Petition for Writ of Certiorari — Nickey Ardd, Petitioner v. United States

M

iLe

IN THE

SUPREME COURT OF THE UNITED STATES

WECKY ARDD

PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS POR THE SIXTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Kicky Ardd

(Your Name)

United States Penitentiary Atlanta("USP—ATLANTA")

-

-

(Address)

P.O. Box 150160, Atlanta, Georgia 30315

(City, State, Zip Code)

N/A

(Phone Number)

QUESTION(S) PRESENTED

Consistent with this Court's decision in Roviaro v. United States, 353 U.S.

at 60-61 (1963). When the disclosure of the name of confidential informant, is

"relevant and helpful to the defense of an accused, or is essential to a fair

determination of a cause, the privilege must give way." May Roviaro, be applied

retroactively to set-aside the conviction in this case, because there is evidence

in the record, showing that an ["alleged criminal confidential informant"], had

"helped set up an ["entrapment controlled buy"]?

Does the Fourth Amendment require law enforcement officers to get an arrest

warrant first, prior to officers placing a person under surveillance, in order to

set-up defendant for ["entrapment" controlled buy"] purchase, based upon alleged

criminal confidential informer's information?, which..led to illegal home search.

Did the law enforcement officers needed separate ludicial authority to enter

without

a

the home of Mr. Ardd, and started to search his home

search warrant?

-

-

-

Consistent with this Court's decision in Strickland v•. Washington, 466:U.S.

at 691 (2004); and Wiggins v. Smith, 539 U.S. 510 (2003). Is it a Sixth Amendment

violation, when appellate attorney failure to present facts, and ignored significant

and obvious issues on direct appeal? Does constitutional violation occur.% when

defendant's appellate attorney refused to file petition for writ of certiorari on

behalf of defendant, after the Sixth Circuit having affirmed defendant's conviction

and sentencing?

Is the--Sixth Circuit's decision in this instant case,-in conflict with the

Supreme Court of the United States' decision( "s") in Brady, Franks, and Roviaro?

11

LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

iii

TABLE OF CONTENTS

OPINIONSBELOW........................................................................................................1

JURISDICTION................................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................... 3

STATEMENT OF THE CASE .....................................................................................4-10

REASONS FOR GRANTING THE WRIT..................................................................11-12

CONCLUSION................................................................................................................ 12

INDEX TO APPENDICES

APPENDIX A

Sixth Circuit Court of Appeals' opinion and judgment.

Case No. 18-5257

APPENDIX B

United States District Court for the Northern District of Georgia,

Atlanta Division, case 2:16-CR-20094-SBM

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

iv

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Brady v. Maryland, 373 U.S. 83 (1963) .............ii

Franks v. Delaware, 438 U.S. 154 (1978) .............ii

Roviaro v. United States, 353 U.S. 53 (1963) . . . . . . . . . . ii,4

Strickland v. Washington, 466 U.S. 688 (1984) ..........ii

Wiggins v. Smith, 539 U.S. 510: (2003) ............jj

Federal Statutes

18U.S.C.922(g).

.

18U.S.C.922(k)

.

.

..

....

...

4

...................4

18 U.S.C. § 924(c)(1)(A)(i) ..................4

21 U.S.C. '

841(a)(1)

...................4

V

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[xl For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

[I

xl

[]

reported at No. 18-5257

; or,

has been designated for publication but is not yet reported; or,

is unpublished.

B

The opinion of the United States district court appears at Appendix

the petition and is

[X] reported at

[ I

No. 2: 16—R-2OO94—SW(

; or,

has been designated for publication but is not yet reported; or,

unpublished.

[I is

[ ]

to

For cases from state

courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

; or,

been designated for publication but is not yet reported; or,

[I reported at

[ ] has

[] is unpublished.

The opinion of the

appears at Appendix

______________________________________________

to the petition and is

; or,

[I reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

court

to

JURISDICTION

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was December 18, 2018

[ x]No petition for rehearing was timely filed in my case.

[I A timely petition for rehearing was denied by the United States Court of

N/A

Appeals on the following date:

, and a copy of the

N/A

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date)

in Application No.

A________

The jurisdiction of this Court is invoked under 28, U. S. C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to. the United States Constitution provides, in

pertinent part.: The right of the people to be secure in their person,

houses, and effects, against unreasonable searches and seizures, shall

Q!

not. beviolated.

The Fifth Amendment to the United States Constitution provides, in

pertinent part: No person ... shall be deprived of life, liberty, or

property, without due process of law.

The Sixth Amendment to the United States Constitution provides, in

pertinent part: In all criminal prosecutions, the accused shall enjoy

the right ... to have the effective assistance of counsel for his defense.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part: No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States, nor

shall any state deprive any person of life, liberty, or property, without

due process of law.

