                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0083p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 UNITED STATES OF AMERICA,                                      ┐
                                       Plaintiff-Appellant,     │
                                                                │
                                                                │
            v.                                                  │
                                                                 >        No. 15-1791
                                                                │
 DIONTE JONES,                                                  │
                                      Defendant-Appellee.       │
                                                                ┘
                             Appeal from the United States District Court
                             for the Eastern District of Michigan at Flint.
                         No. 4:14-cr-20464—Linda V. Parker, District Judge.

                                         Argued: March 18, 2016

                                    Decided and Filed: April 6, 2016

                       Before: KETHLEDGE, DONALD, and ROTH*, Circuit Judges.
                                     _________________

                                                 COUNSEL


ARGUED: Stephanie M. Gorgon, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellant. Richard D. Korn, Detroit, Michigan, for Appellee. ON BRIEF:
Stephanie M. Gorgon, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellant. Richard D. Korn, Detroit, Michigan, for Appellee.
                                           _________________

                                                 OPINION
                                           _________________

        KETHLEDGE, Circuit Judge. A confidential informant told ATF agent Mark Kloostra
that a man called “D” was selling cocaine out of a particular residence in Flint. Kloostra later

        *
           The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals for the Third
Circuit, sitting by designation.




                                                       1
No. 15-1791                        United States v. Jones                              Page 2


observed all the following things first-hand: the defendant, Dionte Jones, emerged from the
house, got into a car registered to an owner at that residence, drove to the site of a prearranged
drug deal, and sold cocaine to the informant, whom Kloostra had known for two years. Kloostra
promptly obtained a search warrant for the house, where agents found cocaine, guns, scales, and
cash. But the district court later granted Jones’s motion to suppress all this evidence, finding that
Kloostra’s affidavit in support of the warrant application—which recited all of the facts
described above—did not support the state judge’s finding of probable cause. We disagree and
reverse.

       In May 2014, a confidential informant told Kloostra that a man known as “D” was selling
cocaine from a house at 1612 Copeman Boulevard in Flint, Michigan.                Kloostra and the
informant set up a controlled drug buy from “D.” In preparation for the buy, agents searched the
informant for drugs and money. Finding none, the officers then gave the informant marked bills
to buy cocaine from “D.” Kloostra and other agents also set up surveillance around 1612
Copeman Boulevard. Shortly before the scheduled time for the buy, agents watched a black
male walk out of the house, get into a black Chevrolet SUV, and drive away. The SUV was
registered to a woman who lived at 1612 Copeman Boulevard. The agents followed the SUV
from the house to the location of the controlled buy. The agents then watched the informant get
into the SUV and buy from the occupant a substance that appeared to be cocaine. The informant
later gave the substance to Kloostra, who field-tested it to confirm that it was cocaine. It was.

       Less than 36 hours later, Kloostra applied in state court for a warrant to search the house
at 1612 Copeman Boulevard. In his affidavit in support, Kloostra stated that a confidential
informant had told him that “quantities of cocaine are being sold” from that residence. Kloostra
stated that he had worked with the informant for two years and believed him to be “reliable and
credible.” Kloostra also described—based on his own observations—Jones’s emergence from
the house (though the agents did not know his name then), Jones’s sale of cocaine to the
informant, and Kloostra’s own field test on the drugs. Kloostra also specifically recited, in ¶ 12
of the affidavit, that this sale of cocaine “was made within the past thirty-six (36) hours.”
Kloostra further stated that, based on his training and 24 years’ experience as a federal agent,
“people who possess and sell illicit controlled substances from a certain area of a premises” tend
No. 15-1791                        United States v. Jones                              Page 3


to have drugs, guns, money, and scales on those premises. The state judge granted a warrant to
search 1612 Copeman Boulevard, where agents found cocaine, two firearms, digital scales, and
$2,880 in cash.

       A federal grand jury thereafter indicted Jones for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). Jones moved to suppress all the evidence obtained during
the search of the Copeman Boulevard house. The district court granted the motion and the
government brought this appeal.

