                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0053n.06

                                            No. 12-4482                                    FILED
                                                                                     Jan 21, 2014
                           UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
               v.                                       )   ON APPEAL FROM THE UNITED
                                                        )   STATES DISTRICT COURT FOR
TORIANO GOODWIN,                                        )   THE NORTHERN DISTRICT OF
                                                        )   OHIO
       Defendant-Appellant.                             )
                                                        )


BEFORE: CLAY, ROGERS, Circuit Judges, and LUDINGTON, District Judge.*

       LUDINGTON, District Judge. Appellant Toriano Goodwin pleaded guilty to being a felon

in possession of a firearm and possessing an unregistered machine gun. Before pleading guilty,

Goodwin moved to suppress the machine gun recovered from his residence on the grounds that the

underlying search warrant was invalid. The district court denied the motion, and Goodwin appeals

that decision. For the following reasons, the district court’s decision denying the motion to suppress

is AFFIRMED.

                                                  I

       On January 18, 2012, a federal grand jury indicted Goodwin on charges of (1) being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2) possession of an unregistered

machine gun in violation of 26 U.S.C. § 5861(d).




       *
        The Honorable Thomas L. Ludington, Eastern District of Michigan, sitting by designation.
No. 12-4482
United States of America v. Toriano Goodwin

       On June 20, 2012, Goodwin filed a motion to suppress evidence recovered from his

residence, which the district court denied. Goodwin then pleaded guilty to both charges pursuant

to a conditional plea agreement under Federal Rule of Criminal Procedure 11(a)(2), reserving his

right to appeal the district court’s decision denying his motion to suppress.

                                                 A

       On December 16, 2011, a United States magistrate judge issued a warrant to search

Goodwin’s residence. The application for the warrant and the supporting affidavit were prepared

by Special Agent Matthew J. Hartnett of the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”), who was investigating the theft of several firearms.

       Agent Hartnett’s investigation focused on recovering a machine gun stolen from the home

of Charles Moesher. The machine gun, a Ruger model ACC556, was one of the fifteen stolen

firearms. On September 28, 2011, the Ohio State Police stopped Richard J. McCormick, Moesher’s

stepson, and discovered that McCormick was in possession of one of Moesher’s stolen firearms.

Following the traffic stop, ATF agents began investigating McCormick’s involvement in the theft

of Moesher’s guns.

       On October 15, 2011, Agent Hartnett interviewed Brian White, a self-described friend of

McCormick, about McCormick’s attempts to sell a machine gun. White stated that on September

3, 2011, McCormick e-mailed him photographs of a Ruger machine gun and said that it was

available for $1,500.00. According to White, McCormick stressed the rarity and value of the

machine gun: he stated that the machine gun was worth between $9,000 and $12,000, that it was

illegal to buy a machine gun in Ohio, and that an owner needed a Class 3 license to possess such a

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gun. When White rejected the offer, McCormick asked if he knew of anyone who would be

interested in buying the “cheap as hell” machine gun. Hartnett Aff. ¶ 2.

       On October 31, 2011, the Lorain Police Department conducted a controlled buy of heroin

from Kevin Watson. During the controlled buy, Watson stated that “he got all of his guns from

McCormick and had gotten rid of them already.” Id. ¶ 3.

       About six weeks later, on December 15, 2011, Agent Hartnett interviewed Watson about his

contact with McCormick. Watson stated that he had brokered the sale of a machine gun from

McCormick to Toriano Goodwin. Corroborating McCormick’s earlier statement to White that he

was going to sell the machine gun for “cheap as hell,” Watson explained that Goodwin had

exchanged $500 and some cocaine for the machine gun. After completing the deal, Goodwin stated

that he “intended to keep the Ruger machine gun and did not want to get rid of it because it was so

unique.” Id. ¶ 4.

       Based on his training and personal experience, Agent Hartnett knew that “machine guns, due

to their inherent value and scarcity, are well maintained by their possessors in their homes, often in

secured locations in their homes.” Id. ¶ 6. Agent Hartnett verified Goodwin’s address using the

Ohio Motor Vehicle records, which indicated that Goodwin had listed 4739 Oakhill Boulevard as

his residence on November 29, 2011.

       After reciting the details of the investigation, Agent Hartnett asserted in his affidavit that he

had probable cause to believe that Goodwin was in possession of an unregistered machine gun. The

search warrant described a single item to be searched for, the Ruger machine gun, and described

Goodwin’s residence as the place to be searched. The magistrate judge signed the warrant on

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December 16, 2011.

                                                  B

       On June 20, 2012, Goodwin filed a motion to suppress challenging the validity of the search

warrant and seeking an evidentiary hearing. The motion focused on the sufficiency of the search

warrant: Goodwin argued that the affidavit (1) was based on stale information; (2) provided

insufficient evidence of the nexus between the machine gun and his residence; and (3) provided

insufficient evidence of the reliability of Watson’s statement.

       The district court denied Goodwin’s motion to suppress and canceled the evidentiary hearing.

The district court concluded that, taking into account the totality of the circumstances, the search

warrant was supported by probable cause. Furthermore, because Goodwin did not contest any of

the factual information presented in the parties’ briefs, the district court concluded that an

evidentiary hearing was not warranted.

                                                 II

       “When reviewing the denial of a motion to suppress evidence, this Court reviews the district

court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Gunter,

551 F.3d 472, 479 (6th Cir. 2009) (citing United States v. Foster, 376 F.3d 577, 585 (6th Cir. 2004)).

“Whether a search and seizure was reasonable under the Fourth Amendment is a question of law.”

Id. (citing United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003)). Because the district court

denied Goodwin’s motion to suppress, “we review all evidence in the light most favorable to the

government.” Id.




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                                                   A

       The probable cause requirement for a search warrant “is concerned with facts relating to a

presently existing condition.” United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (internal

quotation marks omitted). Thus, “the critical question is whether the information contained in the

affidavit, when presented to the judge, established that there was a fair probability that evidence

would still be found at the location of the search.” United States v. Abboud, 438 F.3d 554, 572 (6th

Cir. 2006) (internal alterations and quotation marks omitted).

       The staleness inquiry is tailored to the specific circumstances in each case. Id. (citing Spikes,

158 F.3d at 923). “[T]he length of time between the events listed in the affidavit and the application

for the warrant, while clearly salient, is not controlling.” Id. “[E]ven if a substantial amount of time

has elapsed between a defendant’s last reported criminal activity and the issuance of the warrant,

it is possible that the warrant is not stale.” Id. (internal quotation marks omitted). The test is

flexible, taking account of four factors:

       1.      the character of the crime (chance encounter in the night or regenerating
               conspiracy?)

       2.       the criminal (nomadic or entrenched?)

       3.      the thing to be seized (perishable and easily transferable or of enduring utility
               to its holder?)

       4.      the place to be searched (mere criminal forum of convenience or secure
               operational base?).

Id. At 572-73 (internal quotation marks omitted).




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         Goodwin argues that the affidavit’s information was stale because five months elapsed

between the time the machine gun was stolen from Moesher’s home in August and the time the

machine gun was found in Goodwin’s residence in December.1 But “[e]vidence of ongoing criminal

activity will generally defeat a claim of staleness.” United States v. Greene, 250 F.3d 471, 481 (6th

Cir. 2001).

         The first factor to be considered is the character of the crime. The illegal firearm possession

alleged in the affidavit is not a one-time occurrence but rather a continuous and ongoing offense.

“Possession is a course of conduct, not an act; by prohibiting possession Congress intended to

punish as one offense all of the acts of dominion which demonstrate a continuing possessory interest

in a firearm.” United States v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976). Possession of a firearm

is a continuing offense that ceases only when the felon relinquishes possession. United States v.

Newman, No. 96-1983, 1998 WL 30821, at *2 (6th Cir. Jan. 21, 1998).

