United States v. Dewayne WrightUnited States v. Dewayne Wright
BEAM, Circuit Judge.
Dewayne Wright was tried and convicted of being a felon in possession of a firearm in violation of
On April 10, 1996, Officer Adam Kyle of the Omaha Police Department received information from a confidential informant regarding a purchase of crack cocaine that had allegedly taken place in an apartment located at 2214 Florence Boulevard. The informant, who had proved reliable in the past, reported that the occupant of the apartment, known to him as “Wayne,” had indicated that he would have more crack available for sale later that evening. Based on this information, Kyle submitted an affidavit in support of a search warrant seeking crack cocaine, drug money, and items of venue from the subject apartment. A county court judge issued the warrant.
When they searched the apartment that night, officers found a loaded .38 caliber handgun on top of a television set, next to a plate of crack cocaine crumbs. Although the search warrant did not mention firearms specifically, officers seized the gun because they believed that it was related to the ongoing drug investigation. In addition, police ran a record check before leaving the apartment and learned that the occupant of the apartment, who turned out to be Dewayne Wright, was a convicted felon. They were, of course, aware of statutes making it illegal for a felon to possess a firearm. Wright was arrested and charged with possession of crack cocaine with intent to deliver, in violation of state law.
Thereafter, Special Agent Carlton M. Tarver of the Bureau of Alcohol, Tobacco, and Firearms learned of the arrest and charged Wright with violating
II. DISCUSSION
A. Motion to Suppress
Wright argues that the affidavit submitted by Officer Kyle did not contain facts establishing the informant‘s reliability or basis of knowledge, and that the affidavit was therefore insufficient to constitute probable cause to support the search warrant. Thus, he claims that all evidence discovered in the search, as well as all evidence subsequently discovered flowing from the search, was inadmissible. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).
We review an issuing judge‘s determination of probable cause for clear error. See United States v. Mahler, No. 96-3955, 1998 WL 145910, at *2 (8th Cir. Apr. 1, 1998). The Supreme Court has recognized that, because of the Constitution‘s “strong preference for searches conducted pursuant to a warrant,” an issuing judge‘s “determination of probable cause should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (citation omitted). Accordingly, if we are satisfied that the issuing judge had a substantial basis to conclude that the search would uncover evidence of criminal activity, we will find that the warrant was valid and that the search was conducted in accordance with the standards of the Fourth Amendment. See id.
The statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant. See United States v. Pressley, 978 F.2d 1026, 1027 (8th Cir. 1992) (citing McCray v. Illinois, 386 U.S. 300 (1967)). The reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information. See United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). The affidavit submitted by Kyle stated, “the [confidential informant] has proven his/her reliability in the past by making controlled purchase[s] of crack cocaine under the direct supervision of affiant officers.” Under the totality of the circumstances, this information adequately established the informant‘s track record and hence, his reliability.
Wright argues that the district court erred in not requiring the government to disclose the identity of the confidential informant. We review the court‘s decision for an abuse of discretion. See United States v. