                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0531n.06

                                     Case Nos. 18-3929/3998

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Oct 17, 2019
UNITED STATES OF AMERICA,                              )                    DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )         ON APPEAL FROM THE
v.                                                     )         UNITED STATES DISTRICT
                                                       )         COURT FOR THE NORTHERN
TERRICK THOMPSON (18-3929); EDWIN                      )         DISTRICT OF OHIO
DORTCH (18-3998),                                      )
                                                       )
       Defendants-Appellants.                          )
                                                       )                             OPINION




BEFORE: MOORE, McKEAGUE, and LARSEN, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendants Terrick Thompson and Edwin Dortch appeal

the district court’s denial of their motions to suppress evidence obtained via a search warrant.

Dortch separately appeals the refusal to hold a Franks hearing, and Thompson argues that his Sixth

Amendment right to the effective assistance of counsel was violated by the district court’s denial

of his motion for a continuance. We AFFIRM.

                                       I. BACKGROUND

       On February 14, 2018, Akron Police Detective Mike Schmidt applied for a warrant to

search 450 W. Bartges Street for evidence of drug trafficking. Det. Schmidt’s affidavit described

the evidence giving probable cause for the search. First, he described a controlled buy that his team
Case Nos. 18-3929/3998, United States v. Thompson, et al.


executed in the week prior to seeking the warrant. A confidential informant (CI) contacted

Defendant Edwin Dortch and arranged a meet-up at a predetermined location to purchase

marijuana. Another detective watched Dortch leave 450 W. Bartges prior to the sale, and Det.

Schmidt observed the sale off-site. Second, the affidavit described a conversation in which the

same CI identified defendants Edwin Dortch, Terrick Thompson, and Rica Jones as occupants of

the residence and alleged that they also sold narcotics out of the house. Third, the affidavit

described the CI as someone who had worked with Det. Schmidt before and whose prior tips

regarding the Akron drug trade had been corroborated by the detective. Fourth, the affidavit

described the relevant history of 450 W. Bartges that connected it to drug activity. For example,

several years prior to the affidavit, the Akron police had executed a search of the house and

recovered a handgun, digital scales, drug packaging bags, and $6,710 in cash. A month before the

warrant request, the police had visited the house again when they were called because known drug

dealer Kevin Cook assaulted his girlfriend there. And in the police incident report for the call,

Terrick Thompson—who already had a conviction for drug possession—had listed 450 W. Bartges

as his home address. Then, on several occasions, including the day of the affidavit itself, the police

had observed a car parked outside the house that was registered to known drug dealer Joseph

Sheffield. Fifth, the affidavit described the house as having security cameras mounted outside to

monitor approaching traffic. Last, the affidavit summarized the officer’s relevant knowledge and

experience with investigating drug trafficking in the Akron area.

       An Akron municipal court judge issued the warrant, and on February 16, 2018, the police

executed the search. The officers found drugs (methamphetamine, fentanyl, heroin, and

carfentanil), $9,000 in cash, three handguns, ammunition, and drug processing items. An

indictment charged Dortch and Thompson with possession of firearms and possession of



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controlled substances with the intent to distribute and charged Jones with maintaining a drug

house. The defendants moved to suppress the evidence collected in the search, claiming that Det.

Schmidt’s affidavit failed to establish probable cause for the warrant. Dortch also requested a

Franks evidentiary hearing to address whether the warrant was based on the affidavit’s description

of Dortch as an occupant of 450 W. Bartges, which description Dortch argued was false.

       The district court denied the motions for suppression. The court held that the affidavit gave

a substantial basis for the magistrate to find probable cause that evidence of drug trafficking would

be found at the subject residence. The court also denied the Franks motion. It determined that Det.

Schmidt did not lie about Dortch occupying the house, and regardless, the description was not

necessary to the finding of probable cause. Whether or not Dortch lived at 450 W. Bartges, the

other evidence connecting the house and the defendants to drug trafficking was independently

sufficient for the issuing judge to find probable cause.

