                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0464n.06

                                          No. 17-6430

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                 FILED
 UNITED STATES OF AMERICA,                              )                  Sep 07, 2018
                                                        )              DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                             )
                                                        )
                                                             ON APPEAL FROM THE
                v.                                      )
                                                             UNITED STATES DISTRICT
                                                        )
                                                             COURT FOR THE EASTERN
 MARK M. BROWN,                                         )
                                                             DISTRICT OF KENTUCKY
                                                        )
        Defendant-Appellant.                            )
                                                        )



BEFORE: SILER, GRIFFIN, and STRANCH, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Police entered defendant Mark Brown’s hotel room without a warrant and saw two guns

and drug paraphernalia in plain view. They then obtained a warrant, entered the room again, and

found a third gun, drugs, and more paraphernalia. When charged with drug and gun crimes, Brown

moved to suppress the evidence from both entries. The district court denied the motion, and Brown

now appeals that denial. We affirm Brown’s convictions based on the evidence legally seized in

the warrant-based search.


                                               I.
        Early one morning in August 2016, police received a call from the front-desk clerk at a

Super 8 Motel in Maysville, Kentucky. The clerk said a woman was hiding in the staff office and

claiming the man she was with might have a gun.
No. 17-6430
United States v. Brown


       When officers got to the hotel, they spoke with the woman, whom they identified as

Chastity Smith. Although she was obviously intoxicated, she understood questions and answered

coherently. She claimed defendant Mark Brown had a gun, had given her methamphetamine to

hide for him, and had a “softball-sized ball” of methamphetamine in a cooler in his room. Smith

then gave officers the baggie of methamphetamine she claimed Brown had given her.

       Police encountered Brown in the lobby. They searched him and found about $10,000 but

no weapons. Two officers detained him.

       Two other officers then took Smith to Brown’s room. One of them asked Smith for her

consent to enter the room, which Smith gave. No one had a keycard, but the door was ajar, so the

officer pushed it open and went inside. In plain view the officer saw two guns and drug

paraphernalia. He emptied the guns’ magazines and relayed the serial numbers to dispatch.

       Soon thereafter, officers learned Brown was a convicted felon. They then obtained a

warrant to search his room. Inside they found a cooler containing methamphetamine, the two

handguns in plain view during the previous entry, a third handgun, ammunition, pills, marijuana,

and drug paraphernalia.

       A grand jury later indicted Brown for (1) possessing fifty grams or more of

methamphetamine with intent to distribute; (2) possessing a firearm in furtherance of drug

trafficking; and (3) being a felon in possession of firearms. Brown moved to suppress the evidence

found in the hotel room. The district court denied the motion.

       On the second day of trial, Brown conditionally pleaded guilty to the first and second

charges (in exchange for the government dismissing the third charge), but reserved the right to

appeal the denial of his suppression motion.



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No. 17-6430
United States v. Brown


       Brown now argues that the government violated his Fourth Amendment rights in three

ways. First, he contends the warrantless entry into his hotel room was illegal. Second, assuming

the entry was legal, he submits that relaying the serial numbers of the two guns found in plain view

exceeded the scope of the warrantless entry. And third, he asserts that the affidavit did not establish

probable cause if we exclude everything discovered in the warrantless entry. To resolve this case,

we need reach only Brown’s third argument.


                                                  II.
       The Fourth Amendment requires 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. The probable cause standard is flexible

and based on common sense, Texas v. Brown, 460 U.S. 730, 742 (1983); it requires more than

mere suspicion but less than prima facie proof. United States v. Bennett, 905 F.2d 931, 934 (6th

Cir. 1990). In other words, a warrant affidavit must contain information sufficient to convince an

issuing judge that there is a fair probability officers will find evidence of a crime in a particular

place. See United States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008).

       We give great deference to an issuing judge’s finding of probable cause; we will reverse

only if we find no “substantial basis” for it. United States v. Miller, 314 F.3d 265, 268–69 (6th

Cir. 2002). When determining whether a substantial basis exists for a specific finding, we consider

the totality of the circumstances instead of examining the affidavit line by line. United States v.

Greene, 250 F.3d 471, 479 (6th Cir. 2001).

       When a district court denies a motion to suppress, we review all factual findings for clear

error and all legal conclusions de novo. United States v. Miggins, 302 F.3d 384, 397 (6th Cir.



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No. 17-6430
United States v. Brown


2002). We also consider the evidence in the light most favorable to the government. United States

v. Navarro-Diaz, 420 F.3d 581, 584 (6th Cir. 2005).


                                                III.
       Here, the warrant affidavit outlined in a single paragraph the factual basis for the warrant.

For ease of comprehension, we have separated the paragraph and struck through the portions

related to the warrantless entry:

       At approximately 5:25 am Maysville Police were called by Super 8 motel personnel
       advising of a possible domestic situation. The clerk advised that a female came to
       the desk and stated that the male subject had a gun in his pocket and had guns in
       the room. The female also said another female was hiding in the restroom of the
       room.

       When the Affiant and other MPD officers responded they encountered the female
       and identified her as Chasity Smith. Smith stated that the male subject Mark Brown,
       threw her a bag of “dope” which Affiant believes to be methamphetamine. The
       substance has not yet been tested. She also told Affiant that Brown had guns and
       she expressed fear for her own safety.

       Mark Brown then came into the lobby and advised Affiant that he would not speak
       with officers. A criminal history check reflects that the [sic] Brown is a convicted
       felon. The door to the room was slightly ajar, and MPD officers made entry into
       the room to determine if there indeed was another female in the room needing
       assistance. No female or other person was present in the room. When Mark Brown
       was patted down no weapons were located, but Brown had approximately $10,000
       in cash on his person, which is being held by MPD.

       Chasity Smith advises that Brown is or was cooking methamphetamine in a cooler
       in the room. She also says there are pills in the room. MPD officers saw a cooler in
       the room, and saw two handguns and a crack pipe in the room in plain view.

       Both Mark Brown and Chasity Smith were both [sic] staying in the room, and
       Chasity Smith will consent to search. Due to the objection of Mark Smith [sic], this
       search warrant is being obtained.

       The vehicle identified above is located in the parking area of the motel and is in the
       possession of Mark Brown. MPD canine indicated that such vehicle contains the
       odor of drugs. Room has been secured and questioning of Chasity Smith continues.
       Mark Brown is being detained pending charging.



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No. 17-6430
United States v. Brown


       The affidavit as edited contains substantial incriminating information establishing probable

cause to search the hotel room. Smith’s statements that Brown “was cooking methamphetamine

in a cooler in the room” and that “there [were] pills in the room” were eyewitness accounts of

ongoing criminal activity. Although Smith’s intoxication at the time called into question her

credibility, she provided corroborating physical evidence:              the baggie of suspected

methamphetamine she allegedly got from Brown. Also supporting the probable cause finding was

the approximately $10,000 in cash Brown had on him: an unusually large sum to have on one’s

person that, when viewed in the light most favorable to the government and in the context of

Smith’s statements, suggested Brown was selling drugs. And the drug dog’s hit on Brown’s

vehicle buttressed the probable cause finding as well; it demonstrated that Brown had drugs in the

area, which in turn corroborated (1) Smith’s allegations that Brown had drugs in the room and

(2) officers’ belief that the substance in the baggie was methamphetamine.

       Taken together, this information provided a substantial basis for the issuing judge to

conclude there was a fair probability of officers finding evidence of a drug crime in the hotel room.

An eyewitness statement, alone, generally constitutes sufficient probable cause. See Ahlers v.

Schebil, 188 F.3d 365, 370 (6th Cir. 1999). And here, the issuing judge had even more than

Smith’s eyewitness statement—he had physical evidence corroborating her story. Thus, the

district court correctly denied Brown’s suppression motion regarding the evidence discovered

during the warrant-based search.




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No. 17-6430
United States v. Brown


       Because the evidence seized legally in the warrant-based search is sufficient to support

Brown’s guilty-plea convictions, it is not necessary for us to address his arguments regarding the

warrantless search.1

                                               IV.
       For these reasons, we affirm defendant’s convictions.




       1
          And if we did, the doctrine of inevitable discovery would lead us to affirm the district
court’s denial of Brown’s suppression motion as to the items seen during the warrantless entry.
When compelling facts establish that officers inevitably would have discovered disputed evidence,
the inevitable discovery doctrine triggers as an exception to the exclusionary rule. See United
States v. Kennedy, 61 F.3d 494, 499 (6th Cir. 1995). We have applied the doctrine when a warrant-
accompanied search followed a potentially illegal one. See, e.g., United States v. Keszthelyi, 308
F.3d 557, 574 (6th Cir. 2002). So has the Supreme Court. See, e.g., Murray v. United States, 487
U.S. 533, 541–43 (1988); Segura v. United States, 468 U.S. 796, 813–16 (1984). Here, for the
same reasons supporting the probable cause determination, compelling facts show that officers
inevitably would have discovered the guns, their serial numbers, and the drug paraphernalia seen
during the warrantless entry. Thus, even if we assume without deciding that the warrantless entry
was illegal, the district court correctly denied Brown’s suppression motion as to the items seen
during that entry because they “would have been discovered during [the] later legal search” and
because “the second search inevitably would have occurred in the absence of the first.” Keszthelyi,
308 F.3d at 574.

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