Petition for Writ of Certiorari — Samer Walid Abdalla, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

SAMER ABDALLA

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX

United States of America vs. Samer Abdalla, Case No. 19-5967

(6th Cir. August 27, 2020)

(Opinion affirming district court judgment)

United States of America vs. Samer Walid Abdalla; Case No. 2:17-cr-00007

(U.S. District Court, Middle District of Tennessee, August 23, 2019

(Judgment in a Criminal Case)

s/ Michael C. Holley

Michael C. Holley (BPR #021885)

Assistant Federal Public Defender

Office of the Federal Public Defender

810 Broadway, Suite 200

Nashville, Tennessee 37203-3805

(615) 736-5047

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RECOMMENDED FOR PUBLICATION

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

File Name: 20a0282p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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>

v.

SAMER WALID ABDALLA,

Defendant-Appellant.

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┘

No. 19-5967

Appeal from the United States District Court

for the Middle District of Tennessee at Cookeville.

No. 2:17-cr-00007-1—Eli J. Richardson, District Judge.

Argued: August 4, 2020

Decided and Filed: August 27, 2020

Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Andrew C. Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Nashville, Tennessee, for Appellant. Sofia M. Vickery, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Andrew C. Brandon, OFFICE OF

THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Sofia M. Vickery,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Robert McGuire,

UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. Challenges to warrants based on typographical errors or

factual inaccuracies typically fall under this Circuit’s clerical error exception.

We have

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consistently found that inadvertent drafting mistakes, for instance transposing a number in a

street address or listing an incorrect nearby address, do not violate the Fourth Amendment’s

prohibition on unreasonable searches and seizures. That is because those errors create little risk

of a mistaken search or a general warrant granting police an unconstitutionally broad authority to

conduct searches.

But Defendant Samer Abdalla contends that this case does not involve a regular clerical

error. The Tennessee judge who signed the warrant permitting officers to search Abdalla’s

residence on New Hope Road only had jurisdiction in DeKalb County. But the warrant, in one

place, listed an address on Carey Road in Trousdale County, Tennessee. This error resulted from

the drafting officer’s using a previous warrant as a template and failing to erase all vestiges of

that document. As a result, the warrant permitting officers to search Abdalla’s residence listed

the wrong address, including the wrong county, in the authorization paragraph despite accurately

describing Abdalla’s home.

Abdalla makes much of this mistake. He argues that a warrant cannot be valid if it

contains a mismatch between the residence in the authorization section and the residence that the

police searched. Along with this theory of invalid formation, Abdalla also asserts that a judge’s

failure to notice an address outside his jurisdiction in a warrant’s authorization section demands

the inference that the judge impermissibly rubberstamped the warrant.

Yet the affidavit

supporting the warrant listed the correct address and county at the top of the first page. And the

warrant itself directed officers to the correct address by providing step-by-step directions along

with a detailed description of Abdalla’s residence. So the warrant’s singular incorrect address

posed almost no chance of a mistaken search. Despite the government’s irregular mistake, this

clerical error case demands the usual result for technical mistakes that threaten no constitutional

harm. We AFFIRM.

I.

In February 2017, the Tennessee Judicial Drug Task Force and the Drug Enforcement

Administration began investigating Abdalla for suspected narcotics trafficking. Investigators

used a confidential informant to execute a series of controlled drug buys from Abdalla’s

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residence. Agent Brandon Gooch then submitted a written application and affidavit for a warrant

to search Abdalla’s residence on New Hope Road for evidence of drug crimes. That affidavit

described how officers prearranged the controlled drug buys from Abdalla and monitored the

confidential informant during the process. The affidavit also listed Abdalla’s correct street

address, along with descriptions of his home and evidence that the police expected to find.

Based on that information, Agent Gooch concluded that probable cause justified searching

Abdalla’s property.

After reviewing the affidavit, Judge Patterson, who had jurisdiction in DeKalb County,

Tennessee, issued a warrant on June 8 authorizing officers to search Abdalla’s residence. Like

the affidavit, this warrant gave detailed directions to Abdalla’s property and contained unique

identifiers of Abdalla’s residence, such as his trailer’s color, the property’s layout, an American

flag in front of the home, and an auto detail sign at the driveway’s entrance. This description at

the beginning of the warrant correctly directed officers to Abdalla’s precise New Hope Road

address in DeKalb County. But the warrant’s final paragraph “commanded” officers “to search

the . . . premises located at 245 Carey Road, Hartsville, Trousdale Tennessee.” (R. 20-1, Search

Warrant, Page ID # 59.) Agent Gooch testified that the Carey Road address came from using a

previous warrant as a template.

Although Judge Patterson had jurisdiction over Abdalla’s

residence in DeKalb County, he lacked jurisdiction in Trousdale County, which encompassed the

Carey Road property listed on the warrant’s final page.

Despite that error, Agent Gooch led approximately eighteen other officers on June 9 to

the New Hope Road address to execute the search. The officers arrived at Abdalla’s residence in

DeKalb County and loudly announced their presence. But no one responded. So officers

entered Abdalla’s home by force and found him, along with his girlfriend, in bed. Despite the

officers’ commands for the two to put their hands up, the couple failed to comply. With the pair

unresponsive, one officer tried to remove Abdalla’s girlfriend from the bed. That caused Abdalla

to spring up and “lunge[] with a fist” towards the officers. (R. 104, Sentencing Tr., Page ID #

713.) The officers repeatedly told Abdalla to show them his hands and to settle down, but

Abdalla did not comply. Bizarrely, Abdalla took a sheet from the bed and tried to hide under it.

After officers removed the sheet, Abdalla remained aggressive. So the officers warned Abdalla

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that they would use a taser. But the threats, along with a malfunctioning taser, failed to dissuade

Abdalla. The scuffle turned into Abdalla’s wrestling with the officers and then attempting to

grab an officer’s rifle. After officers successfully placed a plastic restraint on Abdalla, he broke

free. Officers later testified that they had never seen anyone break free of a plastic restraint.

Then, despite Abdalla’s attempts to bite them, officers successfully handcuffed Abdalla. After

the struggle, officers asked Abdalla if he had any contagious diseases; Abdalla immediately and

coherently replied that he had hepatitis C.

During the search, officers located and seized drugs, drug paraphernalia, and firearms. In

a post-arrest interview twelve minutes after the raid, Abdalla admitted that most of the

contraband belonged to him. In another interview three days later, Abdalla claimed that he was

so high during the search that he believed he was “in a video game” while fighting the officers.

(R. 52, Tr. of Proceedings, Page ID # 325.) He also denied any memory of physically engaging

the officers. But Abdalla confirmed that the guns and drugs belonged to him.

The government indicted Abdalla for being a felon in possession of a firearm and the

parties discussed a plea agreement. Then Abdalla moved to suppress evidence collected in the

search, challenging the warrant’s validity.

He also sought a Franks hearing to evaluate

statements made in the affidavit supporting the warrant. Abdalla argued, among many claims,

that: (1) the warrant lacked probable cause and was invalid because it authorized a search at the

wrong address, (2) the affidavit failed to show the confidential informant’s veracity, (3) Abdalla

did not give a knowing and voluntary Miranda waiver, and (4) the warrant and affidavit

contained material omissions and misstatements. After a suppression hearing, the district court

granted suppression of Abdalla’s statements made immediately after his arrest on June 9 due to a

Miranda violation, but rejected all of Abdalla’s other claims.

After this ruling, Abdalla’s counsel discovered details about the confidential informant

that put the informant’s credibility in question. The informant had committed many serious

crimes, including theft and domestic assault, suffered from heroin addiction, and received

compensation for executing controlled buys. The government never disclosed that information

to Abdalla’s counsel, according to the district court, even though it should have. So Abdalla

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asked the district court to revisit the evidentiary suppression and Franks issue. But the district

court denied that motion.

