Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 09-29-2021
Case Style:
United States of America v. Dwayne Sheckles
Case Number: 20-5096
Judge: Eric Murphy
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense lawyer represented defendant with
five counts involving drug or firearm offenses charges.
The case against Sheckles stems from an investigation of three other people occurring
almost a decade before he arrived on the government’s radar. In 2007, the Louisville office of
the Drug Enforcement Administration (DEA) was monitoring a local drug dealer named
Byron Mayes. Mayes had been receiving drugs from two brothers, Julio and Alfredo “Freddy”
Rivas-Lopez. Living in Phoenix, Julio would ship cocaine from Mexico to Freddy in Louisville.
Freddy would sell the drugs to dealers like Mayes. This investigation led to the seizure of many
kilograms of cocaine and hundreds of thousands of dollars and the convictions of all three drug
dealers.
In 2016, these individuals were out of prison. The Rivas-Lopez brothers were living in
Mexico (Freddy had escaped from a federal prison), and Mayes was living in Louisville.
Sheckles came to the DEA’s attention during surveillance of a suspected drug “stash” house in
Louisville. Officers believed that this house’s “operator” had been receiving drugs from Julio
Rivas-Lopez in Mexico and selling a portion to Mayes. After learning of Julio’s suspected drug
shipment in December 2016, officers observed the driver of a red truck visit the house. The
license plate came back to a rental-car company that had leased the truck to Sheckles. Later that
month, officers executed a search warrant at the house and seized a kilogram of heroin and about
$200,000. The phone of the house’s “operator” contained many texts from Julio.
No. 20-5096 United States v. Sheckles Page 3
Officers continued to monitor the Rivas-Lopez family in Mexico. In early 2017, they
learned that Julio had been murdered. In June, they learned from an undercover DEA agent that
Freddy had taken over his brother’s business and planned to send ten kilograms of cocaine to his
“Louisville distributor.” Officers had obtained a pen register for Freddy’s phone. Using his
phone records, they identified the likely phone number of this Louisville distributor. In July, a
state judge issued a warrant to obtain location data from AT&T for the distributor’s phone.
The officers suspected that the phone belonged to Mayes. But their “pinging” of it led to
Sheckles. On July 7, the phone pinged at the Terrace Creek Apartments. Officers saw a Ford
Expedition rented by Sheckles at this location and confirmed that he had an address there.
Three days later, officers learned from the undercover DEA agent that Freddy’s deal with
his Louisville distributor (Sheckles) had fallen through because this distributor had invested in
other drugs. The officers decided to ping the phone again on July 11. This ping took them to the
Crescent Centre Apartments. They saw Sheckles’s Expedition parked in a spot assigned to
Apartment 234.
The next day, an employee at the apartment building noted that someone had just made
an anonymous complaint about drug dealing from this apartment. The apartment was leased to a
“John Murphy,” but Murphy had illegally subleased the apartment to two men nicknamed “D”
and “Boy” for their drug dealing. A maintenance person had also smelled marijuana in the
apartment, and an officer smelled marijuana as he walked by it. The officer knew that Sheckles
was at the apartment at this time but that his pinged phone remained at the Terrace Creek
apartment.
After learning this information, officers sought search warrants for both apartments late
on July 12. While one officer obtained the warrants, others observed Sheckles leave the
Crescent Centre apartments at about 11:30 p.m. They stopped his vehicle and smelled
marijuana. The officers detained Sheckles until a drug dog could arrive. The dog positively
alerted to the presence of contraband. The officers searched the vehicle and found a handgun.
Sheckles could not possess firearms because of a prior felony drug conviction, so the officers
arrested him.
No. 20-5096 United States v. Sheckles Page 4
A little under an hour after the officers initiated this stop, a state judge approved the
search warrants for the two apartments. The officers first searched the Crescent Centre
apartment. They seized about 1.5 kilograms of heroin and 144 grams of crystal
methamphetamine. They also recovered two handguns and an AR-15 rifle.
While the Crescent Centre search progressed, others executed the warrant at the Terrace
Creek apartment. It was the middle of the night. Sheckles’s girlfriend, Cristal Flores, was
sleeping in the apartment with her young daughter. About nine to ten officers entered with guns
drawn. They ordered Flores to the ground. When she explained that she was pregnant, they told
her to get up, holstered their weapons, and turned the lights on. Officers proceeded with the
search. They found the pinged phone, a firearm magazine, documents containing the name
“John Murphy” as the lessee of the Crescent Centre apartment, and paperwork for a storage unit
at a self-storage facility.
The officers asked Flores about the storage unit. The parties dispute what was said.
According to the officers, Flores calmly acknowledged that she had been to the storage unit and
kept clothes and many one-dollar bills for her daughter there. She also allegedly stated her belief
that Sheckles had retrieved around $40,000 from the unit a short time ago to buy the heroin
found at the other apartment. During a suppression hearing, Flores did not recall these
statements. She testified that she had no authority over the storage unit, was scared, and just
wanted the officers to leave. At 3:20 a.m., roughly two hours after the officers’ entry, Flores
signed a form consenting to a search of the storage unit. The search revealed a substantial
amount of money, along with separate bags of clothes and one-dollar bills.
Sheckles was indicted on several counts. He moved to suppress the evidence against
him, arguing that the government violated the Fourth Amendment when it tracked his phone,
stopped his car, and searched his apartments and storage unit. After an evidentiary hearing, a
magistrate judge recommended that the district court reject these arguments. United States v.
Sheckles, 2018 WL 7297867, at *1–8 (W.D. Ky. Nov. 20, 2018). The district court agreed.
United States v. Sheckles, 2019 WL 325637, at *1–6 (W.D. Ky. Jan. 25, 2019).
No. 20-5096 United States v. Sheckles Page 5
Sheckles entered into a conditional plea agreement. He pleaded guilty to five counts
involving drug or firearm offenses. 21 U.S.C. §§ 841(a)(1), 846, 856(a)(1); 18 U.S.C.
