958 F.2d 369 (4th Cir. 1992), 90-5738, U.S. v. Brown
| Citation | 958 F.2d 369 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Eric J. BROWN, Defendant-Appellant. |
| Case Date | February 12, 1992 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
Page 369
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)
Argued May 9, 1991.
Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, District Judge. (CR-90-27-NN)
Argued: Michael Morchower, Morchower, Luxton & Whaley, Richmond, Virginia, for Appellant. Robert E. Bradenham, II, Assistant United States Attorney, Norfolk, Virginia, for appellee.
On Brief: Lauren A. Adler, Morchower, Luxton & Whaley, Richmond, Virginia, for appellant. Henry E. Hudson, United States Attorney, J. Matt Szymanski, Third Year Law Student, Norfolk, Virginia, for appellee.
E.D.Va.
AFFIRMED.
Before PHILLIPS, Circuit Judge, STAKER, United States District Judge for the Southern District of West Virginia, sitting by designation, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.
OPINION
PER CURIAM:
The defendant-appellant Eric J. Brown was indicted on June 11, 1990, on two counts of distribution of cocaine. 21 U.S.C.A. § 841(a)(1) & (b) (West 1981 & Supp.1991). The second count of the indictment also included a claim for forfeiture of a 1977 Cadillac because of its use by Brown in the distribution of cocaine. 21 U.S.C.A. § 853 (West Supp.1991). These charges were based upon two purchases made in January and February respectively by an undercover agent from a Gerrard Cooper. After Cooper agreed to plead guilty to a separate indictment, he told law enforcement officers that Brown had supplied him with the cocaine involved in those sales. Cooper reiterated these allegations when he testified at Brown's trial.
Thereafter, on June 14, Detective Charles Firth of the Hampton, Virginia Police Department, who was then assigned to a Drug Enforcement Agency task force, obtained a warrant from a Virginia state magistrate to search Brown's then current residence located at 710 Burgess Avenue, in Hampton, Virginia. That residence was a different one than Brown's residence at the time of the sale of cocaine in January and February. The warrant authorized police officers to search the residence for "Ledgers, paper, books, records" related to the offense of "Distribution of Cocaine." [*]
The warrant was executed on June 15. During the search, one of the police officers found 535 grams of cocaine wrapped in a t-shirt in the vegetable crisper of a refrigerator. A handgun was also found in a zippered pouch in a nightstand in one of the bedrooms. Subsequently a superseding indictment was returned charging Brown, in addition to the two counts of distribution of cocaine charged in the original indictment, with possession of cocaine (that discovered in the search) with intent to distribute, 21 U.S.C.A. § 841(a)(1) & (b) (Count Three), and possession of a firearm by a convicted felon, 18 U.S.C.A. §§ 922(g)(1) & 924 (West 1976 & Supp.1991) (Count Four).
Prior to trial Brown moved to suppress the evidence which was seized in the June 15th search and led to the filing of those Counts Three and Four. He contended that the search warrant was invalid because it was not based upon probable cause. Brown asserted three arguments as to why Detective Firth's affidavit did not establish probable cause: (1) the information set out therein was insufficient to show that he (Brown) was involved in any criminal activity; (2) the information came from an informant--Cooper--whose reliability was not established in the affidavit; and (3) the information was stale. He also argued that the warrant was invalid because it did not describe the items to be searched for and seized with the particularity required by the Fourth Amendment. He also took the position that the government could not avoid suppression of this evidence by asserting "good-faith" reliance, United States v. Leon, 468 U.S. 897 (1984), on the warrant. Alternatively, Brown contended that the evidence should be suppressed because the search as conducted exceeded the scope authorized by the warrant.
Leon good-faith exception applied.
At Brown's trial Gerrard Cooper testified concerning Brown's supplying the cocaine involved in the January and February transactions charged in Counts One and Two. Other witnesses' testimony circumstantially corroborated Cooper. The police officers who conducted the search of Brown's residence testified as to the discovery and seizure of the cocaine and the handgun upon which Counts Three and Four were based. A jury subsequently found Brown guilty of the two counts of distribution of cocaine as charged in Counts One and Two of the original and the later superseding indictment and of Count Three, in the superseding indictment, charging him with possession of cocaine with intent to distribute (the cocaine which Brown had sought to suppress). The jury also found Brown's automobile to be forfeited. Count Four of the indictment--possession of the firearm--was dismissed by the court. The court sentenced Brown to serve a term of imprisonment of 140 months on each of the three counts, the terms to run concurrently; to pay a fine of $1,000 for each of the counts; and to serve a period of supervised release totalling five years.
Brown now appeals his convictions contending that the district court committed several fundamental errors. He asserts that the district court erred by not granting his motion to suppress the cocaine seized during the June 15th search of his residence. His second basis for appeal is that there was not sufficient evidence presented at trial to convict him of any of the three counts on which he was found guilty. Finally, he argues that the trial court erred by not granting his motion for a mistrial because of prejudicial comments on the evidence made by the presiding judge at the close of instructions.
I. Motion to Suppress
Brown asserts here essentially the same arguments that he raised before the district court as to why the cocaine seized in the June 15th search should have been suppressed. These are: (1) that the warrant was not supported by probable cause; (2) that it did not particularly describe the items to be seized; (3) that the search exceeded the authorized scope; and (4) that the good-faith exception to exclusion did not apply. We will discuss each issue in turn.
A. Probable Cause
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Probable cause to support issuance of a search warrant is simply a showing of a "probability or substantial chance of criminal activity ...", Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983), and the likelihood "that contraband or evidence [of that criminal activity] is located in a particular place." Id., 462 U.S. at 230. It is a practical, common-sense question that is to be resolved by determining those probabilities based upon the totality-of-the-circumstances presented in each individual case. Id., 462 U.S. at 230-32.
In this appeal Brown devotes considerable effort arguing that the affidavit supporting the warrant did not establish probable cause because there was no showing that the information set out in it was reliable. He contends that the statements about his involvement in drug transactions came from information supplied by Gerrard Cooper, who was a drug dealer. Brown argues that a magistrate could not reasonably rely on this information to find that he (Brown) was probably involved in criminal activity since there was nothing in the affidavit to establish that Cooper was a reliable source of information.
An issuing magistrate making a probable cause determination should not separate issues such as an informant's reliability or the staleness of information into distinct categories and require that each category be independently satisfied. Gates, supra; United States v. Pace, 898 F.2d 1218, 1232 (7th Cir.1990), cert. denied sub nom. Cialoni v. United States, 497 U.S. ----, 110 S.Ct. 3286 (1990), and Savides v. United States, 498 U.S. ----, 111 S.Ct. 210 (1990). Instead, as the phrase "totality-of-the-circumstances" implies, the whole of the affidavit, rather than its constituent parts, is to be considered in making a probable cause determination. The same applies to a court reviewing the magistrate's finding. Id.
United States v. Miller, 925 F.2d 695 (4th Cir.1991). The informant may be relied on in finding probable cause even if the affidavit is devoid of stated reasons why the police believe him or her to be reliable. Id. In Miller the informant's past reliability was unknown and there was no corroboration of her information to establish reliability. We held that because the informant was supplying the information in the hope of receiving a lenient sentence, that motivation to give truthful information was, by itself, sufficient indicia of reliability that a magistrate could rely on it in finding probable cause. Id. at 699. That is exactly the same situation in the case before us. Gerrard Cooper had been indicted and had pled guilty to charges of distribution of cocaine which involved the same incidents as were alleged against Brown in the original indictment. We find that Brown's lack-of-reliability challenge to the affidavit is not well taken.
Brown's additional assertions as to the affidavit's insufficiency are intertwined. He contends that together they show that the information in...
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