U.S. v. Curry

• Decision Date: 07 August 1990
• Docket Number: No. 89-5422MN,89-5422MN
• Citation: 911 F.2d 72
• Parties: UNITED STATES of America, Appellee, v. Tanell Rashaad CURRY, t/n Tanell R. Curry, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 72

911 F.2d 72

UNITED STATES of America, Appellee, v. Tanell Rashaad CURRY, t/n Tanell R. Curry, Appellant.

No. 89-5422MN.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1990.

Decided Aug. 7, 1990.

Earl R. Gray, St. Paul, Minn., for appellant.

Richard E. Vosepka, Minneapolis, Minn., for appellee.

Before WOLLMAN and MAGILL, Circuit Judges, and WATERS, ^* District Judge.

MAGILL, Circuit Judge.

Tanell Curry appeals from the district court's ¹ judgment convicting him of possession of cocaine with the intent to distribute, 21 U.S.C. Sec. 841(a)(1), and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1). For reversal, Curry argues that (1) evidence seized pursuant to two search warrants should have been suppressed because of defects in the warrants, and (2) the evidence was insufficient to establish his use of a firearm under Sec. 924(c)(1). We affirm.

I.

On October 6, 1988, Bloomington, Minnesota police searched Curry's residence for evidence of certain robberies pursuant to a search warrant issued by a state judge. During this search, officers observed drug paraphernalia and a small amount of what appeared to be cocaine. The residence was then secured while a second search warrant based upon these observations was obtained. Execution of this warrant uncovered 527 grams of cocaine and two firearms, among other items.

Curry moved for suppression of the evidence seized pursuant to the two search warrants and for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The magistrate ² recommended denial of the suppression motion and denied the motion for a Franks hearing. After reviewing the record and the magistrate's findings, the district court entered an order denying both motions. The case was then tried to the district court on stipulated facts, which the court adopted as the factual basis for its order for judgment of conviction.

II.

A. Probable Cause

Curry argues that the district court erred in rejecting his claim that the first search warrant was not supported by probable cause. The principles governing our review of this issue are well established. Probable cause exists if, based upon a common-sense consideration of all the circumstances set forth in the supporting affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The issuing official's finding of probable cause is entitled to great deference. United States v. Bourbon, 819 F.2d 856, 859 (8th Cir.1987). A reviewing court's function is simply to ensure that the issuing official "had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). We must affirm a district court's determination made in the context of a motion to suppress unless it is clearly erroneous. United States v. Martin, 866 F.2d 972, 976 (8th Cir.1989); United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985). Applying these principles to the case at hand, we conclude that the district court did not clearly err in determining that the state judge had probable cause for issuing the first search warrant. ³

The affidavit supporting this warrant was prepared by Detective Swanson of the Bloomington Police Department, and included the following information. Since September 16, 1988, Detective Swanson and other Bloomington officers had been investigating a series of robberies in which women approached men wearing Rolex watches in local bars, put a sleep-inducing drug in their drinks, took them to hotel rooms, and then stole their watches and other valuables. The watches and other stolen items were immediately taken from the women and delivered to an unknown location. Information from one of the female suspects and a Houston, Texas detective indicated that the stolen property was fenced locally or sent to Houston. The cooperative female suspect also stated she had overheard conversations that indicated the prescription drugs used in the robberies were obtained locally by illegal means. During the investigation, several of the female suspects were arrested in three area hotels. The affidavit stated that computer printouts from all three hotels showed telephone calls were made from the suspects' rooms to a Bloomington phone number listed to a Cheryl Curry of 1209 Devonshire Curve. On October 6, 1988, the Bloomington police department received telephone calls from a man inquiring about two of the arrested suspects. A trace was then placed on the department's phone number, and shortly thereafter the man called again making the same inquiries. This call was traced to the Curry residence at 1209 Devonshire Curve. Finally, the affidavit stated that a check with the Hennepin County Jail disclosed that Cheryl Curry had a criminal history and that her real name was Cheryl Ann Frederick.

