all of the evidence that was seized

during the search described above; all of the statements he made at the scene of the search

or later, while in custody; and all observations made by law enforcement officers during the

No. 08-5114 United States v. Higgins Page 4

search. Higgins argued that the search was improper because the warrant lacked probable

cause and did not sufficiently corroborate the statements made by the informant. The

government responded that the affidavit provided probable cause because the informant’s

name was disclosed to the judge, the information given was based on the informant’s

personal knowledge, officers corroborated the fact that Higgins lived at the named location,

and Higgins had two prior felony convictions for drug trafficking. Additionally, the

government asserted that corroboration was not necessary because the informant was

“providing information in hopes of leniency for past crimes.” J.A. at 40 (Resp. to Mot. to

Suppress at 4).

The district court held a hearing on Higgins’s motion to suppress at which Carneal

was the sole witness. Carneal’s testimony was consistent with the information contained in

the affidavit. After argument from counsel, the district court reviewed the facts contained

in the affidavit and noted that “the informant was identified” and that the information he

provided “was corroborated by taking him and others to the address” and by the

identification of Higgins’s motorcycle. J.A. at 100 (Hr’g Tr. at 27). The district court

denied the motion and found that “an identified informant providing corroborated

1

information” established probable cause. J.A. at 101 (Hr’g Tr. at 28).

The case proceeded to trial. The government’s first witness was Jessica Lynn

Marquez, a Tennessee Bureau of Investigation employee. Marquez testified that one of

the government’s exhibits contained 250.1 grams of cocaine, that another contained

62 grams of marijuana, and that a third contained 531.8 grams of cocaine base.

Additionally, Marquez explained that cocaine base was made by boiling water, powder

cocaine, and baking soda together and that when the mixture dried, it was “hard and

rock-like.” J.A. at 112 (Trial Tr. at 6). During her testimony, the substance Marquez

tested was referred to as both cocaine base and as crack cocaine. Marquez herself called

the substance cocaine base, but when the prosecutor asked her to state “the total amount

of crack cocaine” that she had tested, Marquez stated that the total was 531.8 grams

1

After this ruling, Higgins filed an amended motion to suppress and a motion to reopen the

suppression hearing based on ineffective assistance of counsel. The district court denied these motions.

No. 08-5114 United States v. Higgins Page 5

without making any distinction between crack cocaine and cocaine base. J.A. at 113

(Trial Tr. at 7).

After Marquez, Carneal testified regarding the search of Higgins’s apartment.

Carneal also explained the difference between powder cocaine and crack cocaine and

described how crack cocaine is made. Carneal stated that Higgins was in the apartment

at the time of the search and that Higgins told officers that he was the sole occupant.

The government’s next witness was Joseph Cavitt (“Cavitt”), a United States Secret

Service special agent, who testified regarding the counterfeit currency found in

Higgins’s apartment.

After Cavitt, the government called Terry Hopper (“Hopper”), a task officer with

the Drug Enforcement Administration, to the stand. Hopper testified that he was present

when the search warrant was executed at Higgins’s apartment. Hopper explained how

crack cocaine was made and sold, and Hopper stated that “over 550 grams of crack

cocaine” were found in Higgins’s apartment and that this quantity of drugs was worth

about $50,000. J.A. at 167 (Trial Tr. at 193). According to Hopper, the powder cocaine

found was worth about $30,000. Additionally, Hopper told the jury that the items found

in the apartment indicated to him that Higgins “was selling crack cocaine.” J.A. at 168

(Trial Tr. at 194).

The district court then charged the jury and explained that “Count 1 charges the

defendant, Oliver Higgins, on or about September 10, 2005, unlawfully, knowingly and

intentionally possessed with intent to distribute approximately 531.8 grams of cocaine

base, or crack cocaine.” J.A. at 175 (Trial Tr. at 239). The jury found Higgins guilty of

five of the six counts with which he had been charged, but acquitted him of count 3, the

marijuana-based charge. In connection with count 1, the verdict form required the jury

to answer two questions. First: “On Count 1 of the indictment, we, the jury, find the

defendant Oliver Higgins. . . .” J.A. at 71-72 (Verdict Form). The jury checked a box

indicating that it found Higgins guilty on count 1. Second: “If you find defendant guilty

on Count 1, what amount of cocaine base do you find beyond a reasonable doubt that

No. 08-5114 United States v. Higgins Page 6

defendant possessed?” Id. The jury responded that it found 531.8 grams. The jury

answered similar questions for the remaining charges.

The district court began the sentencing hearing by reviewing the conclusions

contained in the presentence report (“PSR”). The PSR asserted that the combined

adjusted offense level was 34. According to the PSR, because “[Higgins’s] instant

offense of conviction is a felony controlled substance offense and [Higgins] has at least

two prior felony convictions of a controlled substance offense,” Higgins should be

classified as a Career Offender under U.S.S.G. § 4B1.1. J.A. at 232-33 (PSR at 9-10).

Using the calculations for Career Offenders, the PSR assigned Higgins a total offense

level of 37. The report also stated that because Higgins was categorized as a Career

Offender, his criminal history category was VI. In summarizing the district court’s

sentencing options, the PSR noted that based on 21 U.S.C. §§ 841(b)(1)(A) & 851(a)(1),

count 1 carried a mandatory-minimum sentence of life imprisonment. Similarly, under

21 U.S.C. § 924(c)(1)(A)(1), Higgins’s conviction for possession of a firearm in

connection with a drug-trafficking crime (count 6) required a sentence of at least five

years of imprisonment to run consecutively with his other sentences. The PSR stated

that Higgins’s guidelines range was 360 months to life plus five years of consecutive

imprisonment. However, the PSR asserted that based on the statutory minimums

described above, the district court was required to impose a sentence of life

imprisonment plus five years to run consecutively.

After reviewing the PSR, the district court heard argument from both sides.

Higgins argued that because the jury had not found that the substance involved in count

1 was crack cocaine, the district court could not sentence Higgins based on

enhancements intended for crack-cocaine-based offenses. The government countered

that the terms “crack cocaine” and “cocaine base” had been used interchangeably at trial.

The district court overruled Higgins’s objection because the district court found that

“there was evidence in this record that the substance possessed by defendant was, in fact,

the crack form of cocaine base” and because under the guidelines, cocaine base was

defined as crack cocaine. J.A. at 196-97 (Trial Tr. at 287-88).

No. 08-5114 United States v. Higgins Page 7

Next, Higgins and the government presented arguments regarding the propriety

of a sentence of life imprisonment. The government focused on the fact that the

appropriate penalty was harsh not because of a sentencing disparity between powder

cocaine and crack cocaine, but because Higgins was a career offender. The district court

noted that 21 U.S.C. § 841(b)(iii) required a sentence of life imprisonment because

Higgins had been convicted of possessing more than 50 grams of cocaine base and had

two prior drug-related convictions. Higgins continued to argue that although this statute

used the term “cocaine base,” the district court could not impose a mandatory life

sentence absent a jury finding that the drug involved was crack cocaine because the

statutory minimum of life imprisonment was meant for offenders involved in crack

cocaine.

In imposing sentence, the district court noted that the guidelines were just one

factor for the court to consider and that here the guidelines “suggest[ed] . . . a mandatory

sentence of life in prison plus five more years for the firearm.” J.A. at 213 (Trial Tr. at

304). The district court considered the circumstances of the offense, focusing on the fact

that guns and a large quantity of drugs were found at Higgins’s apartment. Additionally,

the district court considered Higgins’s history and noted that he had a serious and

lengthy criminal record. The district court stated that there were no appropriate

alternative sentences available and determined that Higgins’s sentence was proportional

to the sentences of other individuals who had committed similar crimes. Finally, the

district court noted the importance of deterring large-scale drug dealers and imposed the

following sentence:

In looking at what your sentence should actually be, the

guidelines suggest life, but even more importantly, the statute in your

case requires life. [21 U.S.C. § 841(b)(1)(A)(iii)] provides the penalty

for 50 grams or more of cocaine base and, in the next column, . . .

provides for a mandatory sentence of life in prison if you have two prior

convictions for a felony drug offense. You clearly have those two prior

felony convictions, and you were convicted in this case of more than 50

grams of cocaine base. So, under the statute, the court has no alternative

but to impose a sentence of life.

The statute also requires a five-year additional sentence to be

served consecutively for the firearm.

No. 08-5114 United States v. Higgins Page 8

So, Mr. Higgins, considering all the factors of [18 U.S.C. § 3553]

and the guidelines, it’s my judgment that you be committed to the

custody of the Bureau of Prisons for a term of life imprisonment on count

1, thirty years imprisonment on count 2, twenty years imprisonment on

count 4, fifteen years imprisonment on count 5, all of those sentences to

be served concurrently with each other, followed by a five-year sentence

consecutive on count 6, which will be served consecutively to the life.

The effective sentence is, therefore, life imprisonment plus five years.

J.A. at 215-16 (Trial Tr. at 306-07) (emphasis added).

On appeal, Higgins raises two arguments. First, Higgins asserts that the district

court erred in denying his motion to suppress because the search warrant was not

supported by probable cause. Second, Higgins presents three arguments contending that

the district court erred in imposing a sentence of life imprisonment: (1) although the

jury convicted Higgins of an offense involving cocaine base, his sentence violated the

Sixth Amendment because it was based on a judicial finding that the offense involved

crack cocaine; (2) Higgins’s sentence was greater than necessary, and the district court

failed to consider mitigating factors; and (3) the district court improperly enhanced

Higgins’s sentence based on prior convictions.

II. ANALYSIS

A. Motion to Suppress

1. Standard of Review

“When reviewing a district court’s decision on a motion to suppress, we use a

mixed standard of review: we review findings of fact for clear error and conclusions of

law de novo.” United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). The district

court’s finding that there was probable cause to support the warrant is reviewed de novo.

United States v. Hardin, 539 F.3d 404, 416-17 (6th Cir. 2008). We view the evidence

“in the light most likely to support the district court’s decision.” Davis, 514 F.3d at 607

(internal quotation marks omitted). “An issuing judge’s findings of probable cause

should be given great deference by the reviewing court and should not be reversed unless

arbitrarily exercised.” United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002), cert.

No. 08-5114 United States v. Higgins Page 9

denied, 539 U.S. 908 (2003). “‘[A] denial of a motion to suppress will be affirmed on

appeal if the district court’s conclusion can be justified for any reason.’” Hardin, 539

F.3d at 417 (quoting United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994)).

2. Analysis

a. Probable Cause

The Fourth Amendment requires that a warrant must be supported by probable

cause, i.e., “a fair probability that contraband or evidence of a crime will be found in a

particular place.” Miller, 314 F.3d at 268 (internal quotation marks omitted). The

Supreme Court has held that the sufficiency of a warrant is analyzed using a totality-of-

the-circumstances approach; “the duty of a reviewing court is simply to ensure that the

[issuing] magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause

existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quoting Jones v. United States,

362 U.S. 257, 271 (1960)). When a search warrant issues based on an informant’s tip,

that informant’s “‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly

relevant,” but are not “separate and independent requirements to be rigidly exacted in

every case.” Id. at 230. In applying this totality-of-the-circumstances test, this court has

held that “where a known person, named to the magistrate, to whose reliability an officer

attests with some detail, states that he has seen a particular crime and particular

evidence, in the recent past, a neutral and detached magistrate may believe that evidence

of a crime will be found.” United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en

banc).

As in Allen, in Higgins’s case, the affidavit was based on information provided

to law-enforcement officers by an informant who was known to the affiant and whose

name was disclosed to the issuing magistrate. See Allen, 211 F.3d at 971-72. However,

Higgins’s case is different from Allen in two critical respects. First, unlike the affidavit

in Allen, Carneal’s affidavit did not attest to the informant’s reliability. The Supreme

Court has held that “[a]dmissions of crime, like admissions against proprietary interests,

carry their own indicia of credibility—sufficient at least to support a finding of probable

No. 08-5114 United States v. Higgins Page 10

cause to search.” United States v. Harris, 403 U.S. 573, 583 (1971). However, when

considering Harris, this court has held that “[a]n admission against penal interest . . . is

a significant, and sometimes conclusive, reason for crediting the statements of an

informant.” Armour v. Salisbury, 492 F.2d 1032, 1035 (6th Cir. 1974) (emphasis

added). Accordingly, the fact that the informant was known to the affiant and issuing

magistrate and admitted a crime does not alone provide probable cause. In addition to

providing scant information about the informant’s reliability, the “corroboration”

included in Carneal’s affidavit does little to reinforce the informant’s assertions. The

affidavit states that the other passengers in the car confirmed the informant’s statement,

but it does not say whether they did so unprompted or if the police asked them whether

the drugs had come from Higgins’s apartment. The affidavit states that the police

corroborated the fact that Higgins lived at the stated location, owned the motorcycle

parked outside, and had a drug-related criminal history, but none of these facts supports

the informant’s assertion that he had purchased drugs from Higgins at this location the

previous day.

The second difference between this case and Allen is that this affidavit does not

assert that the informant had been inside Higgins’s apartment, that he had ever seen

drugs or other evidence inside Higgins’s apartment, or that he had seen any evidence of

a crime other than the one that occurred when Higgins allegedly sold him drugs.

Without such an assertion, the affidavit fails to establish the necessary “nexus between

the place to be searched and the evidence sought.” United States v. Van Shutters, 163

F.3d 331, 336-37 (6th Cir. 1998) (internal quotation marks omitted), cert. denied, 526

U.S. 1077 (1999).

Applying the totality-of-the-circumstances test, we hold that this warrant was not

supported by probable cause. The informant gave his statements after the police

discovered a large amount of drugs in his car, giving him an incentive to cooperate with

the police to help himself. The affidavit contains no assertion that this informant is

known to be reliable, nor did the police corroborate any of the informant’s statements

beyond the innocent fact that Higgins lived at the stated location and the irrelevant (to

No. 08-5114 United States v. Higgins Page 11

the determination of whether Higgins’s house contained evidence of a present-day

crime) fact that Higgins had a criminal record. Nor does the affidavit contain any

assertion that the informant had been inside Higgins’s apartment or that the informant

had seen drugs or other evidence in or around Higgins’s apartment. Given these

weaknesses, we conclude that the district court erred in its conclusion that this warrant

was supported by probable cause.

b. Exceptions to Exclusion

In light of two judges on this panel having concluded that the warrant was not

supported by probable cause, we must next determine whether an exception to the

exclusionary rule applies. “In United States v. Leon, 468 U.S. 897 (1984), the Supreme

Court created a good-faith exception to the usual rule that courts should exclude

evidence obtained in violation of the Fourth Amendment” which this court has described

as follows:

United States v. Leon modified the exclusionary rule so as not to

bar from admission evidence seized in reasonable, good-faith reliance on

a search warrant that is subsequently held to be defective. Where an

officer’s reliance on a warrant is objectively reasonable, the Supreme

Court held, no additional deterrent effect will be achieved through the

exclusion from evidence of the fruits of that search. However, the

good-faith exception is inapposite in four situations: (1) where the

issuing magistrate was misled by information in an affidavit that the

affiant knew was false or would have known was false except for his

reckless disregard for the truth; (2) where the issuing magistrate wholly

abandoned his judicial role and failed to act in a neutral and detached

fashion, serving merely as a rubber stamp for the police; (3) where the

affidavit was nothing more than a “bare bones” affidavit that did not

provide the magistrate with a substantial basis for determining the

existence of probable cause, or where the affidavit was so lacking in

indicia of probable cause as to render official belief in its existence

entirely unreasonable; and (4) where the officer’s reliance on the warrant

was not in good faith or objectively reasonable, such as where the

warrant is facially deficient.

United States v. Rice, 478 F.3d 704, 711-12 (6th Cir. 2007) (internal quotation marks and

citations omitted); see also Herring v. United States, 129 S. Ct. 695 (2009).

No. 08-5114 United States v. Higgins Page 12

Although a majority holds in Part II.A.2.a that this warrant was not supported by

probable cause, a separate majority holds that the Leon good-faith exception applies and

makes exclusion an inappropriate remedy in this case. Neither party discusses the issue,

but there is no evidence that any circumstances are present that would negate the good-

faith exception. There is no evidence that Carneal included false information in the

affidavit; there is no evidence that the magistrate acted as a partisan rubber stamp; the

affidavit is weak, but it is not bare bones, and this court’s precedents are not so clear as

to make it “entirely unreasonable” to find probable cause based on such an affidavit; and

there has been no showing that the warrant was so obviously deficient that official

reliance on it was objectively unreasonable.

“[O]ur good-faith inquiry is confined to the objectively ascertainable question

whether a reasonably well trained officer would have known that the search was illegal

despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. The conclusion that

the officers’ reliance on the warrant was objectively reasonable requires “‘a less

demanding showing than the “substantial basis” threshold required to prove the

existence of probable cause.’” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.

2004) (en banc) (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)).

In this case, the police had received information from a named informant who, in the

course of admitting that he had committed a crime, told police that he had purchased

drugs from Higgins’s address earlier that day. As discussed above, the police had not

worked with the informant before and did not know whether drugs had been sold or seen

inside Higgins’s residence, but a magistrate did issue a warrant based on the facts

included in the affidavit. This circuit’s holdings indicate that a nexus between the place

to be searched and the item to be seized may sometimes be inferred. See United States

v. Williams, 544 F.3d 683 (6th Cir. 2008). Here the warrant contained a sufficient link

between Higgins’s home and drug activity such that a reasonably well-trained officer

would not have known that the search was illegal. See Carpenter, 360 F.3d at 596.

Accordingly, we conclude that exclusion is inappropriate and the evidence stemming

from the search should not be suppressed.

No. 08-5114 United States v. Higgins Page 13

B. Apprendi Claim

At sentencing and on appeal Higgins argued that because the jury found that his

crime involved cocaine base but did not find that it involved crack cocaine, the district

court committed error under Apprendi v. New Jersey, 530 U.S. 466 (2000), when it

imposed an enhanced penalty under 21 U.S.C. § 841(b)(1)(A)(iii). Section

841(b)(1)(A)(iii) sets the penalty for a crime involving 50 grams or more of a mixture

that contains cocaine base. The verdict form indicates that the jury convicted Higgins

of a crime involving 531.8 grams of cocaine base. At sentencing, the district court noted

that because Higgins was convicted of a crime involving more than 50 grams of cocaine

base and because Higgins had two or more prior felony drug-related convictions,

§ 841(b)(1)(A) required the district court to impose a sentence of life imprisonment.

Though a surface reading of the statute and the verdict form seems to indicate that the

jury found exactly what § 841(b)(1)(A)(iii) requires, Higgins’s Apprendi claim arises

from the fact that term “cocaine base” as used in §841 is ambiguous. Higgins argues that

Congress intended to impose the enhanced penalties reserved for cocaine base only when

crack cocaine, a specific form of cocaine base, was involved. Therefore, Higgins asserts

that the jury would have had to find him guilty of a crime involving crack cocaine before

those harsh penalties could apply. See United States v. Hollis, 490 F.3d 1149, 1155 (9th

Cir. 2007) (confronting same argument). We agree with Higgins, but conclude that his

sentence was proper because it was based on a jury finding that he possessed crack

cocaine.

1. Statutory Ambiguity

Congress created the enhanced penalties for crimes involving cocaine base

contained in § 841(b)(1)(A) as part of the Anti-Drug Abuse Act of 1986 (“the Act”). See

Kimbrough v. United States, — U.S. —, 128 S. Ct. 558, 566-67 (2007). In part,

Congress intended this Act to confront the then relatively new and increasing use of the

crack form of cocaine. Id. We have held that “because crack is ‘the primary target’ of

the Act, there could be ‘no doubt that[,] whatever else section 841(b)(1)(B)(iii)

No. 08-5114 United States v. Higgins Page 14

encompasses, it certainly includes [crack].”2 United States v. Avant, 907 F.2d 623, 626

(6th Cir. 1990); see also United States v. Brisbane, 367 F.3d 910, 912 (D.C. Cir. 2004)

(“Whatever Congress meant by ‘cocaine base,’ there can be no doubt that it meant to

include crack.”).

The question in the instant case is not whether the term “cocaine base” in § 841

includes crack cocaine. Instead, we must decide whether Apprendi “requires the

government to charge, and the jury to find, more than that defendant distributed cocaine

base” before imposing the harsh penalties nominally directed towards “cocaine base”

contained in § 841. Hollis, 490 F.3d at 1155 (emphasis added). A recent D.C. Circuit

case provides useful background:

Punishment for violating § 841 depends on the weight of drugs involved

in the offense. A certain quantity of “cocaine base” will trigger much

stiffer penalties than an equivalent quantity of “cocaine, its salts, optical

and geometric isomers, and salts of isomers.” Compare 21 U.S.C.

§ 841(b)(1)(A)(ii)(II) & (B)(ii)(II) (“subsection (ii)”) with 21 U.S.C.

§ 841(b)(1)(A)(iii) & (B)(iii) (“subsection (iii)”). The problem is that,

chemically, “cocaine” and “cocaine base” mean the same thing.

Cocaine is a naturally occurring alkaloid—that is, a base—found

in the leaves of the coca plant. The leaves typically undergo extensive

processing before reaching the United States. Processors shred the

leaves and mash them with a strong alkali (like lime), a solvent (like

kerosene), and sulfuric acid. The result is a light brown paste containing

cocaine base (cocaine in its natural alkaloid form) and a number of other

chemicals. The cocaine paste is processed with hydrochloric acid to

create a salt, cocaine hydrochloride, a white or off-white powder. It is

usually this powder that is shipped to the United States, where it is

known colloquially as “cocaine.”

Users generally consume powdered cocaine by snorting it. Since

cocaine hydrochloride is water soluble, the nasal mucous membranes

absorb the chemical, allowing it to enter the blood stream and eventually

reach the brain. Users can also apply the powder to other mucous

membranes, or dissolve it in water and inject it intravenously. But they

cannot smoke it. The temperature at which cocaine hydrochloride

evaporates is higher than the temperature at which its active ingredient

breaks down.

2

Although this quotation deals with § 841(b)(1)(B)(iii), there is no difference between this section

and the one at issue here, § 841(b)(1)(A)(iii), except that (B)(iii) applies to individuals convicted of crimes

involving smaller quantities of drugs.

No. 08-5114 United States v. Higgins Page 15

Cocaine base, on the other hand, can be smoked. The ability to

smoke the drug is important because smoking produces a quicker,

shorter, and more intense high than snorting. This makes it much more

addictive. Smoking cocaine paste, which contains cocaine base, is

common in the Andes but rare in the United States because cocaine is

generally imported in its powdered, nonsmokable form.

Beginning in the early 1970s, American drug dealers developed

several methods to free cocaine base from cocaine hydrochloride so that

it could be smoked. The most common method used to produce this

“freebase” cocaine involved flammable substances and could result in

dangerous explosions. This danger, along with the high price of cocaine,

limited freebase’s popularity.

In the mid-1980s, a new form of smokable cocaine became

widely available. Known by the street name “rock” or “crack,” this form

was much easier to manufacture than other forms of freebase because the

process did not involve volatile chemicals. Also, unlike the “traditional”

method of making freebase, the “baking soda method” used to make

crack did not remove impurities and adulterants present in the powder.

These characteristics combined to produce a highly addictive form of

smokable cocaine that was far cheaper than either powder or freebase had

ever been. While cost had previously limited cocaine use to people of

means, crack made it available to large numbers of young and

low-income users.

Crack spread rapidly through several large cities. In 1986,

Congress passed the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,

100 Stat. 3207, without such normal deliberative processes as committee

hearings and reports. Among other measures, the statute purported to

impose much higher sentences for crack than for powdered cocaine.

The statute established the quantities of “cocaine, its salts . . .”

that would trigger various penalty tiers. But rather than describing crack

by street name or manufacturing process, the statute established lower

thresholds for any “mixture containing cocaine base.” Because

“cocaine” and “cocaine base” carry the same chemical meaning (the

word “base” merely refers to the fact that cocaine is a base), the statute

appears ambiguous, providing two different sets of penalties for the same

offense. If the ambiguity remains unresolved, the rule of lenity would

suggest imposition of the lower sentence.

Brisbane, 367 F.3d at 911-12 (footnote and citations omitted); see also Hollis, 490 F.3d

at 1156 (“[C]ocaine and cocaine base are chemically identical. If any form of cocaine

base qualifies for the enhanced penalties under the statute, then subsection (iii) swallows

subsection (ii).”).

No. 08-5114 United States v. Higgins Page 16

The situation is further complicated by the meaning of the term “cocaine base”

as used in the Sentencing Guidelines. The Anti-Drug Abuse Act of 1986 “adopted a

‘100-to-1 ratio,’” which the Supreme Court has described as a penalty scheme “that

treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine”

and which resulted in significantly higher penalties for individuals convicted of crimes

involving crack than powder cocaine. Kimbrough, 128 S. Ct. at 567. When the

Sentencing Commission developed the Guidelines, it adopted this weight-based ratio and

prescribed higher sentences for cocaine base than for cocaine. Id. at 567-68; see also

U.S.S.G. § 2D1.1(c). In 1993, the Commission resolved the ambiguity inherent in

punishing these chemically identical substances differently by promulgating an

amendment that stated that “‘Cocaine base,’ for the purposes of this guideline, means

‘crack.’ ‘Crack’ is the street name for a form of cocaine base, usually prepared by

processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a

lumpy, rocklike form.” U.S.S.G. § 2D1.1 (Notes to Drug Quantity Table)(D); see also

United States v. Munoz-Realpe, 21 F.3d 375, 376-77 (11th Cir. 1994). Congress took

no action to bar or change this amendment, the amendment makes no mention of § 841,

and Congress did not act to amend § 841.

Higgins’s Apprendi claim hinges on the ambiguity remaining in § 841. Higgins

argues that § 841(b)(1)(A)(ii) and (iii) punish chemically identical substances differently

by offering the same mandatory minimums for crimes involving 50 grams of cocaine

base as for those involving 5 kilograms of cocaine. Higgins urges us to resolve the

ambiguity and give effect to Congress’s intent to punish only “crack cocaine” more

harshly by applying the penalties that the statute reserves for “cocaine base” exclusively

when the jury finds that the cocaine base involved is crack cocaine. Higgins then argues

that because the jury did not find that the drug involved in his case was “crack cocaine,”

the district court violated Apprendi when it exposed him to a higher penalty based on a

judicial finding that the drug involved was crack cocaine.

There is a circuit split as to how this ambiguity should be resolved. Six circuits

have refused to limit the definition of “cocaine base” and have held that “cocaine base”

No. 08-5114 United States v. Higgins Page 17

in § 841 includes all forms of cocaine base. The First Circuit noted the circuit split and

held as follows: “In this circuit, . . . it is settled that 21 U.S.C. § 841 regulates exactly

what its terms suggest: the possession of any form of ‘cocaine base.’ Crack is a form

of cocaine base and so is among the substances regulated by the statute, but the

government is not required to prove that the substance involved in a given case is crack

in order to secure a conviction under it.” United States v. Medina, 427 F.3d 88, 92 (1st

Cir. 2005) (citations omitted). Before the Guidelines were amended, the Second Circuit

“decline[d] to equate cocaine base with ‘crack’ cocaine” for purposes of the Guidelines

and of § 841 because, although it was clear that Congress meant to include “crack

cocaine” when it said “cocaine base,” Congress had chosen not to limit the definition of

“cocaine base.” United States v. Jackson, 968 F.2d 158, 162 (2d Cir. 1992). After the

Guidelines amendment, the Second Circuit seemingly reaffirmed its refusal to limit the

definition of cocaine base. United States v. Fields, 113 F.3d 313, 325 (2d Cir. 1997).

The Third Circuit adopted the Second Circuit’s approach, rejected the argument that the

Guidelines amendment should influence its decision, and concluded that “‘cocaine base’

encompasses all forms of cocaine base with the same chemical formula when the

mandatory minimum sentences under 21 U.S.C. § 841(b)(1) are implicated.” United

States v. Barbosa, 271 F.3d 438, 466-67 (3d Cir. 2001). The Fourth Circuit also

followed the Second Circuit and concluded that Congress did not intend to limit the term

“cocaine base” beyond its known chemical meaning. United States v. Ramos, 462 F.3d

329, 333-34 (4th Cir. 2006). The Fifth Circuit concluded that “[a]lthough a substance

does not appear to be crack cocaine, it may nevertheless be cocaine base within the

meaning of § 841(b).” United States v. Butler, 988 F.2d 537, 543 (5th Cir. 1993).

Finally, the Tenth Circuit held that “‘cocaine base’ is sufficiently defined and

distinguishable from other forms of cocaine to prevent arbitrary and discriminatory

enforcement.” United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992).

Five other circuits3 have limited the definition of “cocaine base” in § 841. In

contrast with the Second Circuit, the Eleventh Circuit held that by failing to block the

3

We, along with the Eighth Circuit, are the only circuits that have yet to address this issue.

No. 08-5114 United States v. Higgins Page 18

amended Guidelines definition of “cocaine base,” “Congress indicated that it intends the

term ‘cocaine base’ to include only crack cocaine.” Munoz-Realpe, 21 F.3d at 377.

After reviewing the circuit split, the Seventh Circuit concluded that “for purposes of the

mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), the phrase ‘cocaine base’

refers to cocaine base that constitutes crack.” United States v. Edwards, 397 F.3d 570,

577 (7th Cir. 2005). The Ninth Circuit similarly read § 841 “as requiring the indictment

to charge and the jury to find ‘crack’ to trigger the enhanced penalties associated with

cocaine base.” Hollis, 490 F.3d at 1156. The D.C. Circuit “reject[ed] the ‘literal’

approach” of refusing to limit the definition of “cocaine base.” Brisbane, 367 F.3d at

913. The Brisbane court concluded that it could resolve the ambiguity in § 841 by

defining “cocaine base” as “crack cocaine” or by defining “cocaine base” as “any

cocaine that is smokable,” but declined to adopt either approach because such a holding

was not necessary to the resolution of the case before it. Id. at 914.

We have examined this precedent, and we agree with those courts that have held

that § 841 is ambiguous and that the phrase “cocaine base” in § 841 means “crack

cocaine.” We also note that the Guidelines have defined “cocaine base” as “crack

cocaine,” and that our holding will create consistency between the Guidelines and the

statute. As currently written, § 841 punishes the possession of chemically identical

substances, cocaine and cocaine base, differently. However, it is clear that Congress

intended that the enhanced penalties for “cocaine base” would apply to crimes involving

“crack cocaine.” Kimbrough, 128 S. Ct. at 566-67; Avant, 907 F.2d at 626. We resolve

the ambiguity and give effect to Congress’s intent by holding that the term “cocaine

base” as used in § 841 means “crack cocaine.” Accordingly, under Apprendi, before the

enhanced penalties of § 841 can apply, the indictment must charge and the jury must find

beyond a reasonable doubt that the defendant committed a crime involving crack

cocaine.

No. 08-5114 United States v. Higgins Page 19

2. Higgins’s Case

Having held that the enhanced penalties of § 841 require that the jury find that

the defendant committed a crime involving crack cocaine, we must consider whether

Higgins’s sentence violates Apprendi. “This court reviews a constitutional challenge to

a defendant’s sentence de novo wherever the defendant preserves the claim for appellate

review.” United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003). Higgins

preserved his Apprendi challenge by making this argument at his sentencing hearing.

If the jury’s verdict includes nothing more than a finding that Higgins possessed cocaine

base, today’s holding would require us to vacate Higgins’s sentence.

According to the verdict form, the jury found Higgins guilty of count 1 and also

found that in connection with count 1, Higgins possessed 531.8 grams of “cocaine base.”

J.A. at 71 (Jury Verdict Form at 1). Although the verdict form does not contain the term

“crack cocaine,” its references to count 1 incorporate the definition of “cocaine base” as

“crack cocaine.” Both questions that the jury was required to answer explicitly refer to

count 1. The indictment describes count 1 as follows: “On or about September 10,

2005, in the Western District of Tennessee, the defendant, Oliver Higgins, did

unlawfully, knowingly and intentionally possess with the intent to distribute

approximately 531.8 grams of cocaine base (crack cocaine). . . .” J.A. at 17 (Indictment

at 1) (emphasis added). Given the fact that the indictment clearly defines “cocaine base”

as “crack cocaine”4 and that the verdict form references the indictment, we conclude that

the jury found beyond a reasonable doubt that Higgins possessed crack cocaine.

Accordingly, the district court did not commit Apprendi error when it sentenced Higgins

based on the enhanced penalties contained in § 841.

4

In addition to the indictment, the district court also defined “cocaine base” as “crack cocaine.”

When the district court charged the jury, it stated that “Count 1 charges the defendant, Oliver Higgins, on

or about September 10, 2005 unlawfully, knowingly and intentionally possessed with intent to distribute

approximately 531.8 grams of cocaine base, or crack cocaine.” J.A. at 175 (Trial Tr. at 239) (emphasis

added).

No. 08-5114 United States v. Higgins Page 20

C. Reasonableness of Sentence

Higgins next argues that his sentence was unreasonable because it is greater than

necessary to achieve the goals of sentencing and because the district court failed to

consider mitigating factors, namely that Higgins’s age made him unlikely to become a

recidivist and the disparity between sentencing for crack and powder cocaine.5

Reasonableness review has two components, procedural and substantive reasonableness,

and was described by the Supreme Court in Gall v. United States, — U.S. —, 128 S. Ct.

586, 597 (2007):

Regardless of whether the sentence imposed is inside or outside

the Guidelines range, the appellate court must review the sentence under

an abuse-of-discretion standard. It must first ensure that the district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the

Guidelines range. Assuming that the district court’s sentencing decision

is procedurally sound, the appellate court should then consider the

substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard. When conducting this review, the court will, of

course, take into account the totality of the circumstances, including the

extent of any variance from the Guidelines range. If the sentence is

within the Guidelines range, the appellate court may, but is not required

to, apply a presumption of reasonableness. But if the sentence is outside

the Guidelines range, the court may not apply a presumption of

unreasonableness. It may consider the extent of the deviation, but must

give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance. The fact that the

appellate court might reasonably have concluded that a different sentence

was appropriate is insufficient to justify reversal of the district court.

5

Even though Higgins failed to object to the district court’s sentencing procedure after the court

imposed sentence, Higgins’s sentencing-reasonableness claims are not limited to plain-error review in light

of United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). Higgins’s procedural-

unreasonableness claims are not subject to plain-error review because the district court failed to ask

Higgins if he had any additional objections to the sentence after the district court had imposed sentence,

as required by Vonner. Id. Additionally, as to Higgins’s claim that his sentence was longer than necessary

to comply with 18 U.S.C. § 3553(a),“[a] litigant has no duty to object to the ‘reasonableness’ of the length

of a sentence (or to the presumption of reasonableness) during a sentencing hearing.” Id. at 389.

No. 08-5114 United States v. Higgins Page 21

1. Procedural Reasonableness

To conclude that Higgins’s sentence was procedurally reasonable, this panel

must find that the district court “(1) properly calculated the applicable advisory

Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’

arguments for a sentence outside the Guidelines range; and (3) adequately articulated its

reasoning for imposing the particular sentence chosen, including any rejection of the

parties’ arguments for an outside-Guidelines sentence and any decision to deviate from

the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir.

2007). Higgins argues that the district court’s sentence was not procedurally reasonable

because the district court failed to consider Higgins’s age and the sentencing disparity

between crack and powder cocaine as mitigating factors.

Even assuming that the district court abused its discretion in sentencing Higgins,

remand is inappropriate. Higgins was sentenced pursuant to a statutory mandatory

minimum such that on remand, “the district court would not have the discretion to

impose a shorter term of imprisonment.” United States v. Smith, 419 F.3d 521, 532 (6th

Cir. 2005), cert. denied, 546 U.S. 1096 (2006); see also United States v. Paige, 470 F.3d

603, 612 (6th Cir. 2006) (“[R]emand is not required by Booker when the defendant has

been sentenced to a statutory mandatory minimum sentence.”). In Higgins’s case, even

if the district court changed Higgins’s sentences on the counts that did not carry a

statutory mandatory minimum, these sentences would still run concurrent with the term

of life imprisonment mandated by Higgins’s conviction on count 1. Accordingly, even

assuming that Higgins’s sentence is not procedurally reasonable, remand is not the

proper remedy, and Higgins’s sentence must stand.

2. Substantive Reasonableness

We next address whether Higgins’s sentence is substantively reasonable. Bolds,

511 F.3d at 581. We have held that within-Guidelines sentences are presumed

reasonable. Vonner, 516 F.3d at 389-90. Although this presumption is rebuttable, we

cannot reverse a sentence simply because we determine that a different sentence would

No. 08-5114 United States v. Higgins Page 22

be appropriate. Id.; see also Gall, 128 S. Ct. at 597. The PSR stated that based on

Higgins’s total offense level of 37 and his criminal history category of VI, his guidelines

range was 360 months to life imprisonment plus a consecutive term of five years.

Higgins was sentenced to the statutory mandatory minimum of life imprisonment, and

this sentence falls within the guidelines range and is presumed reasonable. Additionally,

even were we to conclude that Higgins’s sentence is substantively unreasonable, the

statutory mandatory minimum would continue to bind the district court, and remand

would not be appropriate. Accordingly, we decline to vacate Higgins’s sentence.

D. Use of Prior Convictions

Higgins’s final argument is that the district court improperly based his sentence

on a judicial finding that his prior convictions constituted felony drug offenses. Higgins

objected on the same basis at sentencing. Higgins faced a mandatory-minimum penalty

of life imprisonment because he was convicted of violating § 841(b)(1)(A)(iii) and had

more than two prior convictions for a felony drug offense. Higgins argues that his

sentence should be vacated because the Supreme Court is likely to overrule Almendarez-

Torres v. United States, 523 U.S. 224 (1998), and because the district court did not find

convictions in his case, but rather found a fact about those convictions. Higgins relies

heavily on Shepard v. United States, 544 U.S. 13 (2005), for both arguments.

Whatever Shepard implies about the longevity of Almendarez-Torres, it does not

overrule the Supreme Court’s conclusion that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490. Instead, Shepard limited the material that a sentencing court can consider

when determining the nature of a prior conviction. The Shepard Court held that “a later

court determining the character of an admitted burglary is generally limited to examining

the statutory definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Shepard, 544 U.S. at 16.

No. 08-5114 United States v. Higgins Page 23

Higgins’s enhanced sentence required a finding that he had been convicted of at

least two prior felony drug offenses. § 841(b)(1)(A). Congress has defined “felony drug

offense” as follows: “The term ‘felony drug offense’ means an offense that is punishable

by imprisonment for more than one year under any law of the United States or of a State

or foreign country that prohibits or restricts conduct relating to narcotic drugs,

marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C.

§ 802(44). The PSR lists at least six offenses of which Higgins was convicted which

restrict drug-related conduct and which resulted in a sentence of more than one year.

Higgins does not challenge the fact that he was convicted of these offenses, the facts

underlying the convictions, or the length of sentence that was imposed. Because the

district court could determine that these convictions were felony drug offenses for the

purposes of § 841 based solely on the statutory definitions of the crimes, the district

court did not err when it used these convictions to enhance Higgins’s sentence.

Accordingly, we AFFIRM the district court’s decision to enhance Higgins’s sentence

based on prior convictions.

III. CONCLUSION

For the reasons discussed above, we AFFIRM Higgins’s conviction and

sentence.

No. 08-5114 United States v. Higgins Page 24

___________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

___________________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in Part

II.A.2.a of the lead opinion holding that the affidavit submitted by Officer William

Carneal did not establish probable cause to search Higgins’ apartment. However, I

disagree that the good faith exception articulated in United States v. Leon, 468 U.S. 897

(1984), prevents suppression of the evidence, and I dissent from Part II.A.2.b of the lead

opinion which finds that official reliance on the warrant was not objectively

unreasonable.

Thus, contrary to the lead opinion’s conclusion that a “majority holds that the

Leon good-faith exception applies,” Op. at 12, the lead opinion is alone in finding that

Leon prevents exclusion of the evidence. While Judge Kethledge joins Part II.A.2.b of

the lead opinion, he resolves Higgins’ challenge to the denial of the motion to suppress

by concluding that the search warrant was supported by probable cause. Accordingly,

since Judge Kethledge determines that the magistrate properly found probable cause, it

would seem that he is not entitled to reach the issue of whether the Leon exception

applies—except perhaps as a matter of dicta. In other words, it is my view that only one

vote, that of Judge Moore, actually supports the applicability of the Leon exception.

Nevertheless, even in the absence of a majority in support of Part II.A.2.b, I understand

that the disposition of the case results in a two-judge majority affirming the denial of

Higgins’ motion to suppress. Consequently, for the reasons that follow, I dissent from

the majority’s holding.

When police seize evidence during the course of an unconstitutional search, as

in this case, a trial court generally must exclude the evidence. United States v. Frazier,

423 F.3d 526, 533 (6th Cir. 2005). However, “[t]he exclusionary rule does ‘not bar the

government’s introduction of evidence obtained by police officers acting in objectively

reasonable reliance on a search warrant that is subsequently invalidated.’” United States

v. McPhearson, 469 F.3d 518, 525 (6th Cir. 2006) (quoting United States v. Laughton,

No. 08-5114 United States v. Higgins Page 25

409 F.3d 744, 748 (6th Cir. 2005)). In determining whether police acted in good faith,

the “inquiry is confined to the objectively ascertainable question whether a reasonably

well trained officer would have known that the search was illegal despite the

magistrate’s authorization.” Leon, 468 U.S. at 922 n.23.

Although the Supreme Court in Leon concluded that suppression of evidence is

not always an appropriate remedy for unconstitutional searches, the Supreme Court also

established four circumstances under which an officer’s reliance on the issued warrant

cannot be reasonable and where suppression thus remains appropriate:

(1) where the issuing magistrate was misled by information in an

affidavit that the affiant knew was false or would have known was false

except for his reckless disregard for the truth; (2) where the issuing

magistrate wholly abandoned his judicial role and failed to act in a

neutral and detached fashion, serving merely as a rubber stamp for the

police; (3) where the affidavit was nothing more than a “bare bones”

affidavit that did not provide the magistrate with a substantial basis for

determining the existence of probable cause, or where the affidavit was

so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable; and (4) where the officer’s reliance on

the warrant was not in good faith or objectively reasonable, such as

where the warrant is facially deficient.

United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006). While there is no evidence

that Officer Carneal included false information in the affidavit or that the magistrate

failed “to act in a neutral and detached fashion,” id., the officer’s reliance on the warrant

to support the search of Higgins’ apartment was not “objectively reasonable.”

Therefore, Officer Carneal cannot “assert reasonable reliance, nor [a] court[] find good

faith.” United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008).

As the lead opinion recognizes, the affidavit submitted by Officer Carneal did not

set forth a “substantial basis” for the magistrate to find probable cause that evidence of

drug-trafficking would be found in Higgins’ apartment. Nonetheless, the lead opinion

upholds the admission of the evidence on the basis of the Leon exception, finding that

“the warrant contained a sufficient link between Higgins’s home and drug activity such

No. 08-5114 United States v. Higgins Page 26

that a reasonably well trained officer would not have known that the search was illegal.”

Op. at 12. I disagree.

For the same reasons that the warrant was not supported by probable cause, “a

reasonably well trained officer would have known that the search was illegal despite the

magistrate’s authorization,” Leon, 468 U.S. at 922 n.23, inasmuch as a reasonably well

trained officer could not have believed that the affidavit provided a basis for establishing

probable cause. A tip from a just-arrested “informant,” whose reliability and veracity

are unknown to the officer and the magistrate, that Higgins had sold drugs at a particular

address would not lead a reasonable officer to conclude that probable cause existed to

search Higgins’ apartment. See McPhearson, 469 F.3d at 526; cf. United States v.

Helton, 314 F.3d 812, 821-22 (6th Cir. 2003) (concluding that an unreliable informant’s

tips “do not merit much weight in the probable cause determination”). Further, the

affidavit contained no corroboration of the criminal details of Higgins’ alleged activities,

and contained no indication that a search would uncover drugs inside of Higgins’

apartment. The affidavit did not state that the affiant observed drugs or drug transactions

inside Higgins’ apartment, nor did the affidavit attest to the informant’s reliability. A

reasonably well trained officer would understand that further corroboration—such as

independent surveillance or further questioning of the informant to determine whether

he had seen drugs inside of Higgins’ apartment—was needed before probable cause

could be established to search the apartment. See United States v. Leake, 998 F.2d 1359,

1367 (6th Cir. 1993) (concluding that an officer “could not properly have placed

objective good faith reliance on the warrant” because a reasonably well trained police

officer would have known that additional corroboration of an informant’s tip was needed

to establish probable cause).

For these reasons, I dissent from the lead opinion’s conclusion that Leon’s good

faith exception applies. Because I would reverse the district court’s denial of Higgins’

motion to suppress and remand the case to the district court for further proceedings, I

would not reach the sentencing issues that Higgins raises on appeal.

No. 08-5114 United States v. Higgins Page 27

_____________________

CONCURRENCE

_____________________

KETHLEDGE, Circuit Judge, concurring. I concur in Judge Moore’s opinion

in all respects but one: I would hold that sufficient evidence supported the district court’s

finding of probable cause.

Here, the district court considered five pieces of evidence that, when taken “in

the light most likely to support [its denial of the motion to suppress],” United States v.

Davis, 514 F.3d 596, 607 (6th Cir. 2008), support that finding. First, the court knew the

informant’s identity. Second, the police found 41 grams of cocaine in the informant’s

car. Third, the informant said he picked up the cocaine earlier that day from a specific

address, which the police verified to be Higgins’ residence. Fourth, two

passengers—when separated and interviewed independently—said the informant had

driven them to Higgins’ residence that day. And fifth, the informant identified Higgins

as the seller, and disclosed that he had purchased narcotics from Higgins at that

residence on another occasion as well.

This evidence brings the case within the purview of United States v. Allen, 211

F.3d 970, 976 (6th Cir. 2000). The informant was reliable; he was a “known person”;

two independent sources corroborated his statements regarding his whereabouts that day;

and the informant admitted to his own prior criminal conduct. There was also a factual

foundation for the informant’s claim of witnessing a recent crime: Namely, he was

caught red-handed with cocaine, which by his own account he had just purchased from

Higgins. Consequently, “a neutral and detached magistrate [could] believe that evidence

of a crime [would] be found” at Higgins’ residence, id., and the district court properly

denied his motion to suppress.

My disagreement with Judge Moore ultimately does not matter much, since the

issue does not affect our disposition of the case. She holds, and I join her in holding,

that the Leon good-faith exception applies here.

No. 08-5114 United States v. Higgins Page 28

For these reasons, I join all but section II.A.2.a of Judge Moore’s opinion.