                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0626n.06

                                          No. 16-3233

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                   FILED
                                                                                Nov 09, 2017
UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )      ON APPEAL FROM THE
v.                                                      )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE
FRANCISCO RODRIGUEZ,                                    )      NORTHERN DISTRICT OF
                                                        )      OHIO
       Defendant-Appellant.                             )
                                                        )



BEFORE:       BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.

       BOGGS, Circuit Judge. Francisco Rodriguez was convicted of conspiracy to distribute

and possess with intent to distribute cocaine and marijuana, and possession of 14.5 kilograms of

cocaine. He now appeals the district court’s denial of his motion to suppress evidence seized

during two searches of his residence. The evidence included approximately $19,000 in cash and

14.5 kilograms of cocaine. We affirm.

                                                I.

       Rodriguez entered a conditional guilty plea to conspiracy to distribute and possess with

intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

(b)(1)(B), and 846, and possession of 14.5 kilograms of cocaine, in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(A), which was seized in a search of his residence. Twenty-seven co-

defendants were also charged for their roles in the trafficking conspiracy. As a condition of his
No. 16-3233, United States v. Rodriguez


guilty plea, Rodriguez reserved his right to appeal the district court’s denial of his motion to

suppress the seized evidence.

       Both searches were conducted pursuant to search warrants, based on affidavits submitted

by DEA Agent Mark Apple. The 2009 search warrant was issued by a United States magistrate

judge, and the 2011 warrant was issued by an Ohio state court judge. Rodriguez argues that the

search-warrant affidavits were fatally deficient because there was an insufficient nexus between

evidence of drug trafficking and Rodriguez’s residence, and because the information in the

affidavits was stale.

                                                 II.

       Whether a search warrant affidavit establishes probable cause to conduct a search is a

legal question that this court reviews de novo. United States v. Frazier, 423 F.3d 526, 531 (6th

Cir. 2005). However, the court must give the determination of the issuing magistrate “great

deference.” United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc). On appeal of a

district court’s decision on a motion to suppress, the court must view the evidence “in a light

most likely to support the decision of the district court,” Frazier, 423 F.3d at 531 (citing United

States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001)), but “[w]hen the district court itself is a

reviewing court . . . this court owes the district court’s conclusions no particular deference.”

United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996).

       The Fourth Amendment provides that “no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV. Probable cause requires a “fair

probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238 (1983). The affidavit supporting the search warrant must demonstrate



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a specific and concrete nexus between the evidence sought and the place to be searched. United

States v. Carpenter, 360 F.3d 591, 594–95 (6th Cir. 2004) (en banc). The court uses a totality-

of-the-circumstances test to determine whether the affidavit establishes a proper nexus. Gates,

462 U.S. at 238.

                                               A.

       Viewed in the totality of the circumstances, both affidavits provided probable cause to

justify the issuance of search warrants for Rodriguez’s residence. Agent Apple’s 2009 affidavit

states that Rodriguez’s co-conspirator Moises Razo repeatedly boasted about having a supplier

with “a lot” of cocaine and that Razo’s movements pre- and post-drug sale were consistently

linked to Rodriguez’s residence. After controlled buys between a confidential informant (“CI”)

and Razo on November 20 and December 2, 2008, surveillance showed Razo driving his vehicle

to Rodriguez’s home. The affidavit also discussed a failed attempt to purchase cocaine from

Razo, which strongly suggested that Rodriguez’s home was the source of Razo’s cocaine. On

December 16, 2008, the CI contacted Razo about purchasing cocaine. Razo then traveled to

Rodriguez’s home, but returned to the CI without any cocaine. Razo reported that his source of

supply was out of town. That same day, the Agent conducted surveillance on Rodriguez’s home

and did not see any activity, indicating that Rodriguez may have been out of town. Finally, on

January 27, 2009, the CI contacted Razo about purchasing cocaine. At the time, Razo’s vehicle

was parked at Rodriguez’s home. Razo left Rodriguez’s home to meet the CI and completed the

purchase of cocaine. Razo then returned to Rodriguez’s home.

       The 2011 affidavit reiterated much of the information from the 2009 affidavit, but also

added information about new drug sales that had occurred just days before the issuance of the

second warrant, in January 2011.      Surveillance showed that Rodriguez was at his home



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immediately prior to a meeting in which cocaine was present. The CI noted that the cocaine at

the meeting appeared to have been “frozen,” and surveillance of Rodriguez’s property revealed

that he owned storage buildings and sheds at the back of the property, which Agent Apple

believed may have been used to store the cocaine in the January winter.

       Rodriguez concedes that there is a “torrent of evidence linking Moise[s] Razo and his

residence with evidence of drug trafficking,” Appellant Br. 17, but cites this court’s opinion in

United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016), to argue that there was too little nexus

between Razo’s drug activity and Rodriguez’s residence. This case is distinguishable from

Brown. Razo’s boasts about having a supplier with significant amounts of cocaine, coupled with

Razo’s consistent presence at Rodriguez’s residence directly before and after numerous cocaine

sales, provided the nexus to establish a “fair probability” that evidence pertaining to the drug

trafficking would be found at Rodriguez’s home. Gates, 462 U.S. at 238.

                                                 B.

       Rodriguez also relies on United States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006), to

argue that the information in the two affidavits was stale. We have noted that if information

contained in the affidavit is stale or outdated, it decreases the likelihood that a sufficient nexus

exists. Id. at 486. But we also noted that “[t]he passage of time becomes less significant when

the crime at issue is ongoing or continuous and the place to be searched is a secure operational

base for the crime.” Id. at 485. Even where an affidavit includes outdated information, “[t]he

inclusion of outdated information has been insufficient to render an entire affidavit stale when

the affidavit as a whole establishes that the criminal activity in question is ongoing and

continuous, or closer to the ‘drug den’ end of the continuum.” Id.




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No. 16-3233, United States v. Rodriguez


       Critically, the information in the Hython affidavit did not indicate that there was ongoing

drug activity in the residence. Id. at 486. Here, the affidavits made clear that the investigation of

Rodriguez had lasted for several months (by the time of the 2009 affidavit), and three years (by

the time of the 2011 affidavit). The affidavits describe a pattern of recent drug-trafficking

activity, suggesting that Rodriguez’s home was used as a distribution point.

                                                  III.

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




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