U.S. v. Anderson

• Decision Date: 07 August 1991
• Docket Number: No. 90-5282MN,90-5282MN
• Citation: 933 F.2d 612
• Parties: UNITED STATES of America, Appellee, v. Curtis Everett ANDERSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 612

933 F.2d 612

UNITED STATES of America, Appellee, v. Curtis Everett ANDERSON, Appellant.

No. 90-5282MN.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1991.

Decided May 7, 1991.

Rehearing and Rehearing En Banc Denied

Aug. 7, 1991.

Charles L. Hawkins, Minneapolis, Minn., for appellant.

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

Before WOLLMAN and BEAM, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Curtis Everett Anderson ("Anderson") appeals his conviction for possession with intent to distribute cocaine, alleging that the district court ¹ erroneously refused to suppress evidence seized pursuant to a search warrant. We affirm.

I. BACKGROUND

Anderson owned a bar in downtown Minneapolis which, in late 1983, was the target of an extensive federal drug investigation. As part of that investigation, and pursuant to prior court authorization, the bar was the subject of electronic (video and audio) surveillance which began in October 1983 and ended in December of that year. ²

In March 1984, federal agents sought and obtained a search warrant authorizing a search of Anderson's home. The supporting affidavit did not mention the results, or even the existence, of the electronic surveillance. Instead, the affidavit contained information supplied by a variety of informants, all of which bore, to varying degrees, upon Anderson's involvement in drugs. Paragraph one described information supplied to officers of the Minneapolis Police Department in 1978 indicating that Anderson was a source for cocaine. Paragraph two described the results of a search of the garbage outside Anderson's home in 1981; this search uncovered small amounts of cocaine, packaging material for cocaine, and price lists for cocaine. Paragraph three described the results of a search of Anderson's home in 1981; during this search, the police found trace quantities of cocaine, cocaine paraphernalia, and substances used to "cut" the purity of cocaine.

Paragraphs four through six described information supplied by "Source" One, Two and Three, respectively. None of these sources were identified by name, though each paragraph contained information indicating that the sources had consistently supplied accurate information to law enforcement officers. These three sources each supplied information about Anderson's involvement in, or Anderson's discussions of his involvement in, drug-related activities. The activities and conversations described in these paragraphs all took place in Anderson's bar between 1979 and 1982, and none of the information in these paragraphs suggested that drugs were present in Anderson's home.

Paragraph seven described the seizure of cocaine from Anderson's bar in 1980. Paragraph eight described information supplied by Source Four, who also historically supplied accurate information to law enforcement officials. Specifically, the affidavit indicated that based on "frequent direct contact with Curtis Anderson during the past week and based on contact within the past 72 hours [Source Four] knows that a large quantity of cocaine, approximately one pound, is now present in Curtis Anderson's residence at 3456 Abbott Avenue North, Robbinsdale, Minnesota." Appellant's Appendix at 10.

Based on this affidavit, a magistrate judge issued a search warrant. Pursuant to the warrant, law enforcement officers found and seized approximately four pounds of cocaine, numerous guns, scales, and other drug-related paraphernalia from Anderson's home.

A grand jury indicted Anderson and several other individuals on a variety of drug-related counts. After a trial, a jury found Anderson guilty of one count of conspiracy to distribute drugs, two counts of possession with intent to distribute, one count of distributing illegal drugs, and two counts of using the telephone to facilitate the distribution of drugs. The evidence seized from Anderson's home was used to prove only one of the two possession counts, and it is this conviction that Anderson now appeals based on the alleged deficiency of the warrant.

II. DISCUSSION

Anderson challenges the warrant by contending that the information contained in the supporting affidavit was stale and failed to demonstrate the necessary nexus between illicit activity and Anderson's house. He also contends that the affidavit was misleading because it omitted information relevant to the events described therein. We reject both contentions.

A. Staleness and Nexus

It is true that, taken in isolation, certain paragraphs from the affidavit discuss events distant in time from the application for the warrant. Similarly, some of the paragraphs described events that took place in Anderson's bar, not his home. However, the magistrate judge does not make a determination of probable cause by examining the affidavit's paragraphs individually; instead, the magistrate judge 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." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (emphasis added). Consequently, the affidavit cannot be attacked paragraph by paragraph; it must be evaluated as a whole.

Furthermore, it is important to note that a warrant was actually issued. Consequently, in reviewing the affidavit we do not examine it to see whether the magistrate judge was presented with probable cause; instead, we "need only ensure that the issuing official had a substantial basis to conclude that probable cause existed." United States v. Martin, 866 F.2d 972, 976 (8th Cir.1989) (citing Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332).

Given that the affidavit must be examined as a whole, and given our deferential standard of review, we conclude that the magistrate judge had a substantial basis for determining that probable cause existed. The affidavit demonstrated Anderson's involvement in drug activity spanning a period of several years. It demonstrated that trace amounts of drugs and drug paraphernalia had been found in Anderson's home on a prior occasion, and one confidential source indicated that he knew that a large quantity of drugs had been delivered to Anderson's home within the preceding seventy-two hours. Taken as a whole, this affidavit presented the magistrate judge with a substantial basis for believing that criminal activity was probably taking place in Anderson's home.

Anderson also contends that the critical information supplied by Source Four is insufficient; though Source Four claimed to "know" that cocaine had been delivered to Anderson's home, the affidavit failed to set forth Source Four's basis for possessing this knowledge.

Source Four did supply the only information that indicated drugs were currently located in Anderson's home. We would...