U.S. v. Khounsavanh

• Decision Date: 05 February 1997
• Docket Number: No. 96-1244,96-1244
• Citation: 113 F.3d 279
• Parties: UNITED STATES of America, Appellee, v. Thakhone KHOUNSAVANH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 279

113 F.3d 279

UNITED STATES of America, Appellee, v. Thakhone KHOUNSAVANH, Defendant, Appellant.

No. 96-1244.

United States Court of Appeals, First Circuit.

Heard Feb. 5, 1997.

Decided May 16, 1997.

Jennifer Petersen, with whom Karl R.D. Suchecki and Petersen & Suchecki were on brief, Boston, MA, for appellant.

Sheldon Whitehouse, United States Attorney, with whom Zechariah Chafee, Assistant United States Attorney, was on brief, for appellee.

Before STAHL, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant Thakhone Khounsavanh appeals his conviction for Conspiracy to Distribute Cocaine Base and for Possession with Intent to Distribute Cocaine Base. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. § 2. He contends that the district court erred in denying his motion to suppress the fruits of a search on the ground that the affidavit underlying the search warrant lacked sufficient information to support a finding of probable cause. We affirm.

The Facts

On May 23, 1995, Providence, Rhode Island police officers executed a search warrant for the first floor rear apartment at 676-678 Chalkstone Avenue, a three-family tenement building. The warrant was based on an affidavit submitted by Detective Freddy Rocha. According to the affidavit, a confidential informant had told Detective Rocha that two men were storing and selling crack cocaine in that apartment. The affidavit described the two men as " 'Fat Boy' Alias John Doe ... an Asian Male, Unkn. Age 5'6"' Tall and 170 Lbs. and 'Turtle' Alias John Doe. 5'7"' 130 Lbs." The informant also told the detective that he "could make a purchase of cocaine from this subject." (The affidavit alternates several times between referring to the subjects in the singular and in the plural.)

The detective sought to corroborate the informant's story by taking him up on his offer to conduct a controlled buy of cocaine from the apartment under the officer's supervision. According to the affidavit, Detective Rocha "drove to the Chalkstone Avenue area [and] searched the informant for contraband. Finding none the informant was given an amount of U.S. currency and directed to make a purchase of cocaine from 'Fat Boy' and 'Turtle' at 676-678 Chalkstone Ave." The detective watched the informant enter the building through the rear door and exit five minutes later through the same door. The detective met the informant at a pre-arranged location, where the informant handed him a quantity of suspected cocaine which he stated he had purchased from "Fat Boy." Tests later revealed that the substance was indeed cocaine.

The detective then applied for a warrant to search the first floor rear apartment at 676-678 Chalkstone Avenue and/or the two men ("Fat Boy" and "Turtle"). The complaint for the warrant (which was sworn to before a state court judge) added to the affidavit's description the facts that "Fat Boy" was approximately twenty-five years old with "short hair balding," and that "Turtle" was an Asian male with black short hair. The court issued the warrant, both as to the premises and as to the persons of "Fat Boy" and "Turtle."

The police executed the warrant the same day. When the police entered the apartment, two men who approximately fit the informant's descriptions fled to a bedroom. Three other people were present in the apartment during the search but did not leave the room they had been in when the police arrived. One detective searched "Fat Boy" and found in his front pants pocket a plastic bag containing fourteen smaller bags of what tested out as crack cocaine. Another detective found, in the ceiling of the kitchen, a bag containing 650 smaller bags of crack cocaine. Another small bag of powder cocaine was found in the bedroom. In addition to the drugs, the police seized the wallets and identification of the two men who fled, one of whom is the defendant. They also found in the apartment and seized a pager, bagging material, and a gas bill on which the defendant's name appeared.

The defendant moved to suppress the fruits of the search. After hearing, the district court denied the motion. The defendant then entered a plea of guilty to Counts I and II of the indictment, and the government dismissed Count III. In his plea agreement, the defendant gave notice that he intended to appeal the denial of his suppression motion, pursuant to Fed.R.Crim.P. 11(a)(2).

Standard of Review

In reviewing a denial of a suppression motion, the district court's ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review. See Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996); United States v. Zayas-Diaz, 95 F.3d 105, 111 n. 6 (1st Cir.1996). The district court's findings (if any) of historical facts--"the events which occurred leading up to the ... search," Ornelas, --- U.S. at ----, 116 S.Ct. at 1661--must be upheld unless they are clearly erroneous. See id. at ----, 116 S.Ct. at 1663; Zayas-Diaz, 95 F.3d at 111 n. 6. A reviewing court must "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, --- U.S. at ----, 116 S.Ct. at 1663. But "the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause" is a mixed question of law and fact which we review de novo. Id. at ----- -----, 116 S.Ct. at 1661-63.

Analysis

The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. There is a strong preference for the use of search warrants. See Ornelas, --- U.S. at ----, 116 S.Ct. at 1663; Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). While the warrant requirement may be dispensed with in certain exigent circumstances that are "few in number and carefully delineated," United States v. United States Dist. Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972), the probable cause requirement is rigorously adhered to. See Arizona v. Hicks, 480 U.S. 321, 326-27, 329, 107 S.Ct. 1149, 1153-54, 1155, 94 L.Ed.2d 347 (1987). "Probable cause exists when 'the affidavit upon which a warrant is founded demonstrates in some trustworthy fashion the likelihood that an offense has been committed and that there is sound reason to believe that a particular search will turn up evidence of it' " or that the search will turn up contraband. United States v. Schaefer, 87 F.3d 562, 565 (1st Cir.1996) (quoting United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988)).

The standard we apply in determining the sufficiency of an affidavit is whether the "totality of the circumstances" stated in the affidavit demonstrates probable cause to search either the premises or the person. ¹ See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). "[P]robable cause need not be tantamount to proof beyond a reasonable doubt.... Probability is the touchstone." Aguirre, 839 F.2d at 857 (internal quotation marks and citations omitted). See Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13 ("[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity."). To establish probable cause for a premises search, the information available in the affidavit must show "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. An affidavit supporting a request for a search warrant must give the magistrate a "substantial basis" upon which to conclude that there is such a "fair probability." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33. The facts must be judged against an objective standard: "would the facts available to the officer at the moment of ... the search 'warrant a [person] of reasonable caution in the belief' that the action taken was appropriate?" Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

In many cases, as here, part of the basis for probable cause derives from information that the police have obtained from an informant. Prior to Gates, the Court had developed a two-pronged test for such a case: when the warrant affidavit rests on hearsay--an informant's report--the affidavit must inform the magistrate "of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were [the basis of knowledge prong], and some of the underlying circumstances from which the officer concluded that the informant ... was 'credible' or his information 'reliable' [the veracity prong]." Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969). Gates abandoned the notion that "these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case" before a probable cause determination may be sustained. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. Gates replaced the two-pronged framework of Aguilar and Spinelli with the totality of the circumstances test.

While eschewing a rigid adherence to each of the Aguilar-Spinelli factors, Gates maintained the relevancy of the considerations set forth in those cases. The Gates Court surely did not intend that its totality test would "threaten[ ] to 'obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where t...