                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0377n.06

                                       Nos. 17-6393/6461

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Jul 30, 2018
 UNITED STATES OF AMERICA,                               )                    DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
                v.                                       )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE WESTERN
 JOSEPH DANIEL HUNTLEY,                                  )
                                                                DISTRICT OF TENNESSEE
                                                         )
        Defendant-Appellant.                             )
                                                         )



BEFORE: SILER, MOORE, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Joseph Huntley appeals a district court order denying his motion to suppress

evidence seized pursuant to a search warrant. In defendant’s view, the warrant lacked probable

cause because it was “anticipatory” and its “triggering conditions” had not occurred at the time of

its execution. We disagree, and affirm.

                                                I.

       Using information gleaned from confidential sources, law enforcement officials identified

Huntley as a methamphetamine trafficker in west Tennessee. One informant told officials he

purchased from Huntley several ounces of the drug per week for about a year, and another for a

few weeks.     The informants also detailed Huntley’s modus operandi—defendant flew to

California, deposited drug proceeds into a bank account, obtained more drugs, and rented a car for
Nos. 17-6393/6461, United States v. Huntley


one-way transit with the drugs back to Tennessee. Huntley stored the methamphetamine at his

residence in Scotts Hill, Tennessee, and allowed trusted buyers to come to his house to both

purchase and receive the drugs. He permitted “non-trusted” purchasers to pay at his house, but

distributed their drugs off-site.

        Agents independently verified Huntley’s suspicious travel plans, obtaining records

reflecting several one-way car rentals and numerous cash bank deposits. They also learned

Huntley had access to numerous firearms; he kept approximately twenty guns at his house, and

others on his person and in a backpack nearby at all times. Defendant did not just have guns, he

used them to further his trafficking. On one occasion, for example, Huntley threatened a man who

owed Huntley money at gunpoint, telling him “that if he did not pay back a drug debt, he would

come back and take his possessions” and that “he had a new Uzi that he was itching to try out.”

And in a different instance, an informant successfully talked Huntley out of killing another man

suspected of stealing from Huntley. The second man Huntley threatened corroborated Huntley’s

MO, detailing a recent trip to California with Huntley to purchase six pounds of methamphetamine.

        The investigation culminated in early 2016. Agents learned Huntley flew to California on

January 31, 2016, to purchase more methamphetamine, and planned to return on February 4, 2016.

While surveilling Huntley’s house on the evening of the fourth, they observed a vehicle with out-

of-state license plates pull into the garage. Accordingly, agents prepared a search warrant and

presented it to a magistrate judge for his signature.

        While at the magistrate judge’s house, an agent received a call from one of the informants.

The informant told the agent that Huntley had returned to his Scotts Hill residence, was in

possession of methamphetamine, and had requested the informant’s presence. The agent informed

the magistrate judge of this development before the magistrate judge signed the warrant


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authorizing the search of Huntley’s house. Paragraph 28 of the agent’s affidavit supporting the

warrant is of particular interest to this appeal:

        The TARGET PREMISES is located in a very rural area of Scotts Hill, Tennessee
        in which law enforcement will have a difficult time establishing surveillance. In
        addition, law enforcement wishes to execute this search warrant after HUNTLEY
        has arrived back from California with the methamphetamine. Law enforcement
        does not know in what hour HUNTLEY will return and realizes the benefit that the
        element of surprise would be for the safety of officers and others due to HUNTLEY
        and associates possession of multiple firearms. I therefore request the Court allow
        this warrant to be served at any time, day or night.

The signed warrant found “reasonable cause” to execute the warrant “at any time in the day or

night.” Officers executed the warrant the next morning; the search yielded numerous items tying

Huntley to illicit activity, including a firearm, ammunition, more than a kilogram of drugs

(methamphetamine, heroin, and marijuana), and other indicia of drug-trafficking activity. The

warrant also led to the search of a storage unit, which yielded an additional twenty-four firearms.

        A grand jury indicted Huntley (and others) on various firearm and drug crimes. Claiming

a lack of probable cause sufficient to support the warrant, Huntley moved to suppress all the

evidence seized at his house. Defendant argued the search warrant was “an anticipatory warrant”

with two “triggering conditions” set forth in paragraph 28 of the affidavit—that Huntley was

(1) home from California, and (2) in possession of methamphetamine. To support this claim,

Huntley pointed out that after the informant called the agent to tell him Huntley was home and in

possession of the drugs, the agent directed the informant to collect the methamphetamine and

deliver it to law enforcement. Yet the informant did not do so; he instead left drugs in a mailbox

for agents to retrieve, claiming he was with one of Huntley’s associates and was unable to connect

with officers in her presence. From Huntley’s perspective, law enforcement failed to verify with

the informant that Huntley was indeed at his house and in possession of methamphetamine before

they executed the warrant, and thus the warrant lacked probable cause.

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        The district court held a suppression hearing, at which the agent testified regarding the

circumstances of law enforcement’s investigation, the warrant application, and its execution. The

district court denied defendant’s motion in a written order.           It assumed the warrant was

anticipatory, found the triggering conditions had occurred, and even if they had not, the Leon good-

faith exception applied. Huntley then pleaded guilty to drug trafficking and firearm counts, but

reserved the right to appeal the suppression ruling. After the district court sentenced him to 260

months in prison, defendant appealed the district court’s denial of his motion to suppress.

                                                  II.

        “In reviewing a district court’s denial of a motion to suppress evidence, this court reviews

the district court’s findings of fact for clear error, and its legal conclusions de novo.” United States

v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004). We consider the evidence in the light most favorable

to the government, United States v. Pearce, 531 F.3d 374, 379 (6th Cir. 2008), and afford “great

deference” to the magistrate judge’s determination of probable cause. United States v. Allen, 211

F.3d 970, 973 (6th Cir. 2000) (en banc) (citation omitted). We also may affirm on a ground

different from the district court as long as it is supported by the record. See, e.g., United States v.

Stewart, 729 F.3d 517, 524 (6th Cir. 2013).

                                                  III.

        The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.”             U.S. CONST. amend. IV.

This appeal presents a good example of the difference between “traditional” and “anticipatory”

search warrants. “Traditional warrants issue upon a showing of probable cause. By contrast, an

anticipatory warrant only becomes effective upon the happening of some future event—


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a ‘triggering condition’—which establishes probable cause for the search.” United States v.

Perkins, 887 F.3d 272, 274 (6th Cir. 2018) (quoting United States v. Grubbs, 547 U.S. 90, 94

(2006)). By their very own terms, anticipatory warrants take “effect not upon issuance but at a

specified future time.” United States v. Jackson, 55 F.3d 1219, 1223 (6th Cir. 1995).

        The case law illustrates how warrants set forth these “triggering conditions.” Take the

language of the warrant at issue in the Supreme Court’s Grubbs decision: “execution of the search

warrant will not occur unless and until the parcel containing child pornography has been received

by a person(s) and has been physically taken into the residence.” 547 U.S. at 94 (brackets omitted;

emphasis added). Or consider materially similar words setting forth the search conditions in our

decision in United States v. Miggins: “When the package containing the cocaine is delivered to

this address and possession of the package is taken inside 2335 Cooper Terrace, as is anticipated,

then and only then will the search warrant be executed.” 302 F.3d 384, 394 (6th Cir. 2002)

(brackets omitted; emphasis added); see also Perkins, 887 F.3d at 274; United States v. Penney,

576 F.3d 297, 302 (6th Cir. 2009).

        Although the district court assumed for argument’s sake that the warrant was anticipatory,

we see no reason to do the same because the warrant did not authorize the search upon satisfaction

of a future action. Absent is the typical language—“unless and until,” “then and only then,” “if

and only if,” “upon occurrence of,” etc.—utilized to set forth a triggering condition. Rather, the

warrant provides in no uncertain terms that Huntley’s property “is believed to conceal” evidence

of illegal activity, and the magistrate judge found that the affidavit supporting its issuance

“establish[es] probable cause to search and seize the person or property.” It therefore speaks only

to a finding of probable cause by the magistrate judge upon its issuance, not upon an event to occur

in the future.


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       Paragraph 28 does not change this conclusion. Viewed in the light most favorable to the

government, paragraph 28 at best supports the agent’s request for flexible timing to effectuate the

warrant pursuant to Federal Rule of Criminal Procedure 41(e)(2)(A)(ii). Nothing about paragraph

28’s “wish” to execute the warrant at a certain time—in order to minimize the well-founded risk

to the safety of officers and others in light of Huntley’s known possession and use of firearms—

transforms this request into a future probable cause condition.

       Moreover, even if this were an anticipatory warrant, Huntley did not overcome application

of Leon’s good-faith rule.

       Accordingly, the district court did not err by denying defendant’s motion to suppress.

                                               IV.

       For these reasons, we affirm the district court’s judgment.




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