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&/$< &LUFXLW -XGJH Defendants Donald Miggins,
Edward McDaniels and Charles Moore, Jr. appeal from the
respective criminal judgments entered against them arising
from drug trafficking. Miggins challenges his sentence, while
McDaniels and Moore claim that the district court erred in
denying their suppression motions. For the reasons set forth
below, we AFFIRM the district court’s judgments.
BACKGROUND
Defendants’ convictions and sentences arise from the
controlled delivery on December 2, 1999 by the Nashville
Metropolitan Police Department via Federal Express of a
package from Los Angeles containing slightly over one
kilogram of cocaine to 2335 Cooper Terrace, Nashville,
Tennessee, the residence of Defendant Moore. Defendants
Miggins and McDaniels and another co-defendant, Derek
Watson, met the police officer posing as a driver of the
Federal Express van outside Moore’s residence, and Miggins
signed for the package under an assumed name. After
Miggins, McDaniels and Watson left with the package, the
Nashville police searched Moore’s residence pursuant to an
anticipatory search warrant, seizing a firearm. Moore was
arrested shortly thereafter when he arrived home, giving a
statement to the police in which he admitted that the firearm
belonged to him. The Nashville police also arrested Miggins,
McDaniels and Watson shortly after they left with the

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Moore knowingly, voluntarily and intelligently waived his
Miranda rights. 7KXV IRU WKH IRUHJRLQJ UHDVRQV ZH
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package containing the cocaine, and subsequently searched
Miggins and McDaniels’ residence at 5161 Rice Road,
Apartment #139, Nashville, Tennessee, pursuant to a search
warrant, seizing firearms and cocaine.
In a seven-count indictment filed on April 12, 2000,
Miggins, McDaniels and Watson were charged in the first six
counts, and Moore was charged in the last count. Count I
charged Miggins, McDaniels and Watson with conspiring to
distribute over 500 grams of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 846; Count II charged Miggins, McDaniels
and Watson with possessing with intent to distribute over 500
grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2; Count III charged Miggins and McDaniels with
possession with intent to distribute cocaine base in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count IV charged
Miggins and McDaniels with possession of a Taurus 9mm
pistol, a Marlin 30/30 caliber rifle, and a Smith and Wesson
.357 caliber pistol in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c); Count V charged
McDaniels with being a convicted felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
Count VI charged Miggins with being a convicted felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2); and Count VII charged Moore with being a
convicted felon in possession of a firearm, a 9mm Ruger
pistol, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The district court granted Moore’s motion to sever, and he
was subsequently tried separately from Miggins, McDaniels
and Watson.
The Hearing on McDaniels’ Suppression Motion
Before trial, McDaniels filed a motion to suppress the
evidence seized from the apartment that he shared with
Miggins. At the suppression hearing on August 14, 2000,
Officer Greg Adams of the Nashville Metropolitan Police
Department, the affiant on the search warrant, testified that he
was notified by Deputy Kent Wegener of the Los Angeles

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County Sheriff’s Department that a Federal Express package
containing cocaine was being sent to Nashville from
California. When the package arrived in Nashville, a
narcotics dog detected the presence of a controlled substance.
Upon opening the package, the police found slightly over one
kilogram of cocaine in several cylindrically-shaped candles.
When the police conducted a controlled delivery of the
package containing the cocaine to the address listed, 2335
Cooper Terrace in Nashville, Miggins, McDaniels and
Watson greeted the Federal Express van upon its arrival.
After Miggins signed for the package, they immediately
departed in a vehicle, but were soon stopped and arrested by
the police. Upon their arrest, the police found out that
Miggins and McDaniels lived together at 5161 Rice Road,
Apartment # 139 in Nashville. In addition, Miggins was
found with a piece of paper listing the Cooper Terrace address
and the names of "Tommy Lee" and "Keith Jackson." The
package containing the cocaine was addressed to "Tommy
Lee" and the sender was "Keith Jackson." Thereafter, Officer
Adams also learned that Watson and Miggins were tied to the
South Central Los Angeles area, with Watson and Miggins
admitting that they were members of the 190 Delamos Crips
gang from Los Angeles. Checking with Deputy Wegener of
the Los Angeles County Sheriff’s Department, Officer Adams
was further informed that Miggins had been previously
charged and convicted in California on "numerous cocaine
charges." Officer Adams also testified that Moore, who lived
at the 2335 Cooper Terrace address, is McDaniels’ brother,
and that Watson was then dating McDaniels and Moore’s
sister. Based upon this information, Officer Adams secured
a search warrant for Miggins and McDaniels’ residence at
5161 Rice Road, Apartment #139, seizing 3.7 grams of
cocaine base and three firearms.
At the conclusion of the hearing, the district court denied
McDaniels’ suppression motion, finding that while Officer
Adams did not have sufficient information to establish
probable cause for the search of McDaniels and Miggins’
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suppression hearing established that after Officer Adams
orally advised Moore of his Miranda rights, Moore stated that
he understood them. Moore also agreed to answer Officer
Adams’ questions without first speaking to attorney. There
is nothing in the record to indicate that Moore’s will was
overborne such that he was coerced into making statements to
Officer Adams. Although Moore suggests that his waiver
was not knowingly, voluntarily and intelligently made
because he did not sign a waiver form listing his rights, he
offers no authority, and none can be found, for the proposition
that a written waiver is necessary to establish a knowing,
intelligent and voluntary waiver of Miranda rights.
III.
Moore finally claims that the evidence at trial was
insufficient to prove that he knowingly possessed a firearm in
violation of 18 U.S.C. §§ 922 and 924. Although Moore
moved for a judgment of acquittal at the close of the
government’s case, he failed to renew his judgment of
acquittal at the close of the proofs. Because Moore did not
preserve this issue for appellate review, we will not review it
"absent DμPDQLIHVWPLVFDUULDJHRIMXVWLFH¶´United States v.
Swiden, 888 F.2d 1076, 1080 (6th Cir. 1989). Here, there was
no "manifest miscarriage of justice," as the evidence was
clearly sufficient to convict him of being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922 and 924.
CONCLUSION
Accordingly, the district court did not err in applying the
two-level increase to Miggins’ sentence under USSG
§ 2D.1.1(b)(1) for possession of a firearm and by enhancing
his punishment based upon a prior drug conviction. We also
conclude that McDaniels’ suppression motion was properly
denied because there was probable cause for the issuance of
a search warrant. Finally, the district court properly denied
Moore’s suppression motions, finding that the triggering
event of the anticipatory search warrant occurred and that

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proper, we need not consider whether the search was valid
under the good faith exception set forth in Leon, 468 U.S. at
897.
II.
The district court also did not err in denying Moore’s
motion to suppress the statements that he made to Officer
Adams after his arrest, finding that Moore knowingly,
voluntarily and intelligently waived his rights under Miranda.
In reviewing the district court’s denial of a defendant’s
motion to suppress, this Court reviews the district court’s
findings of fact for clear error and its conclusions of law de
novo. United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir.
1996). The specific standard of review concerning a district
court's conclusion about the voluntary nature of an
inculpatory statement was stated in United States v. Mahan,
190 F.3d 416, 422 (6th Cir. 1999):
When a defendant claims that a confession was coerced,
the government bears the burden of proving by a
preponderance of the evidence that the confession was in
fact voluntary. This Court has established three
requirements for a finding that a confession was
involuntary due to police coercion: (i) the police activity
was objectively coercive; (ii) the coercion in question
was sufficient to overbear the defendant's will; and
(iii) the alleged police misconduct was the crucial
motivating factor in the defendant's decision to offer the
statement.
190 F.3d at 422 (citations omitted). See also Machacek v.
Hofbauer, 213 F.3d 947, 954 (6th Cir. 2000) (setting forth the
factors for evaluating whether a defendant has knowingly,
voluntarily and intelligently waived his Miranda rights).
In this case, the district court did not err in finding that
Moore knowingly, voluntarily and intelligently waived his
Miranda rights. The evidence presented at Moore’s
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apartment, the search was nonetheless valid under the good
faith exception stated in United States v. Leon, 468 U.S. 897
(1984).
The Joint Trial of Miggins, McDaniels and Watson
At the trial for Miggins, McDaniels and Watson, Officer
Adams testified in pertinent part that following their arrests,
Miggins was found with a piece of paper in his pocket with
information listing "Darnel Smith" as the sender and "Keith
Jackson" as the recipient, as well as the name "Tommy Lee."
When he signed for the package, Miggins used the name
"Darnel Smith." Subsequently, during the search of 5161 Rice
Road, Apartment #139, the police found an airline ticket in
Miggins’ name showing a flight from Los Angeles to
Nashville, as well as a Western Union receipt for a money
transfer listing the sender as "Darnel Smith" and the recipient
as "Keith Jackson" and the payout location as Carson,
California. A fully loaded .357 magnum revolver and 3.7
grams of crack cocaine were also recovered from a dresser
drawer in the apartment. In addition, a loaded Taurus 9mm
semiautomatic pistol, along with electronic scales that are
commonly used to weigh drugs, were found in the residence.
The jury returned its verdicts on September 8, 2000.
Miggins was found guilty of conspiracy, possession with
intent to distribute cocaine and felon in possession of a
firearm, but acquitted of the charges of possessing cocaine
base and possessing a firearm in furtherance of a drug
trafficking crime. McDaniels was convicted of being a felon
in possession of a firearm, as well as the lesser included
offense of possession of cocaine base, but was acquitted of
conspiracy, possession with intent to distribute cocaine, and
possession of a firearm in furtherance of a drug trafficking
crime. Watson was acquitted of the charges against him.
Both Miggins and McDaniels have appealed their
convictions.

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The Hearing on Moore’s Suppression Motions
Thereafter, on October 12, 2000, Moore filed motions to
suppress the evidence found as a result of the execution of the
anticipatory search warrant at his residence on December 2,
1999 and the statements that he made to Officer Adams
during questioning after the execution of the anticipatory
search warrant. At the hearing on Moore’s suppression
motions, Officer Adams, the affiant of the search warrant,
testified that the application for the search warrant provided
that a package would be delivered to 2335 Cooper Terrace by
officers via a Federal Express van, and that "[w]hen it is
delivered to this address and possession of the package is
taken by someone inside 2335 Cooper Terrace, as is
anticipated, then and only then will the search warrant be
executed." Officer Damion Huggins, who participated in the
surveillance of Moore’s residence at 2335 Cooper Terrace and
the execution of the search warrant at the same residence,
gave testimony that during the course of his surveillance, he
saw Miggins, McDaniels and Watson enter and exit Moore’s
residence before the delivery of the package. When the
Federal Express van arrived with the package, Miggins,
McDaniels and Watson were outside, and Miggins signed for
it, using a false name. According to Officer Huggins,
Defendants did not go back inside the residence with the
package, but immediately left the premises in a vehicle. At
the hearing, Derek Watson gave contrary testimony, stating
that neither he nor his two co-defendants had a key to
Moore’s residence and that none of them entered Moore’s
residence before they left with the package.
After the delivery of the package, the police executed the
anticipatory search warrant, finding a firearm in Moore’s
residence. While the search was in progress, Moore returned
to his residence and was arrested. Before questioning Moore
about the package that was delivered to his residence and his
relationship to Miggins, McDaniels and Watson, Officer
Adams orally advised Moore of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and Moore acknowledged that
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be able to evade the effects of a warrant simply by getting rid
of the supposed contraband or its container" and that "an
anticipatory warrant whose perfection requires no more than
the delivery of a package to, or in the presence of, the suspect,
is not invalidated because the parcel is taken off the premises
after delivery." Id. at 671; see also Gendron, 18 F.3d at 966
(finding that the triggering language that a search was
authorized after the parcel "is delivered by mail and taken into
the residence" by the defendant was not ambiguous under the
background facts of the case, distinguishing Ricciardelli,
which found an anticipatory search warrant containing similar
triggering event language to be invalid).
As in Jackson and Becerra where the search warrants were
found not to be invalid just because they did not require the
package to remain on the premises, the search warrant in this
case was not invalid just because it failed to require that
someone who accepted the package be indoors when the
package was delivered and remain indoors after accepting the
package. Under a commonsense reading, it was sufficient for
the triggering event of the anticipatory search warrant to be
fulfilled when the package was taken by someone who had
been inside the premises just prior to the delivery of the
package. This reading makes sense from a practical
perspective, especially considering the provenance of the
package and the quantity of cocaine contained therein,
because it sufficiently establishes a connection between the
parcel and someone who has access to the residence to which
the parcel is addressed. Here, there was sufficient contact
between the parcel that was addressed to Moore’s residence
and Miggins, who was identified with this residence and who
signed for the parcel, so as to satisfy the triggering event of
the anticipatory search warrant.