         This Court has previously held that the continuous nature of the crime of illegal firearm

possession affects the staleness inquiry. For example, in United States v. Pritchett, a magistrate

judge issued a warrant more than four months after the witness claimed to have last seen the

defendant in possession of firearms. 40 F. App’x 901, 905–06 (6th Cir. 2002). We concluded that


1
 Even setting aside Goodwin’s erroneous calculation that five months separate August and December, Goodwin ignores
the district court’s finding that the search warrant covered only three months. The district court determined that the
search warrant covered the time period between September 3, 2011 (the date McCormick e-mailed Brian White) and
December 15, 2011 (the date Watson admitted to brokering the gun exchange). This determination took into account
the typographical error contained in the affidavit. The district court noted that the original search warrant affidavit
erroneously stated that law enforcement stopped McCormick on August 28, 2011, rather than September 28, 2011. If
the August 28 date had been accurate, McCormick would not have been able to send the e-mail to Brian White because
he would have been in custody. The district court concluded that this typographical error was of “no moment” because
the discrepancy would not have been readily apparent to the magistrate judge. The district court found that the
appropriate dates (September 3 to December 15) indicate that the search warrant covered a time span of three months.

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United States of America v. Toriano Goodwin

because “[f]irearms are durable goods and might well be expected to remain in a criminal’s

possession for a long period of time,” the witness’s information regarding the firearms was not stale.

Id. Relying on similar reasoning, in United States v. Lancaster we held that information regarding

a defendant’s possession of a machine gun over two years before the warrant issued was not stale.

145 F. App’x 508, 513 (6th Cir. 2005).

         Both of Goodwin’s offenses—being a felon in possession of a firearm and possession of an

unregistered machine gun—are ongoing offenses. The element of possession and the fact that a

weapon has continuing value suggests these crimes are more like “regenerating conspiracies” than

“chance encounters,” and therefore this factor weighs against a finding that the information was

stale.

         The second factor to be considered is whether the criminal is nomadic or entrenched. If a

criminal defendant moves frequently with the hope of avoiding detection or capture, the probability

that evidence of his criminal conduct will be found in a given location diminishes rapidly with the

passage of time. Abboud, 438 F.3d at 573. Here, however, the affidavit supported the conclusion

that Goodwin was an “entrenched” criminal because the ongoing possession crimes were likely to

have occurred at Goodwin’s residence. Based on his training and experience, Agent Hartnett stated

that machine gun owners often keep machine guns in their homes, making a possessor’s residence

the site of an ongoing crime. Goodwin was a resident of 4739 Oakhill Boulevard, as verified by the

Ohio DMV record search. The search warrant affidavit stated that Goodwin had reported his

address as 4739 Oakhill Boulevard as late as November 2011, the month preceding the issuance of

the warrant. Based on the information in the affidavit, there was a fair probability that law

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United States of America v. Toriano Goodwin

enforcement would locate the machine gun at a single location—Goodwin’s residence.

       The third factor to be considered is whether the alleged evidence is “perishable” or “of

enduring utility to its holder.” Abboud, 438 F.3d at 573. In contrast to perishable goods, durable

goods can, by their nature, remain in a defendant’s possession for a longer period of time.

       The search warrant sought a Ruger machine gun, which is a durable good. See Pritchett, 40

F. App’x at 906 (“Firearms are durable goods that might well be expected to remain in a criminal’s

possession for a long period of time.”). In addition, machine guns are generally more expensive than

more common types of firearms; Moesher estimated that the value of the machine gun was between

$9,000 and $12,000. Thus, a machine gun is a durable good with “enduring utility to its holder.”

       The final factor to be considered is whether the place identified by the search warrant is a

“mere criminal forum of convenience or secure operational base,” because there is a greater

probability of finding evidence at a location that is “at the heart of the criminal charges.” Abboud,

438 F.3d at 573–74.

       The fact that the place to be searched was Goodwin’s home implicates “a secure operational

base,” making the warrant’s three-month time span less significant. See Greene, 250 F.3d at 481

(“The place to be searched was the defendant’s home, suggesting that there was some permanence

to the defendant’s base of operation.”) (quoting United States v. Yates, 132 F. Supp. 2d 559, 565

(E.D. Mich. 2001)). As explained by Agent Hartnett, a machine gun owner will often keep the

machine gun in his or her home. A machine gun possessor’s residence would therefore be a “secure

operational base” where the ongoing criminal activity—illegal possession of a machine gun—occurs

over a span of time.

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         All of the factors weigh against a claim of staleness. The information contained in the

affidavit established that at the time the warrant was issued, there was a fair probability that the

machine gun would be found at Goodwin’s residence.

