United States v. Rivera

• Decision Date: 09 June 2016
• Docket Number: No. 15-1349,15-1349
• Citation: 825 F.3d 59
• Parties: United States of America, Appellee, v. Randy Ray Rivera, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

825 F.3d 59

United States of America, Appellee

v.Randy Ray Rivera, Defendant, Appellant.

No. 15-1349

United States Court of Appeals, First Circuit.

June 9, 2016

David B. Hirsch, Seattle, WA, for appellant.

Katharine A. Wagner, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Lipez, and Thompson, Circuit Judges.

THOMPSON

, Circuit Judge.

Setting the Stage

Randy Ray Rivera pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1)

. His conditional plea reserved the right to appeal from the district judge's order denying his motion to suppress evidence seized from his home—a seizure authorized by a warrant issued by the same judge. Rivera had argued below that the affidavit DEA special agent John Barron submitted in support of the application failed to establish probable cause because it did not provide an adequate nexus between his drug dealing and his house.¹ Rivera had also asked the judge for an evidentiary hearing—dubbed a “Franks hearing,” after Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) —so that he could challenge the truthfulness of Barron's affidavit statements. But the judge concluded that even if the affidavit failed to supply probable cause (a question the judge saw no need to decide), Rivera's suppression bid failed because Barron had obtained the warrant in good faith. See United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (discussing how evidence seized in good faith, in reliance on a warrant later invalidated, may still be admissible). And the judge also concluded that Rivera had failed to make the substantial showing of probable falsity on Barron's part, thus making a Franks hearing unnecessary.

An unhappy Rivera appeals both aspects of the judge's ruling. We affirm, though on the first issue we think law enforcement actually had probable cause for the search—which removes any need to invoke the good-faith exception.

Probable–Cause Issue

Background

We cite only those facts necessary to put the probable-cause issue into workable perspective—presenting them, of course, in the light most favorable to the suppression ruling. See, e.g., United States v. McGregor , 650 F.3d 813, 823–24 (1st Cir. 2011)

; United States v. Owens , 167 F.3d 739, 743 (1st Cir. 1999).

Back in 2012, a Vermont state trooper stopped an SUV for a traffic infraction. The driver, Shawn Kivela, consented to a vehicle search. And that search turned up about 5 ounces of what turned out to be crack cocaine.

The trooper arrested and Mirandized Kivela and his passengers, Randy and Star Gaboriault. After the trio waived their Miranda rights, a series of police interviews ensued. Among other juicy tidbits, law enforcement learned from Kivela that he and the Gaboriaults had driven to Springfield, Massachusetts to meet with a “Puerto Rican male” known as “Melvin” or “Randy” (we'll use “Randy” for simplicity) at a third-floor apartment at 6 Beaumont Street—a very sparsely furnished apartment that “Randy” used as a drug-stash house, not (apparently) as a home. Kivela said that the Gaboriaults had bought about 5 ounces of crack from “Randy” too—paying him $7,000, according to Star Gaboriault—and body-cavity searches of the Gaboriaults uncovered that crack amount. Kivela added that he had been buying crack from “Randy” on a weekly basis since 2009. The Gaboriaults routinely accompanied him on these drug-buying sprees—Kivela would score about 3 or 4 ounces of crack per visit, while the Gaboriaults would score between 6 and 9 ounces. Kivela and “Randy” would communicate by text, Kivela said. And he identified a photo of Rivera as “Randy.”

Rivera, it turns out, was no stranger to the Springfield police—a criminal-record check disclosed 13 prior narcotics convictions plus a prior ammunition-possession conviction. He lived at 56 Merwin Street (a street in Springfield) with his girlfriend Yayaira Guzman, a confidential source (“CS”) told the police.² Registry-of-deeds records showed that Guzman solely owned the Merwin–Street property. The CS also identified some cars (registered to Guzman at the Merwin–Street address)—including a white Infiniti FX-35—that Rivera used. A police-surveillance team regularly saw Rivera and Guzman entering and leaving the Merwin–Street property, and routinely saw the cars described by the CS at that address as well.

Most helpfully for the police, the CS eventually agreed to participate in a controlled buy of crack from Rivera. On the day of the buy, but before the buy went down, a DEA agent spotted the Infiniti FX-35 at 56 Merwin Street—Rivera's home—at 9 a.m. and again at 1:45 p.m. Around 2:47 p.m., the CS phoned Rivera to say that he would be at 6 Beaumont Street—Rivera's stash house—shortly. The DEA saw the Infiniti drive away from Rivera's home around 2:50 p.m., roughly 3 minutes after the CS's call. At about 2:56 p.m., Rivera texted the CS to stay away from 6 Beaumont Street because a police officer was parked outside. Agents spotted the Infiniti parked at 6 Beaumont Street a minute later.