After the government filed a superseding indictment, Abdalla entered a conditional guilty

plea. Between the superseding indictment and the sentencing hearing, the case moved from

Judge Crenshaw to Judge Richardson. Before sentencing, the presentence report recommended a

six-level Guidelines enhancement under U.S.S.G § 3A1.2(c)(1) for assaulting officers. Abdalla

disagreed, finding the enhancement inapplicable because he lacked the mens rea during the

conflict to knowingly attack an officer, given that he thought he was in a video game. Abdalla

also noted that Judge Crenshaw had found that he lacked mens rea to knowingly and voluntarily

waive his Miranda rights when talking to officers after the search. So Abdalla reasoned that

Judge Crenshaw’s Miranda ruling acted as law-of-the-case, compelling Judge Richardson to find

that Abdalla lacked the mens rea to knowingly assault a police officer. The district court rejected

that argument and imposed a 168-month sentence. Abdalla now challenges that sentencing

decision, along with the district court’s denial of his motion to suppress.

II.

Abdalla argues that the district court wrongly denied his motion to suppress evidence of

guns and drugs seized at his residence because the government relied on a defective warrant to

execute the search. “[T]he text of the Fourth Amendment does not specify when a search

warrant must be obtained.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016) (alteration

in original) (quoting Kentucky v. King, 563 U.S. 452, 459 (2011)). Yet the Fourth Amendment’s

prohibition on unreasonable searches and seizures contemplates a “limitation upon their

issuance.” Id. (quoting California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring)).

When a warrant contains a grave mistake at issuance, such as omitting items to be seized, it is

“so obviously deficient that we must regard the search as ‘warrantless’ within the meaning of our

case law.” Groh v. Ramirez, 540 U.S. 551, 558 (2004). Analyzing warrants for issuance errors

rises above “dealing with formalities” because “[t]he presence of a search warrant serves a high

function.” McDonald v. United States, 335 U.S. 451, 455 (1948). Still, “[a]n error in description

does not, however, automatically invalidate a search warrant.” United States v. Pelayo-Landero,

285 F.3d 491, 496 (6th Cir. 2002).

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When reviewing a defendant’s claim that a search violated the Fourth Amendment and

the lower court wrongly denied a motion to suppress, “this Court reviews the district court’s

factual findings for clear error, and its legal conclusions de novo.” United States v. Adams,

583 F.3d 457, 463 (6th Cir. 2009). “When a district court has denied a motion to suppress, this

Court reviews the evidence ‘in the light most likely to support the district court’s decision.’” Id.

(quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)).

Abdalla first objects to how the court issued the warrant. He argues that “a document

that gives authority to search a different residence in a different county” does not “constitute a

warrant under the Fourth Amendment.” (Appellant Br. at 31.) So Abdalla casts this case as

different from typical clerical error cases involving “transposed digits in addresses and

neighboring houses.” (Id. at 32.) Still, he admits that “almost no caselaw across the country”

addresses the question of overturning a warrant because its authorization section lists the wrong

residence in the wrong county. (Id.) Yet he insists that this Court must recognize that mistake as

a Fourth Amendment violation—Abdalla asserts that the warrant was invalid because it only

established probable cause to search the New Hope Road address, and not the Carey Road

address.

That mismatch between the probable cause and the residence to be searched

purportedly places this case outside the clerical error case line.

It is true that most of this Circuit’s clerical warrant error cases focus on less egregious

errors than listing the incorrect residence in a county outside the authorizing judge’s jurisdiction.

For instance, a warrant that contained “the transposition of the house numbers from 4216 to

4612” and mixed up east and west did not violate the Fourth Amendment. United States v. Durk,

149 F.3d 464, 465–66 (6th Cir. 1998). Such “descriptive errors” are curable when the warrant

“sufficiently describes [the correct] house” by providing “unusual feature[s].” Id. at 466. To

decide whether a warrant drafting mistake violates the Fourth Amendment, we ask whether “the

inaccuracies in the warrant [would] lead to a mistaken search of other premises.” Id. That is

because “[t]he evil that the framers of the Constitution were trying to eradicate with the

particularity requirement was the so-called general warrant that allowed officers to search at

random.” Id. If a warrant describes a residence specifically enough to (1) “enable the executing

officer to locate and identify the premises with reasonable effort” and (2) prevent the government

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from mistakenly searching a different residence, then this Court views the warrant’s inaccuracies

as benign clerical errors. See id. at 465–66.

Abdalla claims that the government relied on a warrant invalid from the outset because

probable cause supporting a search at his address in DeKalb County did not support a search in

Trousdale County. Citing only United States v. Hodson, 543 F.3d 286 (6th Cir. 2008), Abdalla

argues that a warrant containing probable cause for a search at one address but listing a different

address in the authorization paragraph is no warrant at all.

In Hodson, the “warrant was

defective for lack of probable cause” because the officers “established probable cause for one

crime . . . but designed and requested a search for evidence of an entirely different crime.” Id. at

292. But nothing in Hodson touches the issue of probable cause being mismatched to an

incorrect address listed because of a clerical error.

We agree that, under Hodson, the government cannot execute a search for evidence of

one crime based on probable cause that the defendant committed a different crime. But we

disagree with Abdalla that the same logic applies to incorrect street addresses. He tells us that,

broadly speaking, the “thing to be searched for [must] match[] the probable cause asserted.”

(Appellant Br. at 34.) But that reasoning contravenes our clerical error cases. Unlike failure to

establish probable cause for the crime justifying the search, listing the wrong address does not

“automatically invalidate a search warrant.” Pelayo-Landero, 285 F.3d at 496. Under Abdalla’s

reading of Hodson, that proposition would not be true; if the government needed to provide

probable cause for the address listed on the warrant, then every warrant listing a wrong address

would fail for lack of probable cause. But this court has upheld many technically defective

warrants, including a warrant listing an address that “d[id] not exist” within the authorizing

judge’s jurisdiction. United States v. Jones, 707 F. App’x 317, 320 (6th Cir. 2017). Thus,

Hodson does not show that a warrant supported by probable cause to search the defendant’s

address must fail for mismatched probable cause if its authorization section lists an incorrect

address in a county outside the judge’s jurisdiction. So Abdalla’s probable cause argument falls

short.

In the end, Abdalla’s probable cause mismatch theory contradicts our established clerical

error framework. So Abdalla’s warrant formation argument is unavailing.

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III.

Alternatively, Abdalla claims that the warrant did not describe his property with

particularity. “The test for determining whether the description in the warrant is sufficient to

satisfy the particularity requirement is whether ‘the description is such that the officers with a

search warrant can with reasonable effort ascertain and identify the place intended.’” United

States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989) (quoting Steele v. United States,

267 U.S. 498, 503 (1925)). Abdalla believes that the mistaken address listed in the warrant

shows that the warrant’s description of his residence cannot pass constitutional muster. Still,

“[c]ourts routinely have upheld warrants . . . ‘where one part of the description of the premises to

be searched is inaccurate but the description has other parts which identify the places with

particularity.’” Durk, 149 F.3d at 466 (quoting United States v. Gitchco, 601 F.2d 369, 372 (8th

Cir. 1979)). Abdalla contends that a warrant containing both an incorrect address and a correct

address, despite only describing the property at the correct address, does not satisfy the Fourth

Amendment. To succeed, he must meet this Circuit’s standard:

The test for determining whether a search warrant describes the premises to be

searched with sufficient particularity [is] . . . whether the description is sufficient

“to enable the executing officer to locate and identify the premises with

reasonable effort, and whether there is any reasonable probability that another

premises might be mistakenly searched.”

Pelayo-Landero, 285 F.3d at 496 (quoting Gahagan, 865 F.2d at 1496). Even though a warrant

containing the wrong address can sometimes risk a mistaken search, such an “error does not

invalidate a search warrant if the warrant includes other specific descriptors that remove the

probability that the wrong location could be searched[.]” United States v. Crumpton, 824 F.3d

593, 612 (6th Cir. 2016).

Although the warrant authorizing the search of Abdalla’s residence wrongly listed a

Carey Road address in the authorization section, most of the warrant unambiguously described

Abdalla’s New Hope Address. First, the warrant gave directions to the correct address, directing

officers to travel “west on I-40 [and] take exit ramp 254 . . . travelling south 6.8 miles to Dekalb

County line” and then to enter “the driveway of 332 New Hope Road,” Abdalla’s correct

address. (R. 20-1, Search Warrant, Page ID # 57.) The warrant then described the property as

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including a “white double wide trailer with a green front porch and a black shingle roof,” along

with an American flag on the front porch and an “auto detail sign” in the driveway. (Id.) These

unique descriptors, along with correct directions to the address, strongly suggest that officers

would not have searched an incorrect residence. This Circuit has found that describing unique

features can render warrants valid even when they list the wrong address. Durk, 149 F.3d at 466.