       We review de novo the district court’s determination that the agent’s affidavit in support
of the warrant did not support a finding of probable cause. United States v. Brown, 732 F.3d
569, 572 (6th Cir. 2013). Probable cause for a search warrant exists when “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). In determining whether probable cause supported a search, a
reviewing court—whether our court or the district court—asks only whether the judge who
issued the warrant “had a substantial basis for concluding that a search would uncover evidence
of wrongdoing[.]” Gates, 462 U.S. at 236 (internal quotation marks and alterations omitted).
Our review of the state judge’s decision to grant the warrant is deferential: we may reverse the
state judge’s decision only if the judge “arbitrarily exercised his or her authority.” Brown,
732 F.3d at 573.

       One cannot say that the state judge acted arbitrarily here. The question presented is
whether Kloostra’s affidavit gave the judge a substantial basis to conclude that there was a “fair
probability” that a search of 1612 Copeman Boulevard would uncover evidence of drugs, guns,
or drug-dealing. Per the affidavit, Kloostra received a tip—from an informant with whom he had
worked for two years—that “D” was selling cocaine from 1612 Copeman. Kloostra’s own
observations then corroborated that tip: Kloostra saw Jones come out of a house at that address,
get into a vehicle registered to a woman who lived at that address, drive to the site of a controlled
buy, and then sell cocaine to the confidential informant. That Jones got into a vehicle registered
to a person at that address was good reason to think that Jones had some substantial connection
to that address. A mere dinner guest, for example, typically does not drive off in the family car.
That Jones sold drugs to the informant immediately after leaving the house provided good reason
No. 15-1791                        United States v. Jones                            Page 4


to think that Jones was a drug dealer. Kloostra’s observations therefore gave him reason to
believe that Jones was a drug dealer and that Jones had some substantial connection to
1612 Copeman. Those observations thus corroborated the tip that drugs were sold there. The
observations also gave reason to think that drugs were stored there: the record provides no
reason to think that Jones’s sale of drugs to the informant had exhausted his supply of drugs to
sell; those drugs, in the likely event that they existed, had to be somewhere; and Jones’s
connection to 1612 Copeman Boulevard gave rise to a fair probability, at the very least, that the
drugs were there. Agent Kloostra’s own observations in connection with the informant’s tip,
therefore, easily supported a finding of probable cause. See United States v. Coffee, 434 F.3d
887, 894 (6th Cir. 2006).

       The district court raised three concerns in holding the contrary. First, the court said that
Kloostra’s affidavit did not describe in detail his two-year relationship with the confidential
informant. Tr. at 110. That concern was misplaced: the affidavit provided probable cause not
merely because of what the informant said, but also because of what Kloostra himself observed
first-hand. And those first-hand observations corroborated the tip more than any detail about
transactions years before could have. Second, the court said that “the warrant itself was lacking
as to dates of when the transactions took place, meaning in terms of the alleged drug
transactions.” Tr. at 110. That concern was mistaken: Kloostra’s affidavit expressly stated that
Jones’s transaction with the informant, which is the transaction that matters here, took place
within 36 hours of Kloostra’s submission of the warrant application. Third, the court was “very
troubled” that Kloostra’s affidavit did not mention that “Mr. Jones is a large man,” and instead
said only that he was “a black male.” Tr. at 110-11. But whether Jones was large or small is
beside the point. The affidavit could have described him simply as a “person” and yet—based
on the other information in the affidavit—there would have been probable cause to search the
house. What matters is not what Jones looked like, but that he left 1612 Copeman and drove
straight to a drug deal in which he was the seller.

       The district court’s mistake—a mistake likewise made by Jones in his arguments on
appeal—was to think of this case as one where the police conducted a search based on an
No. 15-1791                       United States v. Jones                       Page 5


informant’s tip alone. That did not happen here: the warrant was based on Kloostra’s own
observations more than it was the informant’s.

       The district court’s suppression order is reversed, and the case remanded for further
proceedings consistent with this opinion.
