911 F.2d 72 (8th Cir. 1990), 89-5422, United States v. Curry

Docket Nº:89-5422MN.
Citation:911 F.2d 72
Party Name:UNITED STATES of America, Appellee, v. Tanell Rashaad CURRY, t/n Tanell R. Curry, Appellant.
Case Date:August 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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911 F.2d 72 (8th Cir. 1990)

UNITED STATES of America, Appellee,

v.

Tanell Rashaad CURRY, t/n Tanell R. Curry, Appellant.

No. 89-5422MN.

United States Court of Appeals, Eighth Circuit

August 7, 1990

Submitted Feb. 16, 1990.

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[Copyrighted Material Omitted]

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Earl R. Gray, St. Paul, Minn., for appellant.

Richard E. Vosepka, Minneapolis, Minn., for appellee.

Before WOLLMAN and MAGILL, Circuit Judges, and WATERS, [*] District Judge.

MAGILL, Circuit Judge.

Tanell Curry appeals from the district court's 1 judgment convicting him of possession of cocaine with the intent to distribute, 21 U.S.C. Sec. 841(a)(1), and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1). For reversal, Curry argues that (1) evidence seized pursuant to two search warrants should have been suppressed because of defects in the warrants, and (2) the evidence was insufficient to establish his use of a firearm under Sec. 924(c)(1). We affirm.

I.

On October 6, 1988, Bloomington, Minnesota police searched Curry's residence for evidence of certain robberies pursuant to a search warrant issued by a state judge. During this search, officers observed drug paraphernalia and a small amount of what appeared to be cocaine. The residence was then secured while a second search warrant based upon these observations was obtained. Execution of this warrant uncovered 527 grams of cocaine and two firearms, among other items.

Curry moved for suppression of the evidence seized pursuant to the two search warrants and for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The magistrate 2 recommended denial of the suppression motion and denied the motion for a Franks hearing. After reviewing the record and the magistrate's findings, the district court entered an order denying both motions. The case was then tried to the district court on stipulated facts, which the court adopted as the factual basis for its order for judgment of conviction.

II.

  1. Probable Cause

    Curry argues that the district court erred in rejecting his claim that the first search warrant was not supported by probable cause. The principles governing our

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    review of this issue are well established. Probable cause exists if, based upon a common-sense consideration of all the circumstances set forth in the supporting affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The issuing official's finding of probable cause is entitled to great deference. United States v. Bourbon, 819 F.2d 856, 859 (8th Cir.1987). A reviewing court's function is simply to ensure that the issuing official "had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). We must affirm a district court's determination made in the context of a motion to suppress unless it is clearly erroneous. United States v. Martin, 866 F.2d 972, 976 (8th Cir.1989); United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Applying these principles to the case at hand, we conclude that the district court did not clearly err in determining that the state judge had probable cause for issuing the first search warrant. 3

    The affidavit supporting this warrant was prepared by Detective Swanson of the Bloomington Police Department, and included the following information. Since September 16, 1988, Detective Swanson and other Bloomington officers had been investigating a series of robberies in which women approached men wearing Rolex watches in local bars, put a sleep-inducing drug in their drinks, took them to hotel rooms, and then stole their watches and other valuables. The watches and other stolen items were immediately taken from the women and delivered to an unknown location. Information from one of the female suspects and a Houston, Texas detective indicated that the stolen property was fenced locally or sent to Houston. The cooperative female suspect also stated she had overheard conversations that indicated the prescription drugs used in the robberies were obtained locally by illegal means. During the investigation, several of the female suspects were arrested in three area hotels. The affidavit stated that computer printouts from all three hotels showed telephone calls were made from the suspects' rooms to a Bloomington phone number listed to a Cheryl Curry of 1209 Devonshire Curve. On October 6, 1988, the Bloomington police department received telephone calls from a man inquiring about two of the arrested suspects. A trace was then placed on the department's phone number, and shortly thereafter the man called again making the same inquiries. This call was traced to the Curry residence at 1209 Devonshire Curve. Finally, the affidavit stated that a check with the Hennepin County Jail disclosed that Cheryl Curry had a criminal history and that her real name was Cheryl Ann Frederick.

    The circumstances set forth in the affidavit established a link between 1209 Devonshire Curve, the arrested suspects, and the hotel rooms where they had stayed. In light of the information indicating that the stolen property was immediately taken from the female perpetrators and kept at a location other than their hotel rooms, that some of the stolen property was fenced locally, and that the drugs were obtained locally, there were sufficient grounds for believing that a person or persons at 1209 Devonshire Curve were involved in the robbery ring. In sum, we cannot say that the totality of the information in the affidavit failed to provide the issuing judge with a substantial basis for concluding there was a fair probability that evidence of the robberies would be found at the residence.

  2. Franks Hearing

    Curry argues that the magistrate and district court erred in denying his motion

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    for a Franks hearing. At the suppression hearing, Curry alleged that the supporting affidavit for the first search warrant falsely stated that (1) there were computer printouts from all three hotels showing phone calls from the arrested suspects' rooms to 1209 Devonshire Curve, and (2) the woman residing at that address, Cheryl Curry, had a criminal history. To receive a Franks hearing, a defendant must satisfy two requirements. First, the defendant must make a substantial preliminary showing of an intentional or reckless falsehood in the affidavit. Franks, 438 U.S. at 155-56, 171, 98 S.Ct. at 2676-77, 2684. "The substantiality requirement is not lightly met." United States v. Wajda, 810 F.2d 754, 759 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). "Allegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171, 98 S.Ct. at 2684. Second, the allegedly false statements must be necessary to...

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