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noting that prior arrests and convictions can be helpful in establishing probable cause, especially where the previous arrest or conviction involves a crime of the same general nature as the one the warrant is seeking to uncover
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No. 02-40013-01-SAC
July 19, 2002
BENCH MEMORANDUM
This case comes before the court on defendant's motion to suppress evidence obtained in a search, pursuant to a warrant, of her residence in Topeka, Kansas. The court held an evidentiary hearing on July 9, 2002, and now issues this ruling.
Facts
The parties do not dispute the relevant facts. On November 4, 2000, Topeka Police Department Detective Brian Hill applied for and obtained a search warrant from Judge Richard Anderson to search two residences: defendant's residence at 2116 S.E. 21st Terrace, and another residence where officers believed defendant was supplying cocaine, 2011 S.W. 8th St. The warrant authorized officers to search for cocaine, drug records, drug money, and indicia of occupancy. The search warrant was executed, apparently on both residences, on Nov. 8, 2001. Nothing of evidentiary value was found in the search of the residence where officers believed defendant was supplying cocaine (2011 S.W. 8th St.), but the search of defendant's residence (2116 S.E. 21st Terrace) revealed crack cocaine on defendant's person.
Defendant does not challenge the manner in which the warrant was executed, the validity of the Miranda warnings given to her, the search of her person, or any events other than the validity of the search warrant. Defendant alleges that the warrant is legally insufficient because: 1) the informant cited in the affidavit in support of the warrant was not shown to be reliable; 2) the affidavit in support of the warrant contains inaccurate information regarding defendant's prior arrests and drug dealings; and 3) the warrant is not supported by probable cause. The government disputes all the above, and further contends that the affidavit, even if legally insufficient, is saved by Leon's good faith exception. These issues are examined below.
I. Reliability of informant
Defendant contends that the search warrant affidavit fails to establish the reliability of the informant who provided certain facts set forth in the affidavit. The informant stated that he had purchased rock cocaine in the last 48 hours from a black female at 2011 S.W. 8th St, that defendant drives a green Ford Explorer, that defendant sells rock cocaine from 2011 S.W. 8th St., that defendant personally delivers larger amounts of cocaine, and that defendant's boyfriend, Romy, assists her in her drug business. Defendant focuses upon the facts that the informant had numerous arrests and convictions for crimes of dishonesty, and provided the information in exchange for money.
General Law
In Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme Court abandoned the requirement that an officer set forth an informant's reliability in the affidavit. The court is to determine an informant's credibility or reliability and basis of knowledge under a flexible totality of circumstances standard. United States v. Smith, 63 F.3d 956, 961 (10th Cir. 1995), judgment vacated on other grounds, 516 U.S. 1105 (1996). "Veracity and basis of knowledge are not, however, rigid and immovable requirements in the finding of probable cause. A deficiency in one element may be compensated for 'by a strong showing as to the other, or by some other indicia of reliability.'" United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992). Consequently, the affiant need not declare the informant's reliability when the informant's statements are corroborated by extrinsic information. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992); United States v. Reno, 196 F. Supp.2d 1150, 1159 (D.Kan. 2002).
Application
The search warrant states:
this informant has numerous arrests and convictions for crimes of dishonesty. This informant has provided information in the past that has lead to arrests and seizures of narcotics as described by the informant. The informant is working for monitary (sic) gain and will only profit if the information provided proves to be true and accurate.
Dk. 19, App. A, p. 2. This statement reflects not only Det. Hill's opinion that the informant is reliable, but also the factual basis for that opinion, i.e., that the informant had a record of having provided accurate information. It additionally reveals the informant's motive to impart "true and accurate" information to him.
The affidavit additionally contains Det. Hill's statement that he had "received other information recently from other sources that [defendant] is selling rock cocaine from 2011 S.W. 8th, but lives at 2116 S.E. 21st Terr." Id., p. 3. The statement of the challenged informant that defendant is selling rock cocaine from 2011 S.W. 8th is thus consistent with information provided by other sources. The Tenth Circuit has recently recognized that consistency between reports of two informants can help to validate both accounts. United States v. Le, 173 F.3d 1258 (10th Cir. 1999).