The circumstances set forth in the affidavit established a link between 1209 Devonshire Curve, the arrested suspects, and the hotel rooms where they had stayed. In light of the information indicating that the stolen property was immediately taken from the female perpetrators and kept at a location other than their hotel rooms, that some of the stolen property was fenced locally, and that the drugs were obtained locally, there were sufficient grounds for believing that a person or persons at 1209 Devonshire Curve were involved in the robbery ring. In sum, we cannot say that the totality of the information in the affidavit failed to provide the issuing judge with a substantial basis for concluding there was a fair probability that evidence of the robberies would be found at the residence.

B. Franks Hearing

Curry argues that the magistrate and district court erred in denying his motion for a Franks hearing. At the suppression hearing, Curry alleged that the supporting affidavit for the first search warrant falsely stated that (1) there were computer printouts from all three hotels showing phone calls from the arrested suspects' rooms to 1209 Devonshire Curve, and (2) the woman residing at that address, Cheryl Curry, had a criminal history. To receive a Franks hearing, a defendant must satisfy two requirements. First, the defendant must make a substantial preliminary showing of an intentional or reckless falsehood in the affidavit. Franks, 438 U.S. at 155-56, 171, 98 S.Ct. at 2676-77, 2684. "The substantiality requirement is not lightly met." United States v. Wajda, 810 F.2d 754, 759 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). "Allegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171, 98 S.Ct. at 2684. Second, the allegedly false statements must be necessary to the finding of probable cause. Id. at 156, 171-72, 98 S.Ct. at 2676, 2684-85. We need not address this second issue because, with respect to both alleged falsehoods, Curry's offers of proof were insufficient to meet the first Franks requirement.

The government concedes that the affidavit was false insofar as it stated there were computer printouts from all three hotels. The investigating officers had printouts from one of the hotels; from another they had a handwritten record of local phone calls; and in a suspect's room at the third hotel they had found handwritten notes containing the phone number for 1209 Devonshire Curve. At the suppression hearing, Detective Swanson admitted that his choice of words in the challenged portion of the affidavit was poor, but testified that he tried to make the affidavit accurate to the best of his ability and was not attempting to mislead the judge who issued the warrant. The magistrate found, and the district court agreed, that Curry failed to make a substantial showing that the falsehood was made deliberately or recklessly. This finding is not clearly erroneous. Absent other evidence demonstrating more than negligence, the falsehood itself was not so flagrant as to warrant an inference that Detective Swanson acted with reckless disregard for the truth.

At the suppression hearing, defense counsel stated that the woman who resided at 1209 Devonshire Curve was Cheryl Nelson of Houston, and that she had no criminal record. The only evidence submitted in support of this allegation was the lease agreement for 1209 Devonshire Curve. The agreement contained three versions of the resident woman's name--Cheryl Curry, Cheryl Nelson, and Cheryl G. Nelson--and listed a different birth date for Cheryl Nelson than that given for Cheryl Curry in the affidavit. The magistrate and district court did not clearly err in finding this evidence did not constitute a substantial showing that the Cheryl Curry investigated by Detective Swanson and the Cheryl Nelson listed on the lease were not the same person, or that Cheryl Nelson did not have a criminal record. Even if the information concerning Cheryl Curry in the affidavit was false, Curry submitted no proof that this falsehood was intentional or reckless. Detective Swanson testified that the phone number for 1209 Devonshire Curve on the printouts and the handwritten record and notes was listed to a Cheryl Curry, and that the lease was not obtained until after the search had begun.

C. Particularity

"A search warrant must contain a description of the place to be searched" in order to comply with the fourth amendment's particularity requirement. United States v. Alberts, 721 F.2d 636, 639 (8th Cir.1983). In the present case, the first search warrant did not identify the premises to be searched because the space for filling in that information was left blank. The government argues that this deficiency was cured by the supporting affidavit, which...