United States v. Williams

544 F.3d 683, 2008 U.S. App. LEXIS 21576, 2008 WL 4587201

Opinions

SILER, J.,

delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 690-96), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

In 2004, police officers in Detroit, Michigan executed a search warrant at a residence, where they arrested Defendant David Williams and seized evidence, including illegal drugs and a firearm. Based on this evidence, Williams was indicted for possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. Williams moved to suppress the seizure of the drugs and firearm. After the district court denied that motion, Williams entered a conditional plea of guilty to both crimes.

Williams now appeals the denial of his motion to suppress the evidence seized during the search. He argues that the district court erred in denying his motion because the search warrant that established Williams’s illegal use of handguns and identified his apartment did not state any further connection between Williams and the apartment, and because the search warrant failed to establish probable cause in that it relied on “unreliable, conflicting, and uncorroborated information.”

For the following reasons, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Factual Background

In 2004, the Detroit Police Department’s Firearm Investigative Team (“FIT”) and the United States Bureau of Alcohol, Tobacco, and Firearms (“ATF”), were engaged in a joint investigation, during which they obtained and executed multiple search warrants for residences in Detroit. Officers searched 5950 Hedwig Street on July 12, 2004, which led to a search of 5409 Springwells Street on July 15, 2004. Both locations were residences of Jose Cosme, who owned two firearms seized during the searches. Cosme told the officers that an individual identified as “D-Bird” moved two firearms from the residences just before the searches, namely, a .25 caliber handgun and a .45 caliber handgun. Cosme also told the officers that a few weeks prior to the searches, “D-Bird” robbed a drug trafficker of five pounds of marijuana using one of those handguns. Cosme reported that “D-Bird” lived on Tarnow Street, between Michigan Avenue and the 1-94 service drive, and that “D-Bird” drove a silver Monte Carlo car. Cosme’s mother, Stella Reinoso, confirmed Cosme’s statements to the officers.

On July 16, 2004, officers arrested Kam-ico Jackson, a known associate of Cosme and “D-Bird.” Jackson identified “D~ Bird” as Williams and showed the officers Williams’s residence. Jackson identified Williams’s residence as the upper apartment unit at 4900 Tarnow Street, which corroborated Cosme’s description of the address. Jackson also substantiated Cosme’s statements to the officers, informing them that he also saw Williams with a .25 caliber handgun and a .45 caliber handgun, that Williams drove a silver Monte Carlo, and that Williams robbed a drug trafficker at gunpoint in the preceding weeks. Jackson also told the officers that police had recently arrested Williams for possessing a stolen vehicle, and that Williams had a gun in his car at the time of his arrest.

On July 17, 2004, Officer Darryl Stewart conducted surveillance at 4900 Tarnow Street, where he saw a silver Monte Carlo. He also observed a man standing next to the Monte Carlo who fit the description of Williams as given by Cosme, Reinoso, and Jackson. On July 22, 2004, Officer Stewart again saw the Monte Carlo at 4900 Tarnow Street, after which he searched police databases using the description of Williams. That search yielded a photograph of Williams, and confirmed that police arrested Williams on June 26, 2004, for carrying a concealed weapon.

On July 23, 2004, Officer Stewart sought and obtained a search warrant for 4900 Tarnow Street. In his warrant application, he alleged that (i) Williams resided in the upper level apartment at 4900 Tarnow Street; (ii) Williams possessed two firearms, a .25 caliber handgun and a .45 caliber handgun; (iii) one month prior to the warrant application, Williams used a .45 caliber handgun to rob five pounds of marijuana from a drug trafficker; (iv) Williams was arrested for carrying a concealed weapon on June 26, 2004; and (v) Williams was recently arrested for possession of a stolen vehicle where a gun was found in the vehicle.

The officers executed the search warrant on July 23, 2004, when they entered the residence through an open, outside back door that led into a common hallway shared by other residents. The officers moved up a common stairwell to Williams’s upper-level residence, where through the open door to the residence, they saw Williams cutting crack cocaine on a table. The police then entered the residence, arrested Williams, and searched the residence, which yielded a short-barreled shotgun and cocaine base.

II. The Procedural Background

Williams was later indicted on charges óf possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a short-barreled shotgun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(B)(I). The district court denied Williams’s motion to suppress. Williams entered a conditional guilty plea on both charges and was sentenced to 130 months imprisonment.

STANDARDS OF REVIEW

When reviewing a district court’s decision on a motion to suppress, we must uphold the district court’s factual findings unless those findings are clearly erroneous, and we review the district court’s legal conclusion as to the existence of probable cause de novo. United States v. Combs, 369 F.3d 925, 937 (6th Cir.2004) (citing United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999)). When reviewing the district court’s decision we view the evidence in the light most favorable to the government. Id. (citing United States v. Walker, 181 F.3d 774, 776 (6th Cir.1999)). We also give great deference to an issuing judge’s finding of probable cause in a search warrant application; that decision should be reversed only when it was arbitrary. Id. (quoting United States v. Miller, 314 F.3d 265, 268 (6th Cir.2002)); see also United States v. Laughton, 409 F.3d 744, 747 (6th Cir.2005) (“The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))).

DISCUSSION

I. The district court correctly found that the search warrant established a nexus between Williams’s suspected possession of the handguns and his residence sufficient to support the issuing judge’s finding of probable cause.

The Fourth Amendment requires probable cause for a search warrant to issue, Laughton, 409 F.3d at 747 (citing U.S. Const. amend. IV; United States v. Helton, 314 F.3d 812, 819 (6th Cir.2003)), and requires that a search warrant describe with particularity the place to be searched and the items to be seized, United States v. Bethal, 245 Fed.Appx. 460, 464 (6th Cir.2007) (unpublished decision) (quoting U.S. Const, amend. IV). An issuing judge may find probable cause to issue a search warrant when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Laughton, 409 F.3d at 747 (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). In order to make this determination, the issuing judge must undertake a “practical, common sense” evaluation of “all of the circumstances set forth in the affidavit before him.” Laughton, 409 F.3d at 747 (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317).

In making this practical, common sense determination, the issuing judge must look for certain criteria. First, the affidavit or warrant request “must state a nexus between the place to be searched and the evidence sought.” Bethal, 245 Fed.Appx. at 464 (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.1998) (quoting United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996))) (internal quotation marks omitted); see United States v. Greene, 250 F.3d 471, 479 (6th Cir.2001) (“Probable cause exists where there is a fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.” (internal quotations omitted)); see also United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir.1994) (holding that there is no probable cause for a warrant where the affidavit lacked a nexus between the location to be searched and the suspected criminal activity). Second, “[t]he belief that the items sought will be found at the location to be searched must be ‘supported by less than prima facie proof but more than mere suspicion.’ ” Bethal, 245 Fed.Appx. at 464 (quoting United States v. Johnson, 351 F.3d 254, 258 (6th Cir.2003) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990))).

Neither the issuing judge nor the reviewing courts should engage in line-byline scrutiny of the warrant application’s affidavit. Id. at 465; United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (quoting Gates, 462 U.S. at 246 n. 14, 103 S.Ct. 2317). Rather, the courts should take a totality of the circumstances approach in their review of the affidavit, and the courts may afford “considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found and [the courts are] entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the crime and type of offense.” Id. (quoting United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996) (citations and internal quotation marks omitted)).

To support his argument that the search warrant lacked probable cause, Williams asserts numerous allegations, the first of which is that the warrant application did not establish a nexus between the targeted handguns and the residence at 4900 Tarnow Street. While Williams correctly asserts that the warrant affidavit never tied the .25 and .45 caliber handguns to the Tarnow Street residence, he overlooks the Government’s logical, and indeed legally correct, assertion that “it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there.” Here, the warrant application demonstrated “continuing and related illegal firearm activity,” from which the issuing judge could infer that evidence pertaining to the handguns would be found in Williams’s residence.

A magistrate may infer a nexus between a suspect and his residence, depending upon “the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places.” United States v. Savoca, 761 F.2d 292, 298 (6th Cir.1985); see United States v. Hodge, 246 F.3d 301, 305-06 (3d Cir.2001) (noting that a court “is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense,” and holding that it was reasonable to infer that a suspected drug dealer would keep evidence of his crime at his residence (citation omitted)); United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985) (holding that it was a reasonable inference that a bank robber would keep stolen currency in his residence despite the passage of more than two months between the time of the robbery and the search).

In a recent line of cases, we have held that an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking. See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir.2002); see also United States v. Gunter, 266 Fed.Appx. 415, 419 (6th Cir.2008) (unpublished decision) (noting that our precedents establish that there is a nexus between a drug dealer’s criminal activity and the dealer’s residence when there is reliable evidence connecting the criminal activity to the residence); United States v. Newton, 389 F.3d 631, 636 (6th Cir.2004), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005) (holding that in cases involving drug traffickers engaged in “continuing operations,” the “lack of a direct known link between the criminal activity and the residence[] becomes minimal”); Caicedo, 85 F.3d at 1192-93(holding that there was probable cause based on an affidavit that stated, in the affiant’s experience, many drug traffickers use their residences to conduct their drug trafficking activities). But cf. Schultz, 14 F.3d at 1097-98(holding that a search warrant should not have issued where the officer seeking the warrant had nothing more than a guess that contraband or evidence of a crime would be found in a drug trafficker’s safe deposit box).

