                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0039n.06

                                               No. 14-5804

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
UNITED STATES OF AMERICA,                                )                    Jan 13, 2015
                                                         )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )   ON APPEAL FROM THE UNITED
v.                                                       )   STATES DISTRICT COURT FOR
                                                         )   THE WESTERN DISTRICT OF
FRED MASTERS, JR.,                                       )   TENNESSEE
                                                         )
       Defendant-Appellant.                              )




       BEFORE: GIBBONS and COOK, Circuit Judges; GWIN, District Judge.


       PER CURIAM. Fred Masters, Jr., following his conditional guilty plea to possession of

materials to manufacture methamphetamine, appeals the district court’s denial of his motion to

suppress. We affirm.

       On March 3, 2012, Investigator Brent Chunn of the Tipton County Sheriff’s Office

applied for a warrant to search Sharon Hebert and her residence. In his affidavit in support of the

search warrant, Investigator Chunn asserted that there was probable cause to believe that Hebert

was in possession of “methamphetamine and/or components of a methamphetamine lab, and any

receipts or documents pertaining to the purchase of pseudoephedrine.” Investigator Chunn set

forth the following reasons for this belief:



       
         The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 14-5804
United States v. Masters

       Investigator Brent Chunn identified Sharon Hebert as purchasing a very large
       amount of pseudoephedrine pills, through the use of the Tennessee
       Methamphetamine Task Force website database. This database is an investigative
       tool to monitor all purchases and attempted purchases of pseudoephedrine. It also
       tracks any blocked purchases which means any purchases of over 9.0 grams of
       pseudoephedrine within a thirty day period. Pseudoephedrine is the main
       precursor to the manufacturing of methamphetamines. Sharon Hebert has
       purchased pseudoephedrine pills from at least 2 different counties to include
       different pharmacies in Shelby County, TN and Tipton County, TN. Through my
       training and experience of locating, arresting and interviewing methamphetamine
       cooks, Investigator Brent Chunn knows this to be consistent practices of a
       methamphetamine cooks and/or smurfers (persons that shop for materials used to
       manufacture methamphetamine). Since 03/12/2011 to this date, Sharon Hebert
       has purchased @43.68 grams of pseudoephedrine pills from 2 different counties,
       including Shelby County, TN and Tipton County TN.

       ....

       Sharon Hebert has been arrested for Felony Possession of Schedule II (Meth) with
       Intent and Felony Possession of Schedule II. Fred Masters, JR who is Sharon
       Hebert husband, also resides at the residence and has also been arrested for
       Initiation of Methamphetamine, Felony Possession of Schedule II (Meth) with
       Intent.

       Based on Investigator Chunn’s affidavit, a chancellor issued the warrant.            When

Investigator Chunn and other deputies arrived at the residence to execute the warrant, Masters

fled on foot but was later apprehended. Hebert was arrested at the scene. During their search of

the residence, the deputies found nine Sudafed tablets, a pill bottle with a white powdery

substance, coffee filters, four lithium batteries, three pipes, a glass vial with a white powdery

substance, five white tablets, a gas generator, and Coleman fuel.

       A      federal   grand   jury   subsequently   charged       Masters   with   manufacturing

methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count 1), maintaining a place for the

manufacture of methamphetamine in violation of 21 U.S.C. § 856 (Count 2), and possessing

materials to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 843(a)(6)

(Count 3).     Masters filed a motion to suppress the evidence seized during the search. A


                                               -2-
No. 14-5804
United States v. Masters

magistrate judge recommended that Masters’s motion be denied. Over Masters’s objections, the

district court adopted the magistrate judge’s recommendation and denied the motion. Pursuant to

a written plea agreement, Masters entered a conditional guilty plea to Count 3, reserving his right

to appeal the denial of his motion to suppress.        The district court sentenced Masters to

120 months of imprisonment followed by three years of supervised release.

       In this timely appeal, Masters asserts that the district court erred in denying his motion to

suppress because the affidavit underlying the search warrant lacked probable cause, was

otherwise stale, and the good-faith exception did not apply. In reviewing the denial of Masters’s

motion to suppress, we review the district court’s factual findings for clear error and its legal

conclusions—including whether the affidavit provided probable cause—de novo. See United

States v. Brown, 732 F.3d 569, 572 (6th Cir.), cert. denied, 134 S. Ct. 539 (2013).

       Under the Fourth Amendment, “no Warrants shall issue, but upon probable cause.” U.S.

Const. amend. IV. “To find probable cause, a judge issuing a search warrant must have a

substantial basis for thinking that there is a fair probability that evidence of a crime would be

found at the premises.” United States v. Rose, 714 F.3d 362, 366 (6th Cir.), cert. denied, 134 S.

Ct. 272 (2013). We give great deference to the issuing judge’s probable cause determination. Id.

       In his affidavit, Investigator Chunn asserted that, “[s]ince 03/12/2011 to [03/03/2012],

Sharon Hebert has purchased @43.68 grams of pseudoephedrine pills from 2 different counties,

including Shelby County, TN and Tipton County TN.” While Investigator Chunn characterized

Hebert’s purchases as “a very large amount of pseudoephedrine pills,” this amount of

pseudoephedrine was well within the legal limits—less than half the amount allowed over the

course of a year under the version of the statute then in effect. See Tenn. Code Ann. § 39-17-

431(c)(2) (2012) (“A person shall not purchase products containing more than nine grams per


                                               -3-
No. 14-5804
United States v. Masters

thirty-day period [] of . . . pseudoephedrine base or [its] salts, isomers, or salts of isomers.”). But

“probable cause requires only a probability or substantial chance of criminal activity, not an

actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983). Investigator

Chunn also stated that Hebert purchased pseudoephedrine pills from various pharmacies in at

least two different counties, which, pursuant to his experience and training, was consistent with

the practices of methamphetamine cooks and “smurfers.”

       According to the affidavit, moreover, Hebert and Masters had both been arrested for

felony possession of methamphetamine with intent to manufacture, deliver, or sell. Masters had

also been arrested for initiating a process to manufacture methamphetamine. See United States v.

Dyer, 580 F.3d 386, 392 (6th Cir. 2009) (“Although a defendant’s criminal history is not

dispositive, it is relevant to the probable cause inquiry.” (internal citation omitted)). Combined

with Hebert’s suspicious purchasing activity, Hebert and Masters’s prior arrests for similar

offenses raised a reasonable suspicion that the pair were engaged in drug trafficking, from which

the issuing judge could reasonably infer that Hebert and Masters used their residence to

manufacture or store either methamphetamine or materials for manufacturing methamphetamine.

See United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008) (“[W]e have held that an issuing

judge may infer that drug traffickers use their homes to store drugs and otherwise further their

drug trafficking.”). Considering the totality of the circumstances and giving deference to the

issuing judge, we conclude that probable cause supported the search warrant.

       Masters contends that Investigator Chunn’s affidavit lacked any temporal reference,

rendering the information stale. The affidavit did provide a temporal reference: Hebert’s

purchases were made between March 12, 2011, and March 3, 2012. “The staleness inquiry

depends on the ‘inherent nature of the crime.’” United States v. Frechette, 583 F.3d 374, 378


                                                 -4-
No. 14-5804
United States v. Masters

(6th Cir. 2009) (quoting United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)).

Manufacturing methamphetamine is a crime of a regenerating and ongoing nature. See United

States v. Redmond, 475 F. App’x 603, 608-09 (6th Cir. 2012); Spikes, 158 F.3d at 923-24.

Hebert and Masters’s arrest records indicated that their involvement in manufacturing

methamphetamine was not an isolated incident, components of a methamphetamine lab have

continuing utility, Hebert’s suspicious purchasing activity continued over the course of a year,

and the residence provided a secure operational base. Accordingly, the information contained in

the affidavit was not stale. The district court properly denied Masters’s motion to suppress.

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




                                               -5-