       The day after the court denied the defendants’ suppression motions, and four days prior to

trial, Thompson filed a motion for a continuance, asserting that declining to delay trial would

deprive him of his constitutional right to the effective assistance of counsel. The motion stated that

although counsel had been “actively investigating” possible defenses, counsel had been

unsuccessful because of time constraints. The motion referred vaguely to a potential exonerating

defense that counsel needed time to investigate. Counsel was also unable to meet with Thompson

for several days because of logistical problems, including: there being no available space or

telephone for meeting in Thompson’s first detention facility; Thompson being moved to a different

holding facility; and counsel attending a wedding out of town that weekend. The district court

summarily denied the motion for a continuance. The three co-defendants—Jones, Thompson, and

Dortch—accepted guilty pleas but retained their rights to appeal based on the denial of the motions



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to suppress and Thompson’s claim of ineffective assistance of counsel based on the denial of his

motion for a continuance.

         Co-defendant Rica Jones appealed separately. She challenged the district court’s denial of

the defendants’ motions to suppress, just as Thompson and Dortch do here. United States v. Jones,

No. 18-3875, 2019 WL 3074712, at *1 (6th Cir. July 15, 2019). She contended that Det. Schmidt’s

affidavit didn’t establish probable cause for the search because (1) there was no nexus between the

controlled buy and the house; (2) the CI’s allegations about the defendants were “speculative and

uncorroborated”; (3) the narcotics-related history of 450 W. Bartges was stale and irrelevant; and

(4) the police didn’t observe any other “drug-dealing-related activities” while they surveilled the

house. Id. at *3. This court reviewed these arguments and affirmed the district court, finding that

its review of the probable cause determination was proper. Id. at *3–4.

                                          II. ANALYSIS

    A.        Motions to suppress

         Both Thompson and Dortch challenge the district court’s denial of their motions to

suppress the evidence found at 450 W. Bartges Street. They allege that Det. Schmidt’s affidavit

didn’t show the probable cause necessary to justify the search warrant executed at 450 W. Bartges.

In support, they make three main sub-arguments: (1) There was no nexus between the house and

the controlled buy; (2) The CI’s allegations about the defendants were conclusory and

uncorroborated; and (3) The prior events connecting 450 W. Bartges to drugs were stale and

irrelevant.

         These arguments should look familiar. In United States v. Jones, the court considered and

rejected arguments materially indistinguishable from those the defendants raise here, finding that

the magistrate judge correctly employed a “totality-of-the-circumstances assessment of probable



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cause” and that “[t]he district court properly reviewed that determination and denied the motion to

suppress.” No. 18-3875, 2019 WL 3074712, at *3 (6th Cir. July 15, 2019).

        Because the Jones court discussed this very same issue, “its findings become the ‘law of

the case’ and are therefore binding.” United States v. Hughes, 505 F.3d 578, 591 (6th Cir. 2007)

(quoting United States v. Corrado, 227 F.3d 528, 533 (6th Cir. 2000)). We may not revisit “an

earlier appellate court’s decision . . . unless ‘substantially new evidence has been introduced, . . .

there has been an intervening change of law, or . . . the first decision was clearly erroneous and

enforcement of its command would work substantial injustice.’” Corrado, 227 F.3d at 533

(quoting Miles v. Kohli & Kaliher Assocs., Ltd., 917 F.2d 235, 241 n.7 (6th Cir. 1990)). Neither

Thompson nor Dortch has introduced substantially new evidence, argued that the law has changed,

or shown that the Jones decision was clearly erroneous. Therefore, none of these exceptions apply,

the Jones decision is the law of the case, and we are bound by its holding that that the district court

properly denied the motions to suppress.