In the warrant covering Abdalla’s property, details about a white trailer with a green porch, a

black shingle roof, and a unique sign in the driveway constitute unique identifiers under Durk.

So even if officers arrived at 254 Carey Road, the mistaken address listed in the warrant, there

was almost no chance that the property located there would at all resemble the description in the

warrant. So the likelihood of a mistaken search was practically nil.

What is more, Agent Gooch’s role as both the executing officer and the warrant’s affiant

also suggests that the search did not violate the Fourth Amendment. In Durk, this Circuit

determined that an inaccurate warrant would be less likely to produce a mistaken search because

“the executing officer . . . was also the affiant” and was familiar with the property to be searched.

Id. at 466. Abdalla counters that Agent Gooch’s role in both the warrant drafting and the search

does not “save this constitutionally deficient warrant,” citing United States v. Williamson, 1 F.3d

1134, 1136 (6th Cir. 1993). (Appellant Br. at 38.) But that misreads Williamson. There, the

court acknowledged that “an executing officer’s knowledge may be a curing factor[.]”

Williamson, 1 F.3d at 1136. And the court only found that the officer’s knowledge of the case

cannot save a warrant when it acts as “the sole source of information identifying” the property to

be searched. Id. So Williamson carries little weight in a case in which the warrant provides a

detailed description of a property. In short, Agent Gooch’s dual role as the affiant and the

executing officer, although not dispositive, reduced the likelihood of a mistaken search.

All in all, the warrant (1) provided detailed directions to Abdalla’s New Hope Road

address, (2) described a “white double wide trailer with a green front porch and a black shingle

roof,” along with an American flag on the front porch and an “auto detail sign” in the driveway,

and (3) identified the correct address and county, except for one sentence on the final page.

(R. 20-1, Search Warrant, Page ID # 57, 59.) It is nearly unfathomable, given those particular

identifiers and Agent Gooch’s familiarity with the residence, that officers would have arrived at

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an incorrect address and then found a residence so resembling the warrant’s description that they

would have performed a mistaken search. So we are unpersuaded by Abdalla’s claim that the

warrant failed to describe his residence with particularly and granted officers overly broad

authority to search multiple residences.

IV.

Next, Abdalla identifies two purported probable cause defects in the warrant. First, he

complains that the judge who authorized the warrant did not act as a “neutral judicial officer to

assess whether the police [had] probable cause” to search his property. Steagald v. United

States, 451 U.S. 204, 212 (1981). Second, Abdalla claims that the confidential informant who

conducted the controlled buys was unreliable and the government failed to provide independent

corroboration of the allegedly unreliable informant’s statements. Arguing that the government

offered scant indicia of reliability for the informant, Abdalla concludes that the warrant lacked

probable cause because it relied on a flawed informant.

Search warrants must be approved by a “neutral and detached” magistrate “capable of

determining whether probable cause exist[ed] for the requested arrest or search.” Shadwick v.

City of Tampa, 407 U.S. 345, 350 (1972). In other words, the authorizing judge cannot “serve

merely as a rubber stamp for the police.” United States v. Frazier, 423 F.3d 526, 537 (6th Cir.

2005). Defendants bear the burden of showing that a judge so deficiently reviewed a warrant as

to have acted as a rubber stamp. Id.

Abdalla claims that the authorizing judge failed to review the warrant as a neutral and

independent magistrate because “[t]he incorrect address in the warrant’s authorization section

would have stuck out like a sore thumb[.]” (Appellant Br. at 40.) Rephrased, Abdalla argues

that the reviewing judge, who lacked authority to authorize a search in Trousdale County, did not

read the warrant with the scrutiny required from a neutral and detached magistrate; otherwise the

judge would have noticed the jurisdictional error. Abdalla relies on United States v. Decker,

956 F.2d 773, 777 (8th Cir. 1992), where the Eighth Circuit found that failure to notice a

“glaring omission” supported the inference that the authorizing judge did not read the warrant.

There, the court found a warrant invalid because it failed to list the evidence to be seized.

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Abdalla believes a warrant inadvertently listing a county outside the authorizing judge’s

jurisdiction is a glaring error similar to the omitted evidence in Decker. We disagree.

To be fair, this Circuit has not yet addressed whether the authorizing judge could fail to

notice a warrant mistakenly listing a county outside his jurisdiction without having

rubberstamped the warrant. Although “[c]ourts must proceed cautiously whenever an error, no

matter how seemingly insignificant, appears within the four corners of a warrant[,]” warrants

containing an “unintentional drafting oversight” are not always invalid. United States v. Watson,

498 F.3d 429, 434 (6th Cir. 2007). In turning immediately to the good-faith exception without

deciding the warrant’s validity in Watson, we determined that a reviewing judge’s error in

overlooking an address in the warrant’s application section did not call for suppression because

the rest of the warrant thoroughly described the property. What is more, we have denied

arguments that failing to notice a warrant application error “support[s the] claim that the

magistrate issued the warrant without reading the affidavit.” Frazier, 423 F.3d at 537. That is

because a defendant must show “adequate support for his assertion that the issuing judge did not

conduct an objective evaluation of the request for a warrant.” United States v. Patterson, 587 F.

App’x 878, 884 (6th Cir. 2014).

Given those cases, it is perhaps an open question whether our precedent permits inferring

that a judge never read a warrant simply because he did not notice an error that, left unchecked,

violated the Fourth Amendment. But even if that inference is permissible, as the Eighth Circuit

concluded, the omission here does not match the severe omission in Decker. There the warrant

failed to discuss the items to be seized, and failure to notice that a warrant omitted essential

information meant that the authorizing judge did not act as a neutral and detached magistrate.

Here, Abdalla only complains that Judge Patterson failed to notice that the warrant’s final page

contained an inaccurate address, not that the warrant omitted wholesale any vital components.

Given that the wrong address only appears once in the warrant and that the warrant also listed the

correct address, along with directions to and a description of it, Abdalla’s analogy to Decker is

unpersuasive. In short, Judge Patterson’s failure to notice an incorrect address outside his

jurisdiction does not show that he failed to read the warrant as required for a judge to “perform

his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.”

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United States v. Leon, 468 U.S. 897, 914 (1984) (quoting Aguilar v. Texas, 378 U.S. 108, 111

(1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1984)).

Separate from his argument that including the wrong county invalidated the warrant,

Abdalla claims that the information given by the confidential informant supporting the warrant

lacked reliability or corroboration. That is because the informant not only had a criminal and

drug use history, undermining the government’s position that he was a “good citizen,” but also

received payment for executing controlled buys. (R. 79, Order, Page ID # 513–14.) Basing

probable cause on an unreliable informant, absent independent corroboration, can mean that the

government lacked probable cause to execute the warrant. See United States v. Thomas, 605

F.3d 300, 307 (6th Cir. 2010). Usually the government avoids that problem by having the

warrant affiant “attest[] with some detail” about the informant’s reliability. United States v.

Allen, 211 F.3d 970, 976 (6th Cir. 2000). Yet the government does not claim that Agent Gooch

attested to the informant’s reliability, but argues instead that “independent police corroboration

of the informant’s information” supported probable cause for searching Abdalla’s residence.

(Appellee Br. at 22–25.) So it seeks to apply the rule in United States v. Tuttle, 200 F.3d 892,

894 (6th Cir. 2000), that “information received from an informant whose reliability is not

established may be sufficient to create probable cause when there is some independent

corroboration by the police of the informant’s information.”

The government claims that the informant’s identity being “known to the officers[,]”

even if by an anonymous number, and his “witness[ing of] illegal activity on the premises

searched” provided “sufficient indicia of reliability.” United States v. Dyer, 580 F.3d 386, 391–

92 (6th Cir. 2009). Still, Abdalla complains that the affidavit lacked many indicia of reliability

recognized by this Circuit.

Those include: (1) statements about past experiences with the

informant, (2) naming the informant to the magistrate, (3) field-testing drugs acquired from the

controlled purchase, (4) a pat down before and after the controlled buy, (5) the use of prerecorded buy money, and (6) officers directly monitoring the informant during the purchase.