                                                          B

         Goodwin next argues that there is an insufficient nexus between the machine gun and his

residence. An affidavit offered in support of a search warrant “must indicate a nexus between the

place to be searched and the evidence sought and this nexus may be established by the nature of the

items and normal inferences of where a person would keep such items.” United States v. Hawkins,

278 F. App’x 629, 634 (6th Cir. 2008). An issuing magistrate judge is “‘entitled to draw reasonable

inferences about where evidence is likely to be kept, based on the nature of the evidence and the type

of offense.’” United States v. Graham, 275 F.3d 490, 503 (6th Cir. 2001) (quoting United States v.

Cairedo, 85 F.3d 1184, 1192 (6th Cir. 1996)). As explained above, the value of the machine gun,

Goodwin’s statement that “he intended to keep the Ruger machine gun,” and Agent Hartnett’s

experience that owners usually keep machine guns in their homes all indicate that there was a

sufficient nexus between the machine gun and Goodwin’s residence. The magistrate judge properly

relied on this information in his assessment of the probable location of the evidence.

                                                          C

         Goodwin also argues that because Agent Hartnett did not attest to Watson’s reliability based

on prior contacts, the warrant was not supported by probable cause.2 Probable cause for the issuance


2
  Goodwin’s briefs also assert that Agent Hartnett did not attest to the reliability of “informant McCormick” in the
affidavit. Nothing in the affidavit, however, suggests that Agent Hartnett relied on McCormick as an informant, or even
interviewed McCormick about the stolen machine gun. “The affidavit is judged on the adequacy of what it does contain,

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of a search warrant may be based on an informant’s hearsay information, but the issuing judge must

have a basis for finding that the informant is reliable, truthful, and in a position to know the

information provided. United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009). An informant’s

reliability, veracity, and basis of knowledge “should not be applied rigidly as a test, but should be

considered in weighing all of the circumstances.” Gunter, 551 F.3d at 479–80. Deficiencies in one

criterion may be made up for by a strong showing in another. Illinois v. Gates, 462 U.S. 213, 232

(1983).

          In the affidavit, Agent Hartnett states that he relied on the information provided by Kevin

Watson, the broker who claimed to have arranged the sale between McCormick and Goodwin.

Agent Hartnett does not attest to Watson’s reliability based on prior contacts, and Goodwin argues

that this omission means that the magistrate judge did not have a substantial basis for finding

probable cause. Goodwin’s argument is without merit, however, because Watson’s statement

contained sufficient indicia of reliability.

          Although the affidavit does not include statements concerning Watson’s reliability based on

prior contacts, it does allege enough facts to establish Watson’s veracity: (1) Watson provided in-

person information to law enforcement, (2) he provided information against his own interest, and

(3) his information cross-corroborated White’s prior statements.

          “An informant’s [in-person] tip is considered to have greater reliability, and therefore to be

more supportive of a finding of probable cause, if the affidavit [establishes] that the name of the


not on what it lacks, or on what a critic may say should have been added.” United States v. Allen, 211 F.3d 970, 975
(6th Cir. 2000). The affidavit does not contain any references to McCormick providing information to law enforcement,
and therefore the Court need not consider whether McCormick was a “reliable” informant.

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informant has been disclosed to the issuing judge. “ United States v. May, 399 F.3d 817, 823 (6th

Cir. 2005) (citing United States v. Helton, 314 F.3d 812, 820 (6th Cir. 2003)). The informant’s

reliability is grounded on the fact that if the informant’s statement is fabricated, he would be subject

to criminal liability. Id. (citing Gates, 462 U.S. at 233). Here, the affidavit not only discloses

Watson’s identity, it also states that Watson provided the information in-person to law enforcement.

Agent Hartnett put Watson “through the crucible of a thorough interview,” which provided Agent

Hartnett “the opportunity to observe [Watson’s] demeanor and credibility and to hold him

accountable if his story was later found to be falsified.” United States v. Ruth, 489 F. App’x 941,

943 (6th Cir. 2012) (citing Henness v. Bagley, 644 F.3d 308, 31–19 (6th Cir. 2011)) (internal

quotation marks omitted). The fact that law enforcement interviewed Watson in-person and

disclosed his identity to the magistrate judge gives greater credibility to Watson’s statements.

        Watson’s credibility is further reinforced by the fact that he provided information against his

own interest. “People do not lightly admit a crime and place critical evidence in the hands of the

police in the form of their admissions.” United States v. Harris, 403 U.S. 573, 583 (1971). Watson

admitted to brokering the sale of the machine gun, thereby providing information against his interest.

Watson’s in-person admission and the disclosure of his identity to the magistrate judge support a

finding that Watson’s statement was supported by sufficient indicia of reliability.

        In addition to these indications of Watson’s credibility, there is ample evidence that the

investigators independently corroborated many of the details he provided. When an informant

provides information that is consistent with information independently known to the affiant, the

reliability of the informant may be established. See United States v. Tuttle, 200 F.3d 892, 894 (6th

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Cir. 2000).   “‘By telling consistent yet independent stories, [] informants provide[] cross-

corroboration, and enhance the reliability of the application as a whole.’” United States v.

Lancaster, No. 04-5826, 2005 WL 1799385, at *2 (6th Cir. July 28, 2005) (quoting United States

v. Pritchard, 745 F.2d 1112, 1121 (7th Cir. 1984)).

       During the three-month investigation, law enforcement officers obtained evidence that

corroborated Watson’s statement that Goodwin was in possession of the stolen machine gun. Two

of Watson’s statements corroborated other information law enforcement received from White two

months earlier. First, Watson’s statement that “Goodwin paid McCormick $500 and some cocaine

for the Ruger machine gun” corroborated McCormick’s earlier statement to White that he was going

to sell the machine gun for “cheap as hell.” Watson also corroborated McCormick’s statement to

White describing the rarity and value of the machine gun when he said, “Goodwin made the

statement that he intended to keep the Ruger machine gun and did not want to get rid of it because

it was so unique.” Watson’s cross-corroboration of White’s statements provided a substantial basis

for concluding that he was a reliable informant.

       Watson’s statement has sufficient indicia of reliability, and therefore the magistrate judge’s

decision to issue the warrant was not arbitrary. Based on the totality of the circumstances, the

issuing magistrate judge had a substantial basis to conclude that there was probable cause that

evidence of criminal activity would be found at Goodwin’s residence.

       Because the information contained in the affidavit gave the issuing judge a substantial basis

for concluding that a search would uncover evidence of wrongdoing at Goodwin’s residence, it is

not necessary to address the applicability of the “good faith” exception articulated in United States

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United States of America v. Toriano Goodwin

v. Leon, 468 U.S. 897 (1984).

                                                   E

         Finally, Goodwin challenges the district court’s decision to cancel the evidentiary hearing

on Goodwin’s motion to suppress. The district court concluded that Goodwin’s arguments were

“entirely legal in nature,” and thus did not require a hearing. Abboud, 438 F.3d 554, 577 (6th Cir.

2006).

         The district court’s decision is sound. A district court’s decision not to hold an evidentiary

hearing on a motion to suppress is reviewed for an abuse of discretion. United States v. Montgomery,

395 F. App’x. 177, 186 (6th Cir. 2010). An evidentiary hearing is required only “when the

defendant has set forth contested issues of fact that bear upon the legality of the search.” United

States v. Thompson, 16 F. App’x 340, 344 (6th Cir. 2001) (citing United States v. Mejia, 69 F.3d 309,

318 (9th Cir. 1995)).

         Goodwin did not contest any factual issues in his brief in support of his motion to suppress;

rather, he contested the legal conclusions drawn from the facts by the magistrate judge. The

magistrate judge’s conclusions that there was sufficient evidence to demonstrate that the affidavit’s

information was not stale, that there was a sufficient nexus between the criminal activity and the

residence, and that Watson’s information was reliable are all legal conclusions that “fall squarely

within the type of challenges that can be resolved without an evidentiary hearing.” United States v.

Lawhorn, 467 F. App’x 493, 495 (6th Cir. 2012). Goodwin did not present any new factual

information to challenge the magistrate judge’s legal conclusions, and the district court did not

commit an abuse of discretion by cancelling the evidentiary hearing.

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                                               III

       For the reasons stated, we AFFIRM the district court’s denial of Defendant Goodwin’s

motion to suppress.




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