# United States v. Jimmy Abernathy

> Court of Appeals for the Sixth Circuit · December 8, 2016 · 843 F.3d 243

URL: https://www.frixlaw.com/law-library/cases/9870101

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Jail ABERNATHY, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 8, 2016
- **Citations:** 843 F.3d 243; 2016 FED App. 0284P; 2016 U.S. App. LEXIS 21824; 2016 WL 7158011
- **Precedential status:** Published
- **Opinion:** Dissent by Kethledge
- **Judges:** Clay, Kethledge, Donald
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9870101

## How later opinions describe it (automated extraction)

- holding that drug paraphernalia recovered from a trash pull supported a finding of probable cause
- holding that affidavit did not support probable cause where “the only proper evidence the [a]ffidavit contained * * * was the ‘several’ marijuana roaches and T2–laced plastic bags the police recovered from the trash pull”
- holding that drug paraphernalia recovered from a trash pull outside of the home supports a finding of probable cause when combined with other evidence of the resident’s involvement in drug crimes
- explaining that information is stale when it is “impossible to tell from the affidavit when the circumstances giving rise to probable cause occurred” and that the court does not consider stale information
- reasoning that “there is no way of knowing with certainty” whether drugs recovered from a trash pull “came from Defendant’s residence at all”

## Opinion text

KETHLEDGE, Circuit Judge,
dissenting.
DISSENT
I respectfully disagree with my colleagues that the evidence from the trash pull did not establish probable cause. In the trash can, officers found several marijuana roaches, vacuum-sealed baggies containing ’ marijuana residue, and mail addressed to the defendant. The address on the mail was the address of the house later searched, which is reason enough to think the roaches and baggies came from that same house. Taken together, these facts created a fair probability that the officers would find contraband or evidence of a drug crime in the house. See United States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002). In Laiwence, we held that the officers’ discovery of plastic bags containing cocaine residue in the defendant’s trash was enough to establish probable cause, even if the tip that triggered the trash pull should have been excised from the warrant affidavit. Id. at 626, 627 . We should find probable cause here as well. I would therefore affirm the district court’s order denying the defendant’s motion to suppress.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9870101. Public record. Not legal advice.