U.S. v. Montgomery

• Citation: 527 F.3d 682
• Decision Date: 06 June 2008
• Docket Number: No. 07-2587.,07-2587.
• Parties: UNITED STATES of America, Appellee, v. William Douglas MONTGOMERY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

527 F.3d 682

UNITED STATES of America, Appellee, v. William Douglas MONTGOMERY, Appellant.

No. 07-2587.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2008.

Filed: June 6, 2008.

Donald R. Cooley, Springfield, MO, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (John W. Wood, U.S. Atty., Kansas City, MO, Richard E. Monroe, Asst. U.S. Atty., Springfield, MO, on the brief), for appellee.

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

William Douglas Montgomery pleaded guilty to two counts of possession of a firearm by an unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g). Having reserved his right to do so, Montgomery appeals from the district court's¹ denial of his motion to suppress the evidence seized during two searches of his residence, the denial having been recommended by a magistrate judge² following a hearing on the matter. We affirm.

I. Background

On March 1, 2005, Jerry Lawson, a private citizen, contacted Scott Richardson, a Missouri State Highway Patrol trooper, to report that Montgomery had taken his Jeep Cherokee without permission. Lawson produced proof of ownership and took Richardson and a Mountain Grove, Missouri, police officer, Danny Bledsoe, to Montgomery's residence. No one was home, so after verifying the vehicle identification number on the Jeep, Richardson took Lawson to Mountain Grove to file a report while Bledsoe kept the property under surveillance. Montgomery returned, demonstrated his control over the Jeep by moving it, and entered the house. Shortly thereafter, he made several trips from his house to a Dodge Durango parked in his driveway. Bledsoe was some distance away, and it appeared to him that Montgomery was unloading items from the Durango and also possibly loading other items into it. In moving between the house and the vehicle, Montgomery frequently looked at the road and ran crouched low to the ground as if worried about being observed. A woman who was later identified as Christi Gabel then got in the truck and reclined the passenger seat as if hiding while Montgomery drove the two of them away. Bledsoe stopped Montgomery on suspicion of having stolen the Jeep. While they waited for Richardson to arrive, Bledsoe believed that he saw Montgomery surreptitiously hand something to Gabel. Richardson arrested Montgomery on the stolen vehicle charge. Montgomery claimed that he had been gone all day and had not seen the Jeep, which Richardson knew to be false. Gabel and the Durango were searched. Gabel was initially found with a marijuana roach. She was later searched more thoroughly and was found to possess two bags of marijuana, one bag of white powder that field-tested positive for cocaine, a straw, two pipes, several empty plastic baggies, four spoons, a bag of white paper, one unopened and six opened syringes, cotton swabs, and four generic Xanax pills. Bledsoe included this information in an affidavit, and a warrant was issued that evening to search Montgomery's residence, including the outbuildings and vehicles on the premises, for drugs and drug paraphernalia and for the stolen Jeep. The search yielded illegal drugs, drug paraphernalia including syringes with the same lot number as those found on Gabel, and a .45 caliber pistol. Several shotguns and a rifle were found but not seized. The .45 pistol formed the basis of the first count to which Montgomery pleaded guilty.

While Montgomery was driving in Springfield, Missouri, on March 17, 2005, he was stopped by police for crossing the center line. Two local law enforcement officers had been following him, one of whom had been asked by an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives to follow Montgomery. Gabel was again Montgomery's passenger. Both parties consented to a search of their persons and the vehicle, which revealed a baggie of methamphetamine and a baggie of cocaine in the vehicle, each containing approximately two grams. Gabel possessed some methamphetamine and drug paraphernalia on her person. Montgomery admitted that he was a methamphetamine user, that he had purchased some for purely personal use, and that he had used it the previous night. Gabel stated that Montgomery was returning to his home later that day. This information was placed in an affidavit for a warrant for a second search of Montgomery's home. The affidavit noted that the earlier search had uncovered drugs, drug paraphernalia, and guns. Additionally, the affidavit incorrectly stated that Montgomery had been arrested for possession and distribution of a controlled substance on March 1, 2005. The affiant testified at the suppression hearing that another officer had told him about the March 1 arrest and that he had included that information in the affidavit without further verifying it. Montgomery's rifle and shotguns were seized during the execution of the second warrant and formed the basis of the second count to which Montgomery pleaded guilty.

II. Probable Cause

A judge's finding of probable cause to support the issuance of a search warrant is afforded great deference on review. United States v. Caswell, 436 F.3d 894, 897 (8th Cir.2006); Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We will not upset a judicial finding of probable cause unless there was no substantial basis for that finding. Caswell, 436 F.3d at 897-98.

"For a search warrant to be valid, the warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, [or] contraband ... may be found in the place to be searched." United States v. Proell, 485 F.3d 427, 430 (8th Cir.2007) (internal quotation omitted). Probable cause means a "fair probability" that the object of the search warrant may be found in the place to be searched. Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). This determination is made by considering the totality of the circumstances. Caswell, 436 F.3d at 897.

Montgomery first argues that the March 1 affidavit was insufficient to establish probable cause that drugs would be found at his residence because the affidavit does not allege that contraband was actually seen at Montgomery's residence or that any contraband was...