U.S.A v. Nolan, No. 98-3193

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BALDOCK, EBEL, and LUCERO; BALDOCK; EBEL
Citation199 F.3d 1180
Decision Date22 December 1999
Docket NumberNo. 98-3193
Parties(10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MARCUS NOLAN, also known as Big Marc; and ELIZABETH CUNNINGHAM, Defendants-Appellees

Page 1180

199 F.3d 1180 (10th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
MARCUS NOLAN, also known as Big Marc; and ELIZABETH CUNNINGHAM, Defendants-Appellees.
No. 98-3193
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
December 22, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. D.C. No. 97-CR-10149

Page 1181

Sean Connelly, Attorney, United States Department of Justice, Denver, Colorado (Jackie N. Williams, United States Attorney, and D. Blair Watson, Assistant United States Attorney, District of Kansas, with him on the brief), for Plaintiff-Appellant.

David M. Rapp, Hinkle, Eberhart & Elkouri, L.L.C., (Michael Roach also appearing), Wichita, Kansas, for Defendants-Appellees.

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

A federal magistrate judge issued a warrant to agents of the Sedgwick County, Kansas, Sheriff's Department to search the residence of Defendant Marcus Nolan and seize documents, electronic equipment, and assets relating to drug trafficking. The warrant did not authorize the seizure of drugs or drug paraphernalia. The magistrate judge issued the warrant based on the sworn affidavit of Sergeant Michael Crawford. The affidavit provided in relevant part

Page 1182

* Sergeant Crawford, a thirteen-year veteran of the Sedgwick County, Kansas, Sheriff's Department, was involved in investigating Defendant Nolan's cocaine trafficking activity.

* A confidential informant purchased crack cocaine from Defendant Nolan on ten different occasions at various public locations between April 14, 1997 and March 12, 1998.

* The confidential informant purchased a total of 140 grams of crack cocaine from Defendant Nolan during the course of the investigation.

* Although he had never been inside Defendant Nolan's residence, the confidential informant believed Nolan maintained a quantity of crack cocaine at his residence because Nolan was careful not to sell crack cocaine from his residence.

* Defendant Nolan resided at 2648 Manhattan, Wichita, Kansas.

* Based upon his training and experience, Sergeant Crawford opined that drug traffickers sometimes maintain records and quantities of narcotics in easily accessible locations.

While executing the warrant, agents observed cocaine in the residence and obtained a second warrant for the seizure of drugs and drug paraphernalia. (The record is silent as to how the officers obtained this second warrant.) Pursuant to the warrants, agents seized various drug contraband and other evidence of drug trafficking. They arrested both Defendant Nolan and his roommate, Defendant Elizabeth Cunningham. A grand jury subsequently indicted Nolan and Cunningham on charges of distributing cocaine and cocaine base in violation of 18 U.S.C. 841(a)(1).

After a hearing, the district court suppressed the evidence which agents seized during the search. The court held that the warrant authorizing the search of Defendant Nolan's residence was not supported by probable cause because the underlying affidavit failed to establish a sufficient nexus between his residence and the items to be seized. The court also held that the good-faith exception to the exclusionary rule did not apply because the affidavit lacked any indicia of probable cause. The government appeals. We exercise jurisdiction under 18 U.S.C. 3731, and reverse.1

I.

We review de novo the district court's probable cause determination. Ornelas v. United States, 517 U.S. 690, 699 (1996). Our review of the magistrate judge's issuance of a search warrant, however, is more deferential: Our duty is to ensure that the magistrate judge had a "substantial basis" for concluding that the affidavit in support of the warrant established probable cause. Illinois v. Gates, 462 U.S. 213, 236 (1983). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, 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 a particular place." Id. at 238.

