U.S. v. Hicks

• Decision Date: 11 August 2009
• Docket Number: No. 07-2037.,07-2037.
• Citation: 575 F.3d 130
• Parties: UNITED STATES of America, Appellee, v. Paul HICKS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

575 F.3d 130

UNITED STATES of America, Appellee, v. Paul HICKS, Defendant, Appellant.

No. 07-2037.

United States Court of Appeals, First Circuit.

Heard December 1, 2008.

Decided August 11, 2009.

Jennifer Appleyard, for appellant.

Kelly Lawrence, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

After a jury trial, appellant Paul Hicks was convicted of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and of possession with intent to distribute crack and powder cocaine in violation of 21 U.S.C. § 841(a)(1). He now appeals his conviction and sentence, requiring us to consider, among other things: whether a warrant for the search of his residence was supported by probable cause, whether the district court wrongfully denied appellant a Franks hearing to establish the veracity of the affidavit supporting the search warrant, and whether it was error to admit evidence of appellant's three prior drug convictions and other bad acts. We reject appellant's claims of error and affirm.

I.

On January 20, 2005, agents of the Massachusetts State Police conducted a search of 15 Cabot Street in Brockton, Massachusetts pursuant to a "no-knock" search warrant issued earlier that day by a magistrate judge. Massachusetts State Trooper James Long, who had been investigating appellant for weeks prior to the search, had executed an affidavit in support of the search warrant.

Long's affidavit stated that in December 2004, a confidential informant (CI) told him that he or she had been purchasing crack cocaine from a man known as "Pudgie." The CI identified appellant as "Pudgie" in a photograph. The affidavit stated that the CI then participated in two controlled purchases of crack cocaine from appellant. The first transaction occurred "on or about" January 7, 2005 and the second "on or about" January 16, 2005. The affidavit explained that Long and other officers working the case were familiar with 15 Cabot Street from a previous narcotics investigation that had resulted in a search of the residence in January 2004. Officer Long averred in the affidavit that he believed that 15 Cabot Street was a location maintained by Hicks to prepare and distribute drugs.

The search was executed by a team of law enforcement officers. They found appellant in a bedroom, sitting on the edge of a bed and wearing nothing but a towel. He was the only adult in the house. In the drawer of a night stand and within arm's reach of where appellant had been sitting on the bed, the officers discovered a cellular telephone, a box of ammunition, a weapon holster, a men's watch, a key, and cash. They also found $2,090 in cash in the pocket of a leather jacket hanging in the closet. In the basement of the home, the officers found a digital scale, plastic baggies, baking soda, and, inside the hollow legs of a weight bench, 20.89 grams of crack cocaine and 125.51 grams of powder cocaine. In the kitchen, the officers found two more digital scales. Hicks was arrested and subsequently charged with being a felon in possession of ammunition and possession with intent to distribute crack and powder cocaine.

In March 2006, appellant moved in the district court to suppress the evidence seized during the search of 15 Cabot Street, claiming that the search warrant had been defective. Specifically, he argued that Trooper Long's affidavit did not establish probable cause to believe that evidence of narcotics dealing would be found at 15 Cabot Street. He claimed that Long's affidavit did not connect the CI's controlled purchases to 15 Cabot Street or show that appellant was himself connected to the residence.

The district court denied the motion to suppress, finding that the warrant affidavit had established probable cause. The court further found that even if there had not been probable cause to issue the warrant, the search was justified by the rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because a reasonable officer could have thought that the affidavit had established probable cause.

Shortly before trial, appellant requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), (a "Franks hearing") to contest allegedly false statements in the search warrant affidavit. The district court denied the motion, finding that defendant had failed to make the preliminary showing necessary to warrant a Franks hearing.

A jury trial commenced on October 16, 2006 and lasted four days. The government presented the testimony of several law enforcement agents, including that of Trooper Long and others who had participated in the investigation and eventual search of 15 Cabot Street. The government's final witness was Massachusetts State Police Officer Dean Levangie. Officer Levangie had participated in well over 300 crack cocaine investigations, an estimated seventy percent of which had occurred in Brockton, and testified as an expert in Brockton narcotics investigations.

After the district court's rejection of appellant's motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, appellant presented the testimony of his mother, Rosemarie Hicks. The thrust of appellant's defense was that he lived with his parents and was only an occasional guest at 15 Cabot Street, that the drugs and paraphernalia found at the residence did not belong to him, and that he had no intent to exercise control over or distribute the drugs. At the close of evidence, he did not renew his Rule 29 motion. The jury found him guilty of all three counts. He was subsequently sentenced to 360 months of imprisonment for each of the three counts, to be served concurrently, followed by an eight-year term of supervised release. Appellant filed this timely appeal.

II.

Appellant argues that the district court erroneously denied his motion to suppress the evidence seized in the search of 15 Cabot Street because the application in support of the search warrant failed to establish probable cause. We employ a two-tiered standard of review to analyze such claims. Questions of law, including the question of whether a given set of facts gives rise to probable cause, are reviewed de novo, United States v. Woodbury, 511 F.3d 93, 96 (1st Cir.2007), while factual findings are reviewed for clear error, United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir.2005). We "give significant deference to the magistrate judge's initial evaluation," and reverse "only if we see no `substantial basis' for concluding that probable cause existed." Id. (quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)).

A search warrant application must demonstrate probable cause to believe that: 1) a crime has been committed, and 2) "enumerated evidence of the offense will be found at the place to be searched— the so-called `nexus' element." Id. In considering whether a warrant affidavit establishes probable cause, a magistrate judge's task is "`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.'" Feliz, 182 F.3d at 86 (modification in original) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Appellant argues that the warrant affidavit was faulty because it failed to establish probable cause to believe that there was a nexus between the controlled purchases and 15 Cabot Street, and that the evidence found at the home should therefore have been suppressed. We disagree. Trooper Long's warrant affidavit supplied a host of evidence to establish a "fair probability" that evidence of the narcotics trade would be found at 15 Cabot Street.

According to the affidavit, the CI gave Officer Long the crack cocaine after each controlled purchase and stated that it had been purchased from "Pudgie." The affidavit also described reliable information provided by the CI in earlier investigations and stated that Long knew "Pudgie" to be the nickname of appellant, who had several prior convictions for drug distribution offenses. The affidavit stated that officers followed a black Mazda van directly to 15 Cabot Street after its driver, reported by the CI to be "Pudgie," had used the van to deliver drugs during a controlled purchase. Officers later observed the van parked at the home during the late evening and early morning hours. Utilities at 15 Cabot Street were in appellant's name.

Trooper Long and other officers' knowledge and experience with 15 Cabot Street also linked appellant to the residence. The cell phone number dialed by the CI to reach "Pudgie" was registered to Edward Robinson, who had previously sold crack cocaine to law enforcement officers and had been arrested after an earlier investigation and search of 15 Cabot Street. Robinson was connected to appellant because during the earlier investigation he had used a vehicle registered to appellant's father to deliver drugs. Furthermore, 15 Cabot Street was owned by Renee Yarrell, who was known by officers to be appellant's girlfriend and who had also sold drugs to undercover officers during the earlier investigation of 15 Cabot Street. Finally, the search warrant affidavit detailed Trooper Long's experience and training in narcotics investigations and his belief that 15 Cabot Street would contain evidence of appellant's preparation and distribution of narcotics.

In Ribeiro, 397 F.3d at 49-50, we found that the nexus element was satisfied when police officers conducting surveillance had seen the defendant leaving his home shortly before participating in a controlled narcotics purchase. Analyzing whether there was probable cause to establish the nexus requirement, we found it "compelling" that the defendant had been...