Even so, we do not decide probable cause questions under a factors test or a bright-line rule;

instead we use a “totality of the circumstances approach[.]” Gates, 462 U.S. at 230. And we

also grant “great deference” to “the magistrate’s probable-cause determination,” only

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overturning the probable cause finding “if the magistrate arbitrarily exercised his or her

authority[.]” United States v. Christian, 925 F.3d 305, 311–12 (6th Cir. 2019) (quoting Gates,

462 U.S. at 236; United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001)). And, contrary to

Abdalla’s approach, an “affidavit is judged on the adequacy of what it does contain, not on what

it lacks[.]” Allen, 211 F.3d at 975.

Despite some imperfections with the informant, the affidavit established probable cause

to search Abdalla’s home by providing corroborating evidence. Usually invalidating a warrant

for lack of probable cause involves something like “an anonymous tip sparse in detail and wholly

uncorroborated by the police” or “a merely conclusory statement of the affiant’s belief in an

informant’s past credibility, unsupported by further detail[.]” Id. at 975–76. That is not the case

here. An affidavit describing both an informant’s controlled purchase “while under police

surveillance” and “the officers’ arrangements for the controlled purchase” gives “sufficient

corroborating information” to uphold a lower court’s finding that probable cause existed. United

States v. Archibald, 685 F.3d 553, 557 (6th Cir. 2012).

The affidavit here included that

information, describing how officers “issued monitoring equipment and drug buy money” to the

informant and “prearranged” a drug deal at Abdalla’s residence on three occasions. (R. 20-1,

Aff., Page ID # 52.) And affidavits need not be perfect to establish probable cause. Hale v.

Kart, 396 F.3d 721, 725 (6th Cir. 2005) (“Affidavits do not have to be perfect, nor do they have

to provide every specific piece of information to be upheld[.]”). So the controlled buys at

Abdalla’s home, as described in the affidavit, are “specific facts present[ing] ample evidence of

probable cause that drugs . . . would be found at” Abdalla’s residence. Id. So even if the

government did not rely on an ideal informant, the affidavit provided enough corroborating

evidence for probable cause to search Abdalla’s residence.

All considered, the defects in the warrant’s issuance do not violate the Fourth

Amendment’s bar on unreasonable searches and seizures.1 So the district court did not err by

denying Abdalla’s motion to suppress evidence.

1

The parties dispute whether the Leon good-faith exception for warrant errors applies. Because Abdalla’s

Fourth Amendment claims lack merit, we need not reach the good-faith analysis. See Durk, 149 F.3d at 466

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V.

Finally, Abdalla argues that the sentencing judge incorrectly applied a Sentencing

Guidelines enhancement for assaulting an officer who was searching Abdalla’s home. The

Sentencing Guidelines impose a six-level increase “[i]f, in a manner creating a substantial risk of

serious bodily injury, the defendant . . . knowing or having reasonable cause to believe that a

person was a law enforcement officer, assaulted such officer during the course of the offense[.]”

U.S.S.G. § 3A1.2(c)(1). Abdalla focuses on the enhancement’s mens rea requirement, arguing

that “he was too high to form the requisite intent to assault the officers[.]” (Appellant Br. at 49.)

That is because the fentanyl and methamphetamine in his system allegedly made him think that

he was in a video game during the confrontation. But the lower court rejected Abdalla’s position

because his actions and statements after the scuffle reflected his grasp on reality. Abdalla now

contends that the lower court erred by: (1) wrongly discounting his statement about believing he

was in a video game, (2) ignoring statements from the officers suggesting that he behaved

strangely during the search, and (3) not deferring to a previous judge’s mens rea ruling.

For challenges to a district court’s application of the Federal Sentencing Guidelines, this

Circuit generally reviews factual findings for clear error and legal conclusions de novo. United

States v. Coleman, 664 F.3d 1047, 1048 (6th Cir. 2012). But the standard for reviewing a

Guidelines enhancement applied to a given fact pattern is somewhat murky.2 See United States

v. Bell, 766 F.3d 634, 636 (6th Cir. 2014) (“Our circuit has not settled on the proper standard of

review for assessing such enhancements.”); see also United States v. Uminn, No. 19-1638, 2020

WL 3958199, at *2 (6th Cir. July 13, 2020) (“Our circuit has not, however, settled on a clear

standard of review for assessing a district court’s application of sentencing enhancements.”).

That said, the Supreme Court has held that applications of the Sentencing Guidelines involving

mixed questions of law and fact receive “deferential review” and not de novo review. Buford v.

(“Because we find the search warrant complies with the requirements of the Fourth Amendment, we need not reach

the government’s alternative argument that the good faith exception applies to this case.”).

2

Neither party makes much of this ambiguity Abdalla states that the proper standard gives due deference to

the lower court’s application of the Guidelines to the facts, while the government contends that mixed questions of

law and fact receive de novo review. Because the parties do not engage with this issue and Abdalla cannot prevail

under any plausible form of deferential review, we need not determine the precise review standard.

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United States, 532 U.S. 59, 64 (2001). So “the district court’s application of the guidelines to the

facts” should receive “due deference.” Uminn, 2020 WL 3958199, at *2. And district courts

receive “even greater deference” when their “findings are based on determinations regarding the

credibility of witnesses[.]” Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985).

First, Abdalla claims that the district court erred by not giving proper weight to his

statement, made three days after the search, that he believed he was in a video game when he

attacked the officers. During his interview with the police, Abdalla stated that he did not

remember physically struggling with the officers and that he only became aware of his

surroundings after being handcuffed. At sentencing, the district court did not accept Abdalla’s

contention that this statement showed that he lacked the requisite mens rea. Noting that the

statement was “not . . . under oath,” the district court instead gave stronger weight to other

evidence showing Abdalla’s lucidity during the raid, including his coherent statements to the

officers about his medical condition. (R. 104, Sentencing Tr., Page ID # 748.) Still, Abdalla

argues that the district court “appear[ed] to discount the weight of the statement due to the

mistaken belief that it [was] a mere ‘recounting,’ when in fact the recorded statement . . . was

validly entered as an exhibit.” (Appellant Br. at 50.) But he cites no cases explaining why the

sentencing judge erred by downplaying the statement’s strength as an exhibit and finding the

statement non-credible because Abdalla did not make it under oath. And the sentencing judge

validly reasoned that self-serving testimony not given under oath did not “defeat[] the

Government[’s]” argument under a preponderance of the evidence standard. (R. 104, Sentencing

Tr., Page ID # 748.) The judge did so because the government presented evidence that Abdalla

understood and replied to questions posed by officers after the altercation. So the sentencing

judge found that evidence more compelling than Abdalla’s statement that he was so high he

believed he was in a video game.

This determination over Abdalla’s mental state receives deference. See United States v.

Ingle, 460 F. App’x 593, 596 (6th Cir. 2012) (reviewing for clear error a district judge’s

determination that the defendant’s alleged depression did not prevent him from forming the mens

rea for assaulting an officer under U.S.S.G § 3A1.2(c)(1)). And Abdalla complains only that the

court found his unsworn testimony given three days after the search less credible than the

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officers’ statements about Abdalla’s coherence. At best, the evidence points both ways over

Abdalla’s mental state. And that is not enough to warrant reversal under any plausible form of

deference, be it clear error or a less exacting standard.

Next, Abdalla asserts that the sentencing judge “ignore[d] key evidence regarding the

scuffle.” (Appellant Br. at 50.) During his conflict with the officers, Abdalla covered himself

with a sheet to hide from officers and displayed a surprising amount of strength by ripping apart

plastic restraints used by the officers. Abdalla claims that this unusual behavior supports his

claim that he was too high to form the necessary mental state. And he believes the lower court

improperly minimized this evidence while giving too much credence to testimony from the

officers. This argument reformulates Abdalla’s complaint about the sentencing judge’s decision

not to find Abdalla’s video game statement credible.

Here, the sentencing judge weighed

testimony about the post-arrest questioning, which suggested that Abdalla had enough awareness

to confront the police and answer questions, against Abdalla’s bizarre behavior. And the judge

concluded that, although Abdalla was high, he still knew that he was assaulting police officers.