Although Williams acknowledges our precedents, he argues that an issuing judge may infer a nexus between a suspect and his residence only when the suspect is a suspected drug trafficker, and in doing so relies on United States v. McPhearson, 469 F.3d 518 (6th Cir.2006). In McPhear-son, police officers sought to arrest the defendant at his residence on simple assault charges. Id. at 520. When the defendant appeared at the door, the officers arrested him and searched his person, finding crack cocaine in his pocket. Id. After the arrest, the officers sought and obtained a search warrant for the defendant’s residence, relying only on the officers’ discovery of drugs on the defendant’s person. Id. The officers found firearms and additional crack cocaine in the defendant’s residence after executing the search warrant. Id. at 520-21.

In affirming the district court’s suppression of the crack cocaine, we rejected the government’s argument that the defendant’s arrest outside his residence with drugs on his person established a fair probability that his residence would yield further evidence of criminal activity. Id. at 524. We noted that in cases that established a nexus between the suspected criminal activity and the suspect’s residence “the [search warrants’] affidavits contained an additional fact that permitted the magistrate to draw the inference that evidence of wrongdoing would be found in the defendants’ homes — namely, the independently corroborated fact that the defendants were known drug dealers at the time the police sought to search their homes.” Id. In McPhearson the government could not produce evidence that tied the defendant’s criminal activity to his residence.

Here, however, Williams incorrectly assumes that the facts do not provide the additional evidence of his criminal activity that this court required in McPhearson, and Williams attempts to stretch our holding too far by arguing that unless the suspect is a drug dealer, an issuing judge may not issue a search warrant that lacks evidence linking a suspect’s criminal activity to his residence. In the present case, the warrant affidavit set forth sufficient facts to permit the issuing judge to infer a link between the handguns sought and Williams’s residence. The warrant application named two informants, Cosme and Jackson, both of whom informed Officer Stewart that Williams possessed two handguns recently used to commit the robbery of marijuana from a drug trafficker. Several sources substantiated this information, including Detroit Police Department records that indicated police recently arrested Williams for carrying a concealed firearm. Given the evidence that Williams possessed multiple guns, and had recently used them to further his criminal activity, the issuing judge could have reasonably inferred that Williams kept at least one handgun at his residence.

In making this holding, we join other circuits which have held, in cases involving a variety of suspected crimes, that an issuing judge may infer that a criminal suspect keeps the “instrumentalities and fruits” of his crime in his residence. See United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.1993) (opining that firearms used in a robbery are “likely to be kept in a suspect’s residence”); United States v. Anderson, 851 F.2d 727, 729 (4th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 841, 102 L.Ed.2d 973 (1989) (holding, in a case involving the illegal sale of a gun silencer, that “[i]t was reasonable for the magistrate to believe that the defendant’s gun and silencer would be found in his residence. Therefore, even though the affidavit contains no facts that the weapons were located in the defendant’s trailer, we reject this argument that the warrant was defective.”); United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975) (noting in a bank robbery case that there is “little reason to believe that any of the bank’s money ... would still be in the home,” but “the same could not be said of the revolver”); Bastida v. Henderson, 487 F.2d 860, 861-62 (5th Cir.1973) (affirming a magistrate’s finding of probable cause to search a suspect’s residence for a gun used in an armed robbery).

Much like a bank robber would keep the proceeds and instrumentalities of his robbery in his home, so too could Williams be expected to keep the instrumentalities of his criminal activity at his residence. Further, the evidence given to Officer Stewart by the informants seemed to indicate only two locations where Williams would possibly store the handguns: his car or his residence. As Williams was recently arrested in his car, without both handguns, it was reasonable to conclude that Williams kept at least one of the handguns sought at his residence.¹

II. The district court correctly found that the warrant application included testimony and evidence sufficient to support the issuing judge’s finding of probable cause.

In addition to his argument that the warrant lacked the necessary nexus between Williams’s suspected criminal activity and his residence, Williams also argues that Officer Stewart’s affidavit testimony was insufficient to establish probable cause. Like his nexus argument, this argument also fails.