Following Rivera's instructions, the CS drove to a Walgreens parking lot. Rivera said he would package up the crack and meet the CS there. The surveillance team saw the Infiniti drive away from 6 Beaumont Street at 3:27 p.m. An officer later identified the driver as Rivera. Investigators watched as the Infiniti pulled up behind the CS's vehicle. Rivera honked the Infiniti's horn and motioned to the CS to follow him to the back of the parking lot. The CS did as asked. Then the CS got into the Infiniti around 3:30 p.m., and after a short time, returned to his car with a package of what proved to be crack. Investigators followed Rivera to a body shop, saw him get out and walk around a bit, and then tailed him back to 6 Beaumont.

Armed with this information, the DEA's Barron applied for federal warrants to search Rivera's residence at 56 Merwin Street and his stash house at 6 Beaumont Street. In addition to recounting the events just described, Barron's accompanying affidavit stated that—based on his 13 years of training and experience, including his participation in over “500 narcotics investigations”—dealers often sell drugs at places other than where they live, though they frequently hide evidence of their illicit trade in their homes: weapons; cash; expensive items, like furniture, artwork, and jewelry; records showing things like addresses, phone numbers, drug buys, and steps taken to launder drug money; photos of themselves and their accomplices, etc. The judge signed the warrants. And the search of Rivera's residence revealed $132,571 in cash, money-order receipts, and a loaded 9mm handgun, while the search of his stash house disclosed (among other things) sizeable amounts of crack and cocaine.

Rivera's indictment (on a felon-in-possession-of-a-firearm charge), rejected suppression motion (a motion that only targeted items taken from his home), conditional guilty plea (reserving the right to contest the judge's suppression ruling), and appeal to us followed apace. Now we must decide whether Rivera is right that the judge's suppression order amounts to reversible error—an argument premised on the theory that the affidavit did not establish probable cause because it did not show a nexus between drug trafficking and his house. Rivera is wrong, however, for reasons we will come to—right after we highlight the legal principles that govern our analysis.

Legal Primer

The Fourth Amendment requires that search warrants issue only on a showing of probable cause , see U.S. Const. amend. IV—“a common sense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” see United States v. Vongkaysone , 434 F.3d 68, 73–74 (1st Cir. 2006)

(quoting United States v. Meade , 110 F.3d 190, 198 n. 11 (1st Cir. 1997) ). To satisfy this standard, a search-warrant application must reveal probable cause to believe two things: one, that a crime has occurred—a.k.a., the “commission” element; and two, that specified evidence of the crime will be at the search location—a.k.a., the “nexus” element. See, e.g., United States v. Joubert , 778 F.3d 247, 251 (1st Cir. 2015). Rivera focuses only on the nexus element. So we will too.

When it comes to nexus, common sense says that a connection with the search site can be deduced “from the type of crime, the nature of the items sought,” plus “normal inferences as to where a criminal would hide” evidence of his crime. See United States v. Feliz , 182 F.3d 82, 88 (1st Cir. 1999)

(quoting United States v. Charest , 602 F.2d 1015, 1017 (1st Cir. 1979) ). Common sense also says that when a criminal peddles narcotics “outside his home,” one can infer that “evidence of his drug dealing activity” will be found “in the home,” at least when he is spotted “leaving the home immediately prior to selling drugs.” See United States v. Barnes , 492 F.3d 33, 37 (1st Cir. 2007).

Keep in mind too that probable cause does not demand certainty, or proof beyond a reasonable doubt, or even proof by a preponderance of the evidence—it demands only “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 235, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)

; accord Feliz , 182 F.3d at 87 (explaining that the government need not show that the agent's belief “that evidence of a crime will be found” is “necessarily correct or more likely true than false”). “Fair probability” is another way of saying “reasonable likelihood,” by the way. See United States v. Clark , 685 F.3d 72, 76 (1st Cir. 2012). And in asking whether probable cause existed, courts look to the “totality of the circumstances,” see

Gates , 462 U.S. at 238, 103 S.Ct. 2317

—a phrase that means that all material “circumstances should be considered,” see United States...