A defendant’s actions can provide “evidence that he acted with the intent to commit” a crime,

even when there is conflicting record evidence about that mental state. Ingle, 460 F. App’x at

596. Under that standard, Abdalla’s citation of conflicting evidence does not require reversal.

Because the sentencing judge relied on evidence showing Abdalla’s lucid state shortly after the

conflict, the judge’s weighing of the evidence at Abdalla’s sentencing does not suggest reversible

error under deferential review.

Finally, Abdalla claims that Judge Richardson, who inherited the case from Judge

Crenshaw, wrongly ignored Judge Crenshaw’s determination that Abdalla was too high during

the search to voluntarily, knowingly, and intelligently waive his Miranda rights.

Judge

Crenshaw, before exiting the case, found that Abdalla lacked the mental state to waive his

Miranda rights when questioned during the search. Abdalla believes that ruling should have

precluded the sentencing enhancement because it showed he lacked the mens rea to knowingly

assault officers. To support that argument, Abdalla relies on a law-of-the-case theory that

“findings made at one stage in the litigation should not be reconsidered at subsequent stages of

that same litigation.” Dixie Fuel Co. v. Dir., Office of Workers’ Comp. Programs, 820 F.3d 833,

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843 (6th Cir. 2016). Abdalla asserts that Judge Crenshaw’s finding that Abdalla lacked capacity

to waive his Miranda rights should have controlled Judge Richardson’s determination of

Abdalla’s mental state during the scuffle. So Abdalla contends that Judge Richardson erred by

finding that Abdalla’s “waiver of Miranda rights is a different question than whether he was in a

frame of mind where he could form the mens rea to commit an assault.” (R. 104, Sentencing Tr.,

Page ID # 748–49.) Because Judge Richardson did not thoroughly distinguish between the

Miranda mens rea and the sentencing enhancement mens rea, both of which contain a “knowing

requirement,” Abdalla believes that the sentencing judge wrongly applied the enhancement.

Yet Miranda waivers and the Guidelines enhancement for assaulting an officer are

distinct legal issues. Defendants must knowingly and intelligently waive their Miranda rights,

which courts analyze given the “totality of the circumstances.” Garner v. Mitchell, 557 F.3d

257, 260 (6th Cir. 2009).

Under that inquiry, courts also look to two “dimensions,”

“voluntariness and comprehension,” to decide whether a defendant freely and knowingly chose

to talk with police despite Miranda protections. Id. at 263. For the § 3A1.2(c)(1) assaulting an

officer enhancement, the defendant must (1) intend to assault another person, (2) know that this

person is an officer, and (3) recklessly create a substantial risk of injury. Although both mens

rea requirements contain a knowing requirement, knowingly assaulting an officer differs from a

defendant comprehending and voluntarily waiving his Miranda rights. So we are unpersuaded

that Judge Richardson committed a reversible error by finding the two legal questions distinct.

VI.

For the reasons above, we AFFIRM.

A-017

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

UNITED STATES OF AMERICA

Plaintiff,

v.

SAMER WALID ABDALLA

Defendant.

)

)

)

)

)

)

)

)

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No. 2:17-cr-00007

CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

On June 17, 2018, members of the Fifteenth Judicial Drug Task Force executed a warrant

to search a residence located at 332 New Hope Road, Alexandria, Tennessee. As a result of the

search and a subsequent interrogation, Samer Walid Abdalla was charged in this Court in a onecount Indictment with possessing five firearms after having previously been convicted of a felony,

in violation of 18 U.S.C. §§ 922(g)(1) and 924. He has filed a Motion to Suppress (Doc. No. 20),

that has been exhaustively brief by the parties (Doc. Nos. 20, 22, 24, 27, and 28), and which was the

subject of an evidentiary hearing on July 31, 2018. For the reasons that follow, the Motion will be

granted in part and denied in part.

I. Discussion

Abdalla’s Motion to Suppress is multi-faceted. He seeks to suppress both the fruits of the

search (the firearms), and statements he made, both at the scene of his arrest and while in custody.

He also requests a hearing pursuant to pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

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A. Motion to Suppress the Fruits of the Search

Abdalla first moves to suppress the firearms that were found in his residence because the

information used to obtain the search warrant was allegedly stale. According to the Search Warrant

Affidavit, three controlled buys of narcotics were made over a span of four months. More

specifically, it states that (1) on February 2, 2017, a confidential informant (“CI”) went to the New

Hope Road residence, “made contact” with Courtney Paris, and purchased $90 worth of heroin while

Abdalla and Ernest Tanner were in the home; (2) on March 16, 2017 the CI went to the residence

and made contact with both Abdalla and Paris and purchased $150 worth of heroin; and (3) on June

2, 2017, the same events were repeated with the CI making contact with both Abdalla and Paris, but

this time a Ruger 9mm pistol was displayed.

“In the context of drug crimes, information goes stale very quickly ‘because drugs are

usually sold and consumed in a prompt fashion.’” United States v. Brooks, 594 F.3d 488, 493 (6th

Cir. 2010) (quoting United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009)). Nevertheless

“[w]hether information is stale in the context of a search warrant turns on several factors, such as

‘the character of the crime (chance encounter in the night or regenerating conspiracy?), the criminal

(nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of enduring

utility to its holder?), [and] the place to be searched (mere criminal forum of convenience or secure

operational base?).’” Id. (quoting United States v. Hammond, 351 F.3d 765, 771–72 (6th Cir.

2003)). Simply put, “‘[t]he function of a staleness test in the search warrant context is not to create

an arbitrary time limitation within which discovered facts must be presented to a magistrate.’”

United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (quoting United States v. Henson 848

F.2d 1374, 1382 (6th Cir.1988)).

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Here, the last purchase was made one week before the application for the search warrant.

By itself, this does not render the information from the CI stale. See United States v. Jeanetta, 533

F.3d 651, 655 (8th Cir. 2008) (“Standing alone, the fact the controlled buy was made two weeks

before the warrant issued does not render the information in the application stale.”); United States

v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998) (citation omitted) (“In investigations of ongoing

narcotics operations, intervals of weeks or months between the last described act and the application

for a warrant [does] not necessarily make the information stale.”). Besides, “even if a significant

period of time elapsed, it is possible the magistrate judge may infer that a search would uncover

evidence of wrongdoing.” United States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003).

Such an inference could easily be made in this case. Three purchases were made from two

individuals in the residence in a four month period. This suggests not a “chance encounter in the

night,” but rather purchases from “a secure operational base.” Moreover, a 9mm handgun was

displayed during the last purchase. While Abdalla correctly points out that DeKalb County Judge

David A. Patterson issued the Search Warrant after finding probable cause to believe that felony

trafficking or felony money laundering might be occurring at the New Hope road premises, the judge

also described the evidence to be seized as including “firearms, ammunition, [and] receipts of

purchase of firearms[.]” (Doc. No. 20-1 at 14-15). Any reasonable jurist knows that “”drugs and

guns go ‘hand in hand’” and that “firearms are tools of the drug trafficking trade.” United States

v. Hornbeak, 575 F. App’x 618, 621 (6th Cir. 2014) (citation omitted). Accordingly, the firearms

will not be suppressed on the grounds that the information in the warrant was stale.

In his Second Supplemental Brief, Abdalla argues that the search warrant was improperly

issued because there was insufficient information supplied to Judge Patterson to determine whether

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the CI was reliable. Arguing the typical indicia of reliability was lacking, he writes:

There is no statement that the confidential informant was reliable or had been used

before. There is no statement that the confidential informant was named to the

magistrate judge. There is no statement that officers searched the confidential

informant before and after the controlled purchases, which is in many ways the very

definition of a “controlled” purchase. Although we are told that the confidential

informant was given “buy money,” there is no statement that it was pre-recorded or

otherwise documented. Although we are told that the confidential informant was

issued “monitoring equipment,” there is no statement that officers used this

equipment to monitor the confidential informant. There is no statement that the

drugs allegedly acquired in the controlled purchases were field-tested positive for

narcotics. In fact, we now know that they were not tested until months later, and the

powder purchased in one of the three controlled buys contained no narcotics at all.

(Doc. No. 28 at 4).

Were the Court addressing the issue of probable cause in the first instance, Abdalla’s

arguments might have some purchase. However, the Supreme Court has “repeatedly said that

after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo

review.” Illinois v. Gates, 462 U.S. 213, 236 (1983). Instead, “reviewing courts are to accord the

magistrate’s determination ‘great deference.”” United States v. Allen, 211 F.3d 970, 973 (6th Cir.

