               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0353n.06

                                         No. 17-5865

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                 FILED
                                                                                Jul 16, 2018
                                                                           DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                      )
                                                )
         Plaintiff-Appellee,                    )         ON APPEAL FROM THE
                                                )         UNITED STATES DISTRICT
 v.                                             )         COURT FOR THE WESTERN
                                                )         DISTRICT OF KENTUCKY
 DANNY NEAL STOKES,                             )
                                                )
                                                                  OPINION
         Defendant-Appellant.                   )
                                                )


Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Danny Stokes asks

this court to reverse the district court’s denial of his motion to suppress methamphetamine and

cash discovered in his truck following a traffic stop motivated by a known informant’s tip.

Because we conclude that there was probable cause to search the truck, we AFFIRM.

                                     I. BACKGROUND

       The roots of Danny Stokes’s arrest lie two months earlier, in the May 15, 2015, arrest of

his eventual co-defendant Howell Dean O’Bryan. R. 13 (Indictment at 1) (Page ID #55). O’Bryan,

arrested with a pound of methamphetamine and three guns, agreed to cooperate with police and

thus began trying to arrange to resell the drugs. R. 54 (Suppression Hr’g Tr. at 4–6) (Page ID

#177–79). He was successful: a third future co-defendant, Jordan Dale Wallace, arranged to meet

him to buy the pound of methamphetamine. Id. at 6–7 (Page ID #179–80). Wallace was

subsequently arrested. See id.
No. 17-5865
United States v. Danny Stokes


       The officers responsible for Stokes’s arrest knew all this late at night on July 25, 2015,

when O’Bryan got back in touch. Id. at 7–8 (Page ID #180–81). This time, O’Bryan told them

that he had seen Stokes at Kentucky Downs (a horse track) with six ounces of methamphetamine

and over $100,000. Id. at 7–8, 51 (Page ID #180–81, 224). O’Bryan also apparently said that

Stokes was driving a blue Ford pickup truck. Id. at 41 (Page ID #214); Appellant’s Br. at 13;

Reply Br. at 4–5. The officer who received this call shared the information with the rest of the

team, R. 54 (Suppression Hr’g Tr. at 7–8, 51) (Page ID #180–81, 224), and officers then watched

Stokes as he left the racetrack in his blue Ford pickup, stopped at a Denny’s restaurant, and

continued on Kentucky 100 between Franklin and Russellville, id. at 8–10, 13 (Page ID #181–83,

186). But they did not want to stop Stokes outright and tell him why they suspected he had drugs

with him, because that would compromise O’Bryan’s assistance. Id. at 11, 29 (Page ID #184,

202). Instead, they waited until Stokes drifted over the white fog line on the side of the road and

pulled him over on that pretext. Id. at 10–12, 39 (Page ID #183–85, 212).

       The two officers who pulled Stokes over approached his vehicle, and one of them—Officer

Duvall—began to conduct an ordinary late-night traffic stop, with all the usual questions and

verifications. Id. at 14–15 (Page ID #187–88). The traffic stop itself, however, turned up no

evidence of criminal activity. Id. at 32 (Page ID #205). So at the end of these routine checks,

Office Duvall simply issued Stokes a “courtesy notice.” Video at 10:35–10:40.

       Though that was the end of any traffic-related investigation, it was not the end of Stokes’s

night. The other officer with Officer Duvall, Deputy Hargett, was a trained K-9 officer who had



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United States v. Danny Stokes


brought his drug-sniffing dog, Gunner, with him. R. 54 (Suppression Hr’g Tr. at 14, 43) (Page ID

#187, 216). Gunner had remained inside the police vehicle while Officer Duvall conducted the

routine traffic stop. Id. But after Office Duvall handed Stokes the courtesy notice, the two officers

began to investigate for drugs more directly. First, Officer Duvall asked Stokes if it would “be

OK” if they searched the truck. Video at 11:05–11:10. Stokes said no. Id. Then, believing that

they nevertheless had grounds to continue detaining Stokes, Officer Duvall asked Stokes to exit

the truck, and Deputy Hargett deployed Gunner. R. 54 (Suppression Hr’g Tr. at 11, 15–16, 29,

35–36) (Page ID #184, 188–89, 202, 208–09). Gunner then indicated the presence of drugs, and

Deputy Hargett ventured inside the vehicle (still without Stokes’s consent) to investigate further.

