U.S. v. Malin

• Citation: 908 F.2d 163
• Decision Date: 19 July 1990
• Docket Number: No. 89-2227,89-2227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darryl Glenn MALIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 163

908 F.2d 163

UNITED STATES of America, Plaintiff-Appellee, v. Darryl Glenn MALIN, Defendant-Appellant.

No. 89-2227.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 21, 1990.

Decided July 19, 1990.

James Porter, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Paul M. Storment, Jr., Storment & Read, Belleville, Ill., for defendant-appellant.

Before POSNER and EASTERBROOK, Circuit Judges, and MOODY, District Judge. ^*

MOODY, District Judge.

Defendant-Appellant Darryl Glenn Malin appeals his conviction on one count of possessing marijuana with intent to distribute, 21 U.S.C. Sec. 841, one count of possessing a firearm (felon in possession), 18 U.S.C. Sec. 922, and one count of using or carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C. Sec. 924. We affirm.

I. Background

In October of 1988, Monroe County Sheriff's Deputy Kevin Sweet informed Illinois State Police Special Agent Kevin Stallard that marijuana was growing in the backyard of Malin's Dupo, Illinois residence. Stallard and Sweet investigated and, from a neighboring yard, observed six cannabis plants. Stallard later swore out a complaint for a search warrant. On the strength of Stallard's complaint, a state court judge issued a warrant to search the house, its curtilage, and adjacent outbuildings. Stallard and other officers executed the warrant and seized four handguns and fifty pounds of marijuana from inside the house.

Before trial, Malin moved to suppress evidence. The Honorable William J. Beatty, Southern District of Illinois, denied the motion, rejecting the argument that probable cause did not support the search of the house. After a three-day trial, a jury found Malin guilty on all counts. Malin presents three issues on appeal. First, he argues that the district court erred in denying his motion to suppress. Second, he argues that the court improperly instructed the jury on the section 924 count. Finally, he argues that the government failed to establish a necessary element of the section 924 offense.

II. Search Warrant

A reviewing court will uphold a judge's decision to issue a search warrant "so long as the [judge] had a 'substantial basis for ... conclud[ing]' that [the] search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Because the probable cause determination "involves the application of law rather than an evaluation of factual evidence ... on review the appellate court is not limited to a determination of whether the district court's finding was clearly erroneous. [The appellate court] must independently review the sufficiency of the affidavit [supporting the warrant], recognizing that doubtful cases should be resolved in favor of upholding the warrant." United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982) (citations omitted).

Malin argues that Stallard's complaint for a search warrant failed to establish a nexus between the marijuana and the house. Courts have settled that "[t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978). Accord Gates, 462 U.S. at 238, 103 S.Ct. at 2332 ("a fair probability that contraband or evidence of a crime will be found in a particular place"). For the search of the house to have been reasonable, then, the complaint must have supported the inference that marijuana or other evidence of marijuana possession would be found there.

In the complaint, Stallard stated:

Pursuant to information received from a neighbor ... [Agent] Stallard proceeded to 336 McBride, Dupo, St. Clair County, Illinois. [Agent] Stallard was permitted to take a position on an adjoining neighbor[']s property and viewed the area of the backyard at 336 McBride. At this time, [Agent] Stallard was able to observe the tops of what he can identify through his experience to be cannabis plants. [Agent] Stallard was able to identify six (6) plants, however from that position, a 6-foot privacy fence blocked any further observation of the backyard. [Agent] Stallard also observed an outbuilding directly adjacent to the cannabis plants, said building was approximately 20' X 30' in size.

Concededly, Stallard's complaint did not directly link the marijuana to the house. Direct evidence, however, is not necessary to a probable cause determination. See, e.g., United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986). "In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), quoted in Gates, 462 U.S. at 231, 103 S.Ct. at 2328. A judge making a probable cause determination "need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... [He] need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985) (citations omitted) (emphasis in original). In reaching his conclusion, a judge "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." Angulo-Lopez, 791 F.2d at 1399. Accord Rambis, 686 F.2d at 624. In this case, Stallard's observation of marijuana growing in Malin's yard reasonably yielded the conclusion that marijuana or other evidence of marijuana possession would be found in Malin's house. See United States v. Kimberlin, 805 F.2d 210, 228 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987).

Malin makes much of the fact that Stallard's complaint cited no evidence establishing that the marijuana was cultivated (although the marijuana was in fact cultivated). Malin argues that Stallard's failure to cite evidence of cultivation precluded the issuing judge from reasonably inferring that marijuana would be found in the house. We disagree. While evidence of cultivation would have informed the probable cause determination, it was not necessary. Malin implies that an innocent explanation (i.e., that the marijuana grew wild) negated the inference that criminal evidence would be found in the house. To provide probable cause, however, a complaint for a search warrant "need only allege specific facts establishing a reasonable probability that the items sought are likely to be at the location designated; the [complaint] need not also negate every argument that can be asserted against that probability." United States v. Rambis, 686 F.2d 620, 623 (7th Cir.1982). Accord United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985) ("The fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause."). Although Stallard's complaint contained less than optimum information, it provided enough for the issuing judge to find probable cause.

At worst, this is a "doubtful case" that "should be resolved in favor of upholding the warrant." Rambis, 686 F.2d at 622. Moreover, even if we found the warrant invalid, we nevertheless would affirm the district court's decision denying the motion to suppress. Suppression "is not the inevitable consequence of an illegal search." United States v. Savoca, 761 F.2d 292, 295 (6th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 153, 88 L.Ed.2d 126 (1985). Evidence is not suppressed when a police officer relies in objective good faith on a faulty but facially valid search warrant. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Indeed, "[i]t is the judicial officer's responsibility to determine whether probable cause exists to issue a warrant, and, in the ordinary case, police officers cannot be expected to question that determination." Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 1167, 94 L.Ed.2d 364 (1987). After obtaining a warrant, "the officer's sole responsibility ... is to carry out the search pursuant to it." Id. ¹

In considering the issue of objective good-faith reliance, we ask whether "a reasonably well-trained officer would have known that the search was illegal despite the [judge]'s authorization." Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23. Even if we did not believe probable cause existed in this case, we would recognize

that a reasonably well-trained officer could have reached the opposite conclusion. The factual gradations in this type of case are often difficult to discern even after a studied examination of the various judicial opinions. Thus, although a reasonably well-trained officer must recognize the general rule which controls the probable cause determination in this case [that a reasonable nexus must exist], we [could not] conclude under the particular facts of this case that the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

Savoca, 761 F.2d at 298 (quoting Leon, 468 U.S. at 923, 104 S.Ct. at 3421) (footnote omitted).

Any weakness in the inferential chain between the marijuana in Malin's yard and evidence in Malin's house was rendered immaterial by Stallard's objectively reasonable reliance on the warrant. See Kimberlin, 805 F.2d at 228.

III. Section 924 Conviction

Malin argues that the district court improperly...