U.S.A v. Nolan, 98-3193

• Decision Date: 22 December 1999
• Docket Number: No. 98-3193,98-3193
• Citation: 199 F.3d 1180
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MARCUS NOLAN, also known as Big Marc; and ELIZABETH CUNNINGHAM, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

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

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 * 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 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, 930 F.2d 1183, 1188 (7th Cir. 1991).

The law in our circuit has taken a somewhat different path than the law of our sister circuits. To be sure, like the law of our sister circuits, probable cause requires a nexus between the place to be searched and the items to be seized. United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). To establish the required nexus, the affidavit supporting the search warrant need not contain direct evidence or personal knowledge that the items sought are located at the place to be searched. Id. Rather, the issuing magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). Yet, unlike our sister circuits, we have never held that the mere observation of repetitive illegal drug activity outside a suspect's residence by itself is sufficient to establish probable cause for a search of the suspect's residence.

In United States v. Reyes, 798 F.2d 380 (10th Cir. 1986), we held an affidavit supported a magistrate judge's finding of probable cause where the affiant stated that defendant was a member of a drug trafficking conspiracy and that members of the conspiracy maintained records regarding their activities. The affidavit did not indicate where those records were kept. We concluded: "It is reasonable to assume that certain types of evidence would be kept at a defendant's residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence." Id. at 382. Accord United States v. Williams, 897 F.2d 1034, 1039 n.2 (10th Cir. 1990); cf. United States v. $149,442.43 in United States Currency, 965 F.2d 868, 874 (10th Cir. 1992) ("Where a suspect has no place of business separate from his residence, it is reasonable for an officer to conclude that evidence [i.e., drug-related business records] may be at the suspect's residence."). In Rowland, 145 F.3d at 1204, however, we emphasized that "[p]robable cause to search a person's residence does not arise based solely upon probable cause that the person is guilty of a crime. Instead, there must be additional evidence linking the person's home to the suspected criminal activity." While Rowland involved an anticipatory search warrant for child pornography, we specifically stated that the supporting affidavit, which "anticipated" defendant would take pornography received at a post office box back to his residence, "did not satisfy traditional probable cause requirements." Id. at 1204 n.3.

Given the state of the law in our circuit and the differences of opinion it elicits, this panel chooses not to decide in this instance whether the affidavit in support of the search warrant was sufficient to sustain the magistrate judge's finding that incriminating evidence would likely be found inside Defendant Nolan's residence. Instead, we exercise our discretion to decide this case under the good-faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984), and leave for another day the probable cause inquiry. See id. at 924-25 (courts have considerable discretion in conforming their decisionmaking process to the exigencies of a particular case); Rowland, 145 F.3d at 1206 n.8 (reviewing court may, in appropriate case, address the good-faith issue without first considering validity of the warrant).

II.

In Leon the Court concluded that "the suppression of evidence obtained pursuant to a warrant should be ordered . . . only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Leon, 468 U.S. at 918 (emphasis added). The purpose of the exclusionary rule is to deter police misconduct. Id. at 916. Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing...