U.S. v. Hodge

• Decision Date: 07 December 2000
• Docket Number: No. 00-3296,00-3296
• Citation: 246 F.3d 301
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, APPELLANT v. ALEX HODGE
• Court: U.S. Court of Appeals — Third Circuit

Page 301

246 F.3d 301 (3rd Cir. 2001)

UNITED STATES OF AMERICA, APPELLANT v. ALEX HODGE

No. 00-3296

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued on December 7, 2000

Filed: April 5, 2001

As amended June 12, 2001.

ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (Dist. Court No. Crim. 1999/66) District Court Judge: Raymond L. Finch

[Copyrighted Material Omitted]

MICHAEL A. ROTKER (Argued) United States Department of Justice Criminal Division 601 D Street, N.W. Washington, DC 20530

LOUIS M. FISCHER United States Department of Justice Criminal Division P.O. Box 899 Ben Franklin Station Washington, DC 20044-0899

MARC OSBORNE United States Department of Justice 601 D Street, N.W., Suite 6111 Washington, DC 20530

DENISE A. HINDS Office of the United States Attorney 1108 King Street, Suite 201 Christiansted, St. Croix United States Virgin Islands 00802 Counsel for Appellant

Jomo Meade (Argued) 112 Queen Cross Street Frederiksted, St. Croix United States Virgin Islands 00840 Counsel for Appellee

Before: Mansmann and Alito, Circuit Judges, and Fullam, Senior District Judge.^*

OPINION OF THE COURT

Alito, Circuit Judge

The Virgin Islands police arrested appellee Alex Hodge after he discarded two bags of crack cocaine while fleeing from police. Following the arrest and based on the affidavit of officer Samuel Abraham the police obtained a search warrant for Hodge's residence. Hodge moved to suppress the evidence obtained during execution of the warrant, arguing that Abraham's affidavit failed to establish a sufficient nexus between Hodge's criminal activity and his home. The District Court of the Virgin Islands granted Hodge's motion and the United States appealed. We hold that the affidavit supporting the warrant provided a substantial basis for finding probable cause to search Hodge's residence. Alternatively, we find that the officers who executed the search relied on the warrant in objective good faith. Accordingly, we reverse the order suppressing the evidence seized during the search of Hodge's home.

I.

As the outcome of this case hinges on the sufficiency of the affidavit supporting the warrant, the underlying facts are largely taken from that affidavit. When the affidavit was executed, Abraham, the affiant, had been a detective with the Virgin Islands Police for seven years. Appendix at 187 (App.). During the previous three years, Abraham had been assigned to the High Intensity Drug Traffic Area Task Force on St. Croix (HIDTA). Id. Abraham had "participated in numerous investigations related to narcotics trafficking." Id.

On July 18, 1999, a confidential informant, who had previously "provided accurate and reliable information regarding criminal activity in St. Croix," informed a member of the HIDTA "that Alex Hodge was scheduled to make a delivery of crack cocaine on King Street, Frederiksted, St. Croix in the vicinity of [a particular store] at mid-day on July 19, 1999." Id. On July 19, 1999, Abraham and other members of the HIDTA were stationed on King Street near the identified store "and observed Hodge exit a blue Mazda Protege and approach another individual" who was a known drug user. Id. at 187-88. "As he approached this individual Hodge" reached into the front "of his pants as if he were trying to retrieve something." Id. at 188. Abraham knew that sellers often store drugs in the front of their pants to conceal the drugs from law enforcement. Id.

Hodge fled when he saw the HIDTA agents. Id. The agents observed that Hodge had "what appeared to be a plastic sandwich bag in his" hand and that he dropped the bag near a trash can. Id. The agents apprehended Hodge and located two sandwich bags containing what appeared to be approximately 1/8 to 1/4 kilogram of crack cocaine near the trash can. Id. Hodge was arrested on the spot. Id.

A member of the HIDTA team knew that Hodge resided in a home behind, but not attached to, the home at Number 48 White Bay, in the same city as the anticipated transaction--Frederiksted, St. Croix. Id. The agent also knew that Hodge drove a red Acura Integra as well as a rented, blue Mazda Protege. Id. HIDTA agents went to Hodge's suspected home and saw the red Integra parked there. Agents were also told by a resident of Number 48 that Hodge lived in the home behind Number 48. Id. at 188-89.

Based on this information, Abraham averred that Hodge resided in the home behind Number 48. Id. at 189. Abraham also averred that "[t]he quantity of cocaine involved in [Hodge's] attempted transaction and the circumstances surround[ing] his arrest indicate[d] that Hodge was possessing the crack cocaine with an intent to distribute it." Id. "Based upon [his] training and experience," Abraham stated that he knew "that persons involved in the receipt and distribution of controlled substances commonly keep within their residences evidence of their criminal activity." Id.

Relying on Abraham's affidavit, a magistrate judge found probable cause to search Hodge's home. During the search, the police located approximately 600 grams of crack cocaine, over 30 grams of marijuana, a machine gun, and live ammunition. Hodge was indicted for possessing a firearm as a felon, possessing cocaine base with intent to distribute, and possessing cocaine base near a school, with intent to distribute. Prior to trial, Hodge successfully moved to suppress evidence seized during the search of his residence. The suppression order must be reversed if (1) the affidavit provided a substantial basis for finding probable cause to search Hodge's home or (2) the officers relied on the warrant in objective good faith.

II. Probable Cause

A.

In ruling on Hodge's motion to suppress, the District Court "did not question the facts contained in the affidavit" supporting the search warrant. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). Accordingly, this Court's review of the suppression order is plenary. Id. at 1055 & n.5; see also United States v. Conley, 4 F.3d 1200, 1204-05 (3d Cir. 1993). The Court sits like a district court and must, like the district court, give great deference to the magistrate judge's probable cause determination. See United States v. Loy, 191 F.3d 360, 365 (3d Cir. 1999); Conley, 4 F.3d at 1205.

A magistrate judge may find probable cause when, viewing the totality of the circumstances, "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 (1983). This Court must uphold the finding if the affidavit on which it was based provided a substantial basis for finding probable cause. See id. at 236; Conley, 4 F.3d at 1205; Jones, 994 F.2d at 1054, 1055. The Court need not determine whether probable cause actually existed, but only whether there was "a `substantial basis' for finding probable cause." Jones, 994 F .2d at 1054; see id. at 1055, 1057. In making this determination, the Court confines itself "to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record." Id. at 1055. "[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at 1057-58 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

B.

Hodge argues, and the District Court agreed, that the affidavit failed to establish a nexus between Hodge's drug activity and Hodge's home and thus did not provide a sufficient basis for probable cause to search the home.

"[D]irect evidence linking the place to be searched to the crime is not required for the issuance of a search warrant." Conley, 4 F.3d at 1207. "Instead, probable cause can be, and often is, inferred by `considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide' " the fruits of his crime. Jones, 994 F.2d 1056 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985)). A court "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense." United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (quoting United States v. Caicedo, 85 F .3d 1184, 1192 (6th Cir. 1996)).

In the present case, there is no direct evidence that drugs or drug paraphernalia would be located at Hodge's home. However, there was significant evidence from which the magistrate judge might reach that conclusion. Initially, the facts surrounding Hodge's arrest suggest that he was an experienced drug dealer who was operating a drug business. Cf. Whitner, 219 F.3d at 298. The amount of crack cocaine Hodge possessed indicated that he was "involved in selling drugs, rather than merely using them." Id. The fact that an informant, whose tip was corroborated by what actually happened, told the police that Hodge would be delivering cocaine at a particular time and location suggests both that Hodge's drug activities were organized and that Hodge was sufficiently involved in the drug trade that others knew of his activities. The prearranged nature of Hodge's dealing is likewise manifested by the fact that a known drug user was present to meet Hodge at the time of the anticipated transaction. That Hodge appeared to carry the drugs in the front of his pants as is common to avoid detection also suggests that he had experience in the drug trade. Finally, Hodge's use of a rental car, another common practice in the drug trade, indicates that the anticipated transaction was not an isolated deal, but part of a larger business. See, e.g., United States v. $32,310.00, 1988 WL 169271, at *7 (D.N.J. June 23, 1988) ("[E]vidence indicated that rental cars are often used to facilitate drug transactions since such cars are not subject to forfeiture."). All these facts combine to suggest that Hodge was an experienced and repeat drug dealer who would...