Because the triggering event of the anticipatory search
warrant requiring delivery and receipt of the package at his
residence was met, the district court did not err in denying
Moore’s motion to suppress the evidence of the firearm found
during a search of his residence. Given that the search was

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agents of the United States Drug Enforcement Administration
("DEA") were informed that a package shipped by DHL
Airways from Lagos, Nigeria to an address in Cleveland,
Ohio contained heroin. The DEA agents obtained an
anticipatory search warrant, stating that its execution would
take place "if, and only if, the package is accepted and taken
inside the subject premises." In Jackson, a customs agent,
dressed as a DHL driver, delivered the package to a co-
defendant who signed for it and took the package inside the
residence. After a SWAT unit entered the home announcing
that they had a search warrant, agents apprehended the fleeing
defendant in possession of the package as he was attempting
to scale a backyard fence. In Jackson, this Court found that
the search pursuant to the stated condition in the anticipatory
search warrant did not violate the Fourth Amendment "simply
because Jackson absconded with the package," concluding
that "the search warrant was not invalid simply because it
failed to require the package to remain on the premises." Id.
at 1224.
The reasoning and result of United States v. Becerra, 97
F.3d 669 (2d Cir. 1996) also supports our conclusion that the
triggering event of the anticipatory search warrant in this case
was fulfilled. In Becerra, customs agents intercepted a
package from Cali, Columbia containing cocaine that was
addressed to Olga Morena. The magistrate granted the
government’s application for an anticipatory search warrant,
which, "by its terms, would be triggered by the delivery of the
parcel." Id. at 670. Shortly after a customs agent, posing as
a Federal Express employee, delivered the package to Olga
Morena, who signed for it and accepted it, the defendant left
the premises carrying the parcel. In Becerra, the Second
Circuit rejected as lacking merit the defendant’s contention
that the warrant became invalid when he took the package off
the premises. Specifically, the Second Circuit in Becerra
found that the anticipatory search warrant explicitly stated
that it was triggered by the delivery of the parcel, and "was in
no way conditioned on the continued presence of package,"
noting that "common sense dictates that a suspect should not
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he understood them. According to Officer Adams, Moore did
not request to speak to an attorney, was not forced to answer
any questions and did not refuse to answer any questions.
When questioned about the 9mm Ruger firearm found in his
residence, Moore stated that it was for his protection. After
Officer Adams informed Moore that, as a convicted felon, he
could not legally possess a firearm, Moore remarked that the
gun was not his, but belonged to his brother, Edward
McDaniels.
At the conclusion of the hearing on October 17, 2000, the
district court denied Moore’s motions to suppress. First, the
district court determined that there was probable cause for an
anticipatory search warrant, and that the "triggering event"
occurred, specifically finding that Officer Huggins’ testimony
that Miggins, McDaniels and Watson "went in and out of the
residence" was more reliable than co-defendant Watson’s
testimony that "none of the three individuals entered the
residence prior to the issuance of the search warrant." The
district court further found that even if the triggering event of
the anticipatory search warrant were not met, the search was
proper under the good faith exception in United States v.
Leon, 468 U.S. 897 (1984). The district court also denied
Moore’s motion to suppress the statements that he made to
Officer Adams after his arrest, finding that it was undisputed
that Moore received his Miranda warnings, that he
understood the warnings and that he waived his rights
"knowingly, intelligently and voluntarily."
Moore’s Trial
At Moore’s jury trial on the charge of being a felon in
possession of a firearm, it was stipulated that he was
convicted on May 28, 1998 in the Criminal Court of
Davidson County, Tennessee of a crime punishable by a term
of imprisonment exceeding one year. Officer Huggins
testified that during the search of Moore’s residence, he found
a Sturm Ruger pistol underneath the bottom drawer of a
dresser in a bedroom. Officer Adams also testified that when

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he questioned Moore about the pistol, Moore first told him
that the pistol was for his protection, but then claimed that it
belonged to his brother, Defendant McDaniels, after being
told that, as a convicted felon, he could not legally possess a
weapon. Special Agent Mark Hoback of the Bureau of
Alcohol, Tobacco and Firearms also testified that the firearm
found in Moore’s residence was not manufactured in
Tennessee, and thus had traveled in interstate or foreign
commerce. At the close of the government’s proofs, Moore
moved for a judgment of acquittal, which was denied by the
district court. At the close of the proofs, the jury found
Moore guilty of the charge of being a felon in possession of
a firearm.
DISCUSSION
Miggins’ Appeal
I.
Miggins first argues that at sentencing the district court
erred in applying the two-level increase to his sentence under
USSG § 2D1.1(b)(1) for possession of a firearm. We review
a district court’s factual findings under USSG § 2D1.1(b)(1)
for clear error. United States v. Williams, 176 F.3d 301, 307
(6th Cir. 1999). A district court’s legal conclusions regarding
the application of the sentencing guidelines are reviewed de
novo. United States v. Saikaly, 207 F.3d 363, 367 (6th Cir.
2000).
USSG § 2D1.1(b)(1) provides for a two-level increase to
the base offense level for a person convicted of certain drug
trafficking offenses "[i]f a dangerous weapon (including a
firearm) was possessed." Note 3 to the commentary section
of USSG § 2D1.1(b)(1) states in pertinent part:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers
possess weapons. The adjustment should be applied if
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According to the testimony of Officer Huggins, however,
Miggins, McDaniels and Watson went in and out of Moore’s
residence before Miggins signed for the package. Although
Watson testified at the suppression hearing that he and his
codefendants never entered Moore’s residence, the district
court found Officer Huggins’ testimony that they went in and
out of the residence to be more credible than Watson’s
testimony that they did not enter the residence. We find no
clear error in the district court’s factual determination in this
respect.
Accordingly, based upon this determination of the facts, we
believe that the triggering event for the anticipatory search
warrant was met. Here, the triggering event required the
delivery and acceptance of the package by someone inside the
residence. On its face, the affidavit does not require that the
person receiving the package actually be inside the residence
when the package is delivered or that the person receiving the
package take it inside the residence and remain indoors. See
Garcia, 882 F.2d at 704 ("Nowhere did the warrant require
that Wilson-Grant or any one else take possession of the
cocaine, nor was there even any requirement that Hooks and
Oliver give up possession.") Read in a commonsense fashion,
and avoiding a "hypertechnical" construction, we believe that
the triggering event language of the affidavit was satisfied if
the package was taken by someone who had been inside the
residence just prior to its delivery. See Gendron, 18 F.3d at
966 (reading triggering language of an anticipatory search
warrant "in a commonsense fashion" to conclude that
condition of search warrant was met when package was
delivered and received by the defendant). Because there was
sufficient delivery of the parcel to Moore’s residence to fulfill
the condition of the anticipatory search warrant, the police
were thus authorized to search Moore’s residence. Id.
Our conclusion that the triggering event of the anticipatory
search warrant was met when the package was taken by
someone who had been inside the residence is consistent with
this Court’s reasoning and result in Jackson. In that case,

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Watson were outside the house when the Federal Express van
delivered the package and immediately left the premises with
the package after Miggins signed for it and accepted delivery,
Moore argues that the search of his residence pursuant to the
search warrant was unauthorized because the warrant failed
to satisfy the triggering event language.
This Circuit, like other circuits, has approved of
anticipatory search warrants. United States v. Jackson, 55
F.3d 1219, 1223 (6th Cir. 1995); United States v. Lawson,
999 F.2d 985, 987-88 (6th Cir. 1993); United States v. Rey,
923 F.2d 1217, 1220-21 (6th Cir. 1991). An anticipatory
search warrant is a search warrant that "by its terms [takes]
effect not upon issuance but at a specified future time."
Jackson, 55 F.3d at 1223. Although courts have required that
conditions triggering the anticipatory search warrant be
"explicit, clear, and narrowly drawn," United States v.
Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993) (quoting United
States v. Garcia, 882 F.2d 699, 703-04 (2d Cir. 1989)),
warrants and their supporting documents are to be read "not
‘hypertechnical[ly],’ but in a ‘commonsense’ fashion." United
States v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994) (quoting
from United States v. Ventresca, 380 U.S. 102, 109 (1965)).
In this case, the affidavit attached in support of the warrant
specified the triggering event. Although the search warrant
did not contain the triggering event, the search warrant
constituted a valid anticipatory search warrant, as it
incorporated the affidavit. See United States v. Vigneau, 187
F.3d 70, 79 (1st Cir. 1999) (citing United States v. Dennis,
115 F.3d 524, 529 (7th Cir. 1997)); see also United States v.
Hugoboom, 112 F.3d 1081, 1087 (10th Cir. 1997); United
States v. Moetamedi, 46 F.3d 225, 228-29 (2d Cir. 1995);
United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.
1993).
In this case, the package containing the cocaine was
delivered by a police officer posing as a Federal Express
driver, who was met by Miggins, McDaniels and Watson in
front of Moore’s residence at 2335 Cooper Terrace.
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the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense. For
example, the enhancement would not be applied if the
defendant, arrested at his residence, had an unloaded
hunting rifle in the closet. . . .
USSG § 2D1.1(b)(1), n.3. To enhance a sentence under
USSG § 2D1.1(b)(1), the government must show by a
preponderance of the evidence that the defendant possessed
the firearm during the drug trafficking offense. United States
v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991). Once the
government satisfies its burden, "a presumption arises that
such possession was connected to the offense." Id.
Possession may be actual or constructive. United States v.
Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994). To establish
constructive possession, the government must show that the
defendant had "‘ownership, dominion, or control’ over the
[firearm] or ‘dominion over the premises’ where the [firearm]
is located." Id. (quoting United States v. Synder, 913 F.2d
300, 304 (6th Cir. 1990)). Circumstantial evidence is
sufficient to establish constructive possession. United States
v. Hough, 276 F.3d 884, 894 (6th Cir. 2002). If the
government satisfies its initial burden of showing that the
defendant was in possession of a weapon during the offense,
then the burden shifts to the defendant to demonstrate that it
was clearly improbable that the weapon was connected to the
offense. Sanchez, 928 F.2d at 1460. If the defendant fails to
make such a showing, then enhancement under USSG
§ 2D1.1(b)(1) is appropriate. United States v. McGhee, 882
F.2d 1095, 1097-98 (6th Cir. 1989).
Miggins was acquitted of possessing a Taurus 9mm pistol,
a Marlin 30/30 caliber rifle, and a Smith and Wesson .357
caliber pistol in furtherance of a drug trafficking crime under
18 U.S.C. § 924(c) (Count IV), but was found guilty of being
a felon in possession of a firearm (Count VI).
Notwithstanding, the jury’s verdict of acquittal on the 18
U.S.C. § 924(c) firearm possession charge does not prevent
the sentencing court from considering conduct underlying the

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charge of which Miggins was acquitted, so long as that
conduct has been proved by a preponderance of the evidence.
United States v. Watts, 519 U.S. 148, 157 (1997) (holding that
acquittal on a 18 U.S.C. § 924(c) offense did not prevent the
sentencing court from considering under USSG § 2D1.1
whether the firearm was possessed in connection with the
drug trafficking offense).
In this case, the government established by a preponderance
of the evidence that Miggins possessed a weapon in
connection with the drug trafficking activity. During the
search of the apartment shared by Miggins and McDaniels,
the police found three weapons: a rifle was found in
McDaniels’ bedroom; a .357 revolver was found in a chest of
drawers in McDaniels’ bedroom; and a 9mm pistol was found
on a chair in the living room, near the front door. While no
evidence was introduced into the record about the ownership
of the weapons seized from the apartment, the government
presented evidence that Miggins was involved in a conspiracy
to distribute cocaine, and that the apartment was used to store
items relating to Defendants’ drug trafficking activity.
Besides the firearms, the police recovered scales, baggies
used for packaging drugs, crack cocaine, and a receipt
showing the transfer of funds using the same names as those
on the package containing the kilogram of cocaine received
by Defendants. See United States v. Quarles, 2002 WL
228144, at *4 (6th Cir. Feb. 13, 2002) (citing United States v.
Payne, 805 F.2d 1062, 1065 (D.C. Cir. 1986) (recognizing
that weapons are as common as drug paraphernalia as tools of
the drug trafficking trade).
Thus, there was sufficient circumstantial evidence
establishing Miggins’ constructive possession of a firearm to
support enhancement under USSG § 2D1.1(b)(1). See
Hough, 276 F.3d at 894 (finding sufficient circumstantial
evidence establishing constructive possession as to support
enhancement under USSG § 2D1.1(b)(1)). Specifically, the
circumstantial evidence in this case is sufficient to establish
Miggins’ constructive possession of the 9 mm pistol found on
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dealer’s house); United States v. Williams, 974 F.2d 480, 482
(4th Cir. 1992) (per curiam) (finding that affidavit
establishing that known drug dealer resided in motel was
sufficient to show probable cause to search motel room for
drug paraphernalia); United States v. Davidson, 936 F.2d 856,
859-60 (6th Cir. 1991) (holding that the police had probable
cause for the issuance of a search warrant since the affidavit
revealed a substantial basis for concluding that a search of the
defendant’s residence would uncover evidence of
wrongdoing); United States v. Cruz, 785 F.2d 399, 406 (2d
Cir. 1986) (finding probable cause for search of drug dealer’s
apartment, even though he was not seen using the apartment).
Because there was probable cause supporting the issuance
of a search warrant for McDaniels and Miggins’ apartment at
5161 Rice Road, we need not consider whether the search was
proper under the good faith exception stated in Leon.
Accordingly, the denial of McDaniels’ suppression motion
was proper.
Moore’s Appeal
I.
In his appeal, Moore first challenges the district court’s
denial of his motion to suppress the evidence of the firearm
seized from his residence, arguing that the search pursuant to
an anticipatory search warrant violated his Fourth
Amendment rights. Specifically, Moore claims that the
triggering event condition was not fulfilled. The affidavit
appended to the search warrant of Moore’s residence
provided in pertinent part: "When [the package containing the
cocaine] is delivered to this address and possession of the
package is taken by someone inside 2335 Cooper Terrace, as
is anticipated, then and only then will the search warrant be
executed." According to Moore, the district court erred in
finding that the triggering event of the anticipatory search
warrant occurred because no one inside the house took
delivery of the package. Since Miggins, McDaniels and

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information that both Miggins and McDaniels were involved
in drug trafficking. $FFRUGLQJWRWKHLQIRUPDWLRQVXSSOLHGE\
.HQW :HJHQHU RI WKH /RV $QJHOHV &RXQW\ 6KHULII¶V
'HSDUWPHQW 0LJJLQV ZKR SUHYLRXVO\ UHVLGHG LQ Carson,
California, KDG EHHQ FRQYLFWHG RQ ³QXPHURXV FRFDLQH
FKDUJHV´ LQ &DOLIRUQLD :KLOH WKH UHFRUG LQGLFDWHG WKDW
0LJJLQVKDGEHHQFKDUJHGDQGFRQYLFWHGRIRQO\RQHFRFDLQH
RIIHQVH LQ &DOLIRUQLD, that factual error by itself does not
detract from the police having probable cause to believe that
"other narcotics and equipment used in the distribution of
narcotics [would be] located at [McDaniels and Miggins’]
apartment."
Here, the district court erred in finding that there was an
insufficient nexus between the two locations so as to establish
probable cause for a search of McDaniels and Miggins’
apartment at 5161 Rice Road. See United States v. Feliz, 182
F.3d 82, 87-88 (1st Cir. 1999) (finding that it was reasonable
to suppose that drug dealer stored evidence of dealing at
home, even though no drug trafficking was observed to occur
there); United States v. McClellan, 165 F.3d 535, 546 (7th
Cir. 1999) ("[I]n issuing a search warrant, a magistrate is
entitled to draw reasonable inferences about where the
evidence is likely to be kept . . . and . . . in the case of drug
dealers evidence is likely to be found where the dealers live.")
(quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th
Cir. 1996)); United States v. Henson, 123 F.3d 1226, 1239
(9th Cir. 1997) ("In the case of drug dealers, evidence is
likely to be found where the dealers live.") (italics in original)
(quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399
(9th Cir. 1986)); United States v. Luloff, 15 F.3d 763, 768
(8th Cir. 1994) (ruling that observations of drug trafficking
occurring away from the dealer’s residence, coupled with
officer’s statement in his affidavit that drug dealers often store
evidence of drug dealing in their residences, provided
probable cause for search of dealer’s house); United States v.
Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam)
(concluding that observations of drug trafficking away from
dealer’s residence can provide probable cause to search the
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a chair in the living room, if not the rifle found in McDaniels’
bedroom and the .357 revolver found in the chest of drawers
in his bedroom. Contrary to Miggins’ claim, it was not
"clearly improbable" that he possessed the firearm(s) during
the offense. USSG § 2D1.1(b)(1), n.3.
In this regard, we note that there is no merit to Miggins’
contention that there is no support for his sentence
enhancement for firearm possession because "the nexus
between the Rice Road apartment and the Cooper
Terrace/FedEX delivery point were . . . attenuated." As the
government points out, other circuits have applied the
enhancement for possession of a firearm under USSG
§ 2D1.1 in circumstances similar to this case. See United
States v. Hunter, 172 F.3d 1307, 1308-09 (11th Cir. 1999)
(finding that enhancement under USSG § 2D1.1 was proper
where drug paraphernalia and firearms were found at the
defendant’s residence located 100 miles from the scene of his
arrest); United States v. Stewart, 926 F.2d 899, 901-02 (9th
Cir. 1991) (applying enhancement under USSG § 2D1.1 even
though the firearm was possessed 15 miles away from the site
of the drug transaction); United States v. Durrive, 902 F.2d
1221, 1231-32 (7th Cir. 1990) (finding enhancement for
possession of a firearm under USSG § 2D1.1 was applicable
to a defendant charged with conspiracy, even though no drugs
were recovered from the apartment, which was used in the
course of the conspiracy). Accordingly, the district court did
not err in applying the two-level increase to Miggins’
sentence under USSG § 2D1.1(b)(1) for possession of a
firearm.
II.
Miggins also contends that, under Apprendi v. New Jersey,
530 U.S. 466 (2000), the district court erred by enhancing his
punishment based upon a prior drug conviction, since the
government did not plead his prior drug conviction in the
indictment, and the matter was not submitted to the jury to
decide whether it was proved beyond a reasonable doubt.

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Here, there was no error because a prior conviction of a crime
may be treated as a sentencing factor to be determined by the
court. United States v. Gatewood, 230 F.3d 186, 192 (6th Cir.
2000)(en banc) (rejecting the argument that Apprendi
overruled Almendarez-Torres v. United States, 523 U.S. 224
(1998), which held that a defendant’s prior convictions may
be treated as a sentencing factor to be determined by the
court). Thus, the district court did not err by enhancing
Miggins’ sentence on the basis of his prior felony drug
conviction.
McDaniels’ Appeal
McDaniels argues that even though the district court found
that probable cause did not exist for the issuance of the search
warrant of his apartment, it erred in finding that the search of
his residence was valid under the good faith exception of
United States v. Leon, 468 U.S. 897 (1984). Thus, McDaniels
claims that the district court erred in denying his motion to
suppress the evidence found in the search of his apartment.
The Fourth Amendment provides that "no warrant shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S. Const.
amend. IV; see United States v. Murphy, 241 F.3d 447, 457
(6th Cir. 2001). To satisfy the warrant requirement, police
must have probable cause to conduct a search. See Warden v.
Hayden, 387 U.S. 294, 301-02 (1967). "The test for probable
cause is simply whether there is a fair probability that
contraband or evidence of a crime will be found in a
particular place." Murphy, 241 F.3d at 457 (citation omitted).
A magistrate must make an "informed and deliberate"
assessment regarding probable cause. Aguilar v. Texas, 378
U.S. 108, 110 (1964). When reviewing a magistrate’s
determination that probable cause existed for the issuance of
a search warrant, this Court must determine, under a totality
of the circumstances, whether "the magistrate had a
substantial basis for concluding that ‘a search would uncover
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evidence of wrongdoing.’" United States v. King, 227 F.3d
732, 739 (6th Cir. 2000) (quoting Illinois v. Gates, 462 U.S.
213, 236 (1983)).
The applicable standard of review of a suppression motion
concerning whether there is probable cause for the issuance
of a search warrant is stated in United States v. Watkins, 179
F.3d 489, 494 (6th Cir. 1999):
When reviewing decisions on motions to suppress, this
court will uphold the factual findings of the district court
unless clearly erroneous, while legal conclusions are
reviewed de novo.
The standard of review for this Court in determining
whether a search warrant describes the place to be
searched with sufficient particularity is a de novo review.
Whether the good-faith exception of United States v.
Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.2d 677
(1984), applies to a search is also reviewed de novo.
Watkins, 179 F.3d at 494 (internal quotation marks and
citations omitted).
In this case, probable cause existed for the issuance of a
search warrant for McDaniels and Miggins’ apartment at
5161 Rice Road. As set forth in the affidavit attached to the
search warrant, the facts clearly established a connection
between Moore’s residence at 2335 Cooper Terrace, where
the package from Los Angeles containing one kilogram of
cocaine was delivered, and McDaniels and Miggins’
apartment. When arrested, Miggins, who signed for the
package under the assumed name of "Darnel Smith," was
found with a piece of paper in his pocket listing the Cooper
Terrace address and the names of "Darnel Smith," "Keith
Jackson" and "Tommy Lee." The package containing the
cocaine was addressed to "Tommy Lee" and the sender was
"Keith Jackson." After the police found out that Miggins and
McDaniels were living together, they also obtained

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