United States v. Larry Womack

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 3, 2007
• Docket: 05-15218
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 3, 2007 No. 05-15218 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 05-00003-CR-D-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY WOMACK,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Alabama _________________________

(January 3, 2007)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

Larry Womack appeals his conviction for possession of cocaine base in violation of 21 U.S.C. § 844(a). Womack raises two arguments on appeal. First,

he contends that the district court erred by denying his motion to suppress evidence

seized from his home pursuant to a search warrant. Second, he contends that the

district court erroneously denied his motion for judgment of acquittal.

I.

Womack contends that the district court should have suppressed the

evidence seized at his home because the search warrant affidavit lacked sufficient

information to support a finding of probable cause. The Fourth Amendment

provides that “no Warrant shall issue, but upon probable cause . . . .” U.S. Const.

amend. IV. To establish probable cause, a search warrant affidavit must “state

facts sufficient to justify a conclusion that evidence or contraband will probably be

found at the premises to be searched.” United States v. Martin, 297 F.3d 1308,

1314 (11th Cir. 2002) (internal quotation and citation omitted). The affidavit is

insufficient if it contains mere conclusory statements that do not give the

magistrate judge a basis for making a judgment. Illinois v. Gates, 462 U.S. 213,

239, 103 S. Ct. 2317, 2332–33 (1983). “Specifically, the affidavit should establish

a connection between the defendant and the residence to be searched and a link

between the residence and any criminal activity.” Martin, 297 F.3d at 1314.

Under the exclusionary rule, evidence seized as a result of an illegal search

2 is generally inadmissible if offered by the government in a subsequent criminal

prosecution against the person from whom government agents seized the evidence.

See Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 346 (1914); Franks

v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978). However, under the

good faith exception to the exclusionary rule, evidence will be admitted in the

prosecution’s case-in-chief if it is obtained by law enforcement officers acting in

objectively reasonable reliance on a search warrant issued by a detached and

neutral magistrate. United States v. Leon, 468 U.S. 897, 927–28, 104 S. Ct. 3405,

3424 (1984). Such evidence is admissible even if a court subsequently deems the

affidavit on which the warrant was based to be insufficient to establish probable

cause. Id.

Here, we need not review the district court’s finding that the judge issuing

the warrant had a substantial basis for concluding that the search would uncover

evidence of wrongdoing based on the warrant application and affidavit. Even if the

district court erred in that determination, the evidence is admissible under the good

faith exception to the exclusionary rule.

Womack’s strongest argument that the warrant affidavit was insufficient to

support a finding of probable cause is that the police relied on a confidential

informant to establish probable cause, and the affidavit only briefly describes the

3 attesting officer’s reasons for believing that the CI was telling the truth. When the

police rely on a CI, the affidavit in support of the search warrant must demonstrate

the CI’s “veracity” and “basis of knowledge.” Martin, 297 F.3d at 1314 (citation

omitted). There are sufficient indicia of veracity where the CI has provided

truthful and reliable information in the past and where the level of detail in the

information shows that the CI is unlikely to be lying. United States v. Brundidge,

170 F.3d 1350, 1353–54 (11th Cir. 1999). “[W]hen there is sufficient independent

corroboration of an informant’s information, there is no need to establish the

veracity of the informant.” Martin, 297 F.3d at 1314 (internal quotation omitted).

Because the Second Judicial Circuit Drug Task Force did not independently

corroborate the informant’s information, they must establish her veracity.

To do so, Officer David Sankey completed an affidavit for a search warrant

which described the CI as follows:

That a reliable confidential source that has made drug buys for the 2nd Judicial Drug Task Force in the past and has given truthful information from which search warrants were executed, drugs were found and arrests were made hereafter referred to as CS; That within the past 72 hours, the CS went to Mr. Womack residence and purchases [sic] an amount of crack cocaine. The CS further states that Mr. Womack has more crack cocaine at this residence. CS further advises that Mr. Womack operates an illegal gambling establishment and sells alcohol without a license.

A district judge in the District Court of Crenshaw County, Alabama found

4 probable cause and signed the search warrant. At a subsequent suppression

hearing before a United States Magistrate Judge for the Middle District of

Alabama, Womack’s counsel examined Officer Sankey, who revealed that he had

not personally worked with the CI before and that he did not know how many

times the 2nd Judicial Drug Task Force had worked with the CI in the past.