Williams argues that the affidavit cited “unreliable, conflicting” testimony that he possessed the handguns, but the district court correctly found that Officer Stewart’s affidavit tied Williams to the handguns and their illegal use through interlocking and corroborating information from multiple sources: statements from Cosme, Reinoso, and Jackson; Officer Stewart’s own surveillance; and Detroit Police Department records. As if to underscore the failure of his argument, Williams points to only one alleged inconsistency in Officer Stewart’s affidavit. Williams contrasts Cosme’s statement that Williams removed the handguns from Cosme’s residence “just prior” to the police raids in mid-July with Jackson’s assertion that Williams used the .45 caliber handgun to rob a drug trafficker “a month earlier,” in mid-June. Williams contends that he could not have used the .45 caliber handgun in a robbery a month before he took it from Cosme’s house, and asserts that, consequently, the issuing judge erred in finding probable cause to issue the warrant.

Williams incorrectly assumes that these statements contradict each other. Williams’s removal of the handguns from Cosme’s residence in mid-July does not speak to Williams’s access to the gun prior to that time. Indeed, Cosme told Officer Stewart that Williams used the .45 caliber handgun to rob the drug traffickers a month earlier, thus indicating that Williams had access to the handguns before he removed them from Cosme’s residence. Moreover, the affidavit shows Williams’s access to the handguns during that time period because it established that the police arrested Williams on June 26, 2004, for carrying a concealed weapon. In light of these facts, there is no contradiction in Officer Stewart’s affidavit.

Williams further argues that the warrant application did not establish that Williams resided at the upper level of the residence at 4900 Tarnow Street. Williams alleges that only Jackson identified 4900 Tarnow Street as his residence, and therefore contends that the warrant violated United States Supreme Court precedent, which holds that an officer “may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.” Jones v. United States, 362 U.S. 257, 269-270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (citing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

This argument also lacks merit. First, unlike in Jones, the warrant here named the informants, and named informants, unlike confidential informants, require little corroboration. See, e.g., United States v. Miller, 314 F.3d 265, 270-71 (6th Cir.2002) (finding a first-time informant reliable because the affidavit named the informant, the informant provided detailed information, and the informant was subject to prosecution if his information was fabricated). Second, Officer Stewart corroborated the information Jackson provided through multiple sources, including Cosme and Rei-noso, who correctly identified Williams’s block, and Officer Stewart’s own observations outside Williams’s residence substantiated Jackson’s statements.

Finally, before the district court Williams contended that the search warrant did not establish probable cause because it failed to allege that Williams was prohibited from possessing firearms. The district court found that Williams “provided no authority, and the court knows of none, for the implied assertion that a search warrant application must contain probable cause for the specific crime under which a defendant will eventually be charged.” Williams did not, however, raise this argument on appeal; instead, he only passingly alluded to it in his reply brief. To the extent that Williams failed to develop or support his argument with any legal authority, see United States v. Layne, 192 F.3d 556, 566-67 (6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)), and because “[a]n appellant waives an issue when he fails to present it in his initial briefs before this court” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 318 (6th Cir.2005) (quoting Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 462 (6th Cir.2003)) (internal quotation marks omitted), we decline to address Williams’s argument.

CONCLUSION

Here, Officer Stewart’s affidavit did not use mere “suspicions, beliefs or conclusions” to link Williams to either 4900 Tar-now Street or the two handguns. See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996). Rather, it provided corroborated information from three named informants; thus, it established a nexus that was neither “conclusory or meaningless.” United States v. Carpenter, 360 F.3d 591, 596 (6th Cir.2004) (en banc). Finally, our decision today aligns us with many of our sister circuits, which hold that an issuing judge may infer that a suspect keeps the instrumentalities or fruits of his criminal activity at his residence, even when that criminal activity is not drug trafficking. Accordingly, the district court correctly denied Williams’s motion to suppress, as the search warrant was supported by probable cause.

AFFIRMED.

1 . Our dissenting colleague sounds an alarmist tone, charging us with having "expanded a rule” that "will significantly damage, if not destroy, the protections of the Fourth Amendment.” Far from having established a "rule,” however, we have tied our holding closely to the particular facts of this case and have merely undertaken, as we are obliged to do, a practical, common-sense evaluation of the circumstances set forth in the search warrant affidavit with great deference to the issuing judge’s finding of probable cause.

Moreover, even if reasonable jurists may differ on whether the affidavit established a sufficient nexus between the evidence sought and the place to be searched, it is abundantly clear that the officers who executed the search warrant were entitled to reasonably and in good faith rely on it. The affidavit is not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The district court properly concluded, therefore, as an alternative basis for its ruling, that denial of the suppression motion was justified pursuant to the good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (finding Leon exception applicable where affidavit facts, albeit insufficient to establish probable cause, “were not so vague as to be conclusory or meaningless”).