United States of America v. Clifton Glen Hammond

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0443P (6th Cir.)
File Name: 03a0443p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLIFTON GLEN HAMMOND,
Defendant-Appellant.
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No. 01-5358
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 99-00194—Jennifer B. Coffman, District Judge.
Argued: December 4, 2002
Decided and Filed: December 15, 2003
Before: BOGGS, Chief Judge; and GUY and NELSON,
Circuit Judges.
_________________
COUNSEL
ARGUED: Warren N. Scoville, WARREN N. SCOVILLE
& ASSOCIATES, London, Kentucky, for Appellant. Charles
P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Warren N. Scoville, WARREN N. SCOVILLE
& ASSOCIATES, London, Kentucky, for Appellant. Charles
2 United States v. Hammond No. 01-5358
P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Judge. Clifton Glen Hammond was named
in a seven-count superseding indictment issued in September
1999 on the basis of evidence seized from his property
pursuant to two search warrants. Hammond was charged in
Counts One through Seven respectively with manufacturing
more than fifty marijuana plants, in violation of 21 U.S.C.
§ 841(a)(1), possessing numerous firearms “during and in
relation to a drug trafficking crime,” in violation of 18 U.S.C.
§ 924(c)(1), possessing with the intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
possessing a machine gun “during and in relation to a drug
trafficking crime,” in violation of 18 U.S.C. § 924(c)(1),
possessing a machine gun, in violation of 18 U.S.C. § 922(o),
possessing a “sawed-off shotgun,” in violation of 26 U.S.C.
§ 5861(d), and possessing an unregistered destructive device,
in violation of 26 U.S.C. § 5861(d).
Following his indictment, Hammond entered a plea of not
guilty and subsequently filed a motion to suppress evidence
and a motion to dismiss the charges against him that alleged
he possessed firearms “during and in relation to” his crime of
drug trafficking, pursuant to 18 U.S.C. § 924(c)(1). After a
hearing on the motion to suppress, Hammond further moved
the district court for a Franks hearing. See Franks v.
Delaware, 43 U.S. 154 (1978) (holding that a hearing is
required when a defendant makes a substantial preliminary
showing that a false statement necessary to the finding of
probable cause was made knowingly and intentionally, or
with reckless disregard for the truth, and was included by an
affiant in a search warrant affidavit). The court granted the
Franks hearing, but ultimately denied Hammond’s motions to

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No. 01-5358 United States v. Hammond 3
suppress and dismiss. Hammond, therefore, pled guilty to
Counts Two, Three, Six, and Seven under a conditional plea
agreement, while reserving his right to appeal the adverse
determinations of his motions to suppress and to dismiss. On
the government’s motion, the remaining counts were
dismissed, and Hammond was sentenced to thirty-seven
months on Count 2, to be served consecutively to the
sentences imposed on Counts Three, Six, and Seven, for a
total of ninety-seven months. Hammond now appeals the
district court’s denial of his two motions to suppress and
dismiss. Because there was no probable cause for the first
search warrant and because the good faith rule established in
United States v. Leon, 468 U.S. 897 (1984), does not apply
here, we reverse the district court’s denial of Hammond’s
motion to suppress.
I
On August 6, 1999, Detective Tim Engle filled out an
application for a warrant to search Hammond’s property,
including all buildings, vehicles, and persons present on the
property at the time of the search. Probable cause for the
warrant was substantiated by Detective Engle’s affidavit,
which was attached to the application. In the affidavit,
detective Engle stated that:
During the first week of April 1999, [Deputy] Danny
Keeney received information from Jeremy Holt stating
that he had attempted to steal marijuana from an indoor
grow operation belonging to Glenn Hammonds [sic] in
Rockcastle Co. on KY-1955. Holt stated that he was
shot at and that he got away, but that they were looking
for him. Holt stated that the residence was located off
KY-1955 beside Morning View Church and that the
Location had a gate across the driveway which lead [sic]
to a barn/garage style building. Holt stated that the
operation was inside a side room of the building. On 4-
20-99 Det. Tim Engle conducted a drive-by recon of the
location and verified the complaint. Since this time we
4 United States v. Hammond No. 01-5358
have determined that Hammond does occupy this
location. Since this time Rockcastle Co. Sheriff’s office
has received numerous complaints on this residence and
subject stating that the operation was there, confirming
the complaint from Holt.
As it turned out, several of the statements made by Detective
Engle in the above quoted portion of his affidavit were false.
First, Holt did not state that the operation was “inside a side
room of the building,” nor did he mention an “indoor grow
operation,” although he did refer to Hammond’s garage.
Second, although Detective Engle’s statement implies that he
drove by Hammond’s property as a result of the complaint
made by Holt, and in so doing verified the information
supplied by Holt, that was not the case. Detective Engle
admits that he did not find out about Holt’s complaint until
August 5 or 6, when he filled out the application for the
warrant and instead drove by Hammond’s property at an
earlier date, on the basis of “numerous,” unspecified, and
anonymous complaints received by the police, complaining
about the “Hammonds raising marijuana up on Red Hill.”
The dispatcher admitted that the brother of Glen Hammond
lived on Red Hill, and professed ignorance of how many other
Hammond households may exist on Red Hill in Rockcastle
County. Third, Engle testified at the evidentiary hearing that
all he was able to verify by driving by Hammond’s property
was the fact that a driveway existed off the main road at the
entrance to Hammond’s property with a gate across it.
Detective Engle’s affidavit, however, did not end there.
Engle went on to explain that he had conducted the following
independent investigation in order to verify the information
he had obtained on Hammond’s alleged growing operation:
In addition to confirming the complaints, on 8-5-99 I
subpoenaed the power records of Glenn Hammonds [sic].
These records indicate a trailer on the property which is
using 400 to 700 kilowatts of power. However there is
no trailer on the property. The other power record #02-