Id. at 39 (Page ID #212); Video at 14:00–14:30, 15:30–18:30. Deputy Hargett discovered roughly

six ounces of methamphetamine and $184,000 in cash. R. 54 (Suppression Hr’g Tr. at 16–17)

(Page ID #189–90).

       Stokes moved in the district court to suppress the evidence that the officers found, arguing

that it was obtained through a seizure and search that “was warrantless, not consensual, and not

made with probable cause.” R. 41 (Mot. to Suppress at 1) (Page ID #131). The Government did

not dispute the first two of those three claims, but it argued that the officers had probable cause

stemming from O’Bryan’s tip. R. 68 (Gov’t’s Post-Hr’g Br. at 13) (Page ID #271). Magistrate

Judge Brennenstuhl agreed with the Government, R. 70 (Findings of Fact, Conclusions of Law

and Recommendation at 19) (Page ID #293), and Judge Stivers adopted Judge Brennenstuhl’s




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United States v. Danny Stokes


findings, conclusions, and recommendation in full, R. 78 (Dist. Ct. Op. & Order at 5) (Page ID

#342).1 Stokes now appeals.

                                        II. DISCUSSION

       As all seem to agree, see Appellee’s Br. at 9; Reply Br. at 3, this case hinges on whether

(1) O’Bryan’s tip and (2) the police officers’ subsequent corroboration of its details provided

probable cause to search Stokes’s truck.2 For the reasons that follow, we conclude that there was

probable cause and thus AFFIRM.



       1
         One other piece of this story is worth noting briefly: At Stokes’s suppression hearing, the
Government called only one witness—Officer Duvall—who repeatedly disclaimed any ability to
speak to Gunner’s drug-detecting qualifications. R. 54 (Suppression Hr’g Tr. at 37) (Page ID
#210) (“I can’t testify to the dog’s training or actions.”); id. (“I don’t know how they are trained.
I can’t answer that question.”); id. at 39 (Page ID #212) (“I’m not the K-9 handler. You would
have to speak to Deputy Hargett as to his training and experience in how his K-9 is trained.”).
Judge Brennenstuhl accordingly found that the Government “was on notice that it would have to
support” Gunner’s qualifications from Stokes’s motion, that “[i]t failed to do so,” and that the
Government had therefore “failed to demonstrate that the alert from Gunner constituted probable
cause for the vehicle search.”). R. 70 (Findings of Fact, Conclusions of Law and Recommendation
at 16) (Page ID #290). Judge Stivers adopted that finding as well, and he overruled the
Government’s request to supplement the record with evidence of Gunner’s reliability and training.
R. 78 (Dist. Ct. Op. & Order at 4–5 & n.1) (Page ID #341–42).
       2
        That is because, if the tip did not provide probable cause, the Government would have to
rely on Gunner’s findings to justify the search. The Government does not entirely abandon this
argument, see Appellee’s Br. at 18–22, but it is not a winnable one. If the tip offered less than
reasonable suspicion, then the officers had no lawful authority to extend the traffic stop beyond its
normal scope in order to deploy Gunner. See Rodriguez v. United States, 135 S. Ct. 1609, 1612
(2015). And if the tip offered reasonable suspicion but less than probable cause, the Government
would still have to show why the district court clearly erred in finding that Gunner’s reliability
was unestablished. See United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994); R. 78 (Dist. Ct.
Op. & Order at 4–5 & n.1) (Page ID #341–42). Given Officer Duvall’s repeated attestations that
he could not speak to Gunner’s credentials (raising the question why the Government did not call
Deputy Hargett, even if a continuance was necessary), R. 54 (Suppression Hr’g Tr. at 37, 39) (Page

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United States v. Danny Stokes


A. Standard of Review

       “In an appeal of the denial of a motion to suppress, we review a district court’s factual

findings for clear error and its legal determinations de novo.” United States v. Dyer, 580 F.3d 386,

390 (6th Cir. 2009). The existence of probable cause qualifies under this rubric as a legal

determination. Id. “Where, as here, the district court has denied a motion to suppress, we review

the evidence in a light most favorable to the Government.” United States v. Akridge, 346 F.3d

618, 622–23 (6th Cir. 2003).

