U.S. v. Sleet, 94-2244

• Decision Date: 24 April 1995
• Docket Number: No. 94-2244,94-2244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan Lamont SLEET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 303

54 F.3d 303

UNITED STATES of America, Plaintiff-Appellee, v. Ivan Lamont SLEET, Defendant-Appellant.

No. 94-2244.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 6, 1995.

Decided April 24, 1995.

Susan H. Dowd, Asst. U.S. Atty. (argued), Indianapolis, IN, for U.S Patrick Stern (argued), Indianapolis, IN, for Ivan Lamont Sleet.

Before MANION and ROVNER, Circuit Judges, and NORGLE, District Judge. ^*

ROVNER, Circuit Judge.

Ivan Lamont Sleet was convicted by a jury of two counts of armed bank robbery (18 U.S.C. Sec. 2113(a) & (d)) and two counts of using a firearm during the commission of a crime of violence (18 U.S.C. Sec. 924(c)). These convictions relate to two separate bank robberies--the first, of First Indiana Bank on August 27, 1993, and the second, of Union Federal Savings Bank on September 23, 1993. In this appeal, Sleet maintains that the district court committed a number of errors that allegedly entitle him to a reversal of those convictions and to a new trial. Finding no such error, we affirm Sleet's convictions.

I.

Sleet first contends that the district court erred in denying his motion to suppress evidence recovered by FBI agents in searching his apartment after the second robbery. The agents discovered in the course of their search a gun and a pair of black gloves that matched the description of the gloves worn by the perpetrator of the First Indiana robbery. The search was conducted under the auspices of a warrant issued by a federal magistrate after Sleet had been arrested for the Union Federal robbery. FBI Special Agent Jack L. Osborne submitted an affidavit in support of the search warrant application in which he stated that the First Indiana robber had been described by witnesses as an African-American male in his mid-20s who was approximately 5'6" tall and weighed 140 pounds. The robber had been wearing a red hooded sweatshirt, white pants, white tennis shoes, a ski mask, and gloves, and he had been brandishing a large handgun. Osborne explained that, according to witnesses, the robber had vaulted the bank's counter, pointed his gun at bank employees, taken money from two teller positions, and placed the money in a dark gym bag. Witnesses also said that the robber then revaulted the counter and ran toward the Firethorn apartment complex, which is located approximately one block north of the First Indiana Bank. Sleet told Osborne after his arrest that he lived in the Firethorn complex, which Osborne then confirmed with the manager of the complex. The manager told Osborne that Sleet had been the sole leaseholder of an apartment in the Firethorn complex since July 1993 and that he had paid his September rent with a money order only one or two days after the First Indiana robbery. Osborne explained in his affidavit that Sleet matched the description provided by witnesses to the robbery and also that employees of two businesses adjacent to the bank had seen an African-American male wearing a red hooded sweatshirt and white tennis shoes in the area of the bank on the day before the robbery.

Based on Osborne's affidavit and the criminal complaint that issued against Sleet for the Union Federal robbery, the magistrate issued a warrant for the search of Sleet's apartment, authorizing agents to search for "United States currency, guns, clothing, gym bags, ski masks, shoes and other evidence which constitutes fruits and instrumentalities of bank robberies." Among the items seized from the apartment were a Taurus 9 mm semi-automatic pistol and a pair of black winter gloves. Sleet moved to suppress this evidence prior to his trial, contending that the search warrant was not supported by probable cause. The district court denied the motion, finding that

[i]n light of the circumstances surrounding Sleet's apprehension in connection with the Union Federal robbery, the similarities between the Union Federal robbery and the First Indiana robbery, the evidence that the First Indiana robber fled toward the Firethorn complex, and the evidence that Sleet lived alone in the Firethorn complex at the time of the First Indiana robbery, a reasonable person could believe that Sleet performed both the Union Federal robbery and the First Indiana robbery, and that after the First Indiana robbery Sleet fled to his apartment at the Firethorn complex.

(R. 17, at 6-7.) In short, the district court determined that the magistrate had probable cause to authorize a search of Sleet's apartment.

We review probable cause determinations in warrant cases for clear error. United States v. Pless, 982 F.2d 1118, 1124 (7th Cir.1992); United States v. Spears, 965 F.2d 262, 269 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). We will reverse a refusal to suppress evidence seized pursuant to a search warrant only if, upon reviewing all of the evidence, "we are 'left with the definite and firm conviction that a mistake has been made.' " United States v. James, 40 F.3d 850, 874 (7th Cir.1994) (quoting United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994)), cert. denied, --- U.S. ----, ----, 115 S.Ct. 948, 1160 (1995). In that regard, "doubtful cases are to be resolved in favor of upholding the warrant." Pless, 982 F.2d at 1124; see also Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 2331 n. 10, 76 L.Ed.2d 527 n. 10 (1983).

The Supreme Court explained in Illinois v. Gates that

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

462 U.S. at 238, 103 S.Ct. at 2332; see also Pless, 982 F.2d at 1124; United States v. Lamon, 930 F.2d 1183, 1187 (7th Cir.1991). "The critical element in a reasonable search," the Supreme Court has said, "is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978); see also United States v. Malin, 908 F.2d 163, 165 (7th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990).

Sleet maintains that a search warrant should not have issued here because there was an insufficient nexus between the First Indiana robbery and his apartment. Because he was apprehended after the Union Federal robbery at a different apartment complex, Sleet contends that there is nothing to link either of the robberies to his Firethorn apartment. He relies in this regard on United States v. Dickerson, 975 F.2d 1245, 1249-50 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1316, 122 L.Ed.2d 703 (1993), where we found it unlikely that an affidavit which established probable cause to search a bank robber's automobile also provided probable cause to search his home. The only evidence in that case linking the automobile used in the robbery to the defendant's residence was the vehicle's registration, and we believed that this was insufficient to support a search of the residence. Id. at 1250. Yet in contrast to Dickerson, circumstantial evidence exists in the present case that links the First Indiana robbery to Sleet's apartment, providing probable cause to search for items used or obtained in that robbery at the Firethorn location.

Our cases explain that a search warrant may issue "even in the absence of '[d]irect evidence linking criminal objects to a particular site.' " Lamon, 930 F.2d at 1188 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985)); see also Malin, 908 F.2d at 165. The magistrate to whom the warrant application is directed "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 the magistrate "need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." Malin, 908 F.2d at 166 (internal quotations omitted); see also Lamon, 930 F.2d at 1188. The magistrate's conclusion here, that it would be reasonable to search for the fruits and instrumentalities of the First Indiana robbery in Sleet's apartment, was supported by the evidence outlined in Osborne's affidavit. First, Sleet had been arrested and charged with the Union Federal robbery, which had been carried out in a manner similar to the earlier robbery of First Indiana Bank. Moreover, the fact that the First Indiana bank is located less than half a mile from Sleet's apartment, that Sleet is the sole occupant of that apartment, and that several witnesses saw the First Indiana robber fleeing in the direction of the Firethorn complex makes it reasonable to seek items relating to that robbery in Sleet's apartment. Cf. Lamon, 930 F.2d at 1188-90 (evidence of drug dealing is likely to be found where the drug dealer lives); Malin, 908 F.2d at 166 (officer's report of marijuana growing in the defendant's backyard provided probable cause to support warrant for a search of his residence). The magistrate thus had a "substantial basis" for concluding that there was probable cause to search Sleet's apartment. See Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33.

Yet even if the warrant was unsupported by probable cause, suppression of the pistol and gloves would not be required here. In United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984), the Supreme Court held that evidence recovered during the execution of a facially-valid search warrant that is later invalidated by the courts is not always subject to suppression:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were...