U.S. v. Burke

• Decision Date: 06 May 1993
• Docket Number: No. 92-2057,92-2057
• Citation: 999 F.2d 596
• Parties: UNITED STATES of America, Appellee, v. John E. BURKE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 596

999 F.2d 596

UNITED STATES of America, Appellee, v. John E. BURKE, Defendant, Appellant.

No. 92-2057.

United States Court of Appeals, First Circuit.

Heard May 6, 1993.

Decided Aug. 2, 1993.

Mark L. Randall with whom Mary A. Davis, Portland, ME, was on brief, for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, ME, and Timothy D. Wing, Asst. U.S. Atty., Bangor, ME, were on brief, for appellee.

Before BOUDIN, Circuit Judge, COFFIN and OAKES ^*, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

After the district court denied his suppression motion, appellant John Burke entered a conditional guilty plea to a charge that he knowingly manufactured marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal, he renews his claim that the search warrant affidavit failed to show probable cause and that, consequently, evidence seized from his home must be suppressed. He also claims that the district court erred in calculating his sentence based on 50 marijuana plants and an equivalency of one kilogram per plant. We affirm.

I. Probable Cause

In July 1991, Bangor Police Officer Roy McKinney applied for a warrant to search the home occupied by appellant Burke and his wife Susan at 330 Fern Street in Bangor, Maine. The affidavit filed by McKinney in support of the warrant application described two conversations in which an unidentified individual had reported to a confidential informant about an indoor marijuana growing operation. The informant, who had proven reliable in the past, had passed on the information to a Detective Gastia, who then passed it on to McKinney.

As reported in the affidavit, the unidentified person made the following assertions:

(1) A person named "John" was growing 40 marijuana plants in his house;

(2) The unidentified person had been to John's house, which was on Fern Street in Bangor, and it "reeked" of marijuana;

(3) The house had a new addition (4) A search warrant previously had been executed at John's house, resulting in the seizure of marijuana plants from an indoor growing operation;

(5) John had "beat the charge".

The affidavit also contained the following additional information from McKinney: ¹

(6) In 1989, McKinney had executed a warrant at the home of John Burke, at 330 Fern Street, and uncovered an elaborate indoor marijuana growing operation;

(7) John Burke had not been prosecuted in connection with the 1989 seizure;

(8) 330 Fern Street had a new addition;

(9) Two cars parked at 330 Fern Street on June 19, 1991, were identified through Department of Motor Vehicle records as belonging to Susan and John Burke, of 330 Fern Street;

(10) Power consumption records for 330 Fern Street revealed a pattern of usage consistent with indoor marijuana cultivation, with a dramatic drop in usage following the 1989 search and substantial increases beginning again in the fall of 1990.

Burke contends that this affidavit was deficient and that the warrant therefore was invalid. His primary complaint is that the central information in the affidavit comes from an unidentified person whose reliability and credibility are untested and unknown. The issuing judge, he argues, had no basis upon which to credit this individual's assertions, which had passed through two other persons before reaching the affiant McKinney.

Our limited role in evaluating a judge's decision to issue a search warrant is well established:

We review the issuance of a search warrant with "great deference," United States v. Ciampa, 793 F.2d 19, 22 (1st Cir.1986), to verify that there existed a "substantial basis" for the judicial officer's commonsense determination that, "given all the circumstances set forth in the affidavit ..., including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there [was] a fair probability that contraband or evidence of a crime [would] be found in a particular place."

United States v. Scalia, 993 F.2d 984, 986 (1st Cir.1993) (quoting United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983))). Having conducted such a "totality of the circumstances" scrutiny of the affidavit here, we are satisfied that the issuing judge had substantial support for his finding that "there existed a fair probability that marijuana and related paraphernalia would be found in appellant's residence," Scalia, 993 F.2d at 988.

Although the original source of the information leading to the search was anonymous, several factors vouched for the reliability of this person's assertions. Most significant was McKinney's experience and knowledge as a result of his involvement in the 1989 search of Burke's home. The source's information that an individual on Fern Street named John was growing marijuana dovetailed with McKinney's knowledge that marijuana plants had been seized two years earlier from the home of John Burke at 330 Fern Street. The source's further report that "John" had "beat the charge" coincided with McKinney's knowledge that Burke had not been prosecuted as a result of the 1989 seizure. This coincidence of McKinney's knowledge with the source's information served to corroborate that information. See United States v. Taylor, 985 F.2d 3, 6 (1st Cir.1993) ("An affiant's knowledge of the target's prior criminal activity or record clearly is material to the probable cause determination.")

It also is significant that the source's information was based on personal observation. See Scalia, 993 F.2d at 987. This individual had been to Burke's home and reported that it "reeked" of marijuana. But see United States v. DeLeon, 979 F.2d 761, 765 (9th Cir.1992) (warrant cannot be based on untrained or inexperienced person's claim to have smelled growing plants that have no commonly recognized odor). The source also noted that the house had a new addition, a fact corroborated by McKinney based on both his 1989 search and a drive-by after he received the 1991 tip.

Some weight also attaches to the established record of the confidential informant, through whom the unidentified source communicated to the police officers. According to the affidavit, that informant ("CI# 102") had provided information in the past that led to three felony drug arrests and the seizure of several pounds of marijuana. In addition, McKinney stated that the informant recently had provided information to him and Detective Gastia that was used to secure another search warrant that resulted in discovery of an indoor marijuana cultivating operation. ²

McKinney's own investigation further corroborated the likelihood that Burke once again was growing marijuana at 330 Fern Street. The power source records he obtained showed that the residents of 330 Fern Street resumed an unusually high consumption of electricity after a lapse in time that coincided with the period immediately following the 1989 search and seizure, when Burke predictably would have been inclined to lie low. McKinney confirmed that the Burkes still lived at 330 Fern Street by checking motor vehicle records for the cars parked there.

This confluence of factors was more than ample to establish probable cause. Although the multi-link chain of information began with an unidentified individual, the reliability of that information was reinforced by the proven history of the confidential informant, McKinney's personal knowledge, and the documentary evidence developed through investigation. The standard of probable cause requires a probability, not a prima facie showing, of criminal activity. See United States v. Ciampa, 793 F.2d 19, 22 (1st Cir.1986). Unquestionably, the issuing judge here was given a sufficient basis for concluding that a new crop of marijuana probably was being cultivated at 330 Fern Street.

We take a moment to discuss briefly Burke's allegation that the warrant was defective because of a material omission from the affidavit. He claims that McKinney was at least reckless in failing to notify the magistrate that the unidentified source had reported that "John" had "beat the [1989] charge due to search and seizure problems." The affidavit did not give a reason for the lack of prosecution.

The district court held an evidentiary hearing into Burke's claim that material information had been excluded from the affidavit, concluding that there was "no indication of any kind of deliberate falsehood or reckless disregard of the truth." See Tr. of July 16, 1992, at 28. We are satisfied that that court fully explored this issue, and that no basis for invalidating the warrant exists. Any discrepancy between the actual reason for the lack of prosecution in 1989 and the source's explanation is of marginal significance, if any, to the existence of probable cause. In our view, the crucial fact was the lack of prosecution, and on that point, the source and affiant were fully in accord.

II. Number of Plants

Under the Sentencing Guidelines, when an offense involves fifty or more marijuana plants, the court is required to equate each plant with one kilogram of marijuana in determining the defendant's base offense level. See U.S.S.G. § 2D1.1. When fewer than fifty plants are at issue, the equivalency is 100 grams for each plant. ³

The district court found that the offense here involved fifty plants, and Burke consequently was sentenced under the harsher one-kilogram-per-plant standard. The court's computation included 32 plants ranging in size from one- to three-and-one-half feet that were found in a large basement room in the new addition and two plants of similar size found in an adjoining smaller room. The court also included 16 one-to-three-inch cuttings, each growing in a separate pot, that were found in the small room. ⁴

Burke disputes the district court's calculation. He argues that at least some, and perhaps all, of the 16 small replanted cuttings lacked sufficient...