Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:10-cr-64--Aleta Arthur Trauger, District Judge.
The opinion of the court was delivered by: Alice M. Batchelder, Chief Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; and QUIST*fn1 , District Judge.
The government appeals the district court's order suppressing evidence found as a result of a state-issued search warrant. Because we find that the search warrant was valid and the officers executed it in accordance with the Constitution, we REVERSE the district court's suppression order.
On May 20, 2008, Michael Wilson, an officer with the Nashville Police Department, arrested a woman for solicitation of prostitution. The woman had worked as an informant for the Department in the past. In an effort to avoid the solicitation charge, the woman accepted Officer Wilson's offer to cooperate as a confidential informant in a controlled buy of crack cocaine. Later that evening, the informant purchased cocaine from 5A University Court, an apartment in Nashville, Tennessee.
On May 23, 2008, Officer Wilson presented an affidavit to a Tennessee state judge seeking a search warrant for Apartment 5A. The affidavit stated that a controlled purchase of an undisclosed amount of narcotics had occurred at that location within the last 72 hours with the cooperation of a confidential informant and that the informant had been "used in the past for successful recovery of illegal narcotics as well as the successful prosecution of such offenses." It explained that the officers prepared the informant for the controlled purchase by searching her for contraband, giving her prerecorded money, and wiring her for audio surveillance. The affidavit further stated that the officers drove the informant to Apartment 5A and maintained physical surveillance of the premises while they monitored the audio wire on the informant. The affidavit stated that the officers would disclose the identity of the informant to the judge signing the warrant, but it did not give any further information about the informant or the controlled purchase. The state judge signed the search warrant at 11:10 a.m. the same day.
On May 28, 2008, five days after the state judge issued the warrant, officers executed the search at Apartment 5A. Defendants Archibald and Jenkins were in the premises when officers arrived. Officers discovered crack cocaine on Jenkins and a large amount of cash on Archibald. They also discovered a loaded pistol and a substantial piece of crack in the kitchen. A canine search of Archibald's car, which was in the driveway of the premises, revealed $12,000 cash.
The state of Tennessee indicted Defendants Archibald and Jenkins on state drug and weapons charges. The state eventually dismissed the indictment after the trial court suppressed the evidence, and the state appellate court affirmed.
On March 31, 2010, a federal grand jury indicted Defendants Archibald, Jenkins, and Defendant Muse, the leaseholder of Apartment 5A, on several charges including the use of a premises to manufacture controlled substances, possession with the intent to distribute cocaine near public housing, making false statements to federal agents, and possession of a firearm in furtherance of a drug-trafficking crime. Each defendant moved to suppress the evidence discovered from the May 23, 2008 search warrant. The district court granted the motion and suppressed the evidence, finding that the affidavit presented probable cause to search Apartment 5A, but the probable cause had gone stale by the time officers executed the warrant, eight days after the ...