U.S. v. Rodrigue, 08-1359.

• Decision Date: 13 March 2009
• Docket Number: No. 08-1359.,08-1359.
• Parties: UNITED STATES of America, Appellee, v. Richard RODRIGUE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

560 F.3d 29

UNITED STATES of America, Appellee, v. Richard RODRIGUE, Defendant, Appellant.

No. 08-1359.

United States Court of Appeals, First Circuit.

Submitted March 3, 2009.

Decided March 13, 2009.

Leonard I. Sharon and Sharon Leary & DeTroy, on brief for appellant.

Paula D. Silsby, United States Attorney and Margaret D. McGaughey, Appellate Chief on brief for appellee.

Before BOUDIN, JOHN R. GIBSON,^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

In this appeal from a criminal conviction following a jury trial, appellant Richard Rodrigue asserts that the district court erred in denying his motion to suppress evidence seized pursuant to a state search warrant. His sole argument on appeal is that the affidavit submitted by law enforcement in support of the requested search warrant failed to establish probable cause. For the reasons that follow, we affirm.

I. BACKGROUND

The relevant background facts, gleaned from the affidavit of Deputy Guy E. Dow of the Piscataquis County (Maine) Sheriff's Department (the "Sheriff's Department"), are undisputed. On May 24, 2002, Agent Jon Richards of the Maine Drug Enforcement Agency notified the Sheriff's Department that he had seen a large rental truck on a back logging road. The next day, Sheriff's Deputy George McCormick investigated the report and followed tire tracks to a large quantity of Pro-Mix brand potting soil deposited at the end of the dead-end road. Two days later, Agent Richards informed Deputy McCormick of another large deposit of potting soil nearby, and two days after that, while surveying the area from an airplane, Deputy McCormick spotted a large marijuana cultivation site. Also visible from the air was a red car parked at the end of a road near the site. Later the same day, while surveying the logging road from the ground, Deputy McCormick observed a similar red car bearing a Maine license plate emerging from the area. According to the Maine Department of Motor Vehicles ("DMV") records, the license plate was listed to a white Chevrolet Caprice, and it had expired in 2001.

The following day, May 30, 2002, Deputy McCormick and a colleague returned to the logging road to photograph the potting soil, which had not been disturbed. They then proceeded to the cultivation site, where they observed a roughly 300 square-foot growing area with Pro-Mix potting soil distributed across it, and approximately 100 marijuana plants still in containers. Also present at the cultivation site was an unregistered white Polaris all-terrain vehicle ("ATV"). A path suitable for the ATV led from the cultivation site to the location on the logging road where the original deposit of potting soil had been discovered.

On June 1, 2002, Deputy McCormick located a maroon Subaru station wagon approximately five miles from the cultivation and deposit sites that bore the same Maine license plate number as the red car he spotted on the logging road three days earlier. Deputy Dow could see loose potting soil, which he identified as Pro-Mix, in the rear of the car. He also observed that both front tires of the car were flat.

Two days later, on June 3, 2002, Deputy McCormick and a colleague returned to the cultivation site and observed that the marijuana plants had not yet been transplanted from their containers, but that the ATV had been moved. The following day, Deputy McCormick inspected the Subaru and saw that the license plate had been removed. He also observed a red gasoline can and two spare tires in the rear of the station wagon.

On June 6, 2002, Deputy McCormick and a colleague again visited the Subaru and the soil deposit site on the logging road. The Subaru's tires had been replaced and the license plate was still missing, and the amount of potting soil on the logging road was significantly reduced. As the officers left the deposit site, they passed a small black Volkswagen truck driving towards the deposit site bearing a license plate registered to Rodrigue. A short time later, the truck exited the area loaded with Pro-Mix potting soil; the officers attempted to follow the truck but soon lost it. They checked the cultivation site and observed that while the marijuana plants were still not transplanted, the ATV was no longer parked at the site.

