U.S. v. Anderson

• Decision Date: 14 July 1988
• Docket Number: No. 87-5659,87-5659
• Citation: 851 F.2d 727
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny Lee ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 727

851 F.2d 727

UNITED STATES of America, Plaintiff-Appellee, v. Danny Lee ANDERSON, Defendant-Appellant.

No. 87-5659.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1988.

Decided July 14, 1988.

Barry L. Proctor, Abingdon, Va., for defendant-appellant.

Jerry W. Kilgore, Asst. U.S. Atty. (John P. Alderman, U.S. Atty., on brief), Roanoke, Va., for plaintiff-appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

MURNAGHAN, Circuit Judge:

On August 21, 1985, Danny Lee Anderson, the appellant, was charged with unlawful possession of an unregistered silencer for use on a .45 caliber handgun. In the district court, Anderson filed a Motion to Suppress the introduction of the silencer. After a hearing, Anderson's Motion to Suppress was denied. Pursuant to a plea agreement with the United States Attorney, which preserved the right to raise the issue on appeal here presented for our attention, Anderson was sentenced to five years.

During an investigation of the murder of Richard Allen Jones, an Investigator for the Commonwealth of Virginia, David Mullins, obtained a warrant to search the residence of Anderson for a .45 caliber pistol and a silencer attachment. In his application for a search warrant, Mullins presented evidence that Anderson had offered to sell the pistol and the silencer to three informers. The evidence also showed that Anderson had told the informers that "the gun for sale was used to kill somebody." To one informer, Anderson said the gun for sale was used to kill Richard Allen Jones. During the search pursuant to the warrant of Anderson's trailer, Mullins found the pistol and the silencer.

On August 18, 1985, Wise County, Virginia, arrested Anderson and charged him with the murder of Jones. A jury convicted Anderson on the first degree murder charge.

The primary question confronting us is whether the magistrate acted properly in issuing a warrant for the search of Anderson's home. In Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the Supreme Court explained that:

The task of the issuing magistrate is simply to make a practical, common sense 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, that there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing magistrate is simply to ensure that the magistrate had a substantial basis for concluding the probable cause existed.

Anderson, on appeal, argues that the search warrant was defective because the affidavit submitted by Mullins to obtain it contained absolutely no facts or conclusions that the pistol and the silencer were located in Anderson's residence. He contends, therefore, that there was no probable cause to believe that the pistol and the silencer would be found in the residence. The government argues, on the other hand, that it was reasonable to assume that individuals keep weapons in their homes, particularly in the case of Anderson.

There appears to be a split among the circuits as to whether probable cause can be inferred from circumstances such as the one in the instant case. The Fifth, Sixth, Eighth, and Ninth Circuits have held that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence. United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir.1983) (it was reasonable for the magistrate to conclude that articles of clothing would remain at the residence); United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975) (people who own pistols generally keep them at home or on their persons); United States v. Rahn, 511 F.2d 290, 293 (10th Cir.1975), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (it was reasonable to assume that individuals keep weapons in their homes); Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir.1973) (a very likely place to find the pistols would either be on the persons of the assailants or about the premises where they lived).

In contrast, the Eleventh Circuit has held that there must be a "substantial basis" to conclude that the instrumentalities of the crime will be discovered on the searched premises. United States v. Lockett, 674 F.2d 843, 846 (11th Cir.1982). See also United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979) (there is nothing in the affidavit from which a factual finding could...