U.S. v. Sawyer
| Decision Date | 04 March 1998 |
| Docket Number | No. 96-1657,96-1657 |
| Parties | UNITED STATES of America, Appellee, v. Craig Stephen SAWYER, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Jeffrey Silverstein with whom Perry O'Brian, by Appointment of the Court, was on brief for appellant.
F. Mark Terison, Assistant U.S. Attorney, with whom Jay P. McCloskey, United States Attorney, and James L. McCarthy, were on brief for appellee.
Before BOUDIN, Circuit Judge, COFFIN and CYR, Circuit Judges.
This is an appeal from a conviction and sentence entered against defendant Craig Sawyer for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Sawyer pled guilty to the charge after reserving his right to appeal the district court's denial of his motion to suppress several guns taken from his residence. On appeal, he asserts that the warrant to search his home was not supported by probable cause and that the good faith exception to the exclusionary rule cannot properly be applied here. He also challenges his 33-month prison term, claiming that the district court erred in treating a prior burglary conviction as a "crime of violence" for purposes of calculating his sentence. See U.S.S.G. § 2K2.1. We affirm.
On August 14, 1995, Penobscot County Sheriff's Detective Carl Andrews responded to a report of a burglary at the home of Woodford and Julie Sands in Glenburn, Maine. He later described his investigation in an affidavit supporting his request for a warrant to search Sawyer's home. According to the affidavit, another investigator, Deputy Costain, discovered a footprint on the outside cellar door of the Sands' home. A photograph of the print on the door accompanied the affidavit. Andrews checked the property and observed footprints with a similar pattern "clearly etched" in the sand of the dirt road outside the house. He took up the trail, and described what he then found as follows:
[paragraph 4] Your affiant followed these foot prints through a wooded pathway to within two hundred yards of the Chubbuck residence on the Pushaw Road. Your affiant then back tracked these same tracks South of the residence to the tarred portion of the road at which time each neighboring driveway was checked as the interview of the neighbors was done.
[paragraph 5] Approximately one hundred yards from the start of the paved road and approximately one third of a mile South of the Sands residence, is the driveway of the Craig Sawyer residence. While going to the Sawyer residence, your affiant, accompanied by Deputy Costain, located the same foot prints that we had followed previously. Your affiant was able to see the track to within approximately ten yards of the Sawyer residence and was able to see it no further.
The affidavit went on to report that later the same night, "at an incident in the same area ... and at the Chubbuck residence," some of the items stolen from the Sands' home were recovered. A number of items remained missing, however, and no one at the Chubbucks' house had footwear with the tread pattern the officers had been following. Andrews reported that statements taken from neighbors, including one mentioned in the affidavit by name, "indicate that the Chubbucks are associates of Mr. Craig Sawyer." Another neighbor reported seeing Sawyer's 16-year-old son "riding up the road away from the Sands residence around the time of the burglary."
After describing this sequence of events, Andrews stated that he
believe[d] that based on the defined and obvious tread pattern located on the door, on the road, and again in the Sawyer driveway, that it is likely that the shoes making the print and some of the stolen property [are] secreted or located at the Sawyer residence.
The warrant was issued, and the Sawyer home was searched on August 15. Five firearms were seized, but the search yielded no evidence of the Sands burglary.
Sawyer was arrested in November 1995 and charged in a one-count indictment with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). In denying Sawyer's motion to suppress the guns, the district court bypassed what it termed the "very close question" of whether there was probable cause to search and instead concluded that the weapons were admissible in any event because of the officer's "good faith" reliance on the warrant. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Sawyer then entered a conditional guilty plea and was sentenced at the bottom of the applicable guideline range to a 33-month term. This appeal followed.
Sawyer's argument that the district court erred in denying his suppression motion targets the court's application of the Leon good faith exception to the exclusionary rule. He claims that the court used the wrong standard to evaluate the officer's good faith, and that the correct standard would not permit a finding that Detective Andrews reasonably relied on the sufficiency of the warrant. The government agrees with the district court's resolution of the Leon issue, but it also maintains that the court wrongly viewed the question of probable cause as "close" and thus needlessly went on to the good-faith determination.
Whether "a given set of facts constituted probable cause[ ] is a question of law subject to de novo review," United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997), while a district court's findings with respect to the facts leading to the search must be upheld unless they are clearly erroneous, id. A reviewing court must give "great deference" to a magistrate's assessment of the facts and inferences supporting the affidavit, however, "reversing only if there is no 'substantial basis for ... conclud[ing]' that probable cause existed." United States v. Procopio, 88 F.3d 21, 25 (1st Cir.1996) (citations omitted).
Our review of the record has led us to agree with the government that the district court wrongly concluded that the affidavit probably was inadequate to demonstrate probable cause to search Sawyer's home. The error, we think, is traceable to a mistake in the court's reading of the affidavit. In responding to the government's argument that probable cause to search was established, the court stated:
I think it is a very close question whether there is probable cause and to come down on the side there is no probable cause for issuance of a warrant, the footprint testimony never really connects even by solid inference the Sawyer premises to whatever the conduct was that occurred in the course of a robbery, assuming that that is what is indicated, that led to evidence being considered by the officer. As I read the affidavit, the footprints never led into the driveway of the Sawyer place, the only inference that supports that would be the inference that might arise from third-party statements that Mr. Sawyer associated with the Chubbucks on occasion, and that the Chubbucks had coughed up or been discovered with parts of the fruits of the robbery. I don't think that is enough. But as I say, it's a very close question.
Tr. at 3-4 (emphasis added). The district court's reading of the affidavit to say that "the footprints never led into the driveway of the Sawyer place" is directly at odds with the narration in Andrews' affidavit. In paragraph five, quoted in full above, see supra at 3, the detective reported that he and Costain encountered the Sawyer driveway about a third of a mile from the Sands residence, and "[w]hile going to the Sawyer residence" picked up the track and was "able to see the track to within approximately ten yards of the Sawyer residence and was able to see it no further." Our understanding of Andrews' statement is that the two law enforcement officers re-discovered the familiar footprint pattern after they started down the Sawyer driveway.
If paragraph five falls short of an express statement that the tracks led onto the Sawyer property, that fact is confirmed by two additional, explicit assertions. In the opening paragraph of the affidavit, Andrews states his expectation of finding in the Sawyer home a shoe or boot matching the print that was found both on the Sands' cellar door and "in the driveway of the Sawyer residence." In paragraph eight of the affidavit, Andrews stated that the "defined and obvious tread pattern" was "located on the door, on the road, and again in the Sawyer driveway."
Although more detail about the circumstances surrounding the discovery of the footprints near the Sawyer home would have strengthened the showing, 1 the affidavit as drafted unequivocally linked the house with the footprint trail that began on the Sands' door. That connection, together with a neighbor's report that Sawyer's 16-year-old son was seen in the area of the burglary at about when it occurred, the recovery of some of the stolen property from the Chubbucks' home, the reported association between Sawyer and the Chubbucks, the "missing" footwear, and the inferences supported by these facts establish with some room to spare "a fair probability" that contraband or evidence of the burglary would be found at the Sawyer home. See Khounsavanh, 113 F.3d at 283 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The information contained in the affidavit was obtained directly by the affiant, it bore no signs of unreliability, and the picture painted was of a classic follow-the-footprints police investigation. The fact that more could have been shown does not invalidate the search; "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2317; see Khounsavanh, 113 F.3d at 283 () (quoting United States v. Aguirre, 839 F.2d 854, 857 (1st Cir.1988)). We therefore hold that the warrant was properly...
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