Lastly, some information provided by the informant was corroborated by independent surveillance by the police department. Det. Hill had been advised by another suspect that defendant's boyfriend was "Romy," as the informant had stated. Officer Ping had been advised within the preceding month that defendant was delivering narcotics from her house, then he observed her leave her house driving a green Ford Explorer and go to locations known for selling crack cocaine, confirming in part the informant's statements that defendant drove such a vehicle and delivered cocaine to others.
Given the totality of the circumstances, the informant's reliability was sufficiently established.
II. Erroneous information
Defendant next alleges that the affidavit contains "incorrect" information regarding her prior arrests and presence at other drug raids. Defendant challenges Det. Hill's assertion: "I have done drug raids in the past on [defendant] where large amounts of crack cocaine were seized. [Defendant] has an extensive criminal history of arrests for drug charges and acts of violence." (Dk. 19, App. A, p. 3, ¶ 2.)
General Law
A judge's reliance upon prior arrests is generally appropriate. "Under United States v. Harris, 403 U.S. 573, 582-83, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971), the fact of a prior arrest may properly be considered by a Magistrate in making a probable cause determination." Jones v. Town of Seaford, Del., 661 F. Supp. 864, 871 (D.Del., 1987). "The use of prior arrests and convictions is not only permissible, . . . but is often useful. This is especially so where, as in the matter presently before the court, the previous arrest or conviction involves a crime of the same general nature as the one which the warrant is seeking to uncover." United States v. Conley, 4 F.3d 1200, 1207 (3d Cir. 1993); see, Edmondson v. United States, 402 F.2d 809 (10th Cir. 1968) (sufficient probable cause for search warrant for automobile where defendant was personally known to agent as having three prior burglary convictions and being an associate of persons involved in bank burglaries and investigations, and defendant's automobile was seen two days before bank robbery in vicinity of bank.)
Application
Det. Hill testified that at the time he applied for the search warrant, he had knowledge that defendant had been arrested for the following crimes, by virtue of his then recent review of defendant's arrest report, a document maintained in the ordinary course of business by the Topeka Police Department:
TPD Case Number Charges on arrest report
82-28308 Simple battery
86-14455 2 counts aggravated assault, unlawful use of weapons
86-14959 Possession of marijuana, theft
89-06601 Aggravated battery
89-13678 Battery, theft
96-17792 Battery
96-40851 Battery
97-39234 Possession of cocaine with intent to sell, and possession of marijuana
98-10498 First degree murder
These facts known to Det. Hill support his conclusion, stated in the affidavit, that defendant had an extensive criminal history of arrests for drug charges and acts of violence. See Gvmt. Exh. 4. No testimony was presented to rebut Det. Hill's statement that he was aware of the above information at the time he signed the affidavit.
The record additionally reflects that Det. Hill was present when defendant was arrested for possession of cocaine with intent to sell in case no. 97-39234, and knew that 17 grams of rock cocaine had been seized near the defendant, and that another 18.6 grams of cocaine had been seized elsewhere in the apartment. See Exh. 3. Det. Hill also testified that defendant was present in at least one other raid of a residence in which drugs were seized, although defendant was not arrested. No contrary evidence was offered. Det. Hill was thus not incorrect in stating in the affidavit that defendant had been involved in a drug raid in the past in which large amounts of crack cocaine were seized. Accordingly, the challenged information included in the affidavit has not been shown to be erroneous.
III. Probable Cause General Law
Generally, a search must be made pursuant to a warrant based on probable cause. U.S. Const. amend. IV. The reviewing court gives "great deference" to the issuing judge's determination of probable cause, for it is a determination based on common sense. United States v. Finnigin, 113 F.3d 1182, 1185 (10th Cir. 1997). The issuing judge must make a practical, common-sense determination from the totality of the circumstances presented whether 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). The issuing judge is expected to draw reasonable inferences from the affidavits. See United States v. Edmonson, 962 F.2d 1535, 1540 (10th Cir. 1992).
