                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0731n.06
                           Filed: November 26, 2008

                                            No. 07-5634

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )        ON APPEAL FROM THE
                                                           )        UNITED STATES DISTRICT
               v.                                          )        COURT FOR THE EASTERN
                                                           )        DISTRICT OF KENTUCKY
MICHAEL L. WILLIAMS,                                       )
                                                           )
      Defendant-Appellant.                                 )
__________________________________________                 )



BEFORE: CLAY and GRIFFIN, Circuit Judges; and STAFFORD, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Michael L. Williams appeals the district court’s order denying his motion to

suppress evidence seized from his person and vehicle following his arrest. Defendant also appeals

his sentence as unreasonable. Because we conclude that the investigating officer had probable cause

to order defendant’s warrantless arrest, the search incident to his arrest was lawful, and we therefore

affirm. We also affirm defendant’s sentence as procedurally and substantively reasonable.

                                                  I.




       *
         The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.
No. 07-5634
United States v. Williams


       On June 2, 2006, Sergeant Ken Holstein received a phone call from a confidential informant

that he knew to be “very, very reliable.”1 The caller informed Holstein that he had observed what

he believed was prostitution-related activity near 15th Street and Madison Avenue, in Covington,

Kentucky.2 According to Sergeant Holstein’s testimony, this area is known for drug trafficking and

prostitution-related activity. The informant reported that he had observed a black male, later

identified as defendant, giving money to a white female. The caller provided Sergeant Holstein with

a description of both suspects and reported that the male was driving a “white Dodge Dynasty.”

       While still speaking with the informant on his cell phone, Sergeant Holstein drove to the

intersection of 15th Street and Madison Avenue in an unmarked police car. Upon arrival, Holstein

observed two people who matched the informant’s description, a white woman that he recognized

as Katie Jo Hensley, a known prostitute and crack user, and a black male, who was walking away

from Hensley. Sergeant Holstein did not know the male’s name, but he fit the description provided

by the informant, and Holstein recognized him as someone he had seen before with an individual

named Artemis Jackson.

       Holstein watched the man walk behind a nearby building and, a short time later, return and

embrace Hensley. Although Sergeant Holstein did not directly observe a hand-to-hand drug

       1
        Sergeant Holstein began his career as a police officer in 1988 with the City of Covington
Police Department. In June 2006, he was the supervisor of the crime suppression unit, a post he had
occupied since his promotion in 2002. The crime suppression unit “mainly deals with drugs and
vice-type crimes.” He was also a member of the FBI Safe Streets task force at the time of
defendant’s arrest.
       2
        The facts contained herein are drawn from the district court’s November 20, 2006,
evidentiary hearing and the district court’s November 22, 2006, memorandum opinion and order
denying defendant’s motion to suppress.

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No. 07-5634
United States v. Williams


transaction, he suspected that one had occurred. After their embrace, the man walked toward a white

Dodge Dynasty, and Hensley walked in the opposite direction, toward Sergeant Holstein’s vehicle.

       As Hensley passed Sergeant Holstein’s vehicle, he saw her place something inside her mouth.

Based on his experience as a narcotics officer, Holstein testified that addicts often employed this

method to hide illegal contraband. Sergeant Holstein exited his vehicle and confronted Hensley,

instructing her to empty her mouth. Hensley complied, and expelled a small bag containing crack

cocaine. Sergeant Holstein asked Hensley who sold her the crack, but Hensley remained silent.

       Holstein arrested Hensley and charged her with possession of crack cocaine and drug

paraphernalia, and Officer Cory Warner transported her to the Kenton County Detention Center

(KCDC). Because Officer Warner had prior dealings with Hensley and had developed a rapport with

her, Sergeant Holstein asked Officer Warner to elicit from Hensley the identity of the individual who

sold her the crack cocaine. Officer Warner spoke with Hensley about the source of the cocaine when

they arrived at the KCDC. According to Officer Warner, Hensley stated that she had purchased the

crack cocaine from someone she knew only as “Shorty.”

       Later that evening, Sergeant Holstein attempted to identify the individual known to Hensley

as “Shorty.” He tried to trace the white Dodge Dynasty, but discovered that it was improperly

registered. In addition, Sergeant Holstein contacted the informant and requested that he notify him

if the white Dodge Dynasty returned to the 15th and Madison Avenue location. During that call, the

informant mentioned that he had observed Artemis Jackson and a black male with the last name of

Williams fleeing an arrest in that area in May 2006.




