U.S. v. Biglow

• Decision Date: 20 April 2009
• Docket Number: No. 08-3155.,08-3155.
• Citation: 562 F.3d 1272
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael L. BIGLOW, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

562 F.3d 1272

UNITED STATES of America, Plaintiff-Appellant, v. Michael L. BIGLOW, Defendant-Appellee.

No. 08-3155.

United States Court of Appeals, Tenth Circuit.

April 20, 2009.

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice (Eric F. Melgren, United States Attorney, Kansas City, KS, James A. Brown, Assistant United States Attorney, Topeka, KS, and Debra L. Barnett, Assistant United States Attorney, Wichita, KS, with him on the briefs), Washington, D.C., for Plaintiff-Appellant.

John Jenab, Jenab & McCauley, LLP, Olathe, KS, for Defendant-Appellee.

Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Michael L. Biglow's contacts with a major drug dealer, Tyrone Andrews, led the Government to suspect Defendant was also engaged in drug trafficking. Based on the Government's affidavit, which described investigators' surveillance activities and information gleaned from confidential informants, a United States Magistrate Judge issued a warrant to search Defendant's home for evidence related to his alleged drug dealing activities. Authorities' search of Defendant's residence located $769.11 in United States currency, a scale, packaging material, firearms, ammunition, drugs, and drug paraphernalia.

Subsequently, a grand jury charged Defendant with (1) possessing cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (3) conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846; (4) using a communication facility to facilitate a felony, in violation of 21 U.S.C. § 843(b); and (5) unlawfully possessing two firearms, in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress the evidence found in his home, arguing that authorities lacked probable cause to search his residence. In response, the Government defended the magistrate judge's probable-cause determination and, in the alternative, suggested the good-faith exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should apply.

The district court considered the matter and concluded the Government's affidavit failed to establish the probable cause necessary to search Defendant's home. Because it viewed the Government's evidence as utterly failing to establish (1) that Defendant was engaged in selling drugs to others and (2) the required nexus between Defendant's drug-related activities and his residence, the district court also ruled that the good-faith exception did not apply. Consequently, the district court suppressed the evidence found in Defendant's home. See United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) (recognizing the exclusionary rule mandates the suppression of evidence obtained as the result of an illegal search). The Government maintains, on appeal, that the magistrate judge's probable-cause determination should stand. In the alternative, it argues that the good-faith exception forestalls the exclusionary rule's application in this case. We have jurisdiction under 18 U.S.C. § 3731, and reverse.

I.

Probable cause must support the warrant authorizing the Government's search of Defendant's residence. See U.S. Const. amend. IV. (stating "no warrants shall issue, but upon probable cause"). Indeed, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Our analysis of the lawfulness of this search begins with a summary of the evidence presented in the Government's probable-cause affidavit and the terms of the search warrant issued by the magistrate judge. We then proceed to outline why the district court found the Government's affidavit lacked the indicia of probable cause necessary to justify a search under the Fourth Amendment.

A.

Special Agent Greg Heiert of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives executed the Government's affidavit. The affidavit describes a series of revelations by confidential informants related to a major supplier of cocaine in Wichita, Kansas known as "Roni." These confidential sources revealed that "Roni" (1) supplied local gang members with large amounts of cocaine, (2) usually sold cocaine in amounts ranging from a half to a whole kilogram, (3) was considered a "big fish" who purchased cocaine imported from Mexico, (4) regularly obtained around ten kilograms of cocaine a week, and (5) owned a stash house near the intersection of Mt. Vernon and Oliver. Through additional personal information provided by informants and one photo identification, authorities learned that "Roni's" true name was Tyrone Andrews.¹

Tyrone Andrews worked at an aerosystems company. Real estate records revealed that he owned six properties in the Wichita area. One of these properties, a home on South Ridgewood (Ridgewood), was located only a half mile east of the intersection of Mt. Vernon and Oliver. Based on the tip they had received regarding the location of Andrews' stash house, authorities began periodic surveillance of the Ridgewood residence in May 2007. Investigators observed Andrews entering the house either after work or on the weekends. He never stayed for long and subsequently made stops at various residences in the Wichita area.

In late June 2007, officials arranged for a confidential source to make two controlled drug buys from Andrews. Detectives contacted Andrews by telephone and asked him to supply the informant with cocaine. Subsequently, Andrews stopped at the Ridgewood house for a few minutes, drove to the confidential informant's location, and sold him cocaine. Authorities arranged a similar drug buy four days later, while Andrews was at his Ridgewood residence. After the purchase was arranged, Andrews again drove to the confidential source's location and sold him cocaine.

Authorities witnessed Defendant Biglow's first interaction with Andrews approximately two weeks later. Shortly after Andrews appeared at his Ridgewood address, Defendant arrived at the house in a silver Volvo. He entered the residence carrying a black briefcase, remained inside for approximately half an hour, and then left carrying the briefcase. Trailing investigators orchestrated a stop of Defendant's vehicle, for an observed traffic violation, near the intersection of Kellogg and Rock Road. The detaining officer observed the black briefcase on the front passenger seat of the vehicle, issued Defendant a traffic citation, and sent him on his way. Approximately seventeen days later, a confidential source reported that Andrews was concerned authorities were monitoring his activities because a customer to whom he had sold two kilograms of cocaine had recently been followed by police and stopped in the area of Kellogg and Rock Road.

Based on the evidence gleaned from their ongoing investigation, officials received authorization to wiretap two phone numbers belonging to Andrews. Monitoring of these lines began on September 6, 2007. At the same time, investigators stepped up their surveillance of Andrews. They discovered that Andrews normally left work around 2:30 pm, arriving at the Ridgewood property by 3:00 pm. Thereafter, he would receive phone calls from individuals ordering varying amounts of drugs. Andrews would then go on "runs" to deliver these orders to his customers' homes.

Over a twelve-day period beginning on September 10th and ending on September 21st, the Government's wiretaps revealed a series of seven phone calls between Andrews and a male caller using a phone number belonging to Defendant. During the first call, the caller asked Andrews "how we lookin?" When Andrews inquired as to who was calling, the caller identified himself as "Big." Andrews stated that the "other people, they said today but they ain't called me" and the caller indicated he would call Andrews back. The next day, the caller asked if he could meet Andrews either that day or the next. Andrews said it would be tomorrow and the caller indicated he would call after Andrews returned from work.

This third call took place as planned. Andrews stated that he would need to talk to his people before the two met, indicated that "Fat Boy" had called, and explained that he needed to contact him. After he spoke with "Fat Boy," Andrews suggested he might have to "go mess with [his] regular people." Investigators learned that "Fat Boy" is a Hispanic male named Jose Pizana, who supplied Andrews with several kilograms of cocaine. The next day the caller again rang Andrews and asked if his "boy [had] come through." Andrews responded in the affirmative and the caller asked, "How many points is that?," to which Andrews replied "one-nine." The caller asked Andrews to repeat himself. Once Andrews had done so, the caller responded "okay, uh-two" and arranged to call Andrews back.

The next morning Andrews contacted the caller. The caller indicated he was about to go to work but he would "take it with" him. To this Andrews responded, "Alright, just call me." Approximately an hour later, the caller contacted Andrews, stated that he was at work, and asked if anything was about to come through. Andrews indicated that it would be in the next thirty to forty minutes. Surveillance units proceeded to follow Andrews to a parking lot outside the shopping center where Defendant Biglow worked as a security guard. Investigators witnessed Defendant meet with Andrews, but their view of this rendezvous was partially obstructed by another vehicle.

One week later, the caller again contacted Andrews and asked, "How we lookin' man?" Andrews replied that he had not heard from "Fat Boy," which prompted the caller to question whether Andrews had heard from "the high boy." Andrews explained that "the high boy" "only had them other ones left and I got them last night." The caller asked...