§ 922(g)(1). The district court sentenced him to 108 months’ imprisonment.
Sheckles reserved the right to appeal the district court’s denial of his motion to suppress.
He now invokes this right. When considering a denial of a motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions de novo. United States v.
Hines, 885 F.3d 919, 924 (6th Cir. 2018).
II
The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and
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. Sheckles alleges three violations of this text. He argues that: (1) the officers
did not have “probable cause” for the warrants to track his phone and search his apartments;
(2) they engaged in an “unreasonable” “seizure” when they stopped his car and detained him;
and (3) they engaged in an “unreasonable” “search” when they looked through his storage unit.
A. Probable Cause for the Warrants
Sheckles claims that all three search warrants in this case lacked probable cause. This
claim triggers well-established substantive and procedural ground rules. First the substance:
Probable cause “is not a high bar.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)
(citation omitted). It demands only a “fair probability” of criminal activity. United States v.
Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). When deciding whether this fair probability exists, courts must view the totality of
the circumstances through the common-sense lens of ordinary people, not the technical lens of
trained lawyers. See United States v. Christian, 925 F.3d 305, 309–311 (6th Cir. 2019)
(en banc).
No. 20-5096 United States v. Sheckles Page 6
Next the procedure: We review de novo the district court’s after-the-fact conclusion that
probable cause existed. See Hines, 885 F.3d at 924. But we give “great deference” to the state
judge’s initial probable-cause conclusion when issuing the warrant, id. (citation omitted), asking
merely whether the judge had a “substantial basis” for that conclusion, United States v. Allen,
211 F.3d 970, 973 (6th Cir. 2000) (en banc) (citation omitted). When answering this question,
however, we may consider only the sworn information provided to the state judge. See United
States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020). In this case, that means we may consider
only the affidavits that the officers submitted to obtain the warrants.
1. Phone-Tracking Warrant
Sheckles first challenges the warrant to obtain his phone’s location data. This tracking
warrant requires two disclaimers about what we need not decide. Disclaimer One: In Carpenter
v. United States, 138 S. Ct. 2206 (2018), the Supreme Court reserved whether the acquisition of
a phone’s “real-time” location data (as compared to its historical location data) is a Fourth
Amendment “search” necessitating a warrant. Id. at 2220. The record here leaves unclear
whether AT&T produced more than real-time data from Sheckles’s phone. Yet we can leave this
“search” question for another day because the government conceded that the phone pinging
required a warrant backed by probable cause. Compare State v. Brown, 202 A.3d 1003, 1018
(Conn. 2019), with United States v. Hammond, __ F.3d __, 2021 WL 1608789, at *7–13 (7th Cir.
Apr. 26, 2021).
Disclaimer Two: The Fourth Amendment says that “no Warrants shall issue, but upon
probable cause[.]” U.S. Const. amend IV. Yet probable cause of what? When the police seek a
warrant to search a home for physical items, the caselaw has long answered this question: The
police need a probable-cause “nexus” showing a fair probability that the home to be searched
will contain the things to be seized. See United States v. Reed, __ F.3d __, 2021 WL 1217871, at
*3 (6th Cir. Apr. 1, 2021) (citation omitted); see also Zurcher v. Stanford Daily, 436 U.S. 547,
556 (1978). Here, however, the officers sought to locate a phone to identify the person using it
and investigate the person’s crimes, not to seize anything. What type of “nexus
between . . . cellphone location data and drug trafficking” justifies this different kind of warrant?
United States v. Thornton, 822 F. App’x 397, 402 (6th Cir. 2020). Must the affidavit show only
No. 20-5096 United States v. Sheckles Page 7
a fair probability that the phone’s data “will aid in a particular” investigation and disclose
evidence of criminal activity? United States v. Christian, 2017 WL 2274328, at *9 (E.D. Va.
May 24, 2017) (quoting Andresen v. Maryland, 427 U.S. 463, 483 (1976)); see Warden v.
Hayden, 387 U.S. 294, 307 (1967). Or must it show, say, a fair probability that the phone itself
is being used “in connection with criminal activity”? See United States v. Powell, 943
F. Supp. 2d 759, 779 (E.D. Mich. 2013), aff’d on other grounds 847 F.3d 760 (6th Cir. 2017).
This nexus issue has added importance after Carpenter.
We need not resolve the issue here. This case’s affidavit would pass muster under any
test. The affidavit summarized the 2007 investigation of the Rivas-Lopez brothers, their
distribution to Byron Mayes, and the DEA’s large seizure of drugs and money at that time. The
affidavit next summarized the Rivas-Lopez brothers’ post-prison drug trafficking in 2016 and the
seizure of a large amount of drugs and money from the Louisville stash house. It also noted that
Freddy told an undercover DEA agent on June 14, 2017, that he had just spoken with “his
Louisville distributor” and that he wanted the agent to deliver ten kilograms of cocaine to the
distributor. Freddy later told the agent that the Louisville distributor would pay in cash at a price
of $27,000 per kilogram. Using “toll analysis” of Freddy’s phone from June 14, the DEA
identified the phone number and phone that this Louisville distributor likely used to speak with
Freddy. The prepaid phone had no identifiable customer. The affidavit explained that, in the
officer’s experience, drug dealers commonly use that type of phone to remain anonymous.
Considered collectively, this information provided a “substantial basis” for the state
judge’s finding that probable cause existed to obtain the phone’s location data. Gates, 462 U.S.
at 238 (citation omitted). An undercover agent had learned from Freddy Rivas-Lopez—a known
drug trafficker—that Freddy planned to undertake a large deal with “his Louisville distributor.”
Unlike with information from a confidential informant, we presume the reliability of information
from this government agent. See United States v. Ventresca, 380 U.S. 102, 111 (1965); United
States v. Lapsins, 570 F.3d 758, 764 (6th Cir. 2009); 2 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 3.5(a) (6th ed), Westlaw (database updated Sept. 2020).
The affidavit also explained why the phone likely was used by the Louisville distributor “in
connection with” this pending deal: It was the number used when Rivas-Lopez told the
No. 20-5096 United States v. Sheckles Page 8
undercover agent that he had spoken to his distributor. Powell, 943 F. Supp. 2d at 779. And the
phone’s location would likely yield useful evidence of criminal activity, including the
distributor’s identity. See Hayden, 387 U.S. at 307. Thus, no matter the nature of the required
“nexus” between the phone’s location data and criminal activity, a sufficient nexus existed here.
Thornton, 822 F. App’x at 402; see United States v. Gibbs, 547 F. App’x 174, 179 (4th Cir.
2013).
Sheckles’s responses fall short. He first asserts that the affidavit offered no more facts
than that “a known drug dealer” (Freddy Rivas-Lopez) “call[ed] another phone.” Appellant’s Br.
33. The affidavit provided much more than that: An undercover agent summarized how Freddy
was planning a large drug deal with his Louisville distributor, and Freddy’s phone records
showed that the distributor was using this other phone to arrange that crime.
Sheckles next contends that even if probable cause existed when the judge issued the
warrant, it “dissipated” days later when officers learned from the undercover agent that the
distributor’s cocaine deal with Rivas-Lopez had fallen through. Sheckles correctly notes that, at
least for a traditional search warrant of a home, “there must be probable cause at the time the
judge issues the warrant and at the time officers execute it[.]” United States v. Archibald,
685 F.3d 553, 560 (6th Cir. 2012). If new information comes to light in the interim (say, the
police learn that the home has just been subject to a consent search that uncovered no evidence),
this new information could eliminate the probable cause that existed when the judge issued the
warrant. See United States v. Bowling, 900 F.2d 926, 932 (6th Cir. 1990).
The caselaw has not addressed how this rule should apply to technologically advanced
(and ongoing) searches like the kind at issue with the tracking warrant. See LaFave,
supra, § 4.7(a); cf. Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Miss. L.J.
85, 102–04, 115–24 (2005) (computer search); United States v. Nyah, 928 F.3d 694, 699–701
(8th Cir. 2019) (electronic-service-provider data). But the rule would not affect the outcome
anyway. Evidence should not be suppressed if probable cause continued to exist despite the new
facts. See Bowling, 900 F.2d at 934. Even if the officers needed probable cause for every “ping”
of the phone, the new fact (that the deal with Rivas-Lopez had fallen through) did not negate
probable cause. The undercover agent noted that this deal would not proceed precisely because
No. 20-5096 United States v. Sheckles Page 9
the distributor had bought other drugs. So a fair probability remained that the phone pinging
would reveal evidence of a crime even after the warrant’s issuance. See United States v. Green,
554 F. App’x 491, 495–96 (6th Cir. 2014); see also United States v. Porter, 774 F. App’x 978,
979 (6th Cir. 2019).
2. Warrants for Sheckles’s Two Apartments
Sheckles next challenges the search warrants for the Crescent Centre and Terrace Creek
apartments. Probable cause for these two warrants required a fair probability that the specific
place to be searched contained the specific things to be seized. See Zurcher, 436 U.S. at 556.
Or, as our cases put it, there must be a “nexus” between the place to be searched and the
evidence sought. Carpenter, 360 F.3d at 594.
A virtually identical affidavit was used for both warrants in this case. The affidavit
provided facts supporting three propositions: that Sheckles was a drug dealer, that he lived at the
Terrace Creek apartment, and that he sold drugs from the Crescent Centre apartment. Start with
Sheckles’s drug-dealer status. The affidavit included the information from the tracking warrant,
describing the 2007 investigation of the Rivas-Lopez brothers and the 2016 investigation of the
stash house affiliated with Julio. It added that officers had watched Sheckles visit this house
after they learned that Julio had shipped drugs there. The affidavit also summarized the
undercover agent’s discussion with Freddy about the delivery of ten kilograms of cocaine to “his
Louisville distributor” who used a specific phone. It explained that Sheckles likely was this
distributor because the phone had pinged at apartments connected to him. It also noted that
Freddy later told the undercover agent that this deal would not proceed because the distributor
(Sheckles) had “invested” “in other drugs.”
The affidavit also included facts indicating that Sheckles lived at the Terrace Creek
apartment complex. The phone of Freddy’s Louisville distributor pinged at this location.
Officers then observed a Ford Expedition rented by Sheckles there. And internet searches
showed that Sheckles leased a specific apartment at the complex.
The affidavit lastly included facts indicating that Sheckles was selling drugs at the
Crescent Centre apartment. The phone pinged at this apartment building after the ping at Terrace
No. 20-5096 United States v. Sheckles Page 10
Creek. An officer observed Sheckles’s Expedition parked in the spot for a specific apartment.
The next day, an employee at the building relayed the anonymous drug-dealing complaint about
that apartment. The tipster noted that the apartment was leased to John Murphy, who had sublet
it to “D” and “Boy” to sell drugs. An employee had smelled marijuana in the apartment when
replacing a filter. The officer also smelled marijuana from the apartment when walking past it.
The affidavit sought search warrants to seize drugs; drug paraphernalia; drug proceeds;
and drug records, including “cellular phones(s) . . . which may contain the identities of suppliers
or buyers.” Does the affidavit’s information provide a sufficient “nexus” between these items
and the apartments? We will address each apartment in turn.
a. Crescent Centre Apartment. The nexus is obvious for the Crescent Centre apartment.
Probable cause exists to search a residence if an affidavit “directly connect[s] the residence with
the suspected drug dealing activity[.]” United States v. Miller, __ F. App’x __, 2021 WL
1102302, at *2 (6th Cir. Mar. 23, 2021) (quoting United States v. Brown, 828 F.3d 375, 384 (6th
Cir. 2016)). We have found such a connection when an anonymous tipster complained about
drug sales at a home and officers later smelled drugs there. See United States v. Yarbrough,
272 F. App’x 438, 442–43 (6th Cir. 2007) (per curiam); United States v. Elkins, 300 F.3d 638,
659–60 (6th Cir. 2002); see also Johnson v. United States, 333 U.S. 10, 13 (1948); United States
v. Talley, 692 F. App’x 219, 222 (6th Cir. 2017).
The Crescent Centre apartment has the same connection to drug dealing. An officer
smelled marijuana at the apartment the day he sought the warrant. The officer’s senses were
corroborated by an apartment-building employee who had smelled marijuana at the apartment.
They were further corroborated by an anonymous complainant’s tip that individuals were selling
drugs there. This apartment-specific evidence alone likely created probable cause. See
Yarbrough, 272 F. App’x at 442–43. Yet it sat atop general evidence that Sheckles was a
distributor for a large-scale drug trafficker. So a “substantial basis” existed for the warrant.
Gates, 462 U.S. at 238 (citation omitted).
No. 20-5096 United States v. Sheckles Page 11
In response, Sheckles challenges two pieces of evidence used to establish probable cause.
He first criticizes the anonymous tip. True, an anonymous tip by itself might fall short of
probable cause. See Allen, 211 F.3d at 976. But “an anonymous tip that is corroborated by
independent police work may” well suffice. Yarbrough, 272 F. App’x at 442. And this tip was
corroborated by cross-border police work.
Sheckles next challenges the value of the officer’s detection of a marijuana odor, noting
that it could have come from another apartment and that the occupants could have been
marijuana users, not sellers. But any amount of illegal contraband can justify a warrant to seize
it (marijuana remains illegal in Kentucky). See United States v. Church, 823 F.3d 351, 355 (6th
Cir. 2016). And the smell of marijuana must be viewed with all the other evidence, which made
it quite unlikely that the officer had the wrong apartment. See Christian, 925 F.3d at 311.
b. Terrace Creek Apartment. The Terrace Creek apartment presents a much closer call.
The affidavit shows that Sheckles was a drug dealer who lived there. Is that enough to create a
“nexus” to search the apartment? Our cases point in both directions on this question. See Reed,
2021 WL 1217871, at *4. For his part, Sheckles relies on statements in our cases dismissing the
notion that a “defendant’s status as a drug dealer, standing alone, gives rise to a fair probability
that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir.
2005). Yet many other cases call it “well established that if there is probable cause to suspect an
individual of being an ongoing drug trafficker, there is a sufficient nexus between the evidence
sought and that individual’s home.” United States v. Feagan, 472 F. App’x 382, 392 (6th Cir.
2012). These cases have repeatedly noted that “[i]n the case of drug dealers, evidence is likely to
be found where the dealers live.” United States v. Sumlin, 956 F.3d 879, 886 (6th Cir. 2020)
(citation omitted).
Conflict? No, we have reconciled our cases in fact-specific ways. See Reed, 2021 WL
1217871, at *4–5. When we have used a drug dealer’s drug activities alone to find probable
cause to search the dealer’s home, the dealer was engaged in “continual and ongoing operations”
typically involving large amounts of drugs. United States v. McCoy, 905 F.3d 409, 418 (6th Cir.
2018); see Reed, 2021 WL 1217871, at *9 (citing cases). In one case, for example, officers
stopped a “large scale [h]eroin dealer” in a car filled with some 11 kilograms of cocaine.
No. 20-5096 United States v. Sheckles Page 12
United States v. Davis, 751 F. App’x 889, 891 (6th Cir. 2018). In another, officers learned,
among other things, that a drug dealer had picked up a package containing a kilogram of cocaine.
United States v. Miggins, 302 F.3d 384, 393–94 (6th Cir. 2002). When, by contrast, we have
found that drug distribution alone did not suffice, the police had evidence only of “a single
instance of drug possession or distribution[.]” McCoy, 905 F.3d at 418 n.5; see Brown, 828 F.3d
at 383–84. Or they lacked independently corroborated evidence that the defendant was even a
drug dealer (as opposed to a drug user). See United States v. McPhearson, 469 F.3d 518, 524–25
(6th Cir. 2006).
Our caselaw “leaves unclear the amount of drug activity required to invoke this nexus
principle.” Reed, 2021 WL 1217871, at *7. For two reasons, though, the affidavit in this case
gave the state judge a “substantial basis” to rely on the decisions that find probable cause in this
setting. Gates, 462 U.S. at 238 (citation omitted). Most notably, the affidavit described
Sheckles’s connection to a “large, ongoing drug trafficking operation” centered in Mexico and
led by the Rivas-Lopez brothers. Brown, 828 F.3d at 383 n.2. It described, among other facts,
how Sheckles had been negotiating with Freddy to buy 10 kilograms of cocaine. Cf. Davis,
751 F. App’x at 891. And it explained that Sheckles had not completed this deal because he had
invested in other drugs. The affidavit also detailed the evidence from the Crescent Centre
apartment, corroborating the ongoing nature of Sheckles’s drug distribution.
Apart from Sheckles’s work with an international drug-trafficking operation, the officers
also identified a specific connection between his residence and one item they sought to seize—a
phone. Sheckles had used a particular cellphone to coordinate the drug deal with Freddy in
Mexico. This phone had “pinged” at the Terrace Creek residence days before the search. The
phone was the type of property that, in the words of the affidavit, might contain information
about Sheckles’s “suppliers or buyers.” Cf. Sumlin, 956 F.3d at 887 & n.5. And there was a fair
probability that it was at his residence. The totality of the circumstances thus permitted the state
judge to find probable cause to search this apartment.
No. 20-5096 United States v. Sheckles Page 13
B. The Vehicle Stop
Sheckles next claims that the officers conducted an “unreasonable” “seizure” under the
Fourth Amendment when they stopped him as he drove away from the Crescent Centre
apartment at night on June 12. The government concedes two preliminary points for this claim.
It concedes that the officers engaged in a “seizure” when they stopped Sheckles. See Brendlin v.
California, 551 U.S. 249, 255 (2007). And it concedes that the officers seized Sheckles because
of his suspected drug crimes, not because of any traffic offense. Sheckles argues that the seizure
was unreasonable because the officers arrested him at the outset of the encounter and lacked the
probable cause required for an arrest. See Bailey v. United States, 568 U.S. 186, 192–93 (2013).
But we need not decide whether the officers had probable cause to arrest Sheckles based solely
on the drug-dealing evidence they used to obtain the search warrants. Cf. United States v. Baker,
976 F.3d 636, 645–46 (6th Cir. 2020). They at least had a “reasonable suspicion” to initiate the
stop, and the handgun they later discovered gave them probable cause to arrest Sheckles at that
point.
1. Initial Stop. Even when officers lack probable cause, the Fourth Amendment permits
them to undertake “brief investigatory stops of persons or vehicles that fall short of traditional
arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002). Officers may engage in these “Terry
stops” if they have a “reasonable suspicion” of criminal activity. See United States v. Sokolow,
490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). This reasonable-suspicion
test turns on the same totality of the circumstances that governs probable cause. See United
States v. Cortez, 449 U.S. 411, 417–18 (1981). But it requires less than the “probability or
substantial chance of criminal activity” necessary for probable cause. Wesby, 138 S. Ct. at 586
(citation omitted); Alabama v. White, 496 U.S. 325, 330 (1990). The officers need only
“a particularized and objective basis for suspecting the particular person stopped of criminal
activity.” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting Cortez, 449 U.S. at 417–18).
And since probable cause itself “is not a high bar,” Wesby, 138 S. Ct. at 586 (citation omitted), it
follows that reasonable suspicion is not either, see United States v. Bailey, 743 F.3d 322, 332 (2d
Cir. 2014).
No. 20-5096 United States v. Sheckles Page 14
The Supreme Court has said that the police may initiate a Terry stop when they
reasonably suspect that “criminal activity ‘may be afoot.’” Sokolow, 490 U.S. at 7 (quoting
Terry, 392 U.S. at 30) (emphasis added). But what does that ambiguous phrase mean? Must
officers suspect that a crime is being committed (or is about to be committed) at the precise
moment they make a stop? Terry involved that scenario: an officer believed individuals were in
the process of “casing a job” to “stick-up” a store. 392 U.S. at 6. But the Court has since held
that Terry is not limited to such preventative purposes. The police may also engage in Terry
stops to investigate past crimes. “[I]f police have a reasonable suspicion, grounded in specific
and articulable facts, that a person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made to investigate that suspicion.” United
States v. Hensley, 469 U.S. 221, 229 (1985).
Given the broad scope of a permissible Terry stop, several courts have allowed officers to
pull over individuals seen driving away from a residence when the officers have obtained (or are
about to obtain) a search warrant for the residence. See Bailey, 743 F.3d at 333–36; United
States v. Montieth, 662 F.3d 660, 665–67 (4th Cir. 2011); United States v. Bullock, 632 F.3d
1004, 1014 (7th Cir. 2011); United States v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988); United
States v. Pantoja-Soto, 768 F.2d 1235, 1236 (11th Cir. 1985) (per curiam). Admittedly, the
individuals had left the premises subject to the search warrant, so they did not fall within the
Supreme Court’s bright-line rule allowing officers to detain all people present at a place to be
searched. See Bailey, 568 U.S. at 192–202 (limiting Michigan v. Summers, 452 U.S. 692
(1981)). Yet the probable cause justifying “a narcotics search warrant” can also sometimes
provide “the reasonable suspicion necessary to conduct an investigative stop of” individuals
“whose suspected drug trafficking [is] the target of the warrant.” Montieth, 662 F.3d at 665; see
Bailey, 743 F.3d at 333. That is so even if the individuals were not engaged in a drug-trafficking
crime at the specific time that the officers pulled over their vehicle. See Bullock, 632 F.3d at
1014.
This case falls squarely within that precedent. The officers stopped Sheckles as he left
the Crescent Centre apartment and while they were obtaining a search warrant. Cf.
Pantoja-Soto, 768 F.2d at 1236. By then, they had learned all the information justifying the
No. 20-5096 United States v. Sheckles Page 15
warrant, including Sheckles’s connection to the Rivas-Lopez brothers and his suspected drug
sales at the apartment. The officers also knew that Sheckles had a prior felony drug conviction.
This evidence gave them at least a “particularized and objective basis” to question Sheckles
about his ongoing drug trafficking. Glover, 140 S. Ct. at 1187 (citation omitted). Their
investigatory stop was thus justified at its inception.
Sheckles responds that even if the officers had a reasonable suspicion that he was
engaged in drug dealing generally, “there was no proof that [he] was engaged in drug trafficking
activity that night, in his vehicle.” Appellant’s Br. 18. As the Seventh Circuit noted when
rejecting the same argument, Sheckles misunderstands the scope of a valid Terry stop. See
Bullock, 632 F.3d at 1014. Officers may stop a suspect not only for criminal-prevention
purposes, but also for criminal-investigation purposes. See Hensley, 469 U.S. at 229. They do
not need a specific suspicion that a suspected drug dealer is en route to a drug transaction or in a
vehicle brimming with drugs.
Sheckles also argues that the initial stop of his vehicle itself qualified as a full “arrest”
that required probable cause. But it is black-letter law that Terry applies to stops of drivers on
the public roads just as much as it applies to stops of pedestrians on the public sidewalks. See
Glover, 140 S. Ct. at 1187. If Sheckles is arguing that the officers subjectively intended to arrest
him (not simply question him) when they pulled over his vehicle, this claim conflicts with the
objective nature of this Fourth Amendment inquiry. See Whren v. United States, 517 U.S. 806,
812–13 (1996). The lawfulness of a stop does not turn on the subjective “motivation” of the
officer making it; it turns on the objective facts justifying the stop. Devenpeck v. Alford,
543 U.S. 146, 154 (2004); cf. United States v. Magnum, 100 F.3d 164, 170 (D.C. Cir. 1996). The
officers here had a particularized and objective basis to undertake a brief investigatory stop.
2. Continued Detention. Yet “a seizure that is lawful at its inception can violate the
Fourth Amendment if its manner of execution unreasonably infringes interests protected by the
Constitution.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). The permissible scope and
duration of a stop depends on the officer’s reasons for undertaking it. See Rodriguez v. United
States, 575 U.S. 348, 354 (2015). Take, for example, the typical traffic stop. Once an officer
completes the normal tasks associated with the stop (e.g., gets the driver’s information, checks
No. 20-5096 United States v. Sheckles Page 16
for warrants and proof of insurance, and issues a ticket), the officer cannot hold the driver to
investigate other crimes. See id. at 355–57. At the same time, officers often learn new
information during the stop—for example, the driver might confess to having drugs in the car.
United States v. Lott, 954 F.3d 919, 923 (6th Cir. 2020). This new information can create
reasonable suspicion to detain the driver longer in order to investigate the other crimes. Id.; see
also, e.g., United States v. Winters, 782 F.3d 289, 297 (6th Cir. 2015); United States v. Davis,
430 F.3d 345, 354–55 (6th Cir. 2005); United States v. Hill, 195 F.3d 258, 272–73 (6th Cir.
1999).
These principles do not help Sheckles. We need not decide what would have been the
permissible scope and duration of the initial stop to investigate Sheckles’s drug dealing because
the officers immediately learned significant new information when they approached his vehicle.
Cf. Bailey, 743 F.3d at 336–39; Bullock, 632 F.3d at 1014–17. They smelled marijuana,
suspected that the vehicle contained drugs, and called for a K-9 unit. Sheckles’s detention from
this point until the K-9 unit arrived about 48 minutes later was based on the new suspicion that
Sheckles had drugs in his vehicle. That suspicion was eminently reasonable. Indeed, our court
has repeatedly held that officers have probable cause to search a vehicle “when they detect the
odor of illegal marijuana coming from” it. United States v. Brooks, 987 F.3d 593, 599–600 (6th
Cir. 2021) (citing cases). The new information provided at least the reasonable suspicion
required to extend the stop for a K-9 unit to arrive, especially considering that the officers were
already investigating Sheckles for drug-trafficking crimes. See Lott, 954 F.3d at 922–23. And
after the police dog alerted to contraband, officers found a handgun in the center console. At that
point they had probable cause to arrest Sheckles, a felon who could not possess firearms.
Sheckles responds that the 48-minute wait for the K-9 unit transformed this investigative
stop into a full-scale arrest requiring probable cause. An investigative stop certainly “can
become unlawful if it is prolonged beyond the time reasonably required” to serve its purpose.
Caballes, 543 U.S. at 407. The Supreme Court reinforced this point when it found
impermissible a 90-minute wait for a drug-sniffing dog to search a detained traveler’s luggage at
an airport. United States v. Place, 462 U.S. 696, 709–10 (1983). But the officers in this case
likely had probable cause (not just reasonable suspicion) from the smell of the marijuana.
No. 20-5096 United States v. Sheckles Page 17
See Brooks, 987 F.3d at 599. Besides, even under Terry, we and other courts have repeatedly
upheld vehicle stops of less than (and sometimes even more than) an hour. See, e.g., United
States v. Perez, 440 F.3d 363, 373 (6th Cir. 2006); Davis, 430 F.3d at 354–55; United States v.
Orsolini, 300 F.3d 724, 730 (6th Cir. 2002); see also, e.g., United States v. Reedy, 989 F.3d 548,
553–54 (7th Cir. 2021); United States v. Salgado, 761 F.3d 861, 866 (8th Cir. 2014); United
States v. Davis, 113 F. App’x 500, 502–03 (3d Cir. 2004); United States v. Hardy, 855 F.2d 753,
761 (11th Cir. 1988). Sheckles also has made no argument that the officers were intentionally or
negligently dilatory.
Sheckles next claims that he had already been arrested when the officers found the
handgun because they placed him in handcuffs before then. Yet handcuffing “does not affect the
legitimacy of the Terry stop” as long as the facts justify the precaution. United States v. Marxen,
410 F.3d 326, 332 (6th Cir. 2005); Houston v. Clark Cnty. Sheriff Deputy John Does 1–5, 174
F.3d 809, 815 (6th Cir. 1999); cf. United States v. Lopez-Arias, 344 F.3d 623, 627–28 (6th Cir.
2003). The officers could conclude that the facts warranted it here. Although the record leaves
unclear when the officers actually handcuffed Sheckles during this encounter, there is no dispute
that they did so because of his “animated” or “aggravated” behavior on the side of the road. Cf.
United States v. Atchley, 474 F.3d 840, 849 (6th Cir. 2007). In addition, the officers were
investigating Sheckles for serious offenses, not a moving violation. Cf. Marxen, 410 F.3d at 332.
Sheckles also doubts the sincerity of the officers’ claim that they smelled marijuana.
“But this factual debate was for the district court to resolve.” Brooks, 987 F.3d at 599. And the
district court found their testimony credible. Sheckles, 2019 WL 325637, at *5–6. Given one
officer’s unambiguous recollection that there was a “really strong odor of marijuana,” the court’s
conclusion was not clearly erroneous.
Switching topics, Sheckles lastly argues that the officers questioned him during the stop
in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The magistrate judge found his
challenge moot because the government stipulated that it would not introduce the statements at
trial. See Sheckles, 2018 WL 7297867, at *5 n.4; cf. United States v. Sims, 603 F. App’x 479,
483–84 (6th Cir. 2015). Sheckles did not object to this conclusion in the district court or respond
to the government’s identical claim on appeal. We thus need not consider the issue.
No. 20-5096 United States v. Sheckles Page 18
C. Search of the Storage Unit
That leaves Sheckles’s challenge to the storage-unit search, which rested on the consent
of his girlfriend, Cristal Flores. Although consent to a search avoids the need for a warrant or
probable cause, the consent must be voluntary and must come from a party with apparent or
actual authority over the premises. See Illinois v. Rodriguez, 497 U.S. 177, 188–89 (1990);
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973). Sheckles attacks both aspects of a
valid consent: He argues that Flores’s consent was involuntary and that she lacked authority over
the storage unit.
1. Was Flores’s consent voluntary? The government must prove that a party consented
to a search by a preponderance of the evidence. See United States v. Lee, 793 F.3d 680, 685 (6th
Cir. 2015). To be valid, the consent must be “voluntary, unequivocal, specific, intelligently
given, and uncontaminated by duress or coercion.” United States v. Alexander, 954 F.3d 910,
918 (6th Cir. 2020) (quoting United States v. Canipe, 569 F.3d 597, 602 (6th Cir. 2009)). When
deciding whether a party’s consent was freely given or coercively extracted, a court should
consider the totality of the circumstances, including, for example, the party’s age and education
and the nature of the questioning from which the consent originated. Schneckloth, 412 U.S. at
226. We review the finding that a party gave voluntary consent for clear error. Lee, 793 F.3d at
684.
This deferential standard of review resolves this appeal. Nobody disputes that Flores
signed a consent form and thus gave “specific” and “unequivocal” consent. See Alexander,
954 F.3d at 918. But the parties paint starkly different pictures of the scene from which this
consent arose. Flores notes that some nine to ten officers barged into her apartment with guns
drawn in the dark of night, that she was pregnant, undressed, and asleep with a small child, that
she was questioned for an hour, and that she was scared and simply wanted the officers to leave.
The officers respond that the atmosphere was not hostile by the time that Flores spoke with them,
that she politely and cooperatively discussed the storage unit, and that they did not threaten her
in any way. The magistrate judge (whose findings the district court adopted) resolved these
contrasting portraits of the scene by siding with the officers. The judge noted that the initial
“displays of force,” while “startling,” “took place long before Flores signed the consent form”
No. 20-5096 United States v. Sheckles Page 19
and that “[e]vents closer to her written consent were much more cordial.” Sheckles, 2018 WL
7297867, at *7. The judge added that the officers calmy spoke with Flores, told her that she was
not under investigation, and never “threatened or yelled at her.” Id.
Given these findings, the judge did not clearly err when concluding that Flores consented
to the search without coercion. See United States v. Perry, 703 F.3d 906, 909 (6th Cir. 2013)
(abrogated on other grounds). In fact, many decisions have upheld consent searches when the
officers’ initial “show of force” had “dissipated” by the time the party gave consent. United
States v. Warwick, 928 F.3d 939, 945 (10th Cir. 2019); see, e.g., United States v. Snype, 441 F.3d
119, 131–32 (2d Cir. 2006); United States v. Barnett, 989 F.2d 546, 555–56 (1st Cir. 1993). In
this case, too, the “initial melee of agents, badges and weapons” was not so “inherently coercive”
as to render any later consent automatically invalid—no matter how freely it was given or how
much time had passed. United States v. Taylor, 31 F.3d 459, 463, 464 (7th Cir. 1994).
In response, Sheckles compares this case to United States v. Starnes, 501 F. App’x 379
(6th Cir. 2012). Starnes reversed a finding that a woman had voluntarily consented to a search
of her apartment while the police raided it to arrest her husband. Id. at 388–90. But the consent
in Starnes does not resemble the consent in this case. There, the woman did not think she had a
choice but to consent because the officers were already in the process of searching her
apartment; she was visibly “angry” and “upset”; and she was in handcuffs up until just before she
gave the consent. Id. at 389–90. Here, by contrast, Flores was calm. According to one officer,
she even said that she felt “relieved about the whole incident.” Substantial time had also passed
between the officers’ stressful entrance and Flores’s consent. And the officers were not in the
process of searching the storage unit when she consented, so they did not create any false
impression that the search of that unit was all but inevitable.
Sheckles also notes that the officers did not inform Flores of her right to refuse consent.
But the Supreme Court has adopted a totality-of-the-circumstances test to assess whether a
consent is voluntary. Although “knowledge of the right to refuse consent” is a relevant factor, it
is not “a necessary prerequisite” for finding voluntariness. Schneckloth, 412 U.S. at 232. The
magistrate judge thus correctly looked to the totality of the circumstances when finding that
Flores consented.
No. 20-5096 United States v. Sheckles Page 20
2. Did Flores have authority to consent? Even if Flores voluntarily consented to the
search of the storage unit, she still must have had the power to do so for the search to be
reasonable under the Fourth Amendment. A stranger to a property obviously cannot consent to
its search. But what type of connection to the property must a party possess? The Supreme
Court has held that the constitutional power to consent exists if the party has “actual” or
“apparent” authority over the property. See Rodriguez, 497 U.S. at 188–89; United States v.
