987 F.2d 1432 (9th Cir. 1993), 92-30027, United States v. Baldwin

Docket Nº:92-30027.
Citation:987 F.2d 1432
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Lee BALDWIN, Defendant-Appellant.
Case Date:March 10, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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987 F.2d 1432 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Lee BALDWIN, Defendant-Appellant.

No. 92-30027.

United States Court of Appeals, Ninth Circuit

March 10, 1993

Argued and Submitted Jan. 7, 1993.

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Allen R. Bentley, Bukey & Bentley, Seattle, WA, for defendant-appellant.

Leonie G. Hellwig, Asst. U.S. Atty., Seattle, WA and Thomas M. Gannon, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding.

Before: FARRIS and KLEINFELD, Circuit Judges, and DAVID ALAN EZRA, District Judge. [*]

FARRIS, Circuit Judge:

David Lee Baldwin appeals his conviction on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (1988), and two counts of distributing

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cocaine in furtherance of the conspiracy, in violation of 21 U.S.C. § 841(a)(1)-(b)(1)(C) (1988). He argues that his residence was searched pursuant to an invalid warrant, that the district court improperly instructed the jury on the conspiracy charge, and that his trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Eugene Kubera and Ricardo Garza were arrested on July 27, 1990, as they tried to complete a drug deal in a hotel parking lot. Baldwin was arrested later that day in connection with that transaction. His home was then searched, and a triple beam scale, a small mirror, and a small brown vial were seized. These items were admitted at trial, over Baldwin's objection. Baldwin and Garza were tried jointly. Garza was convicted, but the jury hung as to Baldwin. Baldwin was then reindicted and convicted.

I. SEARCH WARRANT

Baldwin argues that the district court erred by denying his motion to suppress evidence seized during the execution of the search warrant. He contends the warrant was not based on probable cause, and that it failed to describe the items to be searched with sufficient particularity. We reject these contentions.

We review the magistrate judge's determination of probable cause for clear error. United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). We examine de novo the warrant's particularity. United States v. McLaughlin, 851 F.2d 283, 285 (9th Cir.1988).

A. Probable Cause

For an affidavit in support of a search warrant to establish probable cause, the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued. Based on the nature of the evidence and the type of offense, a magistrate may draw reasonable inferences about where evidence is likely to be kept. We have previously recognized that in the case of drug dealers, evidence is likely to be found where the dealers live.

United States v. Garza, 980 F.2d 546 (9th Cir.1992) (internal quotations and citations omitted). Baldwin argues that his role in the transaction was merely peripheral, and that it therefore was unreasonable to issue a warrant to search his home. The warrant affidavit indicated that: (1) Baldwin told the undercover DEA agent that he had been distributing cocaine--at times up to fifty to sixty kilograms per month--for fifteen years, and (2) Kubera informed the agent that Baldwin kept assets at his home that were purchased with drug proceeds. The magistrate judge had sufficient evidence to support an inference that evidence would be found at Baldwin's home. Cf. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986) ("When the traffickers consist of a ringleader and assistants, a fair probability exists that drugs will be present at the assistants' residence....").

Baldwin attacks the affidavit piecemeal, arguing that probable cause did not exist to search for some items listed in the warrant, while sufficient particularity was lacking as to the same or other items. This "hypertechnical" approach is inconsistent with the Supreme Court's statement in Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), that probable cause is to be determined on the basis of the "totality-of-the-circumstances."

"A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."

Id. (quoting United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)); see also Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (reviewing court should consider "affidavit in its entirety," as opposed to dissecting the affidavit

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and judging "bits and pieces of information in isolation").

Perhaps recognizing the...

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