                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0012n.06
                            Filed: January 8, 2009

                                           No. 06-2616


                          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
CLINTON EARL WILSON,                                 EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                               /


BEFORE:        CLAY and GIBBONS, Circuit Judges; and STAMP, District Judge.*

       CLAY, Circuit Judge. Defendant Clinton Earl Wilson (“Wilson”) appeals his conviction

for possession with intent to distribute more than five grams of cocaine base in violation of 21

U.S.C. § 841(a)(1), and for being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g). On appeal, Wilson challenges the district court’s denial of his motion to suppress evidence

of narcotics and a gun that police found during a search of his residence pursuant to a warrant. For

the following reasons, we AFFIRM the judgment of the district court.

                                        BACKGROUND




       *
         The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
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       Wilson resided at 1200 Webb Street (“1200 Webb”), a two-and-a-half story, two-family

dwelling in Detroit with two front doors, one leading to a downstairs residence and one leading to

an upstairs residence.

       On August 9, 2004, Rebecca McKay (“McKay”), a Detroit narcotics officer, was

investigating an anonymous tip that six to twelve African American males were selling drugs from

the lower window of 1200 Webb. As part of her investigation that day, McKay gave a confidential

informant money to purchase drugs at 1200 Webb. Before sending the informant to the residence,

McKay made sure the informant did not have any drugs or money on his person and then gave him

funds to purchase drugs. McKay watched as the informant met an unidentified African American

male (the “seller”) on the porch in front of 1200 Webb and gave the seller money. The informant

waited on the porch as the seller went into the right front door of the residence and returned with

marijuana. The informant gave McKay the marijuana he had purchased and told her that the seller,

after taking the money, had gone into the downstairs residence to retrieve the drugs. McKay testified

that Wilson was not the seller, but was sitting on the porch “[a] couple of feet” from where the

transaction took place. (Joint Appendix (“J.A.”) at 271.)

       McKay continued investigating 1200 Webb, and on August 11, 2004, observed the seller

from the August 9 sale conduct two more transactions on the front porch. Each time, McKay saw

the seller take the purchaser’s money, go into the residence via the right front door, and return with

drugs to sell. McKay also observed the seller carrying out a sale on a street corner approximately

thirty yards from 1200 Webb to a buyer in a vehicle.




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       On August 12, 2004, McKay obtained a search warrant for 1200 Webb. Her supporting

affidavit, which was incorporated into the warrant, described the location to be searched:

       Known as the entire premises and curtiledge of 1200 Webb. The above location is
       described as a brown brick, two and a half story, two family dwelling, with a single
       common entrance. The area to be searched is the lower portion of the dwelling. The
       location is located on the north side of the street between Byron and Hamilton. The
       location is located in the City of Detroit, County of Wayne, State of Michigan.

(J.A. at 50.) McKay’s affidavit also recounted the August 9 purchase by the confidential informant

and the three drug sales she observed on August 11, and stated that, based on her experience, the

volume of drug dealing at 1200 Webb indicated that a firearm would likely be found on the premises

as well.

       Later that day, a team of Detroit police officers that included McKay raided and searched the

lower residence at 1200 Webb. McKay testified that before going to 1200 Webb, she briefed the

other officers who were involved in the raid regarding “the location, the surroundings, everything.”

(J.A. at 272.) As the officers exited their police van, one of them spotted Wilson observing them

through the “south window of the house” in the “lower flat,” and alerted the other officers, including

McKay; McKay testified that she heard the officers “yelling, he’s in the window.” (J.A. at 80-81,

272.) Upon entering the residence, the officers encountered Wilson and an older male. One officer

placed Wilson up against the wall of the dining room, handcuffed him, and detained him there while

the search was taking place. McKay, who was responsible for securing 1200 Webb from the back

of the premises while the other officers conducted an initial security sweep of the residence, came

into the apartment once it had been secured and joined the search. She found narcotics, while

another officer found a weapon.


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                                             No. 06-2616

         On November 10, 2004, Wilson was indicted on one count of possession with intent to

distribute more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), and one count

of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On February 7, 2005,

Wilson moved to suppress the drugs and the firearm seized during the search of his residence. The

district court held an evidentiary hearing on April 18, 2005, and continued the hearing on August 18,

2005. The court also held an in camera hearing to examine the confidential informant on April 27,

2005.

         At the April 18, 2005 suppression hearing, McKay acknowledged that she erred in her

affidavit when she stated that 1200 Webb had “a single, common entrance.” (J.A. at 67.) She

testified that she did not know why she had made that mistake, and that what she meant was that the

location had a “single common address.” (J.A. at 67, 74.) Four witnesses for the defense testified

during the suppression hearings that on August 9, they had been with Wilson at an all-day party at

the yard beside 1200 Webb and never saw him leave to go onto the front porch. At the conclusion

of the August 18, 2005 suppression hearing, the court denied Wilson’s motion to suppress from the

bench.

         On May 10, 2006, a jury convicted Wilson of both counts in the indictment. Wilson timely

appealed his conviction.

                                            DISCUSSION

I.       Standard of Review

         In reviewing a district court’s suppression determination, this Court reviews findings of fact

for clear error and legal conclusions de novo. United States v. Hudson, 405 F.3d 425, 431 (6th Cir.


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                                              No. 06-2616

2005). When a district court denies a motion to suppress, “we consider the evidence in the light

most favorable to the government.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en

banc). “In reviewing the denial of the motion, we may consider trial evidence in addition to the

evidence admitted at the suppression hearing.” United States v. Hardin, 539 F.3d 404, 417 (6th Cir.

2008).

II.      Analysis

         Wilson argues that the warrant to search 1200 Webb on August 12, 2004 was defective,

because it inaccurately stated that the location had a single common entrance. As a result, he argues,

the warrant failed to describe with particularity the location to be searched, violating his Fourth

Amendment rights. This Court disagrees.

         The Fourth Amendment prohibits the issuance of a search warrant without probable cause,

and without “particularly describing the place to be searched, and the persons or things to be

searched.” U.S. Const. amend. IV. “An error in description does not, however, automatically

invalidate a search warrant.” United States v. Pelayo-Landero, 285 F.3d 491, 496 (6th Cir. 2002).

“The test for determining whether a search warrant describes the premises to be searched with

sufficient particularity is not whether the description is technically accurate in every detail, but rather

whether the description is sufficient to enable the executing officer to locate and identify the

premises with reasonable effort, and whether there is any reasonable probability that another

premises might be mistakenly searched.”            Id. (internal quotations and citations omitted).

Accordingly, “[c]ourts routinely have upheld warrants . . . where one part of the description of the




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                                            No. 06-2616

premises to be searched is inaccurate, but the description has other parts which identify the place

with particularity.” United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998).

        In Durk, the warrant not only misstated the address of the residence to be searched, but also

stated that house was located “3 houses to the east of Grandview,” when in fact the house was three

houses west of Grandview. Id. at 465. The Court nevertheless upheld the warrant because it gave

an accurate physical description of the house–including its “unusual” metal storage shed–and

because the affiant participated in the search after having just returned from investigating the

location. Id. Similarly, in United States v. Gahagan, 865 F.2d 1490 (6th Cir. 1989), this Court

upheld the validity of a warrant to search 7609 Douglas Lake Road, despite the fact that the search

ultimately took place at 7577 Douglas Lake Road, a nearby cabin; the cabin belonged to the same

family that owned 7609 Douglas Lake Road. In upholding the warrant, this Court relied on the

accuracy of the affidavit accompanying the warrant, which described the cabin as part of the

premises to be searched. Id. at 1497-98. This Court also considered “the relevant information

known by the executing officers,” who knew that the nearby cabin was the location to be searched.

Id. at 1498.

        In Knott v. Sullivan, 418 F.3d 561 (6th Cir. 2005), this Court found a warrant to search a

vehicle to be insufficiently particular, despite the searching officer having had prior personal contact

with the vehicle. However, in that case, “virtually every descriptor of the vehicle included in the

search warrant and accompanying affidavit was incorrect[.]” Id. at 569. The affidavit not only

misstated the vehicle’s identification number and license plate, but the erroneous information in the




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                                           No. 06-2616

warrant accurately described the vehicle of another member of the suspect’s family, and therefore

could have reasonably led to a search of the wrong vehicle. Id.

       The circumstances in this case more closely resemble those of Gahagan and Durk, where the

inaccuracy in the warrant was unlikely to lead to an unauthorized or mistaken search. Although the

warrant incorrectly stated that 1200 Webb has one common entrance, it stated that the area to be

searched was the “lower portion of the dwelling.” (J.A. at 50.) The warrant also accurately stated

the address of the location, the cross-streets, and the side of the street on which 1200 Webb is

located. Moreover, the fact that McKay briefed the officers in advance regarding her personal

knowledge of 1200 Webb and then participated in the search further reduced the chance that the

wrong location would be searched; from her recent investigation of the residence and information

from her informant, she knew that the suspected seller retrieved the drugs for sale from the right

front door, and that the right door led to the downstairs residence.

       Wilson has not offered any theory as to how there could have been “any reasonable

probability” that the officers following the warrant would have mistakenly searched the wrong

residence. See Pelayo-Landero, 285 F.3d at 496. He contends that this Court must find the warrant

insufficiently particular because it only gave the police a “[fifty percent] chance of success in

ascertaining and identifying the proper flat.” Appellant’s Br. at 21. This argument ignores the

warrant’s explicit instruction to search the “lower portion” of the premises. Wilson also argues that

McKay’s participation should be less of a factor because she was securing the perimeter of the

building and therefore did not personally accompany the other officers into the residence. However,

even before taking her position, McKay knew that the other officers were properly focused on the


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lower residence, because she heard them “yelling” as they were exiting the police van that Wilson

was watching them from the lower window. By that point, McKay would have had no reason to

believe that the officers were directed at the wrong residence.

       Accordingly, the warrant was particular enough to be valid under the Fourth Amendment and

to preclude suppression of the evidence found at Wilson’s residence.

       Wilson has also raised several argument pro se. This Court rejects them all, because the

record is devoid of any evidence to support Wilson’s allegations.

                                         CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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