The reviewing court will uphold that determination if the supporting affidavits provide a substantial basis for finding that probable cause existed. Gates, 462 U.S. at 236; Finnigin, 113 F.3d at 1185. "In applying the test enunciated in Gates, this Court has stated that the 'affidavit' should be considered in a common sense, nontechnical manner . . ." Edmonson, 962 F.2d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir. 1982) (citation omitted)).
"[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. The Supreme Court has found it sufficient to say that probable cause is more than a mere suspicion, but considerably less than what is necessary to convict someone. United States v. Ventresca, 380 U.S. 102 (1965); see United States v. Wicks, 995 F.2d 964, 972 (10th Cir. 1993) ("The existence of probable cause is a 'common-sense standard' requiring 'facts sufficient "to warrant a man of reasonable caution in belief that an offense has been committed."'") (quoting United States v. Mesa-Rincon, 911 F.2d 1433, 1439 (10th Cir. 1990)) (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)); United States v. Jackson, 199 F. Supp.2d 1081 (D.Kan. 2002).
Separate cause necessary for separate residences
Because no evidence was found in the residence where defendant was believed to be dealing drugs, defendant's challenge is directed to the search of defendant's residence, in which evidence was found. "Generally a single warrant may authorize the search of several different places or residences; however probable cause must be shown for searching each area." United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979) (citing cases). . . . in the case of multi-location search warrants, the magistrate must be careful to evaluate each location separately. "A search warrant designating more than one person or place to be searched must contain sufficient probable cause to justify its issuance as to each person or place named therein." People v. Easely, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813, 820 (1983). Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir. 1994). The inquiry is thus whether the search warrant contains sufficient probable cause to justify its issuance as to defendant's residence.
Nexus
Probable cause to search a location does not depend on direct evidence or personal knowledge that evidence or contraband is located there. United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 523 U.S. 1079 (1998). Nor is it necessary that the affidavit aver that criminal activity actually occurred there. See United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992). Instead, it is sufficient when the affidavit establishes a "nexus between the objects to be seized and the place to be searched" from which "a person of reasonable caution" would "believe that the articles sought would be found" there. United States v. Hargus, 128 F.3d at 1362. This nexus "may be established through . . . normal inferences as to where the articles sought would be located." United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982).
"[C]ourts often rely on the opinion of police officers as to where contraband may be kept." $149,442.43 in U.S. Currency, 965 F.2d at 874 (citations omitted). "Where a suspect has no place of business separate from his residence, it is reasonable for an officer to conclude that evidence may be at the suspect's residence." Id. (citation omitted); see United States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992) ("The expectation of finding evidence of the crime [growing marijuana] at the suspect's home, given that such evidence was not found at the scene of the illegal activity, was a reasonable inference which supported the magistrate's determination of probable cause to search the residence.").
In Pace, the Fifth Circuit observed:
While the notion that "few places are more convenient than one's residence for use in planning criminal activities and hiding fruits of a crime," United States v. Green, 634 F.2d 222, 226 (5th Cir. 1981), does not provide carte blanche for searching a home when one is suspected of illegal activity, concealment of the business records of a drug operation at home certainly is a reasonable inference when a search of the situs of the operation yields no records. 955 F.2d at 277-78.United States v. Kelley, 6 F. Supp.2d 1168, 1178-1179 (D.Kan. 1998).
In United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998), the Tenth Circuit emphasized that "[p]robable cause to search a person's residence does not arise based solely upon probable cause that the person is guilty of a crime. Instead, there must be additional evidence linking the person's home to the suspected criminal activity." Id. Recently, the Tenth Circuit declined to join other circuits which have held, in cases involving drug traffickers, that "observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect's house, even in the absence of an allegation that any illegal activity occurred in the home itself." United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999), citing cases. The Tenth Circuit additionally declined to join those circuits which expressly recognize that evidence of drug trafficking will likely be found where a drug dealer lives, choosing to leave that issue for another day. Id., citing cases.