2000).

“[I]ndependent corroboration of a confidential informant's story is not a sine qua non to a

finding of probable cause,” United States v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005), but, “in

the absence of any indicia of the informants’ reliability, courts insist that the affidavit contain

substantial independent police corroboration.” United States v. Frazier, 423 F.3d 526, 532 (6th Cir.

2005). Stated somewhat differently, “an affidavit that supplies little information concerning an

informant’s reliability may support a finding of probable cause, under the totality of the

circumstances, if it includes sufficient corroborating information.” United States v. Coffee, 434 F.3d

887, 893 (6th Cir. 2006) (citation omitted); see also United States v. Tuttle, 200 F.3d 892, 894 (6th

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Cir. 2000) (noting that “information received from an informant whose reliability is not established

may be sufficient to create probable cause when there is some independent corroboration by the

police of the informant's information”).

Ultimately, the issuing judge must answer “the

commonsense practical question whether there is ‘probable cause to believe that contraband or

evidence is located in a particular place.’” Gates, 462 U.S. at 230

Judge Patterson could properly conclude from the Search Warrant Affidavit that illegal

narcotics would be found at 332 New Hope Road. He was presented with information that a CI had

made narcotics purchases there, not once, but on three occasions in the past few months. He was

also informed that the CI had been issued “monitoring equipment and drug buy money,” and that,

after each transaction, the “evidence [wa]s logged into the 15th Drug Task Force Evidence.” (Doc.

No. 20-1 at 8). Further, the Search Warrant Affidavit stated that, on the first two occasions, the CI

and an undercover agent were “surveilled” going to the house; on the third occasion an undercover

agent drove the CI to the residence. (Id.).

While the Search Warrant Affidavit could have been more detailed and written clearer,

“line-by-line scrutiny” is inappropriate and an “affidavit should be reviewed in a commonsense

rather than a hypertechnical-manner.” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).

Even though the search warrant affidavit does not state that the CI had proven reliable in the past,

by the time he made his third purchase, the CI had successfully purchased what he thought to be

heroin1 from the residence at 332 New Hope Road on two prior occasions. See United States v.

1

In his Supplemental Brief, Abdalla notes that a September 2017 report from the Tennessee Bureau

of Investigations indicates the substance purchased on February 2, 2017 contained “no controlled substances.”

(Doc. No. 28 at 2). From this he argues that “[one] third of the probable cause in the warrant was likely

baking soda or some other benign powder.” (Id.). This argument goes nowhere.

There is absolutely nothing in the record to suggest that either the CI or the occupants of 332 New

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Greene, 250 F.3d 471, 480 (6th Cir. 2001) (“Circuit precedent clearly establishes that the affiant

need only specify that the confidential informant has given accurate information in the past to

qualify as reliable.”). Abdalla’s suggestion that the transactions were not monitored and the buy

money was not recorded is untrue (as he now knows). Besides, “[t]he affidavit is judged on the

adequacy of what it does contain, not on what it lacks, or on what a critic might say should have

been added,” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000), and Judge Patterson was

required to read the Search Warrant Affidavit “in a commonsense and realistic fashion,” Coffee, 434

F.3d at 892. Based on such a reading, he could have properly concluded that the monitoring

equipment was used, the money was recorded, and the CI was watched going to and from the

residence.

Abdalla also moves to suppress the firearms on the ground that the Search Warrant was

executed on the wrong house. He notes out that, immediately above Judge Patterson’s signature is

the command that officers search the residence and buildings located at 245 Carey Road in

Hartsville, Tennessee. Not only is this the incorrect address, Hartsville is located in Trousdale

County, while Alexandria is located in DeKalb County.

In support of his position that suppression is necessary, Abdalla relies on United States v.

Durk, 149 F.3d 464 (6th Cir. 1998) for the proposition that “[i]t goes without saying that a search

warrant that only authorizes search of the wrong home creates a high likelihood that officers would

have searched the wrong premises in relying on this search warrant.” (Doc. No. 20 at 9) (emphasis

in original). He also quotes that case for the observation that a court’s inquiry should be on whether

Hope Road entered into an agreement to purchase $90 worth of non-narcotic powder. The only evidence

before the Court is that the CI went to the address to purchase heroin. That later tests revealed the substance

not to be heroin is beside the point because, under Tennessee law, it is a felony to sell a “counterfeit

controlled substance.” Tenn. Code Ann. § 39-17-423.

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the place to be searched is “described with sufficient particularity to enable the executing officer to

locate and identify the premises with reasonable effort, and whether there is any reasonable

probability that another premises might be mistakenly searched.” (Id., quoting Durk, 189 F.3d at

465).

In reality, Durk supports the Government’s position that the firearms should not be

suppressed. In that case, an officer seeking a warrant twice transposed the address number from

4216 Fulton, Royal Oak, Michigan, to 4612. He also identified the house as being approximately

3 houses to the east of Grandview when, in fact, it was 3 houses to the west. Upholding the

execution of the search warrant, the Sixth Circuit wrote:

The evil that the framers of the Constitution were trying to eradicate with the

particularity requirement was the so-called general warrant that allowed officers to

search at random. This requirement eliminates generalness and provides both a

reason for and limitation of the search. These purposes were served in this case as

the warrant sufficiently describes [defendant’s] house despite the two inaccuracies.

The warrant correctly identifies the house as a single-family red brick ranch home

on the north side of Fulton street. Although brick, ranch style homes may be

common in [defendant’s] neighborhood, the warrant also describes a more unusual

feature: a ten by fifteen foot metal storage shed, the entrance of which is secured by

a plastic tie. . . . Courts routinely have upheld warrants, such as the one at issue,

“where one part of the description of the premises to be searched is inaccurate, but

the description has other parts which identify the place with particularity.”

Durk, 149 F.3d at 466 (internal citations omitted).

Even more so in this case than in Durk, “no reasonable probability existed that the officers

would search the wrong premises as a result of the inaccuracies in the warrant.” 149 F.3d at 466.

While the address above the judge’s signature was wrong, that was clearly the result of Agent

Brandon Gooch cutting and pasting from an earlier warrant. Regardless, in the first paragraph of

the warrant the address is correctly stated, with clear and detailed directions to the residence.

Specifically, the warrant provides:

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TO ARRIVE AT THESE PREMISES, TRAVELING WEST ON I-40 TAKE EXIT

RAMP 254. TURNING LEFT ONTO ALEXANDRIA HIGHWAY AND

TRAVELING SOUTH 6.8 MILES TO DEKALB COUNTY LINE. CONTINUE

TRAVELLING [SIC] SOUTH ON ALEXANDRIA HIGHWAY FOR 0.5 MILES.

TO THE INTERSECTION OF ALEXANDRA [SIC] HIGHWAY AND NEW HOPE

RD. TURNING LEFT ON TO NEW HOPE RD AND TRAVELING EAST FOR 0.1

MILE TO THE DRIVEWAY OF 332 NEW HOPE ROAD LOCATED ON THE

RIGHT SIDE OF ROADWAY.

(Doc. No. 20-1 at 13). Lest there be any misunderstanding, the warrant also described what the

premises looked like:

ON [THE] PROPERTY THERE WILL BE A WHITE DOUBLE WIDE TRAILER

WITH A GREEN FRONT PORCH AND A BLACK SHINGLE ROOF. IN THE

BACK YARD THERE WILL BE A ALUMINA [SIC] BUILDING WITH AN UP

STAIRS PORCH. ALSO ON THE FRONT PORCH OF THE DOUBLE WIDE

THERE WILL BE AN AMERICAN FLAG AND AT THE ENTRANCE OF THE

DRIVE WAY THERE WILL BE AN AUTO DETAIL SIGN.

(Id.). Absent exact GPS coordinates, the actual location of the search could not have been any

clearer. Nor could any officer mistake this house for the one in Trousdale County, unless that

residence, too, was a black shingled, white double wide trailer, flying an American flag, with an

aluminum building on the premises and an auto detail sign at the entrance to the driveway. There

is no evidence of that in the record.

Additionally, Agent Gooch, who drafted the affidavit, also participated in the search, and the

Sixth Circuit “has previously upheld searches conducted pursuant to warrants listing incorrect

addresses or property descriptions in part because the police officers involved in executing the

search had also served as affiants or were otherwise familiar with the location to be searched.”