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No. 01-5358 United States v. Hammond 5
1W e note that the government’s stipulation may have been
improvident because of our relatively recent decisio n in United States v.
Elkins, 300 F.3d 638 (6th Cir. 2002). In Elkins, we distinguished between
1235-48-001 shows power usage that is consistent with
a dwelling. However during the observation of the
location no windows were observed in the building in
question. This along with a security gate, satellite dish,
and no trespassing signs tells me that this subject is
security conscious which is consistent with other
marijuana growers. On 8-5-99 at approx. 0230 hrs. I
conducted an Aerial Thermal Image of the location in
question that is consistent with other indoor grow
operations investigated by this officer.
Again, there were several inaccuracies in Detective Engle’s
statement. First, although Engle stated that there was no
trailer, there is a trailer located at the back of the property.
Second, as stipulated to by the government, the power usage
records were not for the buildings they were attributed to in
the affidavit. The record that was claimed to be for a trailer,
was actually the power usage record of the building within
which the marijuana was subsequently found. The other
power usage record, which was “consistent with a dwelling,”
was for Hammond’s residence and not for the building
identified by Engle as having no windows. Third, the
building that Engle claimed had no windows does in fact have
windows, although it is unclear from the photograph in the
record whether the only windows it has are dormer windows.
The government has agreed that the power usage records were
incorrectly referred to in the affidavit. Fourth, the “security
gate” did not have security features of any kind, as the district
court found. Finally, the government has stipulated that the
thermal imaging can not be considered, in accordance with
the recent Supreme Court decision of Kyllo v. United States,
533 U.S. 27, 34-35 (2001), which held that thermal imaging
used to measure the heat emanating from a home constitutes
a search, requiring a warrant.1
6 United States v. Hammond No. 01-5358
the use of thermal imaging on a home and the use of such imaging on
commercial property, and noted that since commercial prop erty enjoys a
lesser expe ctation of privacy, it is unlikely that the Sup reme Court’s
holding in Kyllo would apply. Id. at 646. Nevertheless, the Elkins panel
declined to reach that issue since it was unnecessary to the resolution of
the case, and here we too decline to reach that issue since the government
has stipulated that Kyllo applies, and there is no discussion on record as
to whether the barn structure at issue would properly be considered a
residential or commercial structure.
A state judge, on the basis of the information contained in
Detective Engle’s affidavit, issued the requested search
warrant. On August 6, 1999, Detective Engle, along with
approximately thirteen other officers, executed the warrant.
During the search, a vehicle drove across Hammond’s
property, in order to get to an adjoining plot. Several officers
followed the vehicle, which was driven by Bill Ponder, the
son of the adjoining property owner. Bill Ponder was
approached by law enforcement officers on the scene and
consented to their searching his vehicle, person, and trailer.
The officers discovered marijuana in the trailer.
While following Ponder across Hammond’s property, the
officers passed a roadway that led to a building, which had
not been previously identified by the officers conducting the
search, and which was not included in the warrant under
which they were operating. Ponder told the officers that the
building was the residence of Glen and Judy Hammond. Late
in the evening of that same day, Detective Moore sought and
obtained a search warrant for this building.
During the search of the property, the officers discovered
marijuana growing inside a barn-like building, along with
sixteen firearms and ammunition, a disassembled sawed-off
shotgun, and four electric blasting caps. Outside the building,
the officers found more marijuana and another firearm,
alleged to be a machine gun. On the Ponder property, the
officers discovered marijuana in a trailer that was titled to
Hammond.