The next day, Deputy McCormick and two of his colleagues decided to confiscate the marijuana plants. Upon arriving at the cultivation site, they observed that the marijuana had been removed from the containers and planted in the soil. They dug up and confiscated 85 plants and some of the Pro-Mix from the site. The lot numbers from this Pro-Mix matched the lot numbers from the Pro-Mix observed earlier at the deposit site.

That same day, a black Volkswagen truck and a white Polaris ATV were reported parked at a campsite at Knight's Landing on Schoodic Lake.¹ When Deputy Dow visited the campsite on June 10, 2002, he determined that the ATV parked behind the campsite was "very similar" to the one depicted in pictures from the cultivation site, and that the license plate on the black Volkswagen truck matched the license plate on the black Volkswagen truck that had been observed hauling Pro-Mix on the logging road. With this information collected, Deputy Dow prepared an affidavit in support of an application for a warrant to search the campsite for, inter alia, marijuana, drug paraphernalia and the ATV.

The application was filed the next day, and a state district court judge concluded that probable cause existed and therefore issued the warrant. The ensuing search at Knight's Landing resulted in the seizure of marijuana plants. Rodrigue, who was asleep inside the camp at the time of the search, was subsequently charged with five criminal counts of violating federal drug laws. After a jury trial, he was convicted of three of the charges, viz., conspiracy to possess with intent to manufacture and distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2 (Count I); manufacture and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count II); and use of a firearm during and in relation to, or possessing a firearm in furtherance of, the commission of the offenses outlined in Counts I and II, in violation of 18 U.S.C. § 924(c)(1)(A)(i).²

Before trial, Rodrigue moved to suppress all evidence seized pursuant to the state search warrant, asserting that there was no probable cause to support the warrant, and also that the officers violated the "knock and announce" rule of the Fourth Amendment. The magistrate judge recommended denying the motion on both grounds. In determining whether there was a sufficient nexus between the marijuana growing operation and the camp to support the probable cause determination, the magistrate judge focused on the fact that the black Volkswagen truck and the white Polaris ATV were seen parked adjacent to the camp on two separate occasions Describing the case as a "close call," and citing United States v. Barnard, 299 F.3d 90, 93 (1st Cir.2002), for the proposition that "in a doubtful or marginal case, the court defers to the issuing magistrate's determination of probable cause," the magistrate judge recommended that the district court defer to the state court's "common-sense" conclusion. The district court adopted the magistrate judge's factual findings and accepted without discussion the conclusion that the warrant was supported by probable cause.³ United States v. Sherman, 344 F.Supp.2d 223, 227 n. 3 (D.Me.2004). Evidence of the seized marijuana plants was introduced at trial.

II. LEGAL STANDARDS

"In reviewing the district court's denial of a defendant's motion to suppress, we review the district court's finding of fact for clear error and its legal determinations, including whether a particular set of facts constitutes probable cause, de novo." United States v. Dickerson, 514 F.3d 60, 65-66 (1st Cir.2008) (citing United States v. Woodbury, 511 F.3d 93, 95 (1st Cir. 2007)).

"A warrant application must demonstrate probable cause to believe that (1) a crime has been committed—the `commission' element, and (2) enumerated evidence of the offense will be found at the place to be searched—the so-called `nexus' element." United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir.2005) (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)) (internal quotation marks omitted). With regard to the "nexus" element, which is the only issue in dispute here, "a magistrate has to make `a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. at 49 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317 (1983)). "Put differently, the application must give someone of `reasonable caution' reason to believe that evidence of a crime will be found at the place to be searched." Id. (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality op.)). "The probable-cause nexus between enumerated evidence of the crime and the place `can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime].'" Id. (quoting United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979)).

III. ANALYSIS

Rodrigue's sole challenge on appeal is his assertion that Deputy Dow's affidavit did not establish a sufficient nexus between the marijuana plants and the campsite. Specifically, he argues first that there was no direct evidence linking criminal activity to Rodrigue's residence, and second that the indirect evidence could not support the inference that evidence of marijuana cultivation would be found there. We disagree.

The factual recitation in the affidavit is sufficient to...