United States of America v. Rodney Todd Woosley

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0085P (6th Cir.)
File Name: 04a0085p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODNEY TODD WOOSLEY,
Defendant-Appellant.
X
-
-
-
->
,
-
-
N
No. 03-5059
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 01-00042—Joseph H. McKinley, Jr., District Judge.
Submitted: February 6, 2004
Decided and Filed: March 24, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Steve P. Robey, Providence, Kentucky, for
Appellant. Terry M. Cushing, Larry E. Fentress,
ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellee.
2 United States v. Woosley No. 03-5059
_________________
OPINION
_________________
ROGERS, Circuit Judge. Defendant Rodney Woosley
entered a conditional plea of guilty to knowingly and
intentionally possessing marijuana with intent to distribute, in
violation of 18 U.S.C. § 841(a)(1), and to possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A). On appeal, Woosley argues that
the district court should have granted his motion to suppress
evidence seized during a search of his business, on the ground
that the warrant authorizing the search was issued without
probable cause. Because we conclude that the warrant was
supported by probable cause, we affirm the judgment of the
district court.
On or about August 15, 2001, Kentucky State Trooper
Christopher Armbrust applied for a search warrant for
Woosley’s business premises. In support of his application,
Trooper Armbrust prepared an affidavit on a pre-printed form.
The form identified Woosley’s business, Quick Lube Plus, as
the premises to be searched and specified that the contraband
sought included marijuana, firearms, and other items related
to marijuana trafficking. The warrant application further
provided that Trooper Armbrust received information from
[a] confidential informant whom [sic] is known to the
affiant to be credible and reliable, who has provided
accurate information in the past which has been shown to
be truthful and reliable. This informant stated to the
affiant that on [August 15, 2001] they observed
approximately five pounds of processed marijuana under
the desk of the Owner Rodney Woosley. Also present
were two firearms which they described as Handguns
possibly 9MM.

-- 1 of 4 --

No. 03-5059 United States v. Woosley 3
1It appears that Tro ope r Ambrust received the tip from the
confidential informant after the tips from the independent informants, but
before he sp oke to the local po lice departm ent.
Trooper Armbrust averred that he had previously received
tips from “numerous independent informants” that indicated
drug trafficking was occurring at the Quick Lube Plus and
that he had received similar information from an officer at the
local police department.1
Trooper Armbrust telephoned the county attorney and
asked her for advice concerning the sufficiency of the
affidavit. She opined that the affidavit was sufficient to
support the application for a search warrant. Trooper
Armbrust met with a state district judge, who issued a search
warrant. During that meeting, Trooper Armbrust did not
orally supplement the information set forth in the affidavit.
Trooper Armbrust promptly executed the search warrant
and discovered marijauna, small amounts of other drugs, and
two pistols at Woosley’s place of business. In a two-count
indictment, Woosley was charged with knowingly and
intentionally possessing marijuana with intent to distribute, in
violation of 18 U.S.C. § 841(a)(1), and with possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A).
Woosley filed a motion to suppress the evidence found
during the search, arguing that the affidavit supporting the
search warrant did not establish probable cause and that the
warrant was not executed in good faith. The district court
denied the motion to suppress, finding that the affidavit
alleged facts sufficient to establish probable cause. At his
change of plea hearing, Woosley entered a conditional plea of
guilty, pursuant to Federal Rule of Criminal Procedure
11(a)(2), reserving his right to appeal his motion to suppress
evidence. Woosley also moved for a hearing under Franks v.
4 United States v. Woosley No. 03-5059
2W oosley presented the motion to the court during the hearing, and
the court heard argum ents. W oos ley, however, did not formally file a
written motion until the next day.
3In reviewing a district court’s determination of probable cause after
a suppression hearing, we uphold factual findings unless they are clearly
erroneo us, but review legal conclusions de novo . United States v. Helton,
314 F.3d 812, 820 (6th Cir. 2003).
Delaware, 438 U.S. 154 (1978).2 The district court issued an
order denying Woosley’s motion for a Franks hearing and
accepting his conditional plea. Woosley filed this timely
appeal.
The district court correctly concluded that Trooper
Armbrust’s affidavit was sufficient to establish probable
cause because, considering the totality of the circumstances,
the affidavit contained sufficient information to permit the
issuing judge to make an independent determination of
probable cause.3 “In order for a judicial officer to issue a
warrant, law enforcement officials must present evidence
from which the magistrate judge can conclude from the
totality of the circumstances, ‘including the “veracity” and
“basis” of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’”
United States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
This court reviews the sufficiency of an affidavit to
determine “whether the magistrate had a substantial basis for
finding that the affidavit established probable cause to believe
that the evidence would be found at the place cited.” United
States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)
(quotation omitted). The affidavit should be reviewed in a
commonsense—rather than a hypertechnical—manner, and
the court should consider whether the totality of the
circumstances supports a finding of probable cause, rather

-- 2 of 4 --

No. 03-5059 United States v. Woosley 5
4Thus, we do not read Allen as setting a rigid requirement that a
confidential info rmant always be “nam ed to the magistrate.”
than engaging in line-by-line scrutiny. United States v.
Greene, 250 F.3d 471, 479 (6th Cir. 2001). The magistrate’s
determination of probable cause is afforded great deference,
and that determination should be reversed only if the
magistrate arbitrarily exercised his discretion. Id.
In United States v. Allen, 211 F.3d 970 (2000) (en banc),
which is relied on by both Woosley and the Government, we
held that
where a known person, named to the magistrate, to
whose reliability an officer attests with some detail,
states that he has seen a particular crime and particular
evidence, in the recent past, a neutral and detached
magistrate may believe that evidence of a crime will be
found.
Id. at 976 (emphasis omitted). In concluding that independent
police corroboration of the information provided was
unnecessary in such cases, we emphasized that probable cause
determinations must be based on the totality of the
circumstances and cautioned against a continuing reliance on
formalistic “tests” that required the satisfaction of particular
elements to support a finding of probable cause. Id. at 975-
76.4 Consequently, an affidavit including a tip from an
informant that has been proven to be reliable may support a
finding of probable cause in the absence of any corroboration.
See id. at 976; United States v. Smith, 182 F.3d 473, 478-79
(6th Cir. 1999). Alternatively, 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. See Illinois v. Gates, 462 U.S. 213, 241-45
(1983); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir.
2000) (“[I]nformation received from an informant whose
6 United States v. Woosley No. 03-5059
5W oosley’s other objections to the sufficiency of the warrant clearly
are without merit. For example, W oosley makes the argument that the
desk described in the affidavit could be anywhere, because that portion of
the warrant application did not specify a location. It is, of course,
reaso nable to infer that the desk is at the location for which a search
warrant is sought. Wo osley also makes the similarly meritless argument
that the factual allegations are ambiguous because the phrase “the owner’s
desk” doesn’t specify whether the owner in question owns the desk or the
business. See United States v. Allen, 211 F.3d 97 0, 975 (6th Cir. 2000)
(en banc) ( “Affidavits are not required to use magic words, nor does what
is obvious in context need to be spelled out; if a CI saw guns, he is not
required to explain how he knew what a gun looks like.”).
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.”). Thus, the
question is whether the instant affidavit, which contains little
basis for the state court judge to assess independently the
informant’s credibility, otherwise includes sufficient
corroboration that the state court judge could determine,
under the totality of the circumstances, that probable cause
existed.
Woosley complains that the affidavit did not contain
sufficient information regarding Trooper Armbrust’s
confidential informant to permit the magistrate to make an
independent evaluation of probable cause.5 Trooper
Armbrust’s affidavit stated:
[a] confidential informant whom [sic] is known to the
affiant to be credible and reliable, who has provided
accurate information in the past which has been shown to
be truthful and reliable. This informant stated to the
affiant that on [August 15, 2001] they observed
approximately five pounds of processed marijuana under
the desk of the Owner Rodney Woosley. Also present
were two firearms which they described as Handguns
possibly 9MM.
. . . .

-- 3 of 4 --

No. 03-5059 United States v. Woosley 7
Previously the affiant received information from
numerous independent informants information which
indicates that Drug Trafficking is occurring at this
location. The affiant also has information that marijuana
is packaged in parts boxes specifically alternator boxes.
The affiant also has spoken with Sgt. Jeffrey W. Hart of
the Morganfield Police Department who also has
information that Marijuana is trafficked out of this
business and usually leaves the business in computer
parts boxes.
While additional details about the confidential informant may
have been helpful, “[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.” Allen, 211 F.3d at
975. Here, Trooper Armbrust, who had received information
about drug dealing from Woosley’s business location in the
past, received a tip from a known, credible and reliable
source. The tip identified the contraband with great
specificity and described its particular location with precision.
Trooper Armbrust then spoke with a local law enforcement
officer, who confirmed that he had received similar reports.
A magistrate could conclude, based on the totality of the
circumstances described in the affidavit, that there was a fair
probability that contraband or evidence of a crime would be
found at Woosley’s business. Accordingly, the warrant
issued for Woosley’s business was supported by probable
cause.
Finally, we decline to consider Woosley’s additional
contention that the district court erred in denying his motion
for a Franks hearing, because his conditional plea only
reserved the right to appeal the district court’s
ruling—entered September 10, 2002—denying his motion to
suppress. Federal Rule of Criminal Procedure 11(a)(2)
provides that a criminal defendant, with the consent of the
Government and the court, may enter a conditional plea,
reserving in writing the right to appeal adverse decisions of
8 United States v. Woosley No. 03-5059
specified pretrial motions. Woosley’s motion for a Franks
hearing was not part of his motion to suppress, and it was not
disposed of in the district court’s September 10, 2002, order.
Accordingly, Woosley may not appeal the district court’s
adverse ruling on his motion for a Franks hearing, as he did
not reserve his right to appeal that issue.
Because the warrant authorizing the search of Woosley’s
business was supported by probable cause, the judgment of
the district court is AFFIRMED.

-- 4 of 4 --