B. Governing Law

       The Fourth Amendment protects against “unreasonable searches and seizures.” U.S.

CONST. amend IV. Although this traditionally means that police must obtain a warrant in order to

conduct a search, “[u]nder the automobile exception to the warrant requirement, law enforcement

officers may search a readily mobile vehicle without a warrant if they have probable cause to

believe that the vehicle contains evidence of a crime.” United States v. Lumpkin, 159 F.3d 983,

986 (6th Cir. 1998). In other words, “[a]n automobile search is not ‘unreasonable if based on facts

that would justify the issuance of a warrant, even though a warrant has not actually been

obtained.’” United States v. Arnold, 442 F. App’x 207, 210 (6th Cir. 2011) (quoting United States

v. Ross, 456 U.S. 798, 809 (1982)).




ID #210, 212), it is hard to see how we could be “left with the definite and firm conviction that”
the district court blundered, see United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).


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United States v. Danny Stokes


       “Probable cause exists when there is a ‘fair probability that contraband or evidence of a

crime will be found in a particular place.’” Lumpkin, 159 F.3d at 986 (quoting Smith v. Thornburg,

136 F.3d 1070, 1074 (6th Cir. 1998)). It “is a fluid concept—turning on the assessment of

probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of

legal rules.” Illinois v. Gates, 462 U.S. 230, 232 (1983). We assess the existence of probable

cause through a totality-of-the-circumstances analysis. See id. at 233; Lumpkin, 159 F.3d at 987.

       “Probable cause may come from a confidential informant’s tip, when sufficiently detailed

and corroborated by the independent investigation of law enforcement officers.” Lumpkin, 159

F.3d at 986. The Supreme Court’s guidance regarding the fluidity of probable cause is especially

apt in this context, given that “[i]nformants’ tips . . . come in many shapes and sizes from many

different types of persons.” See Gates, 462 U.S. at 232. In analyzing the totality of the

circumstances in this context, we therefore recognize that “a deficiency in one [relevant

consideration] may be compensated for, in determining the overall reliability of a tip, by a strong

showing as to the other, or by some other indicia of reliability.” Id. at 233. We have also conceived

of this exercise as involving a “sliding scale” that runs between less reliable tips (such as those

come from anonymous sources) and more reliable tips (such as those that come “from known or

reliable informants”). United States v. Williams, 483 F. App’x 21, 25 (6th Cir. 2012).

C. Probable Cause to Search Stokes’s Truck

       Here, the totality of the circumstances reveals enough to get the Government over the goal

line, though perhaps not with a lot of breathing room. First, O’Bryan was a known informant.



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United States v. Danny Stokes


That means that O’Bryan “would [have been] subject to prosecution for making a false report,”

and thus that his statements are “entitled to far greater weight than those of an anonymous source.”

United States v. May, 399 F.3d 817, 824–25 (6th Cir. 2005); see also, e.g., Florida v. J.L., 529

U.S. 266, 270 (2000) (“Unlike a tip from a known informant whose reputation can be assessed and

who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone

seldom demonstrates the informant’s basis of knowledge or veracity.” (citations and quotation

marks omitted)). That is one factor in the Government’s favor—and a major distinction between

this case and cases like J.L. (which Stokes cites, see Appellant’s Br. at 12; Reply Br. at 4) that

instead featured anonymous tips.

        Second, O’Bryan had been reliable before. Cf., e.g., United States v. Martin, 526 F.3d 926,

937 (6th Cir. 2008) (affidavit’s statement “that the confidential informant in the present case is a

known person who . . . previously provided information that resulted in seizure of illegal controlled

substances . . . is sufficient to establish the informant’s reliability”); May, 399 F.3d at 824 (finding

reliability where informant had “furnished information . . . for a period of six months” and “ha[d]

provided assistance in unrelated drug investigation cases” (quoting affidavit)). Here, as Stokes

points out, O’Bryan’s track record was not lengthy: it was limited to arranging the buy with

Wallace two months prior. But as Stokes concedes, our cases disclose “no minimum number of

times that an informant must cooperate before his tips can be credited.” Reply Br. at 3. And

indeed, our cases suggest that while more is certainly better than less, see, e.g., United States v.

Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc) (assistance over five years); United States v.



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United States v. Danny Stokes


Helton, 314 F.3d 812, 821 (6th Cir. 2003) (assistance leading to “three searches and sixteen

arrests”), the probative difference between zero and one is more significant than the probative

difference between, say, five and six. Compare Martin, 526 F.3d at 937 (finding reliability where

affidavit offered only general statement regarding known informant’s past assistance); United

States v. Moore, 661 F.3d 309, 313 (6th Cir. 2011) (finding reliability where “CI had given

information in the past that had led to two drug seizures”), with United States v. Neal, 577 F. App’x

434, 444 (6th Cir. 2014) (finding lack of reliability in the case of a previously untested informant);

United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (finding lack of reliability in the

absence of any indication that anonymous informants had provided reliable information before);

United States v. Hammond, 351 F.3d 765, 772 (6th Cir. 2003) (finding lack of reliability in the

absence of any indication that named informant had provided reliable information before). In

short, O’Bryan’s previous assistance counts in the Government’s favor in the totality of the

circumstances—not as much, of course, as if he had provided five years of reliable tips, see, e.g.,

Allen, 211 F.3d at 976, but appreciably more than if he had been entirely untested.

       Third, O’Bryan reported personally seeing the methamphetamine (and money) in Stokes’s

possession. Compare, e.g., Moore, 661 F.3d at 312–13 (collecting cases demonstrating probative

value of informant’s having seen defendant with contraband); Dyer, 580 F.3d at 391 (“Here, the

affidavit asserted that the informant witnessed a drug transaction in the basement of the place to

be searched, noted that there was a pool table in the room, stated the exact amount of cash and

methamphetamine exchanged, and observed that a large quantity of methamphetamine remained



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United States v. Danny Stokes


after the sale.”), with Frazier, 423 F.3d at 532 (“What is more, [none of the informants] witnessed

Frazier dealing drugs from . . . the premises specified in the search warrant.”). And while

O’Bryan’s specificity regarding the amount of drugs and currency does not add a tremendous

amount of weight, see Neal, 577 F. App’x at 443 (“By relying primarily on the level of detail

provided in statements to assess their reliability, courts are apt to mistake the best storytellers for

the most truthful informants.”), we nevertheless note that it provided marginally more reliability

than a vague report of criminality or contraband, see, e.g., Hammond, 351 F.3d at 773; United

States v. Weaver, 99 F.3d 1372, 1378 & n.4 (6th Cir. 1996).

       Fourth, the police did corroborate the information that O’Bryan supplied: that Stokes was

at Kentucky Downs in a blue Ford pickup at a particular time. Make no mistake, these were

relatively easy to know (and innocuous) facts, and the simple fact that police were able to

corroborate them does not itself establish probable cause under our precedents.             See, e.g.,

Hammond, 351 F.3d at 773.           But as already discussed, the point of our totality-of-the-

circumstances analysis is that strengths can balance weaknesses, see Gates, 462 U.S. at 233, and

therefore “substantial independent police corroboration” is not necessary when other hallmarks of

reliability exist to a sufficient degree, see Dyer, 580 F.3d at 392; Frazier, 423 F.3d at 532; see also

Allen, 211 F.3d at 976. Here, the details that O’Bryan provided and the officers’ corroboration of

those details help to get the Government to the permissible side of the probable-cause divide, even

though the value of this input, standing alone, is low.




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No. 17-5865
United States v. Danny Stokes


                                      III. CONCLUSION

       Undoubtedly, an even more reliable tip would make this case easier. But we review

probable-cause cases as we find them, using a realistic, holistic approach. Because the police had

probable cause to search Stokes’s truck, we AFFIRM.




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