   B.      Franks Hearing

        Dortch separately appeals the district court’s refusal to hold a Franks hearing, which we

review “under the same standard used to review the district court’s denial of a motion to suppress:

factual findings are reviewed for clear error and conclusions of law are reviewed de novo.” United

States v. Pirosko, 787 F.3d 358, 369 (6th Cir. 2015) (quoting United States v. Rose, 714 F.3d 362,

369–70 (6th Cir. 2013)) (internal quotation omitted). To be entitled to a Franks hearing a defendant

must: “1) make[] a substantial preliminary showing that the affiant knowingly and intentionally,

or with reckless disregard for the truth, included a false statement or material omission in the

affidavit; and 2) prove[] that the false statement or material omission is necessary to the probable




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cause finding in the affidavit.” Rose, 714 F.3d at 370 (citing Franks v. Delaware, 438 U.S. 154,

171–72 (1978)).

       Dortch argues that when Det. Schmidt’s affidavit identified Dortch as an “occupant” of

450 W. Bartges, it stated an “intentional or reckless falsehood” because Dortch did not reside at

450 W. Bartges. The district court determined that the description was not untrue, because the term

“occupant” is not synonymous with “resident”; the dictionary defines an occupant as “[one] that

resides in or uses a physical space.” Am. Heritage Dictionary of the English Language 1218 (5th

ed. 2016) (emphasis added by district court). Therefore, the court concluded, the affidavit did not

necessarily say that Dortch lived at 450 W. Bartges; it only said that he used the house. Because

Dortch did use the house on at least one occasion, the description was accurate. Though it did not

need to, the district court proceeded to the second Franks requirement and concluded that even if

the identification of Dortch as an occupant was intentionally misleading, it wasn’t necessary to the

magistrate’s assessment of probable cause. If the term “occupant” was erased from the affidavit,

it would still state sufficient evidence to support a finding of probable cause.

       Whether Det. Schmidt lied in the affidavit is a finding of fact that we review only for clear

error. Dortch argues that in the context of the affidavit, we should interpret “occupant” to mean

“resident” because Schmidt used “occupant” to describe Thompson, Jones, and Dortch. The

affidavit later called Thompson a resident—which he was—and therefore the affidavit used

“occupant” as a synonym for “resident.” But Dortch overlooks the possibility that Thompson could

be both an occupant and a resident, while Dortch was only an occupant. While Dortch’s

interpretation is reasonable, it is not required. The district court did not commit clear error by

concluding that Det. Schmidt only meant to convey that Dortch visited and used the house.




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Because the district court’s factual finding that the description was not false or misleading is not

clearly erroneous, we do not disturb it.

        We review the district court’s legal determination of what is necessary for a finding of

probable cause de novo. While the Jones court did not address the Franks issue directly, it did

address a related argument that because Dortch didn’t live at the house, there was no nexus

between the house and the controlled buy. And because there was no nexus, there was no probable

cause. Jones, No. 18-3875, 2019 WL 3074712, at *3. The court held that the issuing magistrate

could find probable cause for the warrant even though Dortch lived elsewhere. See id. We agree

with Jones and the district court that—regardless of Dortch’s home address—between the house’s

narcotics-related history, the controlled buy, and the CI’s tip, there was enough evidence to find

probable cause. Therefore, even if the description of Dortch as an occupant of 450 W. Bartges was

false or recklessly misleading, it wasn’t necessary, and Dortch wasn’t entitled to a Franks hearing.

   C.      Ineffective Assistance of Counsel

        Thompson also argues that the district court violated his Sixth Amendment right to the

effective assistance of counsel when it denied his motion for a continuance. In Thompson’s plea

agreement, he waived the right to appeal the district court’s denial of his motion for a continuance.

Though he didn’t waive his right to make a claim based purely on the ineffective assistance of

counsel, we will not review that claim here. Claims about the ineffective assistance of counsel are

“more properly raised in a post-conviction proceeding brought pursuant to 28 U.S.C. § 2255.”

United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006); United States v. King, 127 F.3d

483, 487 (6th Cir. 1997) (refusing to address a similar claim about the court denying the appellant

the effective assistance of counsel). Though the court has reviewed ineffective assistance of

counsel claims when “the record is adequate to assess their merits,” we are not convinced that the



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record is adequate here. United States v. Williams, 753 F.3d 626, 636 (6th Cir. 2014) (quoting

United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990) (internal quotations omitted)).

                                     III. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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