U.S. v. Aljabari

• Decision Date: 17 November 2010
• Docket Number: No. 09-3605,09-3605
• Citation: 626 F.3d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samer J. ALJABARI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

626 F.3d 940

UNITED STATES of America, Plaintiff-Appellee,

v.Samer J. ALJABARI, Defendant-Appellant.

No. 09-3605.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 8, 2010.

Decided Nov. 17, 2010.

Joseph C. Pedersen, Attorney (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

L. Lee Smith, Attorney, Hinshaw & Culbertson, Peoria, IL, Matthew T. Glavin, Attorney (argued), Hinshaw & Culbertson, Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Appellant Samer Aljabari hired two of his friends to burn down a tobacco shop that competed with his father's business. A jury convicted Aljabari of arson and conspiracy to commit arson. On appeal, Aljabari argues that the district court should have suppressed evidence he contends was seized in a search of his apartment that went beyond the scope authorized by the search warrant, that the government failed to prove that the arson had a sufficient link to interstate commerce to support a federal prosecution, and that the district court committed several errors during sentencing. Finding no error, we affirm in all respects.

I. Background

In the early hours of October 4, 2007, the Oregon Smoke Shop, located in the small town of Oregon, Illinois, burned to the ground. There was no doubt that the blaze was intentionally set. The fire marshal discovered evidence of accelerant in the building's remains, and a surveillance video showed a masked man break into the shop, pour a flammable liquid on the floor, and set the building ablaze. As it turned out, the fire was set by Matt McMeekan and Christopher Taylor, whom Aljabari had hired to eliminate the primary competitor to his father's tobacco store in the same small town. Unfortunately for Aljabari, a friend of McMeekan and Taylor told a co-worker about their involvement in the Smoke Shop's destruction, and that co-worker contacted the police.

Following an investigation and a search of Aljabari's apartment, Aljabari was charged with arson and conspiracy to commit arson in violation of 18 U.S.C. § 844(i) and (n). At trial, Taylor and McMeekan both testified that they had burned the Smoke Shop at Aljabari's behest. The jury convicted Aljabari on both counts, and the district court sentenced him to 110 months in prison. He now appeals.

II. The Search Warrant

During the course of their investigation into the Smoke Shop's destruction, law enforcement officers obtained a warrant to search Aljabari's apartment. There they discovered, among other things, a can of gasoline and a can of kerosene that Taylor and McMeekan had used to start the fire at the Smoke Shop. Prior to trial, Aljabari moved to suppress all evidence seized during the search, arguing that the warrant suffered from several flaws. The district court granted the motion in part, suppressing the evidence it found had been seized beyond the permitted scope of thesearch, but the court did not suppress the gasoline and kerosene cans.

A. Probable Cause

On appeal, Aljabari first argues that the district court should have found the warrant wholly invalid because the affidavit submitted in support of the warrant application failed to establish probable cause to search the apartment at all. There clearly was probable cause to suspect Aljabari's involvement in the Smoke Shop's destruction, but he argues that there was no specific probable cause to believe that incriminating evidence related to the fire would likely be found in his apartment. The district court rejected this argument, as do we.

We review the affidavit's sufficiency de novo to the extent that it presents purely legal issues of Fourth Amendment doctrine. See United States v. Olson, 408 F.3d 366, 370 (7th Cir.2005), quoting United States v. Peck, 317 F.3d 754, 756 (7th Cir.2003). In applying those principles to a given case, however, we "afford great deference to the decision of the judge issuing the warrant," United States v. Bell, 585 F.3d 1045, 1049 (7th Cir.2009), and we will uphold a finding of probable cause so long as the issuing judge had a substantial basis to conclude that the search was reasonably likely to uncover evidence of wrongdoing, United States v. Dismuke, 593 F.3d 582, 586 (7th Cir.2010).

Law enforcement officials have probable cause to search a particular place where "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (requiring a "fair probability that contraband or evidence of a crime will be found in a particular place"). This common-sense, non-technical determination is based not on individual facts in isolation but on the totality of the circumstances known at the time a warrant is requested. See United States v. Brack, 188 F.3d 748, 755 (7th Cir.1999), citing Gates, 462 U.S. at 238, 103 S.Ct. 2317. Those circumstances need only indicate a reasonable probability that evidence of crime will be found in a particular location; neither an absolute certainty nor even a preponderance of the evidence is necessary. See Gates, 462 U.S. at 235, 103 S.Ct. 2317 ("Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the magistrate's decision.").

Drawing on these general principles, we have made clear that direct evidence linking a crime to a particular place, while certainly helpful, is not essential to establish probable cause to search that place. United States v. Watzman, 486 F.3d 1004, 1008 (7th Cir.2007) (affirming denial of motion to suppress; issuing court could reasonably conclude recipient of child pornography was likely to store it in his home); United States v. Anderson, 450 F.3d 294, 303 (7th Cir.2006) (affirming denial of motion to suppress; issuing court could reasonably infer that known drug dealer was likely, though not certain, to keep contraband in his home); United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.1991). The necessity of this rule is obvious; often, nothing will directly indicate that evidence of a crime will be found in a particular place. For that reason, an affidavit need only contain facts that, given the nature of the evidence sought and the crime alleged, allow for a reasonable inference that there is a fair probability that evidence will be found in a particular place. See Anderson, 450 F.3d at 303, quotingGates, 462 U.S. at 238, 103 S.Ct. 2317; United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996).

Applying these principles, the affidavit contained sufficient information to show a fair probability that evidence would be found in Aljabari's apartment. The affidavit provided ample reason to believe that Aljabari had participated in the arson. Aljabari had already asked three people to burn down the Smoke Shop, and he was in regular contact with McMeekan (who was believed at the time to be the masked man setting the fire in the surveillance video) around the time of the fire. The evidence sought in the application included gas cans, flammable liquids, lighters, burnt clothing, surgical masks, dark clothing, and shoes. It was particularly reasonable to expect to find surgical masks in Aljabari's apartment. A witness claimed to have taken Aljabari to purchase surgical masks about a month before the fire. Nothing in the affidavit made it unreasonable to think that the remaining evidence sought would be found in Aljabari's apartment.

Simple common sense supports the inference that one likely place to find evidence of a crime is the suspect's home, at least absent any information indicating to the contrary. See United States v. Hendrix, 752 F.2d 1226, 1231 (7th Cir.1985) (observing that it is reasonable to infer that a criminal will conceal cash in his home rather than "some less secure and accessible place"); United States v. Jones, 994 F.2d 1051, 1055-56 (3d Cir.1993) ("If there is probable cause to believe that someone committed a crime, then the likelihood that that person's residence contains evidence of the crime increases."); United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985) (noting that "normal inferences about where a criminal might hide [evidence]" are relevant to the probable cause determination). No such contrary facts are present here—none of the evidence sought would have been physically impossible to store in an apartment, cf. Platteville Area Apartment Ass'n v. City of Platteville, 179 F.3d 574, 579 (7th Cir.1999) ("If you are looking for an adult elephant, searching for it in a chest of drawers is not reasonable."), and nothing in the affidavit indicated that Aljabari had not had an opportunity to place any incriminating evidence in his apartment. See Jackson, 756 F.2d at 705 (noting that a suspect's opportunity to conceal evidence may be taken into account in determining probable cause to search).

Insisting that the affidavit needed to contain more specific information about his apartment to establish probable cause for the search, Aljabari relies primarily on the Tenth Circuit's decision in Poolaw v. Marcantel, 565 F.3d 721, 725-26 (10th Cir.2009). In that case, the Poolaws' residence was searched (unsuccessfully) in the course of a manhunt for their son-in-law, who was suspected of murdering a deputy sheriff. The Poolaws brought a federal civil rights suit alleging that the warrant authorizing the search was based on a deficient affidavit. The Tenth Circuit noted that neither the suspect nor his wife lived even part-time with the Poolaws, and nothing in the affidavit suggested that the suspect "had any contact with the Poolaws' property during which time [he] could have hidden evidence" of his crime. Id. at 731. Because the affidavit relied on little more than speculation and the Poolaws' family...