Because of the "strong preference" for searches conducted pursuant to a warrant, the Supreme Court has instructed us to pay "great deference" to a magistrate judge's determination of probable cause. Id. at 236. "Only the probability, and not a prima facie showing,

Page 1183

of criminal activity is the standard of probable cause." Id. at 235. The test is whether the facts presented in the affidavit would "warrant a man of reasonable caution" to believe that evidence of a crime will be found at the place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality).

At the time the magistrate judge issued the search warrant in this case, at least three of our sister circuits had held in cases involving drug traffickers that "observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant for a suspect's house, even in the absence of an allegation that any illegal activity occurred in the home itself." United States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993) (per curiam).2 Accord United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992) (per curiam) (upholding magistrate judge's determination of probable cause even though affidavit did not contain any facts indicating drugs were located at drug dealer's residence); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (despite affidavit's lack of direct evidence, probable cause existed to search defendant's residence based on reasonable inference that suspected drug dealer would keep incriminating evidence at his residence).3 Furthermore, at least four of our sister circuits expressly recognized at the time of the issuance of the warrant in this case that evidence of drug trafficking will likely be found where a drug dealer lives. E.g., United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994); United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993); United States v. Davidson, 936 F.2d 856, 860 (6th Cir. 1991); United States v. Lamon,...

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  • Agurs v. State, No. 11, September Term, 2009 (Md. App. 5/19/2010), No. 11, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • May 19, 2010
    ...v. Ross, 487 F.3d 1120, 1121-22 (8th Cir. 2007) (confidential source delivered 100 pounds of drugs to defendant); United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (informant purchased drugs from defendant during investigation); United States v. Broussard, 80 F.3d 1025, 1035 (5th......
  • U.S. v. Newton, No. 03-1060.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 2004
    ...Ninth, and D.C. Circuits, but declining to decide whether to adopt rule, resolving case on other grounds); United States v. Nolan, 199 F.3d 1180, 1183-84 & n. 3 (10th Cir.1999) (collecting cases and declining to decide issue). An exception to this general line is United States v. Schultz, 1......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...judge's conclusion that Reed's drug activity sufficed. Hodge , 246 F.3d at 309 ; see Ross , 487 F.3d at 1124 ; United States v. Nolan , 199 F.3d 1180, 1185 (10th Cir. 1999). The conflicting opinions in the district court confirm that this case falls within the twilight zone left by our deci......
  • U.S. v. Riccardi, No. 03-3132.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 19, 2005
    ...a `substantial basis' for concluding that the affidavit in support of the warrant established probable cause." United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir.1999) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "The task of the issuing magistra......
  • Request a trial to view additional results
92 cases
  • Agurs v. State, No. 11, September Term, 2009 (Md. App. 5/19/2010), No. 11, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • May 19, 2010
    ...v. Ross, 487 F.3d 1120, 1121-22 (8th Cir. 2007) (confidential source delivered 100 pounds of drugs to defendant); United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (informant purchased drugs from defendant during investigation); United States v. Broussard, 80 F.3d 1025, 1035 (5th......
  • U.S. v. Newton, No. 03-1060.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 19, 2004
    ...Ninth, and D.C. Circuits, but declining to decide whether to adopt rule, resolving case on other grounds); United States v. Nolan, 199 F.3d 1180, 1183-84 & n. 3 (10th Cir.1999) (collecting cases and declining to decide issue). An exception to this general line is United States v. Schultz, 1......
  • United States v. Reed, No. 20-5631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 1, 2021
    ...judge's conclusion that Reed's drug activity sufficed. Hodge , 246 F.3d at 309 ; see Ross , 487 F.3d at 1124 ; United States v. Nolan , 199 F.3d 1180, 1185 (10th Cir. 1999). The conflicting opinions in the district court confirm that this case falls within the twilight zone left by our deci......
  • U.S. v. Riccardi, No. 03-3132.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 19, 2005
    ...a `substantial basis' for concluding that the affidavit in support of the warrant established probable cause." United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir.1999) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "The task of the issuing magistra......
  • Request a trial to view additional results

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