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No. 01-5358 United States v. Hammond 7
Hammond was not present during the execution of either
search warrant, and on August 10, 1999, a warrant was issued
for his arrest. On August 17, 1999, the Peach County
Sheriff’s Department in Georgia stopped a tractor-trailer in
which Hammond was riding as a passenger, while his cousin
drove. Hammond was arrested for possession of a concealed
.22-caliber single-shot pistol, possession of a small amount of
methamphetamine, and possession of a firearm during the
commission of a crime. When the Georgia Sheriff’s
Department learned of the outstanding arrest warrant issued
in this case, it transported Hammond to Kentucky. Other
firearms were located inside the truck, but none of them,
including the .22-caliber pistol in Hammond’s pocket, are
listed in the indictment for this case.
II
Motion to Suppress
The district court’s conclusions of law regarding a motion
to suppress are reviewed de novo, while the district court’s
findings of fact are reviewed only for clear error. United
States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000). In
addition, the evidence is to be reviewed “in the light most
likely to support the district court’s decision.” Ibid. (quoting
United States v. Navarro-Comacho, 186 F.3d 701, 705 (6th
Cir. 1999)).
Hammond contends that Detective Engle’s affidavit in
support of the warrant issued to search Hammond’s property
contained false information that was essential to the probable
cause determination made in issuing the search warrant.
Hammond argues that as a result the evidence seized from his
property in both the initial search done, based on the allegedly
faulty affidavit, and in the subsequent search done later that
day on the basis of information garnered during the initial
search, should be suppressed. In particular, Hammond
maintains that the information obtained from the informant,
Holt, and restated in Detective Engle’s affidavit was stale and
8 United States v. Hammond No. 01-5358
unreliable, the reconnaissance drive that Engle said he did in
order to verify Holt’s complaint was actually done prior to
Holt’s complaint and could not have “verified” anything other
than the fact that a driveway existed with a gate across it off
of the main road, that Engle lied about the specific
information supposedly supplied by Holt with regard to the
location of the growing operation on Hammond’s property,
that the power usage records were not for the locations
specified in the affidavit and must therefore be excluded from
consideration, and that the thermal imaging information was
illegally obtained and must also be excluded from
consideration. The district court when ruling on this question
held that although there were several misstatements in the
affidavit, there was still enough to establish probable cause
“[g]iven the Holt ‘tip’ (even if the reference to ‘an outdoor
grow operation’ in a ‘side room’ is redacted), the
confirmation of the location of the Hammond premises, the
FLIR thermal image results, and the assertion that the
‘Rockcastle Sherriff’s Office has received numerous
complaints on this residence and subject [Glen Hammond]’
regarding marijuana.”
The critical question to be determined is whether the
affidavit, apart from the tainted information that is either
inaccurate or illegally obtained, provides the requisite
probable cause to sustain a search warrant. See United States
v. Charles, 138 F.3d 257, 263 (6th Cir. 1998). In determining
if probable cause exists, the court must examine the totality of
the circumstances. See United States v. Van Shutters, 163
F.3d 331, 336 (6th Cir. 1998). If there was not probable cause
for searching Hammond’s property, then the only way that the
evidence at issue in this case would survive suppression is
through the Leon good-faith rule.
Probable Cause
Since the district court’s ruling, Kyllo was decided by the
Supreme Court and on that basis the government stipulated
that the thermal imaging results could not be considered.

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No. 01-5358 United States v. Hammond 9
2The calls only referenced “the Hamm onds” and did no t specifica lly
identify Glen Hamm ond, the property in question, or the absence of other
perso ns nam ed H amm ond in the vicinity.
This leaves us with three pieces of information in Engle’s
affidavit that are not tainted. First, there is the fact that Holt
gave Keeney a “tip” that there was “dope” on Glen
Hammond’s property, although this tip was received at some
point prior to March 1999 – at least five months before
Detective Engle requested the search warrant — and does not
specify the location of the marijuana on the property. Second,
there is the “verification” of Hammond’s address by Engle.
And third, there were several anonymous phone calls vaguely
complaining about “the Hammonds on Red Hill” raising
marijuana.2 Everything else contained in the affidavit was
either the result of a mistake, a fabrication, or cannot legally
be considered.
The government argues that Holt’s “tip” was enough on its
own to produce probable cause and relies on United States v.
Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc), in which
this court held that under a totality of the circumstances
approach, a confidential informant’s information need not
always be independently corroborated. Alternatively, the
government contends that the good faith exception to the
warrant requirement validates the search. See United States
v. Leon, 468 U.S. 897, 926 (1984) (holding that the
exclusionary rule should not be used to suppress evidence
when the officers who obtained the evidence acted in
reasonable reliance on a search warrant issued by a neutral
and detached magistrate that is later found to be invalid). We
find neither of these arguments convincing.
Holt’s Tip
Holt’s tip was not stale, as Hammond contends. A
determination of whether an informant’s tip is stale rests on
several factors including “the character of the crime (chance
10 United States v. Hammond No. 01-5358
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?), the place to be searched (mere criminal forum of
convenience or secure operational base?).” United States v.
Greene, 250 F.3d 471, 480-81 (6th Cir. 2001) (quoting United
States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)). In this
case, the crime of drug trafficking is ongoing, the defendant’s
location is established, the drugs were likely to be there for an
indefinite period of time, and the place to be searched
constituted a secure operational base. Holt’s tip was not,
therefore, stale.
Nevertheless, Holt’s information was vague, not obviously
reliable, and entirely unsupported by any independent
investigation on the part of the police. The tip, on its own, is
insufficient for establishing probable cause.
In Allen, this court stated 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.” Allen, 211 F.3d at 975. However, here, as noted by
the federal magistrate judge in his report and
recommendation, officer Engle did not provide any detail as
to the reliability of the named informant. The affidavit at
issue in Allen noted that the officer knew the informant for
five years. Here, Detective Engle did not state how long
Keeney had known Holt, or if he, himself, knew Holt.
Detective Engle did not even state that Holt was a “reliable
source” or that he had given the police reliable information in
the past. Cf. United States v. Pinson, 321 F.3d 558, 563 (6th
Cir. 2003) (holding that an affidavit met “the Allen test”
where the officer stated in the affidavit that he knew the
informant was “reliable from past information received from
said [informant],” the informant was familiar with the drugs
at issue from “past experience and exposure,” and where the
affidavit contained the officer’s personal observation of the

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No. 01-5358 United States v. Hammond 11
informant’s drug deal, his pat down of the informant before
and after the purchase of the narcotics, and the fact that the
drugs purchased tested positive for cocaine base). Holt’s tip
does not pass the Allen test and, therefore, cannot constitute
probable cause on its own.
Despite the minimal probative value of Holt’s information,
the tip can take on an increased level of significance for
probable cause purposes, if corroborated by the police
through subsequent investigation. See United States v. Leake,
998 F.2d 1359, 1365 (6th Cir. 1993). See also United States
v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). For example,
in United States v. Smith, 783 F.2d 648 (6th Cir. 1986), we
considered a warrant obtained on the basis of a tip provided
by a confidential informant, whose information was
corroborated through the independent investigation of the
police. In the supporting affidavit, the officer stated as
follows:
On the 20th day of August, 1984, at approximately 5:00
p.m., the affiant received information from a reliable
informant that Eric Helton was producing marijuana at
his residence. Acting on the information received, affiant
conducted the following independent investigation: On
August 21, 1984 at 11:30 A.M. Detective William
Stweart [sic] observed a marijuana plant growing beside
the residence of Eric Helton.
Smith, 783 F.2d at 649. The panel stated that the tip standing
alone would not have been sufficient to establish probable
cause, Smith, 783 F.2d at 650, yet upheld the warrant because
the officer’s observations verified the tip and, in addition, the
informant’s reliability had been established.
In a more recent case, a warrant was challenged as
insufficient to establish probable cause because the
detective’s independent investigation was inadequate to
corroborate the informant’s claims. United States v. King,
227 F.3d 732, 741 (6th Cir. 2000). The panel upheld the
12 United States v. Hammond No. 01-5358
warrant, because it “was based upon information provided by
a known reliable informant, and was verified by Detective
Gannon to the extent possible.” Id. at 742. Specifically, the
affidavit indicated that the confidential informant had
“provided credible information in the past which has led to
the arrest and/or conviction of ‘more than seventy individuals
for violations of state and/or federal drug laws, as well as the
confiscation of more than $100,000.00 and 5 kilograms of
controlled substances.’” Ibid. In addition, the confidential
informant had described the defendant’s illegal activity and
residence in significant detail, noting, for example, that the
defendant had received a large amount of cocaine within the
past day from a man by the name of Antonio Cook and that
the defendant used his car in the distribution of that cocaine,
which he described as a “1980's model gray Chevrolet
Cavalier, Ohio Temporary License Number K591513.” Ibid.
The confidential informant was also able to describe the
defendant’s house as being
the downstairs unit in a two family, two and one half
story, white wood sided dwelling with green trim, the
numbers ‘1439,’ the address for the upstairs unit, clearly
visible on the south side of the entrance door to the
upstairs unit, the structure being located on the east side
of East 116th Street, facing west.
Ibid. Finally, the police corroborated the tip provided by the
informant. First, the detective on the case verified that the
vehicle described by the informant was in fact registered to
the defendant at the address provided by the informant.
Second, the detective verified that the defendant had a prior
history of criminal offenses. Third, the detective stated that
“Antonio Cook [was] a person known to members of the Task
Force as a supplier of cocaine on the east side of Cleveland.”
Id. at 741.
Given these examples, it is apparent that the information
left for us to rely on for probable cause in this case is
insufficient. Neither the anonymous phone calls nor

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No. 01-5358 United States v. Hammond 13
Detective Engle’s drive by Hammond’s residence can be
considered substantial enough to corroborate Holt’s tip for
purposes of probable cause. First, Holt was not established as
a reliable informant in any respect. Second, the information
provided by Holt and the anonymous callers was lacking in
detail with respect to the location of Hammond’s residence,
the location of the marijuana within Hammond’s residence,
and specifics regarding the illegal operation allegedly
conducted by Hammond. The information does not, in
quantity or quality, approach the detail offered, for example,
in Smith or King. Third, Detective Engle, when driving by
the property, noticed nothing out of the ordinary at the
Hammond residence. Detective Engle only served to
corroborate the fact that a Hammond lived in Rockcastle
County on KY 1955 and that there was a gate across his
property. Such information would not be difficult for anyone
to obtain and does not suggest criminal activity. This, along
with anonymous phone calls providing absolutely no specific
information, is not enough for probable cause.
Good Faith Exception
It is well established that the Fourth Amendment
exclusionary rule does not apply in cases where law
enforcement officers reasonably rely in good faith upon a
search warrant, even if that warrant is ultimately found to be
invalid. Leon, 468 U.S. at 922. Nevertheless, this good-faith
exception to the exclusionary rule established in Leon does
not apply when 1) the supporting affidavit contained knowing
or reckless falsity, 2) the issuing magistrate failed to act in a
neutral and detached fashion and served merely as a rubber
stamp for the police; 3) the supporting affidavit did not
provide the magistrate with a substantial basis for determining
the existence of probable cause; or 4) the officer’s reliance on
the warrant was neither in good faith nor objectively
reasonable.
There is no question that Officer Engle acted with reckless
disregard for the truth in view of the remarkable inaccuracies
14 United States v. Hammond No. 01-5358
3The government concedes that if the first warrant is invalidated, the
second warrant would also be invalidated, as it would be “fruit of the
poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963).
presented in his affidavit. Detective Engle by his own
admission was informed by Deputy Keeney of Holt’s tip
within a day of filling out the application for the warrant in
this case, yet Engle implied in his affidavit that he drove by
Hammond’s property in order to verify Holt’s tip in April.
Detective Engle stated that Holt informed Deputy Keeney that
the marijuana was located in a “side room” of the building,
yet Deputy Keeney testified at the Franks hearing that he did
not recall such a statement. Detective Engle stated in his
affidavit that he “verified [Holt’s] complaint” when he drove
by Hammond’s property, yet he did not see any marijuana
growing or for that matter any indications of criminal activity.
All he was able to “verify” was that a Glen Hammond lived
in Rockcastle County off of KY 1955. Detective Engle stated
with certainty that there was no trailer on the Hammond
property, yet there was a trailer. The power records were not
for the buildings they were attributed to in the affidavit. The
building that Engle claimed to have no windows, did in fact
have windows. This is not the case in which an officer made
a small error in the affidavit, when applying for a warrant.
The number of falsehoods and half-truths told are substantial
and reflect, at the very least, a reckless disregard for the truth.
For these reasons, we should reverse the district court’s ruling
and grant Hammond’s motion to suppress the evidence seized
in both searches.3
III
Hammond also contends that there was insufficient
evidence to support his conviction under 18 U.S.C.
§ 924(c)(1). However, given our decision to grant
Hammond’s motion to suppress, it is unnecessary for us to
evaluate this second issue on appeal. For the reasons given
above, we REVERSE the district court’s denial of

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No. 01-5358 United States v. Hammond 15
Hammond’s suppression motion and REMAND this case for
proceedings consistent with this opinion.

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