United States v. Antoine Davis

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2023
• Docket: 22-30083
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30083

Plaintiff-Appellee, D.C. No. 3:18-cr-00131-TMB-MMS-1 ANTOINE DAVIS, AKA Shorty, AKA Tone, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted August 16, 2023** Anchorage, Alaska

Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.

Following a jury trial, Defendant Antoine Davis was convicted of multiple

controlled substance and firearm offenses. Davis appeals the district court’s denial

of his pre-trial motion to suppress evidence seized during the execution of a search

warrant at his residence. He argues that the district court erred in finding that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). search warrant affidavit established probable cause because the affidavit

improperly relied on (1) a confidential informant (“the CHS”) who was not

credible and (2) a controlled buy that was not sufficiently monitored. We review

de novo the denial of a motion to suppress but review the district court’s factual

findings for clear error. United States v. Moore, 770 F.3d 809, 812 (9th Cir. 2014).

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Probable cause exists for a search warrant 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). Whether a fair probability exists “depends

upon the totality of the circumstances.” United States v. Kelley, 482 F.3d 1047,

1050 (9th Cir. 2007).

1. The district court did not err in finding that the CHS was a reliable

source that supported a finding of probable cause. First, the CHS was known to

the police, see United States v. Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006),

and her knowledge came “first-hand” from interacting with Davis and witnessing

firearms, drugs, and the sale of drugs in his apartment, United States v. Bishop, 264

F.3d 919, 925 (9th Cir. 2001). Second, she was frank with the officers about how

she learned this information and even admitted her continued drug use and

involvement in sex work. See United States v. Nielsen, 371 F.3d 574, 580 (9th Cir.

2004) (concluding that the informant’s disclosure of drug use was “an additional

2 indicator of truthfulness”). Third, most of her tips were corroborated, including

Davis’s nickname, drug trafficking, travel habits, and criminal history. See Gates,

462 U.S. at 244–46. Critically, Davis’s own statements during the recording of the

controlled buy and the results of the controlled buy confirmed the CHS’s reports

that Davis was involved in drug trafficking. See United States v. Reeves, 210 F.3d

1041, 1046 (9th Cir. 2000) (determining that a witness’s recent observation of

drugs in the defendant’s residence supported a finding of probable cause). While

the CHS did not have a history of reporting to law enforcement, was involved in

criminal activity and paid for her cooperation, and may have been convicted of

crimes involving dishonesty,1 there was sufficient additional evidence that

“bolster[ed] [her] credibility.” Id. at 1045. Therefore, under the totality of the

circumstances, the district court did not err in finding that the magistrate judge

made a “balanced assessment of the relative weights of all the various indicia of

reliability (and unreliability)” in concluding that the CHS was a credible source

that supported a finding of probable cause. Gates, 462 U.S. at 234.

2. The district court did not err in finding that the controlled buy was

sufficiently reliable and supported a finding of probable cause. Although the CHS

1 We need not determine whether theft is a crime of dishonesty for purposes of assessing an informant’s reliability because even assuming that the CHS’s theft- related convictions amounted to crimes of dishonesty, the magistrate judge had a “substantial basis” to find her reliable. Reeves, 210 F.3d at 1046.

3 was out of sight, the agents watched her enter and exit the building while recording

her the entire time. The audio transcript clearly captured that the CHS requested

drugs from Davis, which he then confirmed, and ultimately provided her, and that

during this encounter, another individual came to Davis’s apartment to purchase

drugs and left with those drugs. Moreover, the CHS then returned with the drugs

she requested from Davis. This evidence provides a “substantial basis” to believe

that there is a “fair probability” that drugs and other contraband would be found at

Davis’s apartment. Reeves, 210 F.3d at 1046. Any flaws in the buy identified by

Davis were not fatal to the operation in light of the recorded conversations,

observed location, and resulting drugs, which established a “reasonable nexus”

between the contraband sought and the residence. United States v. Rodriguez, 869

F.2d 479, 484 (9th Cir. 1989).

Therefore, because the district court correctly found that the magistrate

judge had a “substantial basis” to find probable cause on account of the search

warrant’s affidavit detailing information from the CHS and the controlled buy, the

district court did not err in denying Davis’s motion to suppress evidence. Reeves,

210 F.3d at 1046.

AFFIRMED.