                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0970n.06

                                          No. 12-2237

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Nov 13, 2013
UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
JAMES RICHARD VANDERWEELE,                              )    THE WESTERN DISTRICT OF
                                                        )    MICHIGAN
       Defendant-Appellant.                             )
                                                        )
                                                        )



       Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge.*

       KETHLEDGE, Circuit Judge. James Vanderweele pled guilty to possession of unregistered

firearm silencers in violation of 26 U.S.C. § 5861(d).       In his conditional plea agreement,

Vanderweele waived his right to appeal, except “to seek review of the U.S. District Court’s denial

of his motion to suppress evidence.” He now appeals the district court’s denial of that motion on

two grounds. First, he argues that his statements to an ATF agent should be suppressed on grounds

not argued below. Second, he argues that there was not probable cause to issue a search warrant.

We affirm.




       *
          The Honorable Robert M. Dow, United States District Judge for the Northern District of
Illinois, sitting by designation.
No. 12-2237
United States v. Vanderweele

                                                I.

       On July 28, 2010, an informant told ATF Agent James Petschke that, four to five months

earlier, he had seen James Vanderweele with a .22-caliber pistol and a silencer at the Rebels

Motorcycle Clubhouse in Escanaba, Michigan.          The informant also said that Vanderweele

demonstrated how the silencer screwed on to the barrel of the pistol. Six weeks later, Petschke

checked Vanderweele’s records and found that Vanderweele had three .22-caliber pistols registered

to his name, but no silencers. Petschke then sought a warrant to search Vanderweele’s house for

evidence that he possessed unregistered silencers. A magistrate judge issued the warrant.

       On September 22, Petschke and a search team, consisting of ATF and local law enforcement

officers, executed the warrant. Fifteen minutes before the search, a white male drove a moped past

them. Detectives Jeffrey Erickson and his partner were posted on an undercover watch of the alley

behind Vanderweele’s house. Suspecting that the moped’s rider was Vanderweele, the detectives

pulled next to the moped at an intersection five blocks from the house. Detective Erickson rolled

down his window and, as a ruse, said, “Hey, Mike.” The driver responded that his name was James.

Then the detectives exited their car and asked Vanderweele for identification. Erickson called

Petschke to notify him that he was with Vanderweele.

       Erickson checked the police database and found that Vanderweele’s driver’s license was

restricted—he was only allowed to drive to work and medical appointments. Erickson asked

Vanderweele where he was going. Vanderweele replied that he was headed to the grocery store for

cigarettes. Erickson asked Vanderweele to return home for the search. Vanderweele consented.




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United States v. Vanderweele

       Erickson and his partner could not transport Vanderweele in their unmarked car, so they

called for backup. Officer Sovey responded. The officers told Vanderweele that he was not under

arrest, but that they were required to handcuff him for the front-seat ride to his house because

Sovey’s police dog was in the backseat. Sovey handcuffed Vanderweele and then drove him five

blocks back to his house.

       Meanwhile, Petschke’s team searched Vanderweele’s house. Petschke left the house to talk

to Vanderweele and advised him of his Miranda rights. Vanderweele agreed to answer questions,

telling Petschke that he had four silencers in the house and where to find them. Sovey again placed

Vanderweele in his police vehicle while the search continued.

       The search team found four silencers, three handguns, a rifle, gun parts, and tools that could

be used to make silencers. One of the handguns had a threaded barrel so that a silencer could be

screwed onto it. Police found that gun, a silencer, two loaded magazines, and several boxes of

ammunition in a black nylon bag beneath Vanderweele’s bed.

       After finding the silencers, Petschke read Vanderweele his Miranda rights, for the second

time. This time Vanderweele requested an attorney. Petschke asked no further questions. After the

search was complete, Petschke’s team took the contraband, but left Vanderweele at his home.

       In February 2011, a federal grand jury indicted Vanderweele for possession of unregistered

silencers in violation of 26 U.S.C. § 5861(d). Vanderweele filed a motion to suppress the items

seized from his house and his statements to Petschke. He argued that the search warrant failed to

establish probable cause because it was based on stale information and did not show a connection




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No. 12-2237
United States v. Vanderweele

between the silencers and his home. He also argued that he was not read his Miranda rights and that

Petschke coerced him to make statements.

       A magistrate judge held an evidentiary hearing at which Petschke, Erickson, Sovey, and

Vanderweele testified. Afterward, the magistrate judge recommended that the district court find that

the affidavit in support of the search warrant sufficiently showed probable cause to search

Vanderweele’s home, and that in any event the officers executed the warrant in good faith. The

magistrate judge also recommended finding that Petschke gave a Miranda warning to Vanderweele

before he made his initial statement. The district court adopted these findings, but remanded the

case for an additional finding on whether Petschke coerced Vanderwheele. Accordingly, the

magistrate judge prepared a second report and recommendation, in which he found no coercion. The

district court adopted that finding over Vanderweele’s objection.

       On April 18, 2012, Vanderweele pled guilty to unlawful possession of silencers pursuant to

a conditional plea agreement. In the plea agreement, Vanderweele waived his right to appeal, except

“to seek review of the U.S. District Court’s denial of his motion to suppress evidence.”

       This appeal followed.

                                                 II.

                                                 A.