Knott v. Sullivan, 418 F.3d 561, 569 (6th Cir. 2005). Not only that, a pre-search briefing was held

during which the other officers were provided the address and a description of the residence to be

search, and they then traveled by caravan to 332 New Hope Road.

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Moreover, and as in Durk, “additional circumstances” as set forth in the affidavit for search,

“make clear that the inaccuracies in the warrant here would not lead to a mistaken search of other

premises.” 189 F.3d at 466. While “[t]he Fourth Amendment by its terms requires particularity in

the warrant, not in the supporting documents,” this is not to “say that the Fourth Amendment

prohibits a warrant from cross-referencing other documents.” Groh v. Ramirez, 540 U.S. 551, 557

(2004). “Indeed, most Courts of Appeals have held that a court may construe a warrant with

reference to a supporting application or affidavit if the warrant uses appropriate words of

incorporation, and if the supporting document accompanies the warrant.” Id. at 557-58. This

includes the Sixth Circuit. Sanders v. Parrish, 141 F. App’x 412, 416 (6th Cir. 2005) (collecting

cases); United States v. Blakeney, 942 F.2d 1001, 1024 (6th Cir. 1991).

Incorporation requires “‘suitable words of reference’ evidencing the magistrate’s explicit

intention to incorporate the affidavit.’” United States v. Brown, 49 F.3d 1162, 1175 (6th Cir. 1995)

(citation omitted). That said, the “‘realities of administration of criminal justice,’ . . . counsel against

an overly exacting standard for determining when a warrant successfully incorporates a supporting

affidavit,” United States v. Maxwell, 920 F.2d 1028, 1033 (D.C. Cir. 1990), and, hence, “there are

no required magic words of incorporation.” United States v. SDI Future Health, Inc. 568 F.3d 684,

700 (9th Cir. 2009). In fact, a warrant that stated “upon the sworn complaint made before me there

is probable cause to believe” was deemed sufficient, United States v. Vesikuru, 314 F.3d 1116,

1120–21 & n.4 (9th Cir.2002), as was the statement, “See attached affidavit,” Rivera Rodriguez v.

Beninato, 469 F.3d 1, 5 (1st Cir. 2006).

Contrary to Abdalla’s argument, Judge Patterson more than sufficiently incorporated the

Search Warrant Affidavit into the Search Warrant. Not only did he sign the Affidavit noting that

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it had been subscribed and sworn to before him, he specifically based his probable cause

determination on the fact that “PROOF HAVING BEEN MADE BEFORE ME AND REDUCED

TO WRITING AND SWORN TO BY AGENT BRANDON GOOCH OF THE 15th JUDICIAL

DISTRICT DRUG TASK FORCE.” That affidavit, in turn, correctly identified the premises, going

so far as to contain the heading:

APPLICATION FOR SEARCH WARRANT

TO SEARCH THE REAL PROPERTY OF

ERNEST TANNER

SAMER ABDALLA

COURTNEY PARIS

332 NEW HOPE ROAD, ALEXANDRA [SIC]

DEKALB COUNTY,

TENNESSEE

(Doc. No. 20-1 at 2).

Ultimately, “[t]he test for determining the sufficiency of the description of the place to be

searched . . . can be divided into two components: (1) whether the place to be searched is described

with sufficient particularity as to enable the executing officers to locate and identify the premises

with reasonable effort; and (2) whether there is reasonable probability that some other premises may

be mistakenly searched.” United States v. Gahagan, 865 F.2d 1490, 1496–97 (6th Cir. 1989). Here,

the record reflects that the residence was described with more than sufficient detail such that there

was no reasonable probability that the wrong residence would be searched. Therefore, the firearms

that were found in the home will not be suppressed on the ground that the Search Warrant at one

point contained an incorrect address.

B. Motion to Suppress Statements

Abdalla moves to suppress statements that he made after he was read his Miranda rights on

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the grounds that they were not voluntary. There are two such statements at issue. The first

statement was made immediately after his arrest on June 9, 2017, at the New Hope Road residence.

The second statement was made several days later at the DeKalb County Jail. No written waiver

was executed by Abdalla for either statement, nor was the reading of the Miranda rights and

Abdalla’s voluntary relinquishment of those rights recorded, even though one of the officers

recorded a part of the second statement on his cell phone after Abdalla had been read his rights.2

“Before the police may interrogate a suspect in custody, they must first read the Miranda

warnings.” United States v. Pacheco-Lopez, 531 F.3d 420, 423 (6th Cir. 2008) (citing Miranda v.

Arizona, 384 U.S. 436 (1966)). “Miranda holds that ‘[t]he defendant may waive effectuation’ of the

rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and

intelligently.”” Moran v. Burbine, 475 U.S. 412, 420-21 (1986) (citations omitted). There are “two

distinct dimensions” to the inquiry:

First, the relinquishment of the right must have been voluntary in the sense that it

was the product of a free and deliberate choice rather than intimidation, coercion, or

deception. Second, the waiver must have been made with a full awareness of both

the nature of the right being abandoned and the consequences of the decision to

abandon it. Only if the “totality of the circumstances surrounding the interrogation”

reveal both an uncoerced choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have been waived.

2

Obviously it would have been better for the officers to have Abdalla sign a written waiver or record

the reading of the rights and acknowledgment. “That fact, however, is not determinative, as the record clearly

reflects by a preponderance of the evidence that [defendant] knowingly and voluntarily waived his Miranda

rights,” United States v. Adams, 583 F.3d 457, 467 (6th Cir. 2009), at least with respect to the second

statement. See North Carolina v. Butler, 411 U.S. 369, 371, 373 (1979) (rejecting inflexible rule requiring

waiver where defendant stated, “I will talk to you but I am not signing any form”); United States v. Miggins,

302 F.3d 384, 397 (6th Cir. 2002) (observing that “no authority . . . can be found, for the proposition that a

written waiver is necessary to establish a knowing, intelligent and voluntary waiver of Miranda rights”).

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Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation omitted).

“For a defendant’s confession to be involuntary, and therefore obtained in violation of the

Fifth Amendment, ‘coercive police activity’ must have preceded the confession.” United States v.

Ray, 803 F.3d 244, 266 (6th Cir. 2015). There is no evidence of such tactics in this case. Instead,

Abdalla argues that his statements should be suppressed because his excessive drug use prohibited

him from having the requisite mental capacity to knowingly and intelligently waive his rights.

“It is well-established, in this circuit and others, that mental capacity is one of many factors

to be considered in the totality of the circumstances analysis regarding whether a Miranda waiver

was knowing and intelligent. Thus, diminished mental capacity alone does not prevent a defendant

from validly waiving his or her Miranda rights.” Garner v. Mitchell, 557 F.3d 257, 264–65 (6th Cir.

2009) (collecting cases). “Rather, that factor must be viewed alongside other factors, including

evidence of the defendant’s conduct during, and leading up to, the interrogation.” Id.; see also

United States v. Anderson, 695 F.3d 390, 395 (6th Cir. 2012) (affirming that the Sixth Circuit “looks

to the ‘conduct, speech, and appearance’ of the accused ‘during, and leading up to, the interrogation’

to determine whether a Miranda waiver was knowing and voluntary”).

Abdalla cites Miranda, 384 U.S. at 475, and Butler, 441 U.S. at 373 (1979), for the

proposition that the “the government bears the ‘great’ burden of proving a valid waiver of [Miranda]

rights,” (Doc. No. 20 at 10), but the Supreme Court has subsequently observed that its comments

about a “heavy” burden were “stated in passing” and that “the State need prove waiver only by a

preponderance of the evidence.” Colorado v. Connelly, 479 U.S. 157, 168 (1986); see Lego v.

Twomey, 404 U.S. 477, 489 (1972) (holding that “the prosecution must prove at least by a

preponderance of the evidence that the confession was voluntary,” but observing that “the States are

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free, pursuant to their own law, to adopt a higher standard”); United States v. Adams, 583 F.3d 457,

467 (6th Cir. 2009) (“It is the government’s burden to establish a waiver by a preponderance of the

evidence.”). Either way, the Government has met its burden with respect to the second statement,

but not the first.

At the evidentiary hearing, the Government did not call Mike Thompson, the Director of the

15th Judicial Task Force,3 who was the person that actually read Abdalla his rights in relation to the

first statement. Instead, Agent Gooch was called.

Agent Gooch testified that he was present when Thompson recited from memory the

Miranda warnings to Abdalla. He testified that Abdalla (1) appeared calm and coherent; (2) did not

appear to be intoxicated; (3) appeared to be oriented as to time and place; (4) did not ask that the

rights be repeated or indicate that he did not understand his rights; and (5) nodded appropriately

while the warning were being given. Agent Gooch also testified that Abdalla verbally relinquished

his Miranda rights, and appeared to do so knowingly and voluntarily.

Even though the Court finds Agent Gooch’s testimony on this score entirely credible, it only

goes so far. Agent Gooch conceded that his observations were limited to the few minutes or seconds

required to advise Abdalla of his Miranda rights. As such, he was not in a position to testify

regarding Abdalla’s conduct during, or leading up to, the interrogation.

According to the testimony of Rebecca Wright, a Putnam County Sheriff’s Deputy, when

officers arrived at 332 New Hope Road they made a forcible entry into the premises. Abdalla was

located in the bedroom wearing nothing but shorts, and lying next to his girlfriend. Realizing people

had entered his bedroom, Abdalla became startled and began fighting with the officers. In a later

3

Apparently, Director Thompson was vacationing in Wisconsin at the time.

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interview, Abdalla explained that he had injected heroin and fentanyl and taken methamphetamine

before the raid, and that he thought he was in a video game when he was fighting with the officers.

This is, of course, self serving. Regardless, Deputy Wright testified that Abdalla tried to bite two

officers and came close to being shot during the struggle. As it happened, it took four officer to

subdue Abdalla. Even when he was placed in flex-cuffs he managed to break them, something

Deputy Wright had never seen before.

While there was some testimony at the evidentiary hearing that Abdalla had calmed down

and became coherent between the time of the fraças with the officers and the interview with Director

Thompson, the Court cannot make such a finding based upon the preponderance of the evidence.

Nor does it have any evidence about what transpired during the interrogation because Director

Thompson did not testify. Accordingly, the Court will suppress the statements that Abdalla made

to Director Thompson at the New Hope Road residence.

The Court will not, however, suppress the statements made by Abdalla at the DeKalb County

Jail on June 12, 2017 because the same evidentiary infirmities do not exist. To the contrary, while

Deputy Wright conceded learning from Abdalla during his statement that he was a drug addict who

used 3 grams of heroin or fentanyl a day, had used both methamphetamine and fentanyl on the

morning of his arrest, and that withdrawal from drugs could be painful and take some time, she did

not recall ever hearing Abdalla say that he was “dope sick,”nor did she see the need to request

medical treatment She also testified that she read Abdalla his rights. Although Abdalla agreed to

talk to her, he would not sign the waiver she provided him, which, as already noted, is not fatal.

Upon further questioning by the Court, Deputy Wright said that on the morning of the 12th, Abdalla

appeared normal, and that he was talkative, cordial and engaging. She further testified that he was

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clean, groomed and coherent, and did not appear to be under the influence of any narcotics. Further,

his speech was clear and Abdalla was easy to understand.

The Court finds Deputy Wright’s

testimony entirely credible and, therefore, the June 12, 2017 statement will not be suppressed.

C. Request for a Franks Hearing

The standards relating to a Franks hearing have been stated on countless occasions, and the

Court need not reinvent the wheel. For present purposes, the following summary suffices:

In Franks, the United States Supreme Court recognized a “defendant's right to

challenge the sufficiency of an executed search warrant by attacking the veracity of

the affidavit supporting the warrant,” and “granted defendants a limited right to an

evidentiary hearing concerning the veracity of the affidavit.” United States v. Fowler,

535 F.3d 408, 415 (6th Cir. 2008). “[W]here the defendant makes a substantial

preliminary showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in the warrant affidavit,

and if the allegedly false statement is necessary to the finding of probable cause, the

Fourth Amendment requires that a hearing be held at the defendant's request.”

Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Thus, “[a] defendant is entitled to a Franks hearing if he: 1) makes a substantial

preliminary showing that the affiant knowingly and intentionally, or with reckless

disregard for the truth, included a false statement or material omission in the

affidavit; and 2) proves that the false statement or material omission is necessary to

the probable cause finding in the affidavit.” United States v. Rose, 714 F.3d 362, 370

(6th Cir. 2013) (citing Franks, 438 U.S. at 171–72, 98 S.Ct. 2674).

Both prongs must be satisfied before a hearing is required. “Therefore, ‘if, when

material that is the subject of the alleged falsity or reckless disregard is set to one

side, there remains sufficient content in the warrant affidavit to support a finding of

probable cause, no hearing is required.’ ” United States v. Mastromatteo, 538 F.3d

535, 545 (6th Cir. 2008) (quoting Franks, 438 U.S. at 171–72, 98 S.Ct. 2674). If,

however, “both prongs are satisfied and at the evidentiary hearing, ‘the allegation of

perjury or reckless disregard is established by the defendant by a preponderance of

the evidence, and, with the affidavit’s false material set to one side, the affidavit’s

remaining content is insufficient to establish probable cause, the search warrant must

be voided and the fruits of the search’ suppressed.’” United States v. Graham, 275

F.3d 490, 505 (6th Cir. 2001) (quoting Franks, 438 U.S. at 156, 98 S.Ct. 2674).

United States v. Brown, 68 F. Supp. 3d 783, 791–92 (M.D. Tenn. 2014), aff'd, 857 F.3d 334 (6th Cir.

2017). With this standard of review, it is clear that a Franks hearing is inappropriate.

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At the evidentiary hearing, counsel limited Abdalla’s request for a Franks hearing to the

issue of the failure of the Search Warrant Affidavit to explain that the amount of heroin (real or

counterfeit) purchased on each occasion was approximately 3 to 5 grams, and that Abdalla allegedly

used 3 grams daily. In his view this small amount goes to the issue of staleness because,

presumably, a personal user is less likely to deal than a big-time trafficker.

Abdalla’s argument relates to an act of omission, not commission, and the Sixth Circuit “has

repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly

material omission as opposed to an allegedly false affirmative statement.” Fowler, 535 F.3d at 415.

That court has explained:

[A] Franks hearing is only merited in cases of omissions in “rare instances.” . . .

“This is so because an allegation of omission potentially opens officers to endless

conjecture about investigative leads, fragments of information, or other matter that

might, if included, have redounded to defendant's benefit.” To merit a hearing, the

defendant must make a preliminary showing that the affiant engaged in deliberate or

reckless disregard of the truth in omitting the information from the affidavit. The

court must then consider the affidavit along with the omitted portions and determine

whether probable cause still exists.

United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001)(citation omitted).

Leaving aside that dealing heroin is unlawful no matter the amount, Abdalla has not shown

this to be the rare case warranting a Franks hearing, or that Agent Gooch knew of Abdalla’s

consumption habit, yet deliberately or recklessly excluded that information from the Search Warrant

Affidavit. Regardless, Judge Patterson could not have been misled into thinking that Abdalla was

a large drug trafficker because he was specifically informed that the purchase amount on the first

occasion was $90 of heroin, and on both of the last two occasions it was $150 worth of heroin.4

4

Additionally, in regard to the last purchase, the Search Warrant Affidavit indicates that the CI

“purchased 3 points of heroin for $90.” (Doc. No. 20-1 at 8). The reference to “points” is likely a scrivener’s

error.

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Besides, even if Judge Patterson was aware that the purchases were made in the 3 gram range and

that this was a personal use amount (at least for Abdalla), this does not change the fact that the New

Hope Road residents had enough additional heroin to make sales to others on at least three

occasions.

II. Conclusion

For the foregoing reasons, Abdalla’s Motion to Suppress Evidence (Doc. No. 20) will be

granted in part and denied in part. The Motion will be granted with respect to the statements he

made to Director Thompson at the scene of the search on June 9, 2017, but in all other respects will

be denied. His request for a Franks hearing will also be denied.

An appropriate Order will enter.

__________________________________________

WAVERLY D. CRENSHAW, JR.

CHIEF UNITED STATES DISTRICT JUDGE

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