Application
As the government concedes, the affidavit in this case provides no direct evidence that the defendant had drugs at her residence at the time the search warrant was executed, and makes no reference to drugs having been found or seen at the defendant's residence at any time. See Dk. 19, p. 5.
Officers believed defendant had a place of business separate from her residence, as established in the search warrant. The evidence fails to show that officers searched defendant's place of business in vain prior to issuance of the search warrant for defendant's residence. Thus the government is not aided by case law acknowledging the reasonableness of an inference that evidence of drug dealing may be at the suspect's residence where a suspect has no place of business separate from his residence.
The affidavit contains other indicia of probable cause, however, some of which are examined below. These include Det. Hill's opinion that drug dealers commonly conceal evidence of drug dealing in their residences, defendant's history of drug arrests, and Officer Ping's statement to Det. Hill that within the last month another source told him that defendant "was delivering narcotics on a certain night from her house" in her vehicle and went to locations known for selling crack cocaine.
Det. Hill opined:
It is common for large scale drug dealers to conceal in secure locations within their residences, the residence of their family and residences of close associates records concerning their drug business, stashes of drugs, proceeds of drug transactions, and other items of value for their ready access and to hide these items from law enforcement authorities.
Dk. 19, App. A, p. 1. See also Id. p. 2 (reciting that drug traffickers often maintain records of drug business "where the trafficker will have ready access to them.") Although the Tenth Circuit may or may not recognize this proposition as a legal inference in the absence of any evidence, see Nolan, supra, Det. Hill's statement, as the opinion of an experienced officer, carries some weight.
Secondly, the affidavit reflects Det. Hill's knowledge of defendant's criminal history relating to drugs, in stating: "I have done drug raids in the past on [defendant] where large amounts of crack cocaine were seized. [Defendant] has an extensive criminal history of arrests for drug charges and acts of violence." (Dk. 19, App. A, p. 3, ¶ 2.). Defendant's arrest record is helpful in establishing probable cause to search defendant's residence to the extent it involves crimes of the same general nature as the one the warrant seeks to uncover, i.e., drug offenses.
While use of prior arrests and convictions can be helpful in establishing probable cause, especially where the previous arrest or conviction involves a crime of the same general nature as the one the warrant is seeking to uncover, [defendant's] criminal history is only relevant as it related to the [defendant's] residence. Greenstreet v. County of San Bernadino, 41F.3d 1306, 1309-10 (9th Cir. 1994). Det. Hill's statement showed the issuing judge that defendant's previous arrests were of the same general nature as the one the warrant sought to uncover, and thus was valuable in establishing probable cause to search her residence.
The affidavit additionally states Det. Hill's knowledge that Officer Ping had been told that within the last month defendant "was delivering narcotics on a certain night from her house" in her vehicle and went to locations known for selling crack cocaine. This information, coupled with that provided by the challenged informant, adds reason to believe that items related to the drug business would be found in defendant's residence.
The court finds that the facts set forth in the affidavit establish probable cause to search defendant's house. Evidence of defendant's current involvement in drug sales by delivering drugs from her home to other locations, Det. Hill's experienced opinion that drug dealers often keep drug related items at their homes, and defendant's history of arrests on drug charges, coupled with other facts recited in the affidavit, are sufficient to warrant a person of reasonable caution in believing that the items sought would be found in defendant's home.
IV. Leon good faith exception
Even if the affidavit were legally insufficient, the court would uphold the search because the officers executing the search warrant acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate. See United States v. Leon, 468 U.S. 897 (1984). In making this determination, the court "must examine the underlying documents to determine whether they are 'devoid of factual support.'" United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (quoting United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993)).
The affidavit here is not so lacking in indicia of probable cause that the executing officers should have known the search was illegal despite the issuing judge's authorization. See Leon, 468 U.S. at 922 n. 23. The affidavit contained a first-hand account by Det. Hill of information regarding defendant's prior criminal arrests, acts he recently viewed which he believed to be counter-surveillance, specific information from a reliable informant, and corroborating information from another officer. A reasonably well-trained officer likely would have believed this affidavit was sufficient for a lawful search warrant. The "good-faith" exception thus applies.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 12) is denied.