                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0284n.06
                            Filed: April 20, 2007

                                            No. 05-6351

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
ROBERT LORD,                                       )   WESTERN DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )
                                                   )


Before: BOGGS, Chief Circuit Judge; DAUGHTREY and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant, Robert Lord, pled guilty

to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Lord

appeals the district court’s denial of his motion to suppress the two firearms discovered in the course

of a search of his home. For the reasons below, we affirm the district court’s denial of Lord’s motion

to suppress.

                                                  I.

       On February 23, 2004, a “concerned citizen” notified Agent Benny Allen of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives (ATF) of his belief that Lord, a convicted felon, was

in possession of a firearm. Based on this information, on June 8, 2004, Agent Allen and Agent Brian


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Weaks, also of the ATF, went to Lord’s home and represented to Lord that they were real estate

investors interested in purchasing his house. With Lord’s consent, the officers entered the residence

and engaged in a visual inspection of the interior, including Lord’s bedroom closet.1 Agent Weaks,

upon looking into the closet, observed a “soft long-gun case,” grabbed the case, and identified what

felt like a shotgun or a rifle.

         On July 15, 2004, Agent Allen submitted an application for a search warrant. The

supporting affidavit appended to the application provides, in pertinent part:

         On February 23, 2004, I received information from a concerned citizen regarding
         Robert Lord illegally possessing firearms. The concerned citizen stated Robert Lord
         was a convicted felon who possessed a shotgun and a pistol. I received pictures via
         email from the concerned citizen displaying Lord possessing a shotgun and a
         revolver. I later determined through NCIC that Robert Lord was convicted of a
         felony in 1992.

         On June 8, 2004, ATF agent Brian Weaks and I, in an undercover capacity, went to
         Robert Lord’s residence. Agent Weaks and I posed as real estate investors since
         Lord’s residence was for sale. Agent Weaks and I were invited inside the residence
         by Lord. Once inside the residence, Agent Weaks observed a soft long-gun case in
         Lord’s master bedroom closet. Agent Weaks grabbed and squeezed the soft case and
         felt a hard object that appeared to be a rifle or a shotgun.

         On July 6, 2004, ATF agent Gray Lane and I interviewed the concerned citizen
         regarding the previous information given to me concerning Robert Lord. I was
         informed by the concerned citizen that he observed guns either in Lord’s truck or
         house on at least four occasions. I was informed by the concerned citizen that Lord
         tried to persuade the concerned citizen to buy a small pistol for him (Lord) because
         Lord stated that he could not purchase a firearm due to his federal criminal record.

On the basis of the information in the affidavit, a United States Magistrate Judge issued a search

warrant for Lord’s home. The agents executed the warrant on July 16, 2004, and discovered a



         1
          Although Lord testified at a suppression hearing before the district court that he did not consent to an
inspection of his bedroom closet, the district court found the agents’ testimony to the contrary “credible.” Lord does not
challenge this factual finding on appeal.

                                                            2
Remington Model 870, 20-gauge shotgun and a Taurus .357-caliber revolver. Lord waived his right

to an attorney and provided a confession to the officers at the scene.

       A grand jury empaneled in the Western District of Tennessee issued an indictment, charging

Lord with two counts of possessing a firearm subsequent to a felony conviction in violation of 18

U.S.C. § 922(g). Lord moved to suppress the firearms seized on July 16, arguing that the agents

came upon the firearms in the course of an unlawful search of his home. Following a hearing, the

district court denied Lord’s motion. Lord, the court ruled, consented to the officers’ entry, and the

agents’ deception concerning their identities did not negate that consent. The court further

determined that Agent Weaks’s probing of the gun case did not constitute a prohibited search.

       Following the denial of his suppression motion, Lord entered into a plea agreement with the

government, in which he reserved his right to appeal the district court’s decision on his motion to

suppress. The court accepted Lord’s guilty plea to both charges, and on August 17, 2005, sentenced

him to fifteen months imprisonment to be followed by two years of supervised release.

                                                 II.

       In evaluating the propriety of a district court’s decision on a motion to suppress, we review

the trial court’s factual determinations for clear error and its legal conclusions de novo. United

States v. Ostrander, 411 F.3d 684, 694 (6th Cir. 2005).

       The Fourth Amendment to the United States Constitution protects citizens from unreasonable

searches at the hands of the government. U.S. Const. amend. IV. It is a well-established tenet of

Fourth Amendment doctrine that a warrantless search of an individual’s home is presumptively

unreasonable. See Cummings v. City of Akron, 418 F.3d 676, 685 (6th Cir. 2005). In the criminal

context, the exclusionary rule bars the admission of evidence acquired pursuant to an unlawful


                                                 3
search. See Murray v. United States, 487 U.S. 533, 536 (1988). The rule also acts as a bar to

“evidence later discovered and found to be derivative of an illegality or fruit of the poisonous tree.”

United States v. Akridge, 346 F.3d 618, 623 (6th Cir. 2003) (internal quotation marks omitted). Lord

contends that the district court erred in refusing to exclude the evidence against him as the products

of an illegal search. For our purposes, we are concerned with: (A) the agents’ initial entry into

Lord’s home and visual examination of the interior, including the bedroom closet and (B) Agent

Weaks’s physical handling of the soft gun case in Lord’s closet.

                                                          A.

         The government argues that, because Lord granted Agents Allen and Weaks permission to

inspect his home, their entry and examination of the interior of his house was not unlawful.2 It is

well-established that “[w]here valid consent is given, a search is permissible under the Fourth

Amendment even without a warrant or probable cause.” United States v. Morgan, 435 F.3d 660, 663

(6th Cir. 2006). Here, the record is clear that Lord allowed Agents Allen and Weaks into his home,

and we find no clear error in the district court’s factual finding that Lord consented to the inspection

of his bedroom closet. Although the agents secured entry by misrepresenting their identities, their

deceit does not negate Lord’s consent to entry. See, e.g., United States v. Pollard, 215 F.3d 643, 648

(6th Cir. 2000) (“[I]t is well established that an undercover officer may gain entrance by

misrepresenting his identity and may gather evidence while there.”); United States v. Baldwin, 621

F.2d 251, 252-53 (6th Cir. 1980) (“The Fourth Amendment . . . does not protect wrongdoers from



         2
           Although Lord commits his attention to arguing that exigent circumstances did not exist to justify the agents’
unlawful search, the government has never argued that the exigent circumstances exception to the warrant requirement
justified the agents’ actions, and that was not the basis for the district court’s decision. W e consider the exigent
circumstances doctrine inapplicable to this case.

                                                           4
misplaced confidence in their associates. . . . On the contrary, an agent may legitimately gain

entrance into a house by misrepresenting his identity.”). Therefore, the agents’ entry into Lord’s

home under the guise of being real estate investors and the use of that ruse to look into his bedroom

closet did not constitute an unreasonable search prohibited by the Fourth Amendment.

                                                 B.

       Relying on the Supreme Court’s decision in Bond v. United States, 529 U.S. 334 (2000),

Lord also argues that Agent Weaks’s squeezing of the gun case in his bedroom closet constituted an

unlawful search. In Bond, the Court determined that a police officer’s physical manipulation of a

bus passenger’s carry-on bag violated the passenger’s reasonable expectation of privacy in his

luggage and constituted an illegal search in violation of the Fourth Amendment. Id. at 338-39.

Relying on Bond, the Sixth Circuit in United States v. Waller, 426 F.3d 838 (6th Cir. 2005),

concluded that the defendant had a reasonable expectation of privacy in the contents of a closed

piece of luggage stored in a bedroom closet in a friend’s bedroom. Id. at 844.

       The government responds that Agents Allen and Weaks “were invited to examine the

residence and the closets by the defendant.” Although this is an accurate factual description of the

circumstances surrounding the June 8 search, nothing in the record supports the government’s

implication that Lord’s consent to look inside his bedroom closet extended to the examination of the

contents of a closed case inside the closet. Our court has held that, in ascertaining the scope of a

consent to search, a reviewing court considers what “the typical reasonable person [would] have

understood by the exchange between the officer and the suspect.” United States v. Garrido-Santana,

360 F.3d 565, 576 (6th Cir. 2004). We think it unlikely that a reasonable person would understand

Lord’s consent to two men he believed to be prospective home buyers to encompass the “squeez[ing]


                                                 5
and grab[bing]” of a closed case in his bedroom closet. We accordingly reject the government’s

suggestion that Lord’s consent to examination of his closet extended to the handling of closed

storage containers in the closet. Under Bond and Waller, Agent Weaks’s actions in squeezing the

case constituted an unlawful search, the fruits of which must be excluded unless some exception to

the exclusionary rule applies.3

         The government contends that the district court properly admitted the evidence obtained as

a result of Agent Weaks’s actions under the good faith exception to the exclusionary rule. The

government’s invocation of the good faith exception is inappropriate here, as the search it seeks to

justify occurred prior to the issuance of a warrant, and there was, therefore, no warrant on which the

agents could have relied in searching Lord’s home. See United States v. Leon, 468 U.S. 897, 913

(1984) (adopting good faith exception to exclusionary rule where police seize evidence in reasonable

reliance on a warrant issued by a detached and neutral magistrate); United States v. Jenkins, 396 F.3d

751, 761 (6th Cir. 2005) (noting that government’s reliance on good faith exception was “erroneous”

where illegal search in question “occurred before the warrant was issued, and thus the [seized

evidence] could not be admissible under a doctrine that requires reasonable reliance on a warrant”).



         The independent source doctrine is a more appropriate basis for the resolution of this case.

Under that rule, the presence of unlawfully secured information in a search warrant affidavit does

not necessarily make a subsequently obtained warrant invalid. See id. at 758. Instead, a court



         3
           The government’s attempt to distinguish Waller is unavailing. Although the court based its decision in Waller
on a third party’s lack of authority to consent to the search of the defendant’s luggage, the court first determined that the
defendant possessed a legitimate expectation of privacy in his closed luggage, and the police’s search of that luggage
constituted a violation of that reasonable expectation. 426 F.3d at 845.

                                                             6
reviewing a request for the suppression of evidence seized during the execution of a warrant issued

on the basis of an affidavit containing both (1) information acquired during an unlawful search and

(2) lawfully obtained, “untainted” information must evaluate “the sufficiency of the untainted

affidavit to see if probable cause exists without the tainted information.” Id. at 760 (interpreting rule

announced in Murray, 487 U.S. at 537-38). “If the application for a warrant contains probable cause

apart from the improper information, then the warrant is lawful and the independent source doctrine

applies, providing that the officers were not prompted to obtain the warrant by what they observed

during the initial entry.” Id. at 758 (internal quotation marks omitted).

        We turn our attention, then, to the representations Agent Allen made in his July 15 affidavit,

disregarding the affidavit’s claim that, when Agent Weaks squeezed the case, he “felt a hard object

that appeared to be a rifle or a shotgun.” Stripped of that information, the affidavit consists of the

reports provided by the “concerned citizen” to Agent Allen on February 23, 2004, and July 6, 2004,

concerning Lord’s possession of a firearm and Agent Weaks’s observation of a “soft long-gun case”

inside Lord’s closet.

        An evaluation of the existence of probable cause “requires consideration of whether there

were reasonable grounds to believe at the time of the affidavit that the law was being violated on the

premises to be searched.” Mays v. City of Dayton, 134 F.3d 809, 814 (6th Cir. 1998). When an

affidavit purports to rely on the representations of an unnamed informant, like the “concerned

citizen” in the present case, government officials must offer some combination of assurances of the

informant’s reliability or evidence of police corroboration. United States v. Jackson, 470 F.3d 299,

307 (6th Cir. 2006). Traditionally recognized indicia of informant reliability include: “a detailed

description of what the informant observed first-hand, or the willingness of the informant to reveal


                                                   7
his or her name.” United States v. McCraven, 401 F.3d 693, 697 (6th Cir. 2005). “As long as the

issuing judge can conclude independently that the informant is reliable, an affidavit based on the

informant’s tip will support a finding of probable cause.” Id. The weaker the showing of informant

reliability offered in an affidavit, the more necessary a determination that police confirmed the

information provided by such an informant. See Jackson, 470 F.3d at 307 (“[I]n the absence of any

indicia of the informant’s reliability, courts insist that the affidavit contain substantial independent

police corroboration.”); United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc) (noting

that previous Sixth Circuit probable cause cases “rightly insisted upon substantial independent police

corroboration” in the absence of “any indicia of the informants’ reliability”).

       The affidavit in the instant case lacks certain traditional markers of reliability. The affidavit

does not provide the informant’s name. No information appears concerning the dates of the events

the informant recounts. Agent Allen does not expressly attest to the reliability of the informer either

based on previous experience with the individual or his own perception of the citizen’s reliability.

However, the individual spoke with law enforcement agents on at least two occasions and provided

detailed accounts of Lord’s unlawful possession of a firearm. We also think it significant that the

confidential informer provided Agent Allen with a photograph of Lord possessing a firearm because

it served as further confirmation of the informant’s firsthand knowledge.

       To the extent that Agent Allent’s failure to vouch for the reliability of the informer in his

affidavit makes this a comparatively weaker showing of reliability, it is not fatal to the probable

cause determination. “[I]nformation received from an informant whose reliability is not established

may be sufficient to create probable cause where there is some independent corroboration by the

police of the informant’s information.” United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000).


                                                   8
Here, in addition to outlining the information provided by the concerned citizen, the affidavit also

states that Agent Weaks “observed a soft long-gun case in Lord’s master bedroom closet,” an

observation made in the course of an inspection to which Lord consented. Although the agent’s

identification of a gun case does not conclusively establish possession of a gun, the presence of the

case in Lord’s closet provides substantial support for the report provided by the informant.

       Taken together, the detailed statements of the confidential informant and the agents’

independent verification of the informant’s claims constitute a sufficient legal basis to sustain the

magistrate judge’s probable cause decision. In reaching this conclusion, we note that our recent

probable cause precedent has generally eschewed a rule-bound, formulaic approach to probable cause

determinations. See Jackson, 470 F.3d at 308 (“[T]here is no requirement that an informant be

named either in the affidavit or the search warrant.”); McCraven, 401 F.3d at 697 (noting that court’s

en banc decision in Allen did not “define the minimum requirements for an affidavit based on an

informant’s tip”); Allen, 211 F.3d at 976 (calling for “return to the basics of the Fourth Amendment:

is there ‘probable cause’ to believe that evidence of a crime will be found in the search?”). In view

of this more holistic, “totality-of-the circumstances” approach, see United States v. Coffee, 434 F.3d

887, 892 (6th Cir. 2006), we conclude that there was adequate information in the affidavit, stripped

of any reference to material gleaned from Agent Weaks’s unlawful handling of the gun case, to

sustain the magistrate judge’s reasonable belief that evidence of a crime would be found in Lord’s

residence.

                                                 III.

       For the foregoing reasons, we affirm the district court’s denial of Lord’s motion to suppress.




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