U.S. v. Mahler
| Citation | 141 F.3d 811 |
| Decision Date | 01 April 1998 |
| Docket Number | No. 96-3955,96-3955 |
| Parties | UNITED STATES of America, Appellee, v. David Alban MAHLER, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Matthew Edwin Johnson, Minneapolis, MN, argued, for Appellant.
Nathan P. Petterson, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.
Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.
David Mahler appeals his conviction on four counts of drug-trafficking. He asserts that the district court 1 erred in denying his motion to suppress evidence and in allowing an eleven-person jury to return a verdict. We affirm.
David Mahler and his roommate, Richard Westby, conducted a significant drug distribution operation from a one-bedroom apartment in St. Louis Park, Minnesota. They sold cocaine, marijuana, and methamphetamine to persons who would resell the drugs at a profit. Mahler and Westby kept a small inventory of the drugs at their apartment and warehoused their remaining supply in three storage units at two different storage facilities in the Minneapolis area.
On March 25, 1995, an investigator with the Minneapolis-St. Paul Airport Police Department (Airport Police), acting on a tip, questioned two suspects who had exited a flight arriving from San Diego. The suspects consented to a search of the four large suitcases that they were carrying. The suitcases contained twenty-six bricks of marijuana which weighed approximately 115 pounds. The two drug couriers agreed to cooperate with the police and deliver the drugs to the purchaser as planned. From a nearby hotel, one of the couriers placed a telephone call to a number listed in Mahler's name. The courier spoke with a person identified as "Richard." Within minutes, Westby arrived at the hotel in a van. After Westby inspected the suitcases and started carrying them toward the van, the police arrested him. The van contained an invoice which indicated that it had been purchased with cash and that Mahler and Westby were its co-owners. The invoice additionally listed the co-owners' address as the St. Louis Park apartment that was leased under Mahler's name.
On May 24, 1995, Detective Robert Dole, of the Hopkins Police Department, obtained a search warrant for that apartment. 2 The supporting affidavit revealed the following: that Westby had been arrested while transporting marijuana toward a van which he and Mahler had paid for in cash; that a confidential informant described, with specificity, drug transactions taking place at the apartment which Mahler and Westby shared; that police surveillance observed what appeared to be two drug transactions taking place at the apartment; and that Westby had deposited $78,718 in cash at various New York City banks from 1993-1994.
After he conducted surveillance on the small one-bedroom apartment, but before he executed the search warrant, Detective Dole discovered that two storage units at a St. Louis Park storage facility and another unit at a Minnetonka, Minnesota, storage facility had been leased by either Mahler or Westby. At the St. Louis Park facility, Mahler had leased unit # 2217 and Westby had leased unit # 6126. Mahler had also leased unit # 4104 at the Minnetonka facility. On May 30, 1995, the Airport Police brought a narcotics certified canine drug detection team to the storage units. The canine gave a positive indication for drugs at both storage units leased by Mahler and a negative indication for the unit leased by Westby.
On May 30, 1995, Detective Dole obtained additional search warrants for each of the storage facilities. The affidavits in support of these search warrants contained the same information as the supporting affidavit for the apartment search warrant. The affidavits additionally set forth the existence of the storage units, the use of the narcotics certified canine team, the indications given by the canine at the storage units, and the fact that Mahler had traveled with no luggage from Los Angeles to Minneapolis on a ticket paid for in cash, with a return flight the following day. The affidavits did not specifically set forth that Mahler and Westby had leased the storage units. The police executed the warrants that day.
First, they searched Mahler's storage unit at the St. Louis Park facility. Inside, they discovered a duffel bag containing ephedrine, which is a precursor chemical to methamphetamine, a triple beam scale, a shotgun, and marijuana residue. Next, they searched Westby's storage unit at the same facility. That locker contained six suitcases; each containing six bricks of marijuana. Next, the police searched Mahler's storage unit at the Minnetonka facility. It contained ninety-three bricks of marijuana. Finally, the police searched the apartment where they found approximately one and one-half pounds of cocaine, two pounds of marijuana, $26,235 in cash, a 9-millimeter handgun, drug notes, and various other items indicating that drugs were sold from the apartment.
The jury convicted Mahler on four counts of drug trafficking charges and one count of using a firearm during the commission of a felony, in violation of 18 U.S.C. § 924(c). This court subsequently vacated Mahler's section 924(c) conviction. See United States v. Mahler, No. 95-4225 (8th Cir. June 26, 1996). 3
On appeal, Mahler raises two points of error. First, he asserts that the district court 4 erroneously denied his pre-trial motion to suppress the evidence seized at the storage units that he had leased because the search warrants were not supported by probable cause. 5 Second, he asserts that the district court erroneously permitted an eleven-person jury to return a verdict.
Mahler first contends that the district court should have suppressed the evidence seized at the storage units that he had leased because the search warrants were not supported by probable cause. We disagree.
We review for clear error a district court's decision not to suppress evidence obtained during the execution of a search warrant. See United States v. Barr, 32 F.3d 1320, 1322 (8th Cir.1994). We must give substantial deference to the issuing judge's determination of probable cause and allow that determination to stand unless the issuing judge lacked a substantial basis for concluding that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 236, 238-39, 103 S.Ct. 2317, 2331, 2332-33, 76 L.Ed.2d 527 (1983). A warrant is supported by probable cause if, "given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found" in the place to be searched. Id. at 238, 103 S.Ct. at 2332.
The supporting affidavits contained evidence of significant drug transactions taking place at, or otherwise involving, Mahler's apartment, including evidence showing the involvement of both Mahler and Westby. The affidavits additionally revealed the existence of the storage units, the positive indications given by the canine, and the fact that the canine team is narcotics certified. Because the canine's positive indications were not the only evidence supporting a finding of probable cause, we find that the absence of more detailed information about the reliability of the canine team did not preclude a determination of probable cause. See United States v. Moore, 911 F.2d 140, 145 (8th Cir.1990) (); United States v. Daniel, 982 F.2d 146, 151 (5th Cir.1993) (same).
The affidavits did not specify who had leased each unit. Nonetheless, the issuing judge could reasonably infer that the units were leased by either of the suspects whose drug activities were outlined in the other one and one-half pages of the affidavits. Based on a totality of the circumstances, the district court did not commit clear error in finding substantial basis for the issuing judge's conclusion that probable cause existed to search the storage units.
Mahler asserts that the district court erred in permitting an eleven-person jury to return a verdict. Because Mahler's counsel expressly approved of the jury before it began deliberations without the absent twelfth member, we find no reversible error.
In a pre-trial conference, Mahler, his counsel, and the government orally consented to an eleven-person jury. At the conference, the following colloquy occurred:
[The Court:] What this amounts to, if you agree then, if we start out with 12 jurors and one gets sick or has to...
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