U.S. v. Brundidge, 98-2200

• Decision Date: 02 April 1999
• Docket Number: No. 98-2200,98-2200
• Parties: 12 Fla. L. Weekly Fed. C 633 UNITED STATES of America, Plaintiff-Appellee, v. Chancey Wade BRUNDIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1350

170 F.3d 1350

12 Fla. L. Weekly Fed. C 633

UNITED STATES of America, Plaintiff-Appellee, v. Chancey Wade BRUNDIDGE, Defendant-Appellant.

No. 98-2200.

United States Court of Appeals, Eleventh Circuit.

April 2, 1999.

Craig L. Crawford, Asst. Fed., Pub. Defender, Gainesville, GA, for Defendant-Appellant.

P. Michael Patterson, William Henry Stafford, III, U.S. Attys., Pensacola, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON and BLACK, Circuit Judges, and RESTANI ^*, Judge.

PER CURIAM:

Chancey Brundidge ("Brundidge") appeals the district court's denial of his motion to suppress evidence. He also appeals his sentence. We see no reversible error, so we affirm.

Background

A confidential informant ("CI"), with a companion, went to a motel room where they met Brundidge, also known as "Smoke." Based on this meeting, the CI contacted Investigator Frank Forte ("Forte"). Forte drove the CI to the motel, and the CI pointed out Brundidge's room. The CI also described Brundidge's car. Forte left the motel to get a search warrant, after calling a surveillance unit to the scene.

The affidavit supporting the warrant was the only information on probable cause provided to the judge. Although some other information was included in the affidavit, the following facts provided the main support for the showing of probable cause:

On September 11th, 1997, your affiant [Forte] was contacted by a reliable confidential informant, hereafter referred to as RCI who stated to your affiant that a black male known only to the RCI as Smoke, was selling Cocaine Base and Cocaine HCL at the above described location. The RCI stated to your affiant that on this same date, the RCI accompanied another individual to the above described location and entered. The RCI stated to your affiant that individual to [sic] whom the RCI was with, purchased a quantity of Cocaine Base from Smoke while inside the above described location. The RCI stated to your affiant that Smoke attempted to sell the individual to [sic] whom the RCI was with a quantity of Cocaine HCL, however the individual refused. The RCI stated to your affiant that while inside the above described location, the RCI observed two cookies of Cocaine Base, a large quantity of Cocaine Base cut for distribution, approximately three eighth of an ounce quantities of Cocaine HCL, and a semi-automatic handgun.

The RCI is familiar with the physical appearance of Cocaine Base and Cocaine HCL and has seen Cocaine Base on at least one hundred (100) occasions, and has seen Cocaine HCL on at least two hundred (200) occasions. The RCI has provided information to law enforcement concerning illegal activity on at least eight occasions and has proven to be truthful and reliable on every occasion. The RCI is responsible for the arrests of at least five persons and the recovery of approximately $3,500.00 in illegal narcotics.

The judge issued the search warrant for Brundidge's motel room.

Brundidge was arrested after leaving the motel room later that afternoon. Police found cocaine and a weapon in Brundidge's car during a warrantless search. Then, a search of Brundidge's motel room, based on Forte's search warrant, found more drugs.

Brundidge pled guilty to three counts: (1) possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g), 924(c); (2) knowing and intentional possession of cocaine and cocaine base with intent to distribute, in violation of 18 U.S.C. §§ 841(a), 841(b)(1)(B)(iii); and (3) possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

Discussion

First, we address Brundidge's claim that the district court should have granted his motion to suppress the evidence obtained from the search of Brundidge's motel room. Rulings on motions to suppress evidence involve mixed questions of law and fact. We review the factual findings of the district court for clear error and the application of the law to those facts de novo. See United States v. Anderton, 136 F.3d 747, 749 (11th Cir.1998).

Probable cause to support a search warrant exists when the totality of the circumstances allow a conclusion that there is a fair probability of finding contraband or evidence at a particular location. See United States v. Gonzalez, 940 F.2d 1413, 1419 (11th Cir.1991). We give "[g]reat deference" to a lower court judge's determination of probable cause. Id.

We think it will be useful to the resolution of Brundidge's claim to recite some well-established law on probable cause. "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts[.]" Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To avoid "rigid" legal rules, Gates changed the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), into a totality of the circumstances test. See Gates, 462 U.S. at 230-35, 103 S.Ct. 2317. Under the Gates totality of the circumstances test, the "veracity" and "basis of knowledge" prongs of Aguilar, for assessing the usefulness of an informant's tips, are not independent. "[T]hey are better understood as relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for ... by a strong showing as to the other[.]" Id. at 233, 103 S.Ct. 2317.

Brundidge's main contention is that probable cause for the search warrant did not exist because the affidavit failed to reflect independent police corroboration of the CI's story. But we think requiring independent police corroboration ¹--as a per se rule in each and every case--is contrary to Gates and other precedent for two reasons. First, as we have discussed, Gates criticizes per se rules for the determination of probable cause. Second, independent police corroboration has never been treated as a requirement in each and every case. See United States v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (approving, without discussing corroboration, an affidavit with no police corroboration); United States v. Farese, 612 F.2d 1376, 1378 (5th Cir.1980) (even though some corroboration of informant's story took place, probable cause likely existed without corroboration). Brundidge cites to no case in which independent police corroboration was treated as a requirement. ² Even under Aguilar 's "two-pronged test," independent police corroboration was not explicitly required: the test talks only about the informant's veracity and basis of knowledge.

Using the CI's "veracity" and "basis of knowledge" as guides for assessing the affidavit's showing of probable cause, we think Forte's affidavit made a sufficient showing of probable cause to justify the search warrant. The CI's basis of knowledge was good: The CI gave a detailed description of the drugs in the room and the sale of some of those drugs in his presence. An "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the CI's] tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234, 103 S.Ct. 2317.

The CI's basis of knowledge made up for any weaknesses in the CI's veracity. But we think the CI's veracity was satisfactory, too. The affidavit explained that the CI had provided information to law enforcement "at least" eight times in the past and that the CI was "truthful and reliable" on each occasion. Also, the CI's past tips led to the arrest of five persons and the recovery of $3,500 in illegal drugs. Although some information is not included--like whether the CI's tips were essential to past arrests, or whether the tips were the result of the CI's own drug activity--it is apparent that the CI had not lied about these past events, had provided useful enough information to provide probable cause for five arrests, and helped recover some illegal drugs. We agree with the district court's finding that the CI "was reliable in the past instances."

In addition to providing the basis of the CI's knowledge, the level of detail meant that the CI was unlikely to lie, because "if the...