Ayoub, 498 F.3d 532, 541 (6th Cir. 2007). We review de novo the ultimate question whether this
authority existed (while reviewing any factual findings for clear error). United States v. Hudson,
405 F.3d 425, 431 (6th Cir. 2005).
What does it take for a party to have “actual” authority over property? The Supreme
Court addressed this question at a time when it was emphasizing the Fourth Amendment’s
privacy purposes and downplaying property-law concepts (think of the “reasonable expectation
of privacy” test for a “search”). See United States v. Matlock, 415 U.S. 164, 171 & n.7 (1974);
see also Georgia v. Randolph, 547 U.S. 103, 110 (2006). The Court thus noted that this
authority to consent does not “rest on the law of property,” Matlock, 415 U.S. at 171 n.7,
including, for example, on whether a person has a property-law right to permit another to enter
without committing a trespass, Randolph, 547 U.S. at 110–11. Rather, the authority to consent
depends on the “mutual use of the property by persons generally having joint access or control
for most purposes[.]” Rodriguez, 497 U.S. at 181 (quoting Matlock, 415 U.S. at 171 n.7). This
definition follows from a privacy-based paradigm: When a party shares property with others, the
entire group has a reduced expectation of privacy because the group members have “assumed the
risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S.
at 171 n.7.
Since Matlock, however, the Supreme Court has held in other contexts that the
protections arising from the Court’s privacy-based approach to the Fourth Amendment have only
“added to, not substituted for,” the protections that arise from the “traditional property-based
understanding” of the amendment. Florida v. Jardines, 569 U.S. 1, 11 (2013) (citing United
States v. Jones, 565 U.S. 400, 409 (2012)). So although a state-law right to allow others onto a
property may not be a sufficient condition for a party to possess the actual authority to consent to
No. 20-5096 United States v. Sheckles Page 21
a search, it might be argued that such a right remains a necessary condition for such authority.
See Fernandez v. California, 571 U.S. 292, 308 (2014) (Scalia, J., concurring). But Sheckles
does not argue the point here so we need not address whether this recent caselaw affects consent
searches.
Even so, “[t]he meanings of ‘mutual use’ and ‘joint access’ are far from clear” under
Matlock’s actual-authority test. United States v. Chaidez, 919 F.2d 1193, 1202 (7th Cir. 1990).
It is thus useful to consider how courts have applied this test to storage units. They have held
that a party has actual authority to consent to a storage-unit search when the party has a right to
enter the unit under the terms of the rental agreement with the storage facility. See United States
v. Smith, 353 F. App’x 229, 230–31 (11th Cir. 2009) (per curiam); United States v. Trotter,
483 F.3d 694, 699 (10th Cir. 2007) (judgment vacated on other grounds); United States v. Camp,
157 F. App’x 121, 122–23 (11th Cir. 2005) (per curiam); United States v. Kim, 105 F.3d 1579,
1582 (9th Cir. 1997); United States v. Warren, 18 F.3d 602, 603–04 (8th Cir. 1994). In one case,
a court found actual authority when the defendant instructed a third party to lease storage units in
the third party’s name, and the third party occasionally supervised the loading of goods into the
units. Kim, 105 F.3d at 1582. Actual authority existed, the court held, even though the third
party did not usually possess the key and could not open the units. Id. In another case, a court
found actual authority when the defendant had his girlfriend lease the storage unit in her name
and she stored some items in the unit. See Camp, 157 F. App’x at 122–23. The court reached
this conclusion even after the defendant had changed the locks and denied his girlfriend access to
the unit. Id.
This caselaw demonstrates that Flores had actual authority over the storage unit. The
storage facility’s records showed that Sheckles identified Flores as having authorized access to
the unit under his rental agreement. See Sheckles, 2018 WL 7297867, at *7 & n.6. Flores thus
had a legal right to enter and store items in the unit. Cf. Warren, 18 F.3d at 603–04. This right
of access would likely satisfy any sort of property-based approach. See Jones, 565 U.S. at 409.
In addition, Flores exercised her shared right of access by using the unit. She told officers that
she had been to the unit to store clothes and one-dollar bills for her daughter, and the officers
discovered these items there. Their mutual use of the unit and Sheckles’s decision to list her on
No. 20-5096 United States v. Sheckles Page 22
the rental agreement prove that he “assumed the risk” that Flores would invite others to examine
it under Matlock’s privacy-based approach. Kim, 105 F.3d at 1582; see Matlock, 415 U.S. at 171
n.7.
Sheckles responds that the officers did not obtain the storage facility’s records confirming
that Flores had a right to enter and use the storage unit until after their search. He adds that
Flores lacked apparent authority to consent at the time of the search. Apparent authority exists
when “the facts available to the officer at the moment” would lead a reasonable officer to believe
that a party had actual authority. Rodriguez, 497 U.S. at 188 (citation omitted). Sheckles claims
that the facts that the officers knew at the time—that Flores “had stuff” at the unit but did not
have a key—would not permit a reasonable officer to believe that she had actual authority. But
we need not address this apparent-authority question. Cf. United States v. Burcham, 388
F. App’x 478, 482 (6th Cir. 2010). Even assuming that Flores lacked apparent authority when
the officers questioned her, a valid consent search requires either actual authority or apparent
authority; it does not require both. See Chaidez, 919 F.2d at 1201; see also United States v.
Gardner, 887 F.3d 780, 783 (6th Cir. 2018). The Supreme Court made this point in Rodriguez
when it held that a consent search would violate the Fourth Amendment if the police lacked
apparent authority, “unless authority actually exists.” 497 U.S. at 189. Authority actually
existed here.
Does it matter, though, that the officers did not discover Flores’s actual authority until
after they searched the unit? In raising this claim, Sheckles attempts to import into this actualauthority question the apparent-authority requirement to consider only the facts that the officers
knew “at the moment” they obtained consent. See id. at 188 (citation omitted). Yet actual
authority depends on the actual facts; only apparent authority depends on the officers’
reasonable (if mistaken) “impressions of the facts.” Ayoub, 498 F.3d at 541 (emphasis
added); cf. Restatement (Second) of Agency § 49(a) (Am. L. Inst. 1958). The actual facts in this
case—including, most notably, Flores’s authorized access under the rental agreement—prove
actual authority.
Outcome: We affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: