U.S. v. Blackwood

• Decision Date: 04 September 1990
• Docket Number: No. 89-5639,89-5639
• Citation: 913 F.2d 139
• Parties: 31 Fed. R. Evid. Serv. 243 UNITED STATES of America, Plaintiff-Appellee, v. Joel Roy BLACKWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 139

913 F.2d 139

31 Fed. R. Evid. Serv. 243

UNITED STATES of America, Plaintiff-Appellee, v. Joel Roy BLACKWOOD, Defendant-Appellant.

No. 89-5639.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 6, 1990.

Decided Sept. 4, 1990.

Robert Lynn McClellan, Ivey, Ivey & Donahue, Greensboro, N.C., for defendant-appellant.

Benjamin Harvey White, Jr., Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on brief), for plaintiff-appellee.

Before PHILLIPS and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PHILLIPS, Circuit Judge:

Joel Roy Blackwood appeals his conviction and sentence for possession with intent to distribute over 188 grams of crack cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Blackwood challenges the district court's denial of his pretrial motion to suppress evidence seized allegedly in violation of the fourth amendment and assigns error to the admission of two pieces of evidence. Blackwood also challenges the court's imposition of a sentence of life imprisonment under Sec. 841(b)(1)(A)(iii).

We find no error in the denial of his suppression motion, nor in the admission of other evidence at his trial and we therefore affirm the conviction. But we conclude that the district court erred in imposing the life sentence and we therefore vacate that sentence and remand for resentencing.

I

In the early morning of November 29, 1988, North Carolina Alcohol and Beverage Control Officer C.L. Patrick obtained a warrant to search Joel Roy Blackwood's residence. In an affidavit sworn before a Winston-Salem deputy clerk of court, Patrick averred the following facts: Within the previous seventy-two hours, Patrick had received information that crack was being stored in and sold from Blackwood's residence. Acting on this information, he enlisted a "reliable and confidential informant" to attempt to buy drugs from Blackwood at his residence. The informant had previously given him information that had proven "true and accurate," and the informant had been used in undercover operations before and had not revealed Patrick's identity. The informant was a past user of cocaine, familiar with its look and smell and how it was sold. Patrick arranged surveillance to watch the informant attempt to buy cocaine from Blackwood. The informant described to Patrick the way in which the sale would proceed; the informant would have to go to another apartment on the same street and place an order with a particular individual, who in turn would go to Blackwood's apartment to buy the drugs. While Patrick watched, the informant went into the designated apartment. Two minutes later, a man came out, went to Blackwood's apartment, knocked, went in, emerged thirty seconds later, and returned to the apartment where the informant was waiting. After a brief time, the informant then walked back to where Patrick was watching and handed him an off-white rocky substance, which was determined by field test to be crack cocaine.

On the basis of these facts, the deputy clerk issued a warrant to search 1112 West Academy Street, the place described in the affidavit. ¹ The search conducted by Patrick and other state officers uncovered 188.72 grams of crack cocaine, street value $20,000, some of it loose and some packaged in glassine bags, in various places around the apartment. The officers found no drug-user paraphernalia. In addition to the crack, the officers also discovered a .22 caliber revolver under Blackwood's bed and a large amount of cash in ten-, twenty-, and fifty-dollar bills stuffed under the carpet. The officers also seized several items bearing Blackwood's name, including a phone bill, which also showed the address of the apartment, a United States Department of State receipt, a video library membership, and two Jamaican passports. During the search, the police questioned, then let go, a woman who was in Blackwood's apartment, but arrested Blackwood himself.

The State brought charges against Blackwood, but dropped them after he was indicted on federal drug and firearms charges. After a pretrial hearing, the district court denied Blackwood's motion to suppress the evidence found in the search. At the close of evidence in the April 1989 trial, the district court granted Blackwood's motion for acquittal on the firearms charge, 18 U.S.C. Sec. 924(c)(1). The jury, however, found Blackwood guilty of unlawful possession of, with intent to distribute, 188.72 grams of cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). On July 10, 1989, the court held a sentencing hearing and sentenced Blackwood to life imprisonment under the mandatory sentencing provisions of Sec. 841(b)(1)(A)(iii).

II

Blackwood's first contention is that the district court erred in denying his motion to suppress evidence gained in the search of his residence. He claims that Officer Patrick did not set out enough reliable information in his warrant application before the deputy court of clerk to support the clerk/magistrate's finding of probable cause. We disagree.

In reviewing the magistrate's probable cause determination, we must accord "great deference" to the magistrate's assessment of the facts presented to him. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We may ask only whether the magistrate had a " 'substantial basis ... for conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Our already deferential review should also recognize that the probable cause standard guiding the issuing magistrate "is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct. at 2329. The magistrate is required "simply to make a practical, commonsense decision whether, given all the circumstances in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332. Because of the fourth amendment's strong preference for searches conducted pursuant to warrants, reviewing courts must resist the temptation to "invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Id. at 236, 103 S.Ct. at 2331 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)).

We think the magistrate in this case had before him a substantial basis for concluding that probable cause existed under the totality-of-the-circumstances approach mandated by Illinois v. Gates. The information presented to the magistrate detailed the fruits of Patrick's effort to corroborate the initially vague information he received. After seeking the assistance of a known, trusted, and previously relied-on informant, Patrick himself observed the purchase as it unfolded, each step of which corroborated the informant's description of how the purchase would occur. Patrick's efforts at corroboration, and his precise description of what he saw on surveillance, exemplify the kind of independent police work that can lend probative value, for probable cause purposes, to otherwise vague information. See Gates, 462 U.S. at 241, 103 S.Ct. at 2334 ("Our decisions ... have consistently recognized the value of corroboration of details of an informant's tip by independent police work."); Jones, 362 U.S. at 269, 80 S.Ct. at 735; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Blackwood brings a plethora of isolated attacks on the sufficiency of the affidavit to establish probable cause. Among other things, he cites the affidavit's lack of indicia of the reliability of the actual purchaser of the cocaine, as opposed to the police informant who waited in the apartment; the affidavit's lack of a statement that the informant himself actually tried to make a buy or saw drugs in the apartment; the affidavit's lack of information about the "chain of custody" of the crack, i.e., whether Blackwood actually gave these drugs to the buyer and whether the buyer actually passed the same cocaine to the informant; and so on. These challenges, and the numerous others detailed in Blackwood's brief, simply misconstrue the nature of our probable cause inquiry. We emphasize again that we may consider only whether the magistrate had before him a substantial basis for concluding that probable cause existed. None of Blackwood's contentions cast any serious doubt on whether the magistrate could have concluded that there was a "fair probability" that cocaine would be found at Blackwood's residence, cf. Spinelli, 393 U.S. at 419, 89 S.Ct. at 590 ("only the probability, and not a prima facie showing, of criminal activity, is the standard of probable cause"). Rather, those contentions, considered individually and in the aggregate, invite us to engage in just the kind of hypertechnical scrutiny of immaterial omissions in the affidavit that the Supreme Court has expressly condemned. In short, we think the magistrate, crediting Patrick's description of his surveillance, could have concluded that cocaine would probably be found at Blackwood's residence. ²

III

Blackwood next claims error in the admission of two pieces of evidence. The district court did not abuse its discretion in admitting either.

A

In one of the rooms searched, the government found two Jamaican passports in Blackwood's name. Blackwood made a motion in limine to exclude these passports as being unfairly prejudicial under Fed.R.Evid. 403. Specifically, Blackwood contended that the passports might excite xenophobic hostility...