United States of America v. Reginald Ellison , Sr .

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0050p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
REGINALD ELLISON , SR .,
Defendant-Appellant.
X---->
,---
N
No. 09-6078
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 08-00261-001—Thomas A. Wiseman, Jr., District Judge.
Decided and Filed: February 11, 2011
Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Michael J. Flanagan, Nashville, Tennessee, for Appellant. Sunny A.M.
Koshy, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The only issue in this direct criminal appeal is the
validity of a search warrant. The warrant was based on an affidavit describing a
suspicious transaction observed by a confidential informant outside the house to be
searched, and the only aspect of the warrant that the defendant challenges is the
sufficiency of the nexus between the incriminating evidence and the place to be
searched. Defendant Ellison was convicted of various federal drug and firearm offenses
based on evidence discovered and seized pursuant to the warrant. Because the warrant
1

-- 1 of 6 --

No. 09-6078 United States v. Ellison Page 2
1Ellison does not challenge the affiant’s reliance on the confidential informant’s tip.
averred a sufficient nexus between the criminal activity and the residence to be searched,
suppression of the evidence was properly denied, and Ellison’s convictions must
accordingly be upheld.
On September 8, 2007, Detective Johnnie E. Melzoni, Jr., applied for a search
warrant in the Davidson County, Tennessee, state court, relying in part on a tip from a
confidential informant. According to the supporting affidavit, this informant, who was
known to be reliable because of his assistance to the police in the past,1 advised
Detective Melzoni that he had observed, within the past seventy-two hours, two males
known to the informant as “Red” and “Short” meet outside of a residence on Cedar
Circle in Nashville, Tennessee, and complete a drug transaction. The affidavit stated:
The [confidential informant] observed “Short”’ exit a side door of the
residence and meet with “Red”. While standing outside, “Short” did give
“Red” a large quantity of cocaine in a plastic bag. After the deal was
completed “Short” went backing [sic] into the residence and “Red” left
the property.
In the affidavit, Detective Melzoni further explained that, in his experience, “persons
present at locations where illegal narcotics are sold and/or used often have contraband,
narcotics paraphernalia, weapons, or other evidence of criminal conduct hidden on their
persons or in their belongings,” and requested authorization to search the residence on
Cedar Circle and any persons present on the premises.
The state court judge issued the warrant. Officers executed the search warrant
on September 13, 2007, and found Ellison outside of the residence. During the search
of the house, the officers seized various baggies of cocaine, crack cocaine, and
marijuana; a loaded gun; ammunition; a pill bottle with about one hundred assorted
prescription pills for which Ellison did not have a prescription; over $2000 in cash; and
other drug paraphernalia for making and using crack cocaine. The officers also searched
Ellison’s person and found a handwritten ledger, which documented money paid and
owed for controlled substances that he had distributed and which showed multiple $50

-- 2 of 6 --

No. 09-6078 United States v. Ellison Page 3
to $200 drug sales. In addition, while the officers were executing the search, a woman
called Ellison and asked him to bring $20 worth of crack cocaine to another location for
her to buy.
As the sole owner of the property, which adjoined a playground, Ellison was
charged in federal court with 1) unlawfully, knowingly, and intentionally possessing
with intent to distribute five grams or more of a mixture and substance containing a
detectable amount of cocaine base within one thousand feet of the real property
comprising a playground in violation of 21 U.S.C. §§ 841(a)(1) and 860; 2) knowingly
using a place for the purpose of unlawfully manufacturing and using controlled
substances in violation of 21 U.S.C. § 856(a)(1); 3) knowingly possessing a firearm in
furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1); 4) being
a convicted felon in knowing possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924; and 5) being a convicted felon in knowing possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924.
Ellison initially pleaded not guilty and moved to suppress all evidence seized
upon the execution of the search warrant, alleging, among other things, that “[t]he
affidavit in support of the search warrant fail[ed] to establish probable cause in that there
exist[ed] no sufficient nexus between the evidence sought and the place to be searched.”
The district court denied Ellison’s motion to suppress, explaining that the affidavit
“provided the issuing judge a substantial basis for finding an adequate nexus between
the residence to be searched and evidence of drug sales.” The court also noted that the
affidavit was not deficient for failing to “name the person selling the drugs or the owner
of the property,” as “the Sixth Circuit has already rejected that argument too, holding
that the affidavit in support of a search warrant does not need to contain that
information.”
This ruling prompted Ellison to enter a plea agreement, changing his plea from
not guilty to guilty on counts one, two, and four. In making this plea, Ellison reserved
his right to challenge the district court’s ruling on the motion to suppress on appeal. The
court accepted this plea agreement and sentenced Ellison to 188 months’ imprisonment

-- 3 of 6 --

No. 09-6078 United States v. Ellison Page 4
on counts one and two; 120 months on count four, all to run concurrently; and an eight-
year term of supervised release. Ellison now appeals the district court’s ruling on his
motion to suppress.
The district court properly denied Ellison’s motion to suppress because the
search warrant was supported by probable cause. Probable cause existed for the search
of Ellison’s residence and Ellison’s person because the warrant affidavit established a
nexus between the place to be searched and the evidence sought. See, e.g., United States
v. Bethal, 245 F. App’x 460, 464 (6th Cir. 2007) (citing United States v. Van Shutters,
163 F.3d 331, 336-37 (6th Cir. 1998)). Commission of a drug transaction outside of a
house and one participant’s walking back into the house, as observed in this case, plainly
demonstrated a sufficient nexus with the house.
The affidavit explained that a confidential informant had observed someone come
out of Ellison’s residence, engage in a drug transaction, and then return into the
residence. These incriminating actions are inextricably connected to the residence for
which the search warrant was sought. From these actions, the affiant and the issuing
judge could infer that there was a fair probability that drugs were being stored in the
residence or that drug trafficking was taking place from the residence, such that a search
of the residence would be likely to yield contraband or evidence of a crime. This
showing of a fair probability is all that is required to justify the issuance of a search
warrant. See United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985).
Ellison claims that the affidavit was deficient because it “contained no allegation
by the confidential informant that there was any history of prior drug activity at the
residence or whether or not any controlled substances remained in the residence after the
purported sale.” However, Ellison points to no authority that requires this particular
information to be included in the warrant affidavit.
Ellison relies on United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), for
its apparent factual similarity to his case, but that case is quite different. In McPhearson,
the police obtained a warrant to search the defendant’s residence after they searched the
defendant’s person on his front porch pursuant to an arrest warrant for simple assault and

-- 4 of 6 --

No. 09-6078 United States v. Ellison Page 5
2The warrant affidavit does state that “NES records show that electric service is in the name of
Reginald Ellison.” However, this is the only mention of Ellison in the warrant affidavit.
3Pinson, like this case, involved an affidavit based on the occurrence of a single drug transaction
at the residence to be searched. 321 F.3d at 560-561. The affiant in that case had a confidential informant
go into the residence at issue and purchase crack cocaine. Id. This single transaction was sufficient to
establish probable cause for the search warrant in that case. Id. at 565.
discovered crack cocaine in his pocket. Id. at 520-21. This court suppressed the drugs
and firearms found pursuant to the search of his residence because the defendant was not
a known drug dealer, and there was no evidence to support the inference that any
wrongdoing would be found in the defendant’s home because of his drug possession.
Id. at 524-25. In contrast, Ellison’s case does not involve a defendant engaging in
criminal activity with no connection to the place to be searched. Not only were persons
observed outside of Ellison’s residence engaging in drug trafficking and not mere drug
possession, but one person even came out of Ellison’s house and returned to it during the
course of the transaction. Both of these additional facts provided support for the
inference that evidence of criminal activity could be found in the residence, and gave the
state judge a substantial basis for issuing the search warrant.
The fact that the affidavit fails to identify Ellison by name as someone engaging
in criminal activity does not make the affidavit inadequate.2 We rejected a similar
argument in United States v. Pinson, 321 F.3d 558 (6th Cir. 2003). In that case, the
defendant argued “that there was no substantial basis in the affidavit to conclude that
evidence of the crime was linked to the premises to be searched,” because “the affidavit
lack[ed] the name or a description of the person from whom the confidential informant
purchased the drugs.”3 Id. at 563-64. This court noted that precedent does not require
“the name or a description of a person . . . to establish probable cause for a search
warrant.” Id. at 564. Moreover, we explained that the Supreme Court has stated,
[W]hile probable cause for arrest requires information justifying a
reasonable belief that a crime has been committed and that a particular
person committed it, a search warrant may be issued on a complaint
which does not identify any particular person as the likely offender.
Because the complaint for a search warrant is not filed as the basis of a
criminal prosecution, it need not identify the person in charge of the

-- 5 of 6 --

No. 09-6078 United States v. Ellison Page 6
premises or name the person in possession or any other person as the
offender.
Id. (alteration in original) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 n.6
(1978)) (internal quotation marks omitted). Thus, “an affidavit in support of a search
warrant does not need to name or describe the person who sold the drugs or name the
owner of the property,” because “‘[s]earch warrants are not directed at persons; they
authorize the search of place[s] and the seizure of things, and as a constitutional matter
they need not even name the person from whom the things will be seized.’” Id. at 564-
65 (alterations in original) (quoting Zurcher, 436 U.S. at 555).
AFFIRMED.

-- 6 of 6 --