3

STATEMENT OF THE CASE

On April 27, 2016, Appellant Nicky Ardd was indicted on five counts of:

possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841

(a)(1), Count-One; using and carrying a firearm (a Glock 9mm caliver pistol) during

and in relation to the drug trafficking crime charged in Count One, in violation

of 18 U.S.C. § 924(c)(1)(A)(i), Count-Two; two counts of possession of a firearm

(the Glock firearm and a Luger 9mm caliber pistol) as a felon in violation of 18

U.S.C. § 922(g), Counts Three and Four; and possession of a firearm (Luger firearm)

with an obliterated serial number, in violation of 18 U.S.C. § 922(k), Count Five.

Indictment, R. 2, PagelD 4-6. Mr. Ardd filed two motion to suppress evidence

found in his home, which the district court denied. A jury found Mr. Ardd guilty

on all five counts. Jury verdict, R. 105, pagelD 639-40. Mr. Ardd now, via, writ

of certiorari, appeals the ruling on his motions to suppress evidence found inside

of his home, and the remaining point raised by Mr. Ardd, as error is the refusal

of the district court to require the disclosure of the name of an alleged criminal

confidential informant. Roviaro v. United States, 353 U.S. 53, 60-61 (1963)("When

the disclosure of the informer is "relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must

give way."). Roviaro, 353 U.S. at 62. ("the informant was the only person, other

than the defendant, who participated in the transaction charged in the indictment.

He was the only witness other than the defendant who could have disclosed entrap-:

ment, if any. And, Mr. Ardd, also, appeals the sufficiency of the evidence, as

to where , and or which vehicle was the cocaine found and photograph in:i.Eecause

the evidence in the record shows that the cocaine was photographed and found

inside of the police vehicle,on Front driver's side séat. Appellant Ardd, never

had actual.possession of the cocaine. The cocaine never left the police vehicle.

4

Statement of the case (Cont'd)

There is evidence in the record, showing that there were two ["criminal"]

confidential informers involved in this case.

The United States argues that the confidential informer("s") in this case were

reliable. Id. (Government Response., Doc.20, at 33-34). But, however, the United

States having failed to disclose the evidence in the record showing that the

police officer Tellez's

affidavit underlying the search warrant failure to

mention anything about two-criminal confidential informers.

The first statement in the search warrant, regarding the alleged first

confidential informer's

statement, that he/she had ["observed Mr. Ardd, possessing

storing and transporting powder and crack cocaine in the past."]. Id. (Principal

Br., Doc. 15, at 11).

The statement regarding the second confidential Informer, which the United

States, argued that this criminal confidential informer, having provided in the

past ["reliable Information"], that led to 5 felony drug arrests.

Note: The affidavit contained ["no"] information regarding the reliability of

the first criminal confidential informer. Which the police had used the statements

made by this first criminal confidential informer, to establish probable cause

in order to place Appellant, Mr. Ardd, and his home under police surveillance in

the first instant.

FA

Notice: There is nothing in the record, showing in_ the first or second

["criminal"] confidential informer's statements that Appellant Mr. Ardd, was

selling or distributing both cocaine and or crack cocaine in the past.

Procedural history, regarding police officer's unconstitutional

["Anticipatory warrant to search"], Appellant Ardd' s home

1.

Officer Teliez, (at trial), testified that a Magistrate Judge found that

there was probable cause for issuance of the anticipatory warrant, based. upon

the Affidavit's information regarding a reliable confidential informer whose

5

information had led to ['other unrelated felony drug arrest'], convictions,

and seizure in the past. Officer Tellez, testified that himself having provided

information to the Magistrate Judge. In which the magistrate Judge relied upon

the fact this second criminal confidential informer, had stated that Appellant Mr.

Ardd was involved in the sale and distribution of powder cocaine. Officer Tellez

testified that he had informed the magistrate judge, that the second informer

"had observed Mr. Ardd possessing, storing, and transporting both powder and crack

cocaine ["in the past"]. Officer Tellez, testified that the criminal confidential

informer's information having lacked any specific details, such as where was the

locations ['inside of Mr. Ardd's home'], where the criminal confidential informer

had allegedly witness the drug quantities involved, drug possession and storage of

cocaine and crack cocaine, inside the home of Appellant Ardd, in the past. Id.

Note: Officer Tellez, testified that he had placed Mr. Arddandhis homêi:

under surveillance for over one-year, and within the scope of the surveillance

for over one-year, hi surveillance team stated that they did not see Mr. Ardd

purchase, and or sale any powder cocaine, nor crack cocaine, during that point

in time, regarding Officer Tellez's reverse sting operation.

C.

Testimony of Officer Tellez, that Mr. Ardd, allegedly taking possession

of controlled buy reverse sting operation's powder cocaine.

1.

Officer Tellez, testified, that during the reverse sting operation, he was

portraying himself as a Mexican drug dealer. Officer Tellez testified that he

told Mr. Ardd to show him the money, before he show the cocaine. Id. at PID#692,

702. Officer Tellez testified that, he said his partner, Detective Flores,.had

opened the door of the ["police-vehicle'] for Mr. Ardd to enter through 'the

front passenger seat of the police car for the controlled buy. Id. Officer Tellez

testified that he handed Mr. Ardd the powder cocaine in a styrofoam food container

inside of a plastic bag,' which was wrapped "in such a way that they have to dig

in to be able to get to it." Id. Officer Tellez testified, that Mr. Ardd, *.:"started

6

digging in ... he started smelling it and analyzing it with his hands." Id., at

PID# 712, 744, 762-63. Officer Tellez, testified that the take-down occurred only

after Mr. Ardd had took possession of the cocaine. Id., at 706-07. Officer Tellez

also, identified photographs that showed the package containing cocaine in the

Front driver's side seat of ['Ford'] white ("Undercover police vehicle")truck. Id.

Note:

Officer Tellez, identified photographs that showed the-..package

containing cocaine in the driver's seat of the ["police vehicle"]., instead of

Mr. Ardd's vehicle. Thus, ne:cocaine was found inside of Mr. Ardd's vehicle.

Pacino Bryant, testified that he was with Appellant Mr. Ardd, inside of M±. Ardd'-s

vehicle on the date of the arrest. Bryant testified, that there was no cocaine in

Mr. Ardd's vehicle. Id. at PID# 768. Bryant testifeid that Officer Tellez, had

never told either of them to show him the money. Bryant testified that Officer

Tellez, had just told MiArdd to "pull in beside the white truck." Id. at PID#

773-776. Bryant testifed that Mr. Ardd then opened his center console and money

poped out. Bryant, says that he counted the money, it totaled $5,000.00, and Mr.

Ardd took the money and got into the white("police vehicle")truck. Bryant testified

that Mr. Ardd, was not a street level drug dealer. And, that he had never known

Mr. Ardd to be a drug dealer, and he had never seen Mr. Ardd with drugs before.

Id., at PID# 779-780.

Detective Jose Flores, testified that Appellant Mr. Ardd, ["did not get inside"]

the bag with the powder cocaine in it." Id., at PID# at 794-95. Officer Flores

testified that the. cocaine

-

-would-not have, never been- in. the. driver's seat of.

.

Mr. Ardd's vehicle. Because the arrest happened inside of the police officer's

white ("police vebicle")truck. -Id., at PID# 1014. ,., insidad - of Mr. Ardd's vehicle.

Officer Flores, testified that Appellant Mr. Ardd, did-not-touch- powder cocaine.

Id.. Note: Photos in the record show cocaine and money was found on Front driver's

side seat of the ['Ford' ] white ("Undercover police vehicle") truck.

7

Officer Acred, testified that he did-not-see nir. Ardd's hands in the bag

containing the powder cocaine, when he pulled Mr. Ardd out of the white("police

vehicle")truck. Id. at PID# 1072. Officer Acred testified that the take-down

happened when Officer Tellez, had seen the money, and then he gave order for the

take-down, not when Mr. Ardd took possession of the bag containing powder cocaine.

Id., at PIN 1072-73. Officer Acred, testified about taking Ms. Polk's statement

after she was arrested at Mr. Ardd's home. Officer Acred, testified that Ms. Polk

told him that the ["Luger .9mm pistol"] found on the headboard of the bed, belong

to her, instead of Mr. Ardd. Id., at 1065...

Officer Bogue, testified that he did the take-down arrest on ("Officer Flores")

the individual who was sitting in the Frôntdriverts seat, inside of the

white("undercover police vehicle")truck... Officer Bogue testified that, "after

everybody had been taken down, and put in police cars," that his job thereafter,

was to return to the white("uudercover police vehicle")truck and pick-up the

cocaine and the money on Front driver's side seat of (mundercover police vehicle")

truck. Officer Bogue, testified that "he knew at that point in time that he was

already assigned to collect the items from the front seat area of the white

("undercover police vehicle")truck. Officer Bogue, testified that he found and

recovered the plastic Wal Mart bag containing the powder cocaine and the money,

on Front seat driverside, of the wbite("undercover police vehicle")truck. Id.

(ECF.No.120 at 1112-1113)... Officer Bogue, testified that he did-not-find, or

recover

no cocaine, money, or weapons in Mr. Ardd's Porsche Cayenne vehicle.

Id...(ECF No. 120 at 1111-1112).

The district court erred, and abused its discretion by its determination

and Opinion of denying Mr. Ardd's motion for a New Trial(ECF No. 134)

The district court erred and abused its discretion by its determination and its

opinion order denying Mr, Ardd's motion for a new trial was based in part on

on the district court, not listening, and or misinterpreting the evidence above,

that was presented by Pacino Bryant, Officer Acred, Officer Bogue, and Officer

Tellez, in the record. Because the district court was wrong, when it says, that

["both, Bryant and Tellez"] testified that Mr. Ardd had took possession of the

bag containing cocaine. Again, the district court was wrong in its determination

that Officer Bogue, had searched Mr. Ardd's Porsche Cayenne vehicle, and found

the plastic Wal Mart bag containing the powder cocaine and the money. Id. (Case

2:16-CR-20094-SHM., ECF No. 134, at pp. 6-7). The district court says the following:

["the Court"]: "Tellez put the cocaine in a styrofoam container, which was in a

plastic bag. (Id. at 709). Tellez and Bryant, who was with Defendant when the

defendant was arrested, [both testified] that defendant took possession of the

plastic bag containing the cocaine and smelled it before he was arrested. (Id.

at 710, 777).

["the Court"]: Detective Timothy Bogue, testified that, after defendant had been

arrested, Bogue ["recovered the cocaine from Defendant's vehicle."]. (ECF No. 120

at 1104). Evidence in the record show cocaine and money was found inside police truck.

Note: At the time of Mr. Ardd's arrest, he was sitting in a much taller

vehicle. And, Bryant was sitting in the Porsche Cayenne, which is a much smaller

vehicle, which it is shorter and sit lower to the ground. So, it would have been

very difficult for Bryant, to look up ward into the white["undercover police

vehicle]tru±, to witness or see Mr. Ardd, taking possession of a plastic bag

containing cocaine. Flores said Mr. Ardd ["did-not-touch-the--bag"]containing cocaine.

6.

dercover -Officer s Affidavit and Search-Warrant,.. as to.-)fr. Ardd!s..arrest.

Id. (see, case 18-5257, Doe. 20, at pp. 3-5)... The Memphis Police Department

("MPD") investigated Ardd for one year. Detective Harold Tellez ("Tellez") of

MPD's Organized crime Unit ("OCIJ") investigated Ardd for approximately one year.

Suppression Hr'g Tr. I, R. 39, Pageld 185786, 194. Tellez initially received

9

-

information from a confidential informant:- .that Ardd had

attempted to purchase

kilogram quantities of powder cocaine from that informant. Id. at PagelD 185. That

Informant introduced Tèllez to Ardd, as a cocaine dealer. and over the course of

one year, Tellez personally communicated with Ardd on several accasions. Id. at

PageID185.:In June 2015, Ardd agreed to purchase nine ounces of cocaine from

Tellez. Id. Ardd and Tellez arranged to meet on June 16, 2015, in the parking lot

of a home-furnishing store. Id. at PagelD 186-87.

In anticipation of this meeting, on June 15, 2015, Tellez applied for and

was granted a search warrant to search Ardd and his reidence on Castleman Street

in Memphis. Aff. and Search Warrant, R. 68-1, PagelD 405-061 The affidavit

supporting the search warrant application stated in relevant part:

Detectives with [OCU] received information from a reliable Confidential

Informant (CI) about Ardd being involved in the sale and distribution of powder

cocaine in the city of Memphis. The CI observed Ardd possessing, storing and

transporting both powder cocaine and crack cocaine in the past. Ardd has also

contacted Undercover Officer XXXX(UC) by phone several times for the past year and

has attempted to purchase kilograms of powder cocaine from the UC. Ardd also met

in person with UC on January 20, 2015 and said he would contact UC when he was

ready to purchase powder cocaine.

On June 12, 2015 Ardd made contact by phone with UC and said that he was

ready to purchase 9 ounces of powder cocaine from UC on June 16, 2015. Detectives

using data bases and surveillance identified Ardd's residence as [XXXX] Castleman,

Memphis TN 38118. Ardd pays the utilities at the location according to [Memphis

Light Gas & Water] databases and also has registered his vehicle at the address.

Detectives have conducted surveillance at [XXXX] Castleman several times in the

past and as recent as on June 15, 2015 and have observed ardd's Porsche Cayenne

in the driveway which he drives on a regular basis. Detective Tellez knows based on

his experience and training, that drug traffickers often hide their assets/drug

proceeds and retain drug records such as drug ledgers at their residence. The

Reliable [CI] has provided information in the past that has led to over 5 felony

drug arrests and convictions and the seizure of over 5 kilograms of powder cocaine,

over 10 pounds of marijuana and over $500,000.00 in U.S. currency.

Based on the above information, detectives will execute a reverse operation

on 6-16-2015 in which UC will deliver the powder cocaine to Ardd and then Ardd will

be arrested. Upon Ardd being arrested for attempting to possess this cocaine,

Detectives request permission to execute this search warrant.

Id. at 405. The "Undercover Officer" referred to in the affidavit was in fact

Tellez himself. Suppression Hr'g Tr. I, R.39, PagelD 185, 232. A judicial officer

Issued a search warrant for the "immediate search of [Ardd] and [XXXX Castleman

Street] ... for ... drug record and drug proceeds." Search Warrant, R,68-1,PagelD 406.

10

REASONS FOR GRANTING THE PETITION

Appellant, Mr. Ardd, arrest, conviction, and sentencing is in violation of

the Fourth Amendment to the Constitution of the United States. Because the police'

officers use of ["entrapment"], policyto contact Mr. Ardd, for approximately oneyear prior to the police officer's alleged ['reverse sting'] operation. Here, the

police officer explained that they were using criminal ["confidential informant"]

statements, in order to contact Mr. Ardd, in order to set

-

up an entrapment

controlled buy purchase, of powder cocaine.

Note: There is nothing in the record, showing that Mr. Ardd had distributed

and or, sole any powder cocaine, or crack cocaine to ffie first or- second ["criminal"]

confidential informer,.prior to June 16, 2015, date of Mr. Ardd's incident to

arrest.

There is fraud on the court, based upon Officer Tellez, lying, when he says

"started digging into the plastic Wal Mart bag, and he started smelling and

analyzing the powder cocaine with his hands." Id. at PID# 712, 744, 762-63.

Note: Officer Flores, and Officer Acred, both testified that Mr. Ardd, ["did not

get inside the bag"] containing the powder cocaine. Id. at PID# 794-95, 1072.

Prosecutorial misconduct, the United States committed fraud on the court, by

providing the court with ['misleading fact'] that - the powder cocaine and the

money was found and or recovered from Mr. Ardd's Porsche Cayenne vehicle.

The United States committed fraud on the court, by providing the district court

with ['misinformation and misleading facts'] that Officer Bogue, had found and

recovered the powder cocaine and the money from Mr. Ardd's Porsche Cayenne vehicle.

Note: There is evidence in the record, showing that Officer Bogue, testified that

"after everybody had been taken down, and put in police cars," he had returned

to the white ("undercover police vehicle") truck, and he ["picked-up the cocaine, and

money on the Front driver's side seat of ["Ford"] iwhite ("undercover police vehicle")

truck.

11

truck, the district court erred, and abused its discretion, by its determination

that the Officer Bogue, had recovered the powder cocaine and the money from Mr.

Ardd's Porsche Cayenne vehicle.

4. Prosecutorial misconduct, the United States failure to correct its witness's

Bryant's false and perjuried testimony.

The district court erred and abused its discretion by relying upon Bryant's

testimony about witnessing Mr. Ardd taking possession of the plastic bag containing

the cocaine. The district court says: Tellez and Bryant both testified that Mr.

Ardd took possession of the cocaine and smelled it before he was arrested. Id.

(ECF No. 134, at 6-7). Here, Bryant having lied and changed his earlier testimony

on the record.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

1U4J

Date:

3-7'zjq

12

Case; 18-5257 Document: 32-2 Filed: 12/18/2018

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O. P. 32.1(b)

File Name: 18a0273p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plainii/JAppellee,

No. 18-52D

V.

NIcKEY ARDl),

Deftndant-Appellant.

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2: 16-cr-20094-i—Samucl H. Mays, Jr., District Judge.

Argued: December 5, 2018

Decided and Filed: December 18, 2018

Before: SILER, SUTTON, and WHITE, Circuit Judges.

COUNSEL

ARGUED: David M. Bell, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for

Appellant. Naya Bedini, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for

Appellee. ON BRIEF: David M. Bell, FEDERAL PUBLIC DEFENDER, Memphis,

Tennessee, for Appellant. Naya Bedini, UNITEI) STATES ATTORNEY'S OFFICE, Memphis,

Tennessee. for Appellee.

OPINION

SUTTON, Circuit Judge. Nickey Ardd tried to buy a half pound of cocaine from an

undercover Memphis police officer but was arrested instead. Before trial, he moved to suppress

evidence the police seized incident to the arrest, his subsequent statement, and evidence seized

Case: 18-5257 Document; 32-2 Filed: 12/18/2018

No. 18-5257

Page: 2

United Slates v. Ardd

Page 2

from his home. The district court denied Ardd's motions, and a jury convicted Ardd of

possessing drugs and guns. We affirm.

Two confidential informants learned that Ardd wanted to buy supplies of cocaine and put

him in touch with Memphis officer Harold Tellez, posing as a cocaine dealer from out of state.

Ardd "kept on calling" the second informant, who relayed the message to Tellez; Ardd was

"insistent" about purchasing a kilogram of cocaine from Tellez. R. 39 at 142. The two met on

January 20, 2015, but Ardd didn't have the money to buy anything.

In June 2015, one of the informants told Tellez that Ardd was ready to buy. Tellez

telephoned Ardd, who agreed to meet in a Memphis parking lot to buy about 250 grams of

powder cocaine. Before the meeting, Tellez went to a county judicial commissioner and

obtained a warrant to search Ardd's home for drug records and drug proceeds "[u]pon Ardd

being arrested for attempting to possess thEe I cocaine." R. 68-I at 1. Tellez's affidavit described

his experience in narcotics investigations and explained the course of the investigation: A

reliable informant had told him about Ardd's drug activities; Ardd contacted Tellez several times

during the year about buying distribution quantities of cocaine; and Ardd was ready to buy. The

affidavit described Ardd's residence and noted the police had surveilled it several times.

Officers observed the controlled buy and arrested Ardd after he showed Tellez money,

climbed into iellez's car, and took the hag of cocaine. Police searched Ardd and seized the

cocaine. $9.800, and a loaded Glock pistol. They then searched his home, seizing thirty-four

haggies of drugs, four digital scales, and a loaded Luger pistol with an obliterated serial number.

Police gave Ardd his Miranda warnings and supplied a written copy of them, which he

signed and initialed. A rdd admitted that he came to the parking lot with a loaded gun to obtain

cocaine, and that he had been making up to a thousand dollars a week in cocaine sales for years.

lie also admitted that he had more drugs and another gun at home.

Before trial, Ardd moved to suppress this incriminatory evidence. The court denied

relief. A jury convicted Ardd of possessing cocaine with intent to distribute, being a felon in

Case: 18-5257 Document: 32-2 Filed: 12/18/2018

No. 18-5257

Un/led States v. Ardd

Page: 3

Page 3

possession of a weapon, carrying a weapon during a drug trafficking crime, and possessing a gun

with an obliterated serial number. The court sentenced him to 270 months.

Evidence seized from Ardd's home.

The Fourth Amendment commands 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.

TV. In reviewing a search warrant application, a magistrate considers whether the information

adds up to "a fair probability" that the police will find evidence of crime at the location. Illinois

v. Gates, 462 U.S. 213, 238-39 (1983). The salient question is whether the police can show a

"nexus" between the site and the evidence. United Stales v. Carpenter. 360 F.3d 591, 594 (6th

Cir. 2004) (en bane). if the magistrate conditions the warrant on a triggering event, she must

identify probable cause that the event will take place. United States v. Grubbs. 547 U.S. 90, 9697(2006).

When officers violate a suspect's Fourth Amendment rights by using a defective warrant,

say by failing to establish a nexus between incriminating evidence and the site of a search,

suppression is the customary remedy. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). With an

exception: A court may admit evidence gleaned under the auspices of an unconstitutional

warrant if a reasonable officer would not have appreciated the defect. United States v, Leon,

468 U.S. 897, 919-21 (1984). A defendant may defeat an officer's claim of good faith if the

affidavit was so lacking in factual support that the officer's belief in probable cause was entirely

unreasonable or the affiant included information that he knew or should have known was false.

At at 923.

As a few of our decisions confirm, we have struggled to identify the quantum of evidence

needed to connect drug trafficking by an individual to a probability that evidence will be found at

the individual's residence. See United Slates v. Brown, 828 F.3d 375, 383-84 & n.2 (6th Cir.

201.6). Some cases suggest a bright-line rule—that adequate evidence of the one amounts to

probable cause of the other. See, e.g., United States v. Gunter, 551 F.3d 472, 481 (6th Cir.

2009); United States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007); United States v. Miggins,

Case: 18-5257 Document: 32-2 Filed: 12/18/2018

No. 18-5257

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United Stales v. Ardd

Page 4

302 F.3d 384, 393-94 (6th Cir. 2002). Other cases require independent evidence tying the

residence to drug activity to infer that it will contain evidence of drug trafficking. See, e.g.,

Brown, 828 F.3d at 383-84; United States v. Ellison, 632 F.3d 347, 349-50 (6th Cir. 2011);

United Slates v. Frazier, 423 F.3d 526. 533 (6th Cir. 2005). We need not enter these frothy

waters and pass on the validity of this warrant because the government met the Leon good-faith

exception anyway. Still, it goes without saying—almost—that what police officers need to do to

satisfy constitutional minimums in this arena is not in v ariably all they should do

Good-faith reliance on an affidavit under Leon needs a "minimally sufficient nexus"

between the site of the search and the evidence sought. Carpenter, 360 F.3d at 596. And it is

not entirely unreasonable for an officer to infer a connection between evidence of drug

trafficking and a drug dealer's home. See, e.g., Gunter, 551 F.3d at 481-82. All that's required

in the Leon context are facts that show a nexus and that are not "so vague as to he conciusory or

meaningless." Carpenter. 360 F.3d at 596—all less than what's needed to show probable cause.

Case after case finds good-faith reliance in similar settings. See. e.g., United Stales v.

AkCov, 905 F.3d 409, 4:19 (6th Cir. 2018) (good-faith reliance on affidavit to search home.

though affidavit merely tied drugs to defendants' place of business); United States v.iiigins,

557 F.3d 3)81, 391 (6th Cir. 2009) (good-faith reliance on affidavit to search home, though only

evidence linking home to drugs was an untested informant's indication he'd just purchased drugs

there); Frazier. 423 F.3d at 537 (good-faith reliance on affidavit to search home, though it tied

drugs only to defendant's former residence); Carpenter, 360 F.3d at 596 (good-faith reliance on

affidavit to search home, though it merely noted that defendant's residence was connected by

road to nearby marijuana field).

Plenty of evidence supported the officers' good-faith belief that probable cause existed.

Officer Tellez's affidavit confirmed that, in his experience, drug dealers often keep evidence of

their criminal activity at their homes. His interactions with Ardd confirmed the informants' tips

that Ardd dealt or was attempting to deal drugs—and confirmed that Ardd was looking for more

than a small amount of drugs that might be used just for personal consumption. Ardd repeatedly

told Tellez that he wanted distribution quantities of cocaine and that he was ready to buy over

250 grams of cocaine from Tellei.That's thousands of retail hits of cocaine. Before the

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controlled buy, Memphis police had surveilled Ardd's residence and confirmed that he paid the

utility bills and that his car was registered to that address. All of this was in the affidavit

supporting the warrant, which the officers executed immediately after the controlled buy. It was

not "entirely unreasonable" for Teliez and the other executing officers to believe there was

probable cause to search Ardd's house for evidence. Leon, 468 U.S. at 923 (quotation omitted).

This case is leaps and bounds from cases that fall short of eligibility for the Leon goodfaith exception. See. e.g., Brown, 828 F.3d at 385 (no good-faith reliance on affidavit to search

home where defendant was not known drug dealer, defendant hadn't been under investigation

prior to arrest, and police waited three weeks after arrest to seek search warrant); United States v.

McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (no good-faith reliance on affidavit to search

home where it did not allege defendant was involved in drug dealing, simply that he'd been

arrested there with drugs in his pocket).

Neither did the affidavit include information that Tellez knew or should have known was

false. Police surveillance supplied Ardd's accurate address. Tellez's interactions with Ardd

corroborated every material aspect of the jn:lormants tips—that Ardd wanted to sell drugs and

acted on his intentions. Ardd doesn't deny his conversations with Tel lez, the agreement to buy

cocaine from him, or showing up to the controlled buy. On this record, the officers were entitled

to rely on the warrant to search Ardd's home.

Ardd counters that Officer Teliez knowingly or recklessly included two false statements

in the affidavit. Neither statement, however, establishes a deliberate falsehood or material

omission.

The first one says

Detectives with the Organized Crime Unit received information from a reliable

Confidential Informant (Cl) about Ardd being involved in the sale and

distribution of powder cocaine in the city of Memphis. The Cl observed Ardd

possessing, storing and transporting both powder cocaine and crack cocaine in the

past.... ..[he Reliable ICII has provided information in the past that has led to

over 5 Felony drug arrests and convictions.

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(Jailed States v. Ardd

R. 68-1 at 1. According to testimony at the suppression hearing,

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Page 6

I

e!lez worked with two

informants during the investigation. The first one put Tellez in contact with Ardd about a year

before his arrest in June 2015, but eventually stopped cooperating with the police and

disappeared. Tellez and Ardd talked off and on during the six months before his arrest, as the

first informant had supplied Ardd's contact information and Tellez was able to introduce a

second informant to .Ardd. The second informant, just before the arrest, told Tellez that Ardd

was ready to buy. This informant had helped the Memphis police with multiple arrests in the

Past. By "conflat[ing]" the two informants and failing to explain the "unreliable" informants

role in the investigation, Ardd contends, Tellez knowingly or recklessly deceived the

commissioner. Appellant's Br. 38.

Officer Tellez fairly explained all of this at the suppression hearing. He noted that the

statement ref erred to the second, reliable informant—though he acknowledged that the first two

sentences would also be true about the first, unreliable informant. That the statement could he

read as indicating that only one informant was ever involved in this investigation does not sink to

a deliberate falsehood or material omission.

Ardd next contends that Tellez lied when he wrote this in the affidavit: "on June 12,

2015 Ardd made contact by phone with [Tellez] and saidthathe was ready to purchase 9 ounces

of powder cocaine." R. 68-1 at 1. Ardd points out that call records reveal that he in fact

telephoned the reliable informant about this. The informant then told Tellez, who telephoned

Ardd. At the suppression hearing. Tellez denied that"made contact" was an inaccurate

description, explaining that all along Ardd would contact Tellez's associate, the informant, who

would have Tellez call Ardd back. To the degree the characterization has any, hints of

inaccuracy, we can safely consider it an innocent mistake, not a deliberate falsehood, because, if

rewritten the way Ardd prefers, it wouldn't make any difference. What matters is what remains

undisputed: After many conversations with Tellez about buying a lot of drugs, Ardd agreed to

buy them and set about doing so.

Evidence from Ardd's arrest and statement. Ardd appeals the denial of his motion to

suppress the evidence seized at his arrest as well as his later statement, arguing that the

purportedly illegal search warrant for his house tainted this other evidence. Not so. The warrant

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Page 7

bears only on the search of Ardd's home. The police searched Ardd after observing him

purchase drugs from Tellez. While the affidavit and the warrant mention Ardd's person as well

as his residence, the police didn't need the warrant to search him. The search-incident-to-arrest

exception to the warrant requirement supplied all of the authority they needed. See United States

V. Robinson, 414 U.S. 218, 235 (1973). Ardd never offers a reason for ignoring this exception

and does not deny that he gave his post-arrest statement voluntarily after his Miranda warnings.

.Evidenliary hearing. Ardd appeals the district courts denial of his request for a Pranks

hearing. Franks v. Delaware. 438 U.S. 154. 156 (1978). Defendants are entitled to a hearing on

the truth of statements in a warrant affidavit if they make "a substantial preliminary showing that

the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false

statement or [made a] material omission in the affidavit." and also show "that the false statement

or material om i ssi on is necessary to the probable cause finding in the affidavit." United States v.

Young, 847 F.3d 328. 348-49 (6th Cir. 2017) (quotation omitted). But, as shown, the two

allegedly false statements were not false at all, were assuredly not deliberately or recklessly

false, and at any rate were immaterial to the commissioner's probable-cause finding. No error

occurred.

Sufficiency of the trial evidence. Ardd claims that the jury lacked sufficient evidence to

convict him of possessing the cocaine, carrying the Glock during a drug crime, or possessing the

Luger with the obliterated serial number. We view the evidence in the light most favorable to

the government, and we will not disturb the jury's verdict if any rational juror could have found

Ardd guilty beyond a reasonable doubt. United States v. Pierce, 62 F.3d 818, 825-26 (6th Ci:r.

i995).

A rational juror could find Ardd guilty of each charge. Police testimony established that,

in buying a distribution quantity of cocaine, Ardd. knowingly possessed cocaine with intent to

distribute it. See 21 U.S.C. § 841 (a)(]). The evidence showed that police found the Glock in

Ardd's waistband at the scene of the controlled buy. See 18 U.S.C. § 924(e)(1)(A)(i). And the

search of Ardd's home uncovered the Luger beside his bed. See Id. § 922(k). This evidence

sufficed to prove drug and gun possession.

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Un/led Stales v. Ardd

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That leaves Ardd with a steep hill to climb. He begins that effort by claiming that alleged

inconsistencies in the government witnesses' testimony undermine the verdict.

Several

witnesses, he points out, gave differing amounts for the cash and cocaine recovered, and the

police forensic chemistry report describes the drugs from the controlled buy as rock-like cocaine

while the evidence report calls it powder. He notes that the police testimony agreed that Ardd sat

in the front passenger's seat of Tellez's car during the buy, but that photos from the scene show

the cocaine in the front driver's scat. He notes that the police disagreed about whether Ardd

opened the bag of cocaine or merely held it, and whether Tellez asked .Ardd to show the money

beforehand. And he notes the testimony of the friend who accompanied him to the controlled

buy, who stated that he had not previously known Ardd to be a drug dealer. Each of these

alleged inconsistencies is minor at best. More to the point, not one of them relates to the

elements of drug possession or would prevent a rational juror from finding Ardd guilty of that

charge.

Ardd argues, last but not least, that he could not he found guilty of possessing the Luger

because the police did not recover any fingerprints from the gun and A.rdd's girlfriend said it was

hers. But we have found constructive possession, even if joint possession, when a gun is located

in the defendant's bedroom, as this one was. See United States v. Hadley, 431 F.3d 484, 507 (6th

Cir. 2005). Ardd gives no reason why this case is any different. The district court did :not err in

denying his motions for acquittal and a new trial.

We affirm.