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No. 07-5634
United States v. Williams


       Based on this information, Sergeant Holstein searched police records for prior incidents in

the 15th and Madison Avenue area involving Artemis Jackson and a black male with the last name

of Williams. Sergeant Holstein discovered that Artemis Jackson and a black male named Michael L.

Williams were arrested in May 2006 and charged with fleeing and evading arrest. Holstein then

retrieved Michael L. Williams’s booking photograph from the May 2006 incident. According to

Sergeant Holstein’s testimony, Williams’s booking photograph pictured the same individual he had

observed earlier that day embracing Hensley, and whom Hensley had identified as Shorty, the man

who sold her the crack cocaine on June 2, 2006.

       The following morning, Sergeant Holstein called the state prosecutor and inquired about

procuring an arrest warrant for Williams. The prosecutor advised Holstein that if he located

Williams on June 3, 2006, he should make a“probable cause arrest for trafficking.”

       Later that day, Sergeant Holstein received a second phone call from his confidential

informant reporting that the same male he had observed on June 2, 2006, had returned to the 15th

and Madison Avenue area in his white Dodge Dynasty. The informant also gave Sergeant Holstein

a “very good description” of the man’s clothing, which he described as “a striped polo shirt, jeans,

[and] sunglasses.”

       Sergeant Holstein requested additional units to the scene because of Williams’s history of

fleeing arrest. He then drove to the 15th and Madison Avenue location and observed the same man

he had watched the day before. The man was wearing clothing that matched the informant’s

description. Holstein watched the man walk to and from a white Dodge Dynasty and a nearby

building.

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No. 07-5634
United States v. Williams


       In an effort to avoid a foot chase, Sergeant Holstein waited until the man got into his Dodge

before ordering the marked units to conduct a felony traffic stop. The man was arrested and

identified as Michael L. Williams. A search of defendant and his vehicle incident to his arrest

revealed several items of contraband, including crack cocaine, scales, a cell phone, money, powder

cocaine, and marijuana.

       On July 12, 2006, defendant was charged in a two-count felony indictment alleging: (1)

distribut[ion] of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and (2) possess[ion] with the

intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

       Shortly thereafter, defendant moved to suppress the contraband seized during the search of

his person and vehicle. Defendant argued that the search incident to his arrest was unlawful because

Sergeant Holstein lacked probable cause to arrest him, and thus any seized evidence should be

excluded as fruit of the poisonous tree.

       On November 20, 2006, the district court conducted an evidentiary hearing and received

testimony from two witnesses, Sergeant Holstein and Officer Warner. At the conclusion of the

hearing, the court found “each witness [] highly credible.” On November 22, 2006, the district court

entered an order denying defendant’s motion to suppress, finding that:

       at the moment of Defendant’s arrest on June 3, 2006, Sergeant Holstein possessed
       reasonably trustworthy information that Defendant had sold drugs to Ms. Hensley the
       previous day. As a result, the arrest was lawful and did not violate the Defendant's
       Fourth Amendment rights. Accordingly, the search incident to that lawful arrest was
       valid and the evidence seized during that lawful search is not subject to suppression.

In its order, the district court made the following findings of fact:




                                                 -5-
No. 07-5634
United States v. Williams


       1.     A very reliable confidential source (someone other than Hensley) had advised
              Holstein that he/she had observed a known prostitute give money to a black
              male in an area known for prostitution and drug activity. That same source
              provides Holstein with a description of both individuals;

       2.     Upon responding to the area, Holstein observes both individuals, who meet
              the description provided by the reliable source, in close proximity to each
              other;

       3.     Holstein recognizes the female as a known prostitute, Katie Jo Hensley, and
              the black male as an associate of someone named Artemis Jackson. Although
              Holstein cannot put a name to the face of the black male, he does recognize
              him as someone he has seen in that area before;

       4.     Holstein observes the black male walk away to an area behind an adjacent
              building and return, only to embrace Ms. Hensley;

       5.     After embracing Ms. Hensley, the black male departs in a white Dodge
              Dynasty vehicle. Ms. Hensley walks toward Holstein who observes her place
              something in her mouth;

       6.     Holstein orders Hensley to spit out the contents of her mouth and a baggie of
              crack cocaine, estimated by Holstein as a $30-$40 rock, is expelled;

       7.     After Ms. Hensley is arrested and provided with her Miranda rights, she is
              transported to the Kenton County Detention Center. During a discussion with
              the transporting officer, Cory Warner, Hensley told Warner that the person
              who sold her the drugs was someone known to her as “Shorty.” Warner
              forwards that information to Holstein;

       8.     Holstein thereafter searches the Covington Police Department arrest records
              and obtains a booking photograph of Michael Lamar Williams from May,
              2006. According to Holstein, Williams and Artemis Jackson had been
              arrested in that same general area [in] May, 2006 and charged with fleeing
              and evading. Holstein recognizes the booking photograph of Williams as the
              same person he had observed earlier that day embracing Ms. Hensley;

       9.     On June 3, 2006, the same reliable confidential source contacts Holstein and
              advises him that the same white Dodge Dynasty is in the same general area.




                                              -6-
No. 07-5634
United States v. Williams


       On December 8, 2006, defendant entered into a conditional guilty plea that allowed him to

appeal the district court’s order denying his motion to suppress. On May 16, 2007, defendant

appeared for sentencing. The district court adopted the presentence investigation report that

designated defendant as a career offender under U.S.S.G. § 4B1.1. No party objected to the

presentence report. After a lengthy hearing, the court sentenced defendant to a term of 327 months

imprisonment on each count, to be served concurrently, followed by eight years of supervised

release. This appeal followed.

                                                  II.

       Defendant contends that the district court erred when it denied his motion to suppress

because Sergeant Holstein lacked probable cause when he ordered his warrantless arrest.

Specifically, defendant asserts that Sergeant Holstein never saw him commit a drug trafficking

offense; that Holstein made insufficient efforts to corroborate the information he received from

Hensley and his confidential informant; and that the district court erred in considering defendant’s

May 2006 arrest when evaluating Holstein’s probable cause because such information was “stale.”

       “When reviewing a district court’s ruling on a motion to suppress, we will reverse findings

of fact only if they are clearly erroneous.” United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006)

(citing United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003)). “Legal conclusions as to the

existence of probable cause are reviewed de novo.” Id. (internal citation omitted). “When the

district court has denied the motion to suppress, we review all evidence in a light most favorable to

the Government.” Id. (internal citation omitted).




                                                 -7-
No. 07-5634
United States v. Williams


         “Police may arrest a person without a warrant if they have probable cause at the time of the

arrest to believe that the person has committed or is committing a crime.” United States v. Caicedo,

85 F.3d 1184, 1192 (6th Cir. 1996). “Probable cause . . . does not require any showing that the

officer’s suspicions prove to be correct or that they are more likely true than false.” Id. A lawful

warrantless arrest is based on the totality of the circumstances, and “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462

U.S. 213, 245 n.13 (1983).

         When analyzing whether a warrantless arrest is supported by probable cause, we ask

“whether, at the time of the arrest, the facts and circumstances within the arresting officer’s

knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a

prudent person to conclude that an individual either had committed or was committing an offense.”

United States v. Torres-Ramos, 536 F.3d 542, 555 (6th Cir. 2008) (quoting Beck v. Ohio, 379 U.S.

89, 91 (1964)).

                                                  A.

         Defendant first asserts that Sergeant Holstein lacked probable cause to order his warrantless

arrest because he relied on information provided by Hensley, a known crack addict and prostitute.

Thus, defendant posits, under Alabama v. White, 496 U.S. 325, 332 (1990), Hensley’s information

was neither reliable nor trustworthy, which calls into question the prudence of Sergeant Holstein’s

conclusion that Williams committed a drug trafficking offense on June 2, 2006. See Beck, 379 U.S.

at 91.




                                                 -8-
No. 07-5634
United States v. Williams


       We have identified three categories of informants: (1) named informants; (2) confidential

informants (who are known to the police but not to others); and (3) anonymous informants (who are

unknown to everyone). See United States v. Ferguson, 252 F. App’x 714, 720-21 (6th Cir. 2007)

(unpublished). While an informant’s “veracity, reliability and basis of knowledge are all highly

relevant in determining the value of his report, these elements [are] not [] understood as entirely

separate and independent requirements” that we must systematically apply to every case. United

States v. Hooper, 58 F. App’x 619, 625 (6th Cir. 2003) (unpublished) (quoting Gates, 462 U.S. at

230). Rather, “they should be understood simply as closely intertwined issues that may usefully

illuminate the commonsense, practical question [of] whether there is probable cause” to believe that

a person has committed a crime. Id.

       In United States v. Couch, 367 F.3d 557 (6th Cir. 2004), we held that a known informant is

inherently more credible because law enforcement can potentially hold that informant accountable

for providing false information. Id. at 560-61. Although Sergeant Holstein did not personally know

Hensley, Officer Warner did know her, and Hensley was speaking directly to Warner when she

named “Shorty” as the person who sold her the crack cocaine. In addition, both Holstein and Warner

could hold Hensley accountable if her information turned out to be false.

       The district court also afforded substantial weight to the confidential informant’s report, who

had “advised Holstein that he/she had observed a known prostitute give money to a black male in

an area known for prostitution and drug activity. That same source provided Holstein with a




                                                -9-
No. 07-5634
United States v. Williams


description of both individuals.”3 Sergeant Holstein also characterized the informant as “[v]ery,

very, reliable,” testimony which the district court found highly credible. While still speaking with

the informant, Holstein arrived at the scene and contemporaneously confirmed details that matched

the informant’s report. The informant also provided a specific description of defendant the following

day, and offered reliable information about defendant’s whereabouts on June 2 and June 3, 2006.

          Under the totality of the circumstances, we hold that both Hensley and the confidential

informant provided Holstein with reasonably trustworthy information. See Torres-Ramos, 536 F.3d

at 555.

          Defendant next contends that Sergeant Holstein made insufficient efforts to corroborate the

information he received from Hensley and the informant. The record, however, is replete with

examples of Holstein’s corroboration. Specifically, he corroborated almost every detail of the

informant’s report, including the location of the alleged sale, the specific descriptions of the male

and female involved in the suspected transaction, and the make and model of defendant’s vehicle.

He also independently observed what he believed was a drug transaction, testimony the district court

found highly credible.

          In United States v. Draper, 358 U.S. 307 (1959), the Supreme Court found probable cause

where an informant told a federal narcotics officer that a man would arrive on a Denver train from

Chicago in the next few days and that he would be carrying heroin. Id. at 309. The Court noted that

by the time the officer observed the suspect, he matched the race, physique, clothing, baggage, and


          3
        Although defendant refers to Holstein’s informant as “anonymous” throughout his brief, the
record supports the government’s assertion that Holstein possessed the informant’s phone number,
which negates defendant’s attempt to characterize Holstein’s informant as anonymous.
                                                - 10 -
No. 07-5634
United States v. Williams


gait of the man described by the informant, and found that the officer had “personally verified every

facet of the information given him by [the informant] except whether [the man] had accomplished

his mission, and whether he had . . . heroin on his person or in his bag.” Id. at 313. The Court

concluded that the officer had probable cause to believe that the man he observed was committing

a crime because “every [] bit of [] information” provided by the informant was “personally verified.”

Id.

       In United States v. Pasquarille, 20 F.3d 682 (6th Cir. 1994), we found probable cause to

suspect that a man’s vehicle contained cocaine where an officer was given a detailed account by

another police officer that, according to an eyewitness informant, an individual was attempting to

sell drugs at a nearby truck stop. Id. at 686. The eyewitness reported that the vehicle involved in

the attempted sale was a light-colored van with a step top, and the vehicle bore a Florida license plate

ending with the characters “91E.” Id. at 687. At the time the arresting officer approached the

attending officer who had stopped the van, the arresting officer had personally verified every facet

of the information provided by the informant, except whether the defendant was actually involved

in the sale of narcotics. Id. We held that the informant’s ability to describe in detail the type of

vehicle, the state from which the license plate was issued, and several characters displayed on the

van’s license plate provided a sufficient basis for the officer’s probable cause. Id.

       We hold that probable cause existed here as well. At the time of the incident, Sergeant

Holstein possessed seventeen years of law enforcement experience, all of which were spent in a

department specializing in narcotics interdiction. When Sergeant Holstein began his investigation

of the black male Hensley had identified as Shorty, he possessed personal knowledge of the


                                                 - 11 -
No. 07-5634
United States v. Williams


defendant’s appearance and had witnessed what he suspected was a drug transaction between

defendant and Hensley. After speaking with his “very [] reliable” informant for the second time,

Holstein was able to locate an arrest record for a Michael L. Williams and Artemis Jackson,

confirming his original suspicion that the man he observed on June 2, 2006, was an acquaintance of

Artemis Jackson. When Sergeant Holstein obtained defendant’s May 2006 booking photograph, he

recognized defendant as the same person he had observed earlier that day embracing Hensley, and

whom Hensley had identified as Shorty, the man she said sold her the crack cocaine. Thus, contrary

to defendant’s position, Sergeant Holstein discovered defendant’s identity while conducting an

independent investigation driven by his efforts to corroborate his informants’ information.

       Most important, Holstein witnessed part of the suspected drug transaction. He testified that

he arrived at the 15th Street and Madison Avenue location shortly after the informant reported that

he saw two people (matching defendant and Hensley’s description) exchanging money. Upon his

arrival, he saw defendant walk away from Hensley, disappear behind a building, return, and embrace

Hensley. Immediately following their embrace, he saw Hensley place an object in her mouth, which

he testified was a common method employed by addicts to conceal illegal contraband. When

Holstein stopped Hensley directly following her embrace with defendant, she expelled a bag of crack

cocaine hidden in her mouth.

       We hold that under the totality of the circumstances, Sergeant Holstein had probable cause

to order defendant’s warrantless arrest based on his conclusion that defendant had engaged in a drug

trafficking crime on June 2, 2006. Because defendant’s arrest was lawful, the search incident to his

arrest was lawful. Chimel v. California, 395 U.S. 752, 754 (1969).



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No. 07-5634
United States v. Williams


                                                 B.

       Defendant also asserts that information relating to his May 2006 arrest was stale, and

therefore the district court erred in considering that fact when evaluating Holstein’s probable cause.

Generally, we consider the following four factors in determining whether an officer’s information

is stale: “the defendant’s course of conduct; the nature and duration of the crime; the nature of the

relevant evidence; and any corroboration of the older and more recent information.” United States

v. Czuprynski, 46 F.3d 560, 567 (6th Cir. 1995) (en banc).

       Defendant’s reliance on this argument is misplaced. A staleness argument attacks the length

of time between when an officer receives information that supports probable cause, and when it is

actually employed to support probable cause, typically in a warrant situation. United States v.

Harvey, No. 05-6163, 2007 WL 1339837, at *3 (6th Cir. 2007) (unpublished). Sergeant Holstein

did not rely on defendant’s May 2006 arrest to determine whether defendant had committed a drug

trafficking offense on June 2, 2006. Rather, Sergeant Holstein used the May 2006 arrest information

to obtain a booking photograph of defendant so that he could compare the photo with the individual

he observed with Hensley earlier that day. Defendant’s staleness argument lacks merit.

                                                 C.

       Finally, defendant asserts that the district court failed to properly address the mitigating

factors raised by his attorney during his sentencing hearing under 18 U.S.C. § 3553. He also claims

that the district court erroneously concluded that it was required to sentence defendant near the

statutory maximum because he was designated as a career offender in his presentence report.




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No. 07-5634
United States v. Williams


        We review the district court’s sentence and exercise of discretion for “reasonableness.”

United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007); see also United States v. Webb, 403 F.3d

373, 383 (6th Cir. 2005). In determining reasonableness, we review “the factors evaluated and the

procedures employed by the district court in reaching its sentencing determination.” Webb, 403 F.3d

at 383. “Section 3553(a) instructs district courts to impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in that section.” United States v. Foreman, 436 F.3d

638, 643 (6th Cir. 2006). Although, undoubtedly, the review of specific § 3553(a) factors facilitates

appellate review, “this court has never required ‘the ritual incantation’ of the factors to affirm a

sentence.” United States v. Williams, 436 F.3d 706, 709 (6th Cir. 2006).

        Defendant’s assertion that the district court failed to properly consider the mitigating factors

raised by his attorney during sentencing is refuted by the record. The transcript reveals that the court

noted defendant’s “history of drug abuse,” his failure to graduate high school, “his difficult

upbringing,” and that the court understood that “his [criminal] history and characteristics were a

product of his environment.”

        There is also no evidence that the district court felt bound to sentence defendant near the

statutory maximum because he was a career offender. Although the district court stated that “the

Sixth Circuit has said that when someone is a career offender, the court should impose a sentence

near the statutory maximum,” the record reveals that the district court did not feel bound by that

proposition. The district judge noted that in the present case, the statutory maximum was “[l]ife

imprisonment,” but stated,“I’m not going to impose that sentence.”




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No. 07-5634
United States v. Williams


       We conclude that the district court’s decision to impose a sentence of 327 months was

reasonable, based on a proper assessment of defendant’s criminal history and mitigating factors, and

not the result of an erroneous interpretation of the law.

                                                 III.

       For these reasons, we affirm.




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