Nonetheless, the magistrate judge found that the affidavit was facially sufficient to

establish probable cause, because it disclosed that the CI had made drug buys for

the task force in the past, that the CI had given truthful information leading to

arrests, and that the CI had purchased drugs at the defendant’s residence within the

past 72 hours. The district court adopted the magistrate judge’s findings. It stated

that the affidavit would have benefitted from additional details. Officer Sankey

could have aided the issuing judge by providing specific information about the

CI’s prior work with the judicial task force, such as the number of times the CI

provided information and what that information entailed. However, the district

court noted that Sankey’s affidavit provided more information about the CI’s track

record than the affidavit held to be sufficient in United States v. Foree, 43 F.3d

1572, 1575 (11th Cir. 1995), and stated that the judge issuing the warrant deserved

deference.

Even if we were to disagree with the three judges who have already

5 reviewed the affidavit and find that it failed to establish probable cause sufficient

to issue a search warrant for Womack’s apartment, we could not find that the task

force acted in bad faith. There is no evidence that Officer Sankey presented false

information to the issuing judge or that the judge abandoned his judicial role. For

that reason, suppression is only warranted if the affidavit was “so lacking in indicia

of probable cause as to render official belief in its existence entirely unreasonable.”

Brown v. Illinois, 422 U.S. 590, 610–11, 95 S. Ct. 2254, 2265. It will be the rare

case in which three judges find a warrant affidavit to be facially sufficient, and yet

we hold that a police officer is behaving “entirely unreasonably” in concluding

precisely the same thing. Officer Sankey had been told by his commander that the

CI had provided reliable information leading to arrests on several prior occasions,

and he relayed this information in the warrant affidavit. Neither he nor we have

been presented with any reason to doubt his commander’s factual claim. Officer

Sankey thus had reason to believe that he had properly established the CI’s

veracity in his affidavit, and the task force was reasonable in relying on the signed

search warrant.

II.

Womack’s second contention is that the district court erroneously denied his

motion for a judgment of acquittal. We review de novo the district court’s denial

6 of the motion, viewing the facts and drawing all inferences in the light most

favorable to the government. United States v. Descent, 292 F.3d 703, 706 (11th

Cir. 2002). To affirm the denial of such a motion, “we need only determine that a

reasonable fact-finder could conclude that the evidence established the defendant’s

guilt beyond a reasonable doubt.” Id. (internal citation and quotations omitted).

The evidence does not need to exclude “every reasonable hypothesis of innocence

. . . . A factfinder may choose from among reasonable constructions of the

evidence.” United States v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989).

To convict a defendant for possession of cocaine base, in violation of

§ 844(a), the government must establish beyond a reasonable doubt that the

defendant possessed the controlled substance. United States v. Edwards, 166 F.3d

1362, 1363 (11th Cir. 1999). “Possession can be either actual or constructive. A

defendant has actual possession of a substance when he has direct physical control

over the contraband.” Id. at 1363. “Constructive possession exists when a person

has knowledge of the thing possessed coupled with the ability to maintain control

over it or reduce it to his physical possession even though he does not have actual

personal dominion. . . . [A] court may find constructive possession by finding

ownership, dominion, or control over the contraband itself or dominion or control

over the premises or the vehicle in which the contraband was concealed.” United

7 States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).

Drawing all inferences in favor of the government, the jury heard evidence

from a police officer that, as he witnessed Womack run down a hall and into a

bathroom, he heard a pill bottle crash against a wall and heard something spill out.

The officer then followed Womack into a bathroom, saw him shut the lid of the

toilet and flush it, and observed the pill bottle and crack cocaine in the bathroom.

Another officer testified that he saw the lid of the pill bottle in the hallway, the pill

bottle in the bathroom, and crack cocaine in the hallway and bathroom. A third

officer testified that he witnessed Womack run into the bathroom. Two of the

three officers testified that they witnessed Womack write a partial statement taking

responsibility for the drugs. Finally, a drug chemist testified that the crack cocaine

gathered from the hallway and bathroom totaled 5.64 grams.

A reasonable juror could conclude that this evidence establishes beyond a

reasonable doubt that Womack had control over crack cocaine, contained in a pill

bottle, as he ran down the hallway and into a bathroom, and that he threw the bottle

against a wall, spilling 5.64 grams of the crack cocaine into the hallway and on the

bathroom floor. Accordingly, the district court did not err in denying Womack’s

motion for judgment of acquittal.

AFFIRMED.