U.S. v. Pitts

• Decision Date: 05 October 1993
• Docket Number: No. 92-30155,92-30155
• Citation: 6 F.3d 1366
• Parties: 38 Fed. R. Evid. Serv. 347 UNITED STATES of America, Plaintiff-Appellee, v. Timothy PITTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1366

6 F.3d 1366

38 Fed. R. Evid. Serv. 347

UNITED STATES of America, Plaintiff-Appellee, v. Timothy PITTS, Defendant-Appellant.

No. 92-30155.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1993.

Decided Oct. 5, 1993.

Frederick D. Leatherman, Jr., Seattle, WA, for defendant-appellant.

Richard A. Friedman and David Shelledy, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: BRUNETTI, LEAVY, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Appellant, Timothy Pitts, appeals his conviction for two counts of cocaine distribution in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Appellant argues on appeal that the district court erred when it denied his motion to suppress evidence obtained from his residence on September 27, 1991 pursuant to a search warrant. He also argues the court erred when it admitted evidence, pursuant to Federal Rule of Evidence 404(b), of his arrest on March 3, 1991 for possession of two sawed off shotguns. Finally, appellant argues the district court erred when it increased appellant's offense level by two points pursuant to United States Sentencing Guidelines Sec. 2D1.1(b)(1) (Nov. 1991) for possession of a dangerous weapon.

The district court had jurisdiction over this case pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction over this case pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

Appellant was charged with four counts of cocaine distribution alleged to have occurred "during the fall of 1990," January, 1991, May 29, 1991, and July 31, 1991. The jury acquitted on the first two counts.

The government's chief witness against defendant was Maria Alexa Mirabueno. Mirabueno testified that she performed a variety of tasks, including the purchase of guns, related to appellant's drug dealing. She testified that on March 3, 1991 she purchased two shotguns for appellant. Her testimony about the purchase of these shotguns was corroborated by records from a gun dealer and by the testimony of police officer Christine Pennington, who arrested appellant on March 3, 1991 for possession of the guns that Mirabueno had purchased for him. The guns had been sawed off, and the police confiscated them when appellant was arrested.

Police searched appellant's home on September 27, 1991 pursuant to a search warrant. They seized a shotgun, shotgun shells, two cellular telephones, approximately 14 grams of marijuana, and a bag containing a trace of white powder.

The district court admitted into evidence testimony regarding appellant's March 3, 1991 arrest for possession of the sawed off shotguns including business records regarding the original purchase of these weapons. The district court also admitted the evidence which was seized in the appellant's home pursuant to the search warrant on September 27, 1991.

Appellant was convicted of delivering cocaine at Mirabueno's house on May 29, 1991 and of supplying Mirabueno with cocaine which she delivered to an FBI agent on July 31, 1991. The district court sentenced appellant based on an offense level of 34. The court increased appellant's offense level by two points pursuant to U.S.S.G. Sec. 2D1.1(b)(1) for possession of a dangerous weapon based on the shotguns for which he was arrested on March 3, 1991 and the shotgun police found at his residence on September 27, 1991. See United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1(b)(1) (Nov. 1991).

II

Appellant argues the district court erred when it denied his motion to suppress the evidence obtained at his residence on September 27, 1991. Appellant claims the search warrant was defective because: 1) the affidavit for the search warrant failed to show a nexus between Mirabueno's residence where the cocaine was distributed on May 29, 1991 and the defendant's residence where the search took place on September 27, 1991, 121 days after the distribution; and, 2) the information in the affidavit for the search warrant was stale.

A magistrate's determination of probable cause will not be reversed absent a finding of clear error. United States v. Schmidt, 947 F.2d 362, 371 (9th Cir.1991). Thus, the standard of review is "less probing than de novo review and shows deference to the issuing magistrate's determination." United States v. Hernandez, 937 F.2d 1490, 1494 (9th Cir.1991) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986)).

In the Ninth Circuit, "[w]e require only a reasonable nexus between the activities supporting probable cause and the locations to be searched." United States v. Ocampo, 937 F.2d 485, 490 (9th Cir.1991). A "reasonable nexus" does not require direct evidence that the items listed as the objects of the search are on the premises to be searched. Id. The magistrate must "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.) (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).

Probable cause to believe that a suspect has committed a crime is not, however, by itself adequate to obtain a search warrant for the suspect's home. United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir.1991). The affidavit must demonstrate "reasonable cause to believe that the things listed as the objects of the search are located in the place to be searched." Id.

A magistrate may "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. In the Ninth Circuit, we have recognized that " '[i]n the case of drug dealers, evidence is likely to be found where the dealers live.' " United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990) (quoting Angulo-Lopez, 791 F.2d at 1399).

In this case, the warrant's supporting affidavit was written by FBI Special Agent Roberta Burroughs. The affidavit describes an FBI investigation of cocaine distribution to a cooperating individual referred to as "the witness." It states that during 1987, the witness had been a courier for Frank Cassell, and obtained eighteen ounces of crack cocaine from Mr. Cassell on a weekly basis. Mr. Pitts was the alleged supplier of cocaine to Mr. Cassell at that time. Following Mr. Pitts' arrest in late 1987 or early 1988, the witness did not obtain cocaine from either Mr. Pitts or Mr. Cassell for some time.

The affidavit also describes the crack sale of May 29, 1991 involving Mr. Pitts, and it states that between September 23 and 25, 1991, law enforcement agents confirmed that Mr. Pitts was residing at the address which was subsequently searched. Read as a whole, the affidavit provides enough information to establish a "reasonable nexus" between the activities supporting probable cause, namely Pitts' drug dealing and the location to be searched, his residence. Thus, the district court correctly determined that the warrant issued by the magistrate was adequate in this respect.

Appellant also argues that the warrant was deficient due to staleness. We have held that "[t]he mere lapse of substantial amounts of time is not controlling in a question of staleness." United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988). We evaluate staleness "in light of the particular facts of the case and the nature of the criminal activity and property sought." United States v. Greany, 929 F.2d 523, 525 (9th Cir.1991). "With respect to drug trafficking, probable cause may continue for several weeks, if not months, of the last reported instance of suspect activity." Angulo-Lopez, 791 F.2d at 1399 (emphasis added).

In Greany, we found that two year-old information on a marijuana grow operation was not stale. We determined that "[w]hen the evidence sought is of an ongoing criminal business ... greater lapses of time are permitted if the evidence in the affidavit shows the probable existence of the activity at an earlier time." Greany, 929 F.2d at 525.

The information in the affidavit supporting the warrant supports the inference that Pitts was more than a one-time drug seller. The affidavit alleges that he was a regular supplier for Mr. Cassell. Moreover, the affidavit recounted the sale of May 29, 1991 at Mirabueno's home. Thus, the information was not stale, and it supports the magistrate's conclusion that there was probable cause to believe there would be drug paraphernalia and other items such as guns present in Pitts' home. We therefore hold the evidence obtained pursuant to the warrant was properly admitted against appellant.

III

Appellant claims that the trial court committed reversible error when it admitted evidence of appellant's arrest on March 3, 1991, nearly three months prior to May 29, for possession of two sawed-off shotguns. The admission of other crimes pursuant to Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Hill, 953 F.2d 452, 455 (9th Cir.1991).

However, this court has also explained that the Rule is "one of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove only criminal disposition." United States v. Rocha, 553 F.2d 615, 616 (9th Cir.1977) (emphasis in original).

The Ninth Circuit generally applies a four-part test to determine the admissibility of evidence under Rule 404(b). United States v. Kindred, 931 F.2d 609, 612-13 (9th Cir.1991). We consider: (1) whether there is sufficient evidence to conclude that the prior crime occurred; (2) whether the evidence is too remote in time; (3) whether the offenses are similar; and, (4) whether the prior act is offered to prove a material element of the offense. Id. However, in the instant case, it is difficult to apply this test because the government argued at trial and on appeal that it was offering...