NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 22-2108 _______________
UNITED STATES OF AMERICA
v. DAVID TORRES, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-20-cr-00181-001) District Judge: Honorable Robert D. Mariani _______________
Submitted Under Third Circuit L.A.R. 34.1(a): January 18, 2023 _______________
Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.
(Filed: January 20, 2023)
______________
OPINION ______________
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
David Torres pleaded guilty to charges of possession with intent to distribute 40
grams or more of fentanyl, for which the court sentenced him to 164 months of
imprisonment. His guilty plea was conditional, reserving his right to appeal the denial of
his motion to suppress evidence and withdraw his guilty plea should he prevail. For the
reasons that follow, we will affirm the District Court.
I
An investigation conducted by the Pennsylvania State Police, Wilkes-Barre City
Police, and Luzerne County Drug Task Force identified Torres as a suspected drug
trafficker. Id. Law enforcement began monitoring 66 Church Street, where Torres stayed,
and developed at least one confidential informant (CI) who aided in their inquiries.
Through their use of the CI, police arranged two controlled buys of cocaine and
heroin/fentanyl within a span of six days in December 2019. In each instance, the CI
called Torres, requested the narcotics, and arranged a time and place to meet. In each
instance, Torres was observed by law enforcement leaving 66 Church Street and driving a
rented Nissan Altima to the meeting point. Both times, he drove directly from 66 Church
Street to the meeting point and didn’t make any stops along the way. Id. Law
enforcement ensured that the CI did not enter the meeting point with any contraband
hidden on his/her person, and after each meeting with Torres, the CI returned with
narcotics purchased from Torres.
2 Based on these interactions, the police obtained a search warrant for 66 Church
Street. A search was executed, yielding fentanyl, cocaine, marijuana, a handgun, a
bulletproof vest, a digital scale, drug-cutting agents, and drug-packaging materials.
Following his federal indictment, Torres moved to suppress the evidence obtained from
the residential search warrant. The District Court denied the motion, Torres pleaded
guilty (preserving his right to challenge the denial on appeal), he was sentenced, and this
timely appeal followed.
II
We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings, and we review of the District Court’s application of the
law to those facts de novo. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). When
considering the acts of a magistrate in issuing a search warrant, “our role is not to make
our own assessment as to whether probable cause existed” but “to determine only whether
the affidavit provides a sufficient basis for the decision the magistrate judge actually
made.” United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993).
III
Torres contends that the warrant to search the house at 66 Church Street was
unsupported by probable cause because the drug deals were not conducted at that
property. Therefore, he argues, “there was an insufficient nexus between the alleged
illegal activity and said property.” Appellant’s Br. 4.
Torres provides the correct rule. Probable cause exists when “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
3 United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983)). A magistrate is to assess, within the totality of the
circumstances, whether an affidavit is supported by probable cause. Miknevich, 638 F.3d
at 184. In particular, there must be “a sufficient nexus between the contraband to be seized
and the place to be searched.” United States v. Golson, 743 F.3d 44, 54 (3d Cir. 2014). On
appeal, a reviewing court reads the affidavit “in its entirety and in a common sense,
nontechnical manner.” Miknevich, 648 F.3d at 182. If it determines that a substantial basis
exists to support the magistrate’s finding, the reviewing court must uphold that finding. Id.
Torres’ application of this rule to the facts of his case demands a much tighter
nexus than our case law requires. See United States v. Burton, 288 F.3d 91, 103 (3d Cir.
2002) (collecting cases). “Direct evidence linking the place to be searched to the crime is
not required for the issuance of a search warrant.” United States v. Hodge, 246 F.3d 301,
305 (3d Cir. 2001). As the government rightly notes, “[i]f there is probable cause to
believe that someone committed a crime, then the likelihood that the person’s residence
contains evidence of the crime increases.” Burton, 288 F.3d at 103; see Appellee’s Br.
20. And “[i]n the case of drug dealers . . . evidence of involvement in the drug trade is
likely to be found where the dealers reside.” United States v. Whitner, 219 F.3d 289, 297–
298 (3d Cir. 2000)). Indeed, “evidence associated with drug dealing needs to be stored
somewhere, and . . . a dealer will have the opportunity to conceal it in his home.”
Whitner, 219 F.3d at 298.
Contrary to Torres’ arguments, when an individual is suspected of dealing
narcotics, probable cause to search his home does not demand a showing that he deals
4 those narcotics at his home. The common-sense likelihood that drug dealers keep
evidence of their trade where they reside, combined with Torres’s twice-observed trek
from 66 Church Street directly to the meeting point with the CI, was sufficient to
establish probable cause.
Torres’ efforts to distinguish these cases are unavailing. His discussions of Burton
and Whitner suggest, without squarely asserting, that the fact that 66 Church Street was
not legally titled in his name destroys probable cause. Appellant’s Br. at 8, 9 (citing
Burton, 288 F.3d at 104; Whitner, 219 F.3d at 298). But not even the language that he
cites supports that conclusion. Burton’s required showings include merely “that the place
to be searched is possessed by, or the domicile of, the dealer.” Burton, 288 F.3d at 104
(emphasis added). Based on law enforcement’s surveillance, Torres appeared to be in
possession of the property, using it as a base for his drug operations at least over the
course of the week in question.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 22-2108 _______________
UNITED STATES OF AMERICA
v. DAVID TORRES, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-20-cr-00181-001) District Judge: Honorable Robert D. Mariani _______________
Submitted Under Third Circuit L.A.R. 34.1(a): January 18, 2023 _______________
Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.
(Filed: January 20, 2023)
______________
OPINION ______________
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.
David Torres pleaded guilty to charges of possession with intent to distribute 40
grams or more of fentanyl, for which the court sentenced him to 164 months of
imprisonment. His guilty plea was conditional, reserving his right to appeal the denial of
his motion to suppress evidence and withdraw his guilty plea should he prevail. For the
reasons that follow, we will affirm the District Court.
I
An investigation conducted by the Pennsylvania State Police, Wilkes-Barre City
Police, and Luzerne County Drug Task Force identified Torres as a suspected drug
trafficker. Id. Law enforcement began monitoring 66 Church Street, where Torres stayed,
and developed at least one confidential informant (CI) who aided in their inquiries.
Through their use of the CI, police arranged two controlled buys of cocaine and
heroin/fentanyl within a span of six days in December 2019. In each instance, the CI
called Torres, requested the narcotics, and arranged a time and place to meet. In each
instance, Torres was observed by law enforcement leaving 66 Church Street and driving a
rented Nissan Altima to the meeting point. Both times, he drove directly from 66 Church
Street to the meeting point and didn’t make any stops along the way. Id. Law
enforcement ensured that the CI did not enter the meeting point with any contraband
hidden on his/her person, and after each meeting with Torres, the CI returned with
narcotics purchased from Torres.
2 Based on these interactions, the police obtained a search warrant for 66 Church
Street. A search was executed, yielding fentanyl, cocaine, marijuana, a handgun, a
bulletproof vest, a digital scale, drug-cutting agents, and drug-packaging materials.
Following his federal indictment, Torres moved to suppress the evidence obtained from
the residential search warrant. The District Court denied the motion, Torres pleaded
guilty (preserving his right to challenge the denial on appeal), he was sentenced, and this
timely appeal followed.
II
We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings, and we review of the District Court’s application of the
law to those facts de novo. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). When
considering the acts of a magistrate in issuing a search warrant, “our role is not to make
our own assessment as to whether probable cause existed” but “to determine only whether
the affidavit provides a sufficient basis for the decision the magistrate judge actually
made.” United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993).
III
Torres contends that the warrant to search the house at 66 Church Street was
unsupported by probable cause because the drug deals were not conducted at that
property. Therefore, he argues, “there was an insufficient nexus between the alleged
illegal activity and said property.” Appellant’s Br. 4.
Torres provides the correct rule. Probable cause exists when “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
3 United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983)). A magistrate is to assess, within the totality of the
circumstances, whether an affidavit is supported by probable cause. Miknevich, 638 F.3d
at 184. In particular, there must be “a sufficient nexus between the contraband to be seized
and the place to be searched.” United States v. Golson, 743 F.3d 44, 54 (3d Cir. 2014). On
appeal, a reviewing court reads the affidavit “in its entirety and in a common sense,
nontechnical manner.” Miknevich, 648 F.3d at 182. If it determines that a substantial basis
exists to support the magistrate’s finding, the reviewing court must uphold that finding. Id.
Torres’ application of this rule to the facts of his case demands a much tighter
nexus than our case law requires. See United States v. Burton, 288 F.3d 91, 103 (3d Cir.
2002) (collecting cases). “Direct evidence linking the place to be searched to the crime is
not required for the issuance of a search warrant.” United States v. Hodge, 246 F.3d 301,
305 (3d Cir. 2001). As the government rightly notes, “[i]f there is probable cause to
believe that someone committed a crime, then the likelihood that the person’s residence
contains evidence of the crime increases.” Burton, 288 F.3d at 103; see Appellee’s Br.
20. And “[i]n the case of drug dealers . . . evidence of involvement in the drug trade is
likely to be found where the dealers reside.” United States v. Whitner, 219 F.3d 289, 297–
298 (3d Cir. 2000)). Indeed, “evidence associated with drug dealing needs to be stored
somewhere, and . . . a dealer will have the opportunity to conceal it in his home.”
Whitner, 219 F.3d at 298.
Contrary to Torres’ arguments, when an individual is suspected of dealing
narcotics, probable cause to search his home does not demand a showing that he deals
4 those narcotics at his home. The common-sense likelihood that drug dealers keep
evidence of their trade where they reside, combined with Torres’s twice-observed trek
from 66 Church Street directly to the meeting point with the CI, was sufficient to
establish probable cause.
Torres’ efforts to distinguish these cases are unavailing. His discussions of Burton
and Whitner suggest, without squarely asserting, that the fact that 66 Church Street was
not legally titled in his name destroys probable cause. Appellant’s Br. at 8, 9 (citing
Burton, 288 F.3d at 104; Whitner, 219 F.3d at 298). But not even the language that he
cites supports that conclusion. Burton’s required showings include merely “that the place
to be searched is possessed by, or the domicile of, the dealer.” Burton, 288 F.3d at 104
(emphasis added). Based on law enforcement’s surveillance, Torres appeared to be in
possession of the property, using it as a base for his drug operations at least over the
course of the week in question.
Even were he not in possession of the property, it is well established that when an
individual is otherwise suspected of trading in narcotics, his comings-and-goings from a
property further support a finding of probable cause to search that property. See, e.g.,
United States v. Stearn, 597 F.3d 540, 557 (3d Cir. 2000) (noting that a property
“appeared to be a focal point of [defendants’] movements,” supporting probable cause).
Here, Torres not only seemed to possess the property but left it immediately after each
call from the CI to make the controlled-buys orchestrated by police, making no stops
along the way. That surely created a “fair probability” that Torres brought the narcotics
from 66 Church Street and a “sufficient nexus” with the property to support probable
5 cause. Miknevich, 638 F.3d at 182 (“fair probability”); Golson, 743 F.3d at 54 (“sufficient
nexus”).
IV
Torres has failed to show that the magistrate lacked substantial basis for issuing
the search warrant for 66 Church Street. The District Court therefore did not err when it
denied his motion to suppress. Because we hold that the search was supported by
probable cause, we do not address whether law enforcement’s conduct was also covered
by the good faith exception. We will affirm the District Court.