       Vanderweele argues that the district court erred when it denied his motion to suppress his

statements to Petschke. In support, Vanderweele cites the Supreme Court’s recent decision in Bailey

v. United States to contend that his statements were a product of an illegal detention, and therefore

must be suppressed. 133 S. Ct. 1031 (2013).

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No. 12-2237
United States v. Vanderweele

       We review de novo whether Vanderweele waived his right to make this argument on appeal.

United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). Conditional guilty pleas must

“reserv[e] in writing the right to have an appellate court review an adverse determination of a

specified pre-trial motion.” Fed. R. Crim.P. 11(a)(2). The defendant has an “affirmative duty” to

“preserve any issues . . . by specifying them in the plea itself.” United States v. Ormsby, 252 F.3d

844, 848 (6th Cir. 2001).

       Vanderweele’s plea only “reserves the right . . . to seek review of the U.S. District Court’s

denial of his motion to suppress evidence.” This language preserves only the arguments he made

below. See United States v. Woosley, 361 F.3d 924 (6th Cir. 2004). In support of his motion to

suppress below, Vanderweele made three arguments: first, the search warrant affidavit failed to

establish probable cause; second, he was not read his Miranda rights before he made his statements

to Petschke; and third, Petschke coerced him to make statements. Vanderweele never argued below

that he was detained illegally. Even when the district court remanded the case to the magistrate

judge to consider Vanderweele’s coercion argument, he did not argue that he was unlawfully

detained. Vanderweele, preserved his right to appeal the district court’s denial of his motion to

suppress, but he is limited to the arguments that he made there. See id. Thus, Vanderweele waived

his right to argue that he was illegally detained.

       Vanderweele responds that fairness requires remand because Bailey was decided after the

district court denied his motion to suppress. But a guilty plea “does not become vulnerable because

later judicial decisions indicate that the plea rested on a faulty premise.” Brady v. United Sates, 397

U.S. 742, 757 (1970). Because Vanderweele did not specify in his plea that he could make new

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No. 12-2237
United States v. Vanderweele

arguments on appeal based on beneficial changes of law, he is precluded from arguing that he was

unlawfully detained under Bailey. See United States v. Bradley, 400 F.3d 459, 464-65 (6th Cir.

2005).

                                                  B.

         We next consider the district court’s denial of Vanderweele’s motion to suppress the

evidence that the ATF found when it searched his home. Vanderweele contends that the search

warrant affidavit was insufficient to establish probable cause because there was no nexus between

the silencers and his home, and it relied on stale information.

         Probable cause exists here if there was a “fair probability” that silencers would be found at

Vanderweele’s house. See Illinois v. Gates, 462 U.S. 213, 238 (1983). We review the sufficiency

and staleness of an affidavit to see whether the magistrate judge had a “substantial basis” for

concluding that the search would uncover evidence of wrongdoing. United States v. Greene, 250

F.3d 471, 478 (6th Cir. 2001). And we give “great deference” to the magistrate judge’s discretion,

which should not be reversed unless arbitrarily exercised. United States v. Allen, 211 F.3d 970, 973

(6th Cir. 2000) (en banc).

         First, we consider the district court’s finding that there was a sufficient nexus between

Vanderweele’s possession of the silencer and his home. Vanderweele argues that the informant only

saw him with the silencer at the Rebels Motorcycle Club, and therefore there was no connection

between the silencer and his home. But here, the affidavit stated that Petschke was aware, based on

his training and experience, “that firearms, ammunition, and related items are commonly stored

within the owner or possessor’s dwelling.” Moreover, the affidavit cited our statement in United

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No. 12-2237
United States v. Vanderweele

States v. Smith that “individuals who own guns keep them at their homes.” 182 F.3d 473, 480 (6th

Cir. 1999). The magistrate judge had reason to believe that the silencer would be found at

Vanderweele’s house.

       Next, Vanderweele argues that there was not probable cause for the search because the

affidavit relied on an informant’s statement that Vanderweele possessed a silencer up to seven

months before the search.     The magistrate judge reviewed for staleness using the four factors

outlined in United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir. 2006). He found that

Vanderweele was not nomadic and that his house was his permanent residence. See id. The

magistrate judge also found that the crime, possession of unregistered silencers, was likely to

continue for an extended period, even throughout the suspect’s lifetime. See id. He also decided

that a silencer is like a gun, easily transferrable, but more commonly kept by its owner for a long

time. A gun is indeed an apt simile for a silencer, after all, they are complementary goods. And the

seven-month delay here was well within the expiration date approved by courts. See United States

v. Lancaster, 145 F. App'x 508, 513 (6th Cir. 2005) (two-year-old information that defendant was

seen firing a machine gun was not stale); United States v. Batchelder, 824 F.2d 563 (7th Cir. 1987)

(nine-month-old information that company shipped silencer to the defendant was not stale). Thus,

the magistrate judge was well within his discretion to find that the affidavit’s information was fresh

enough to supply probable cause.

       In response, Vanderweele argues that the firearm records showed that he had previously sold

six of the nine .22-caliber handguns that he had owned, and that the magistrate judge should have

inferred that he might have sold the silencer as well. That Vanderweele transferred some—but not

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No. 12-2237
United States v. Vanderweele

all—of his guns shows the opposite. The magistrate judge, therefore, did not arbitrarily exercise its

discretion when it found that the silencer information was not stale.

                                            *     *     *

       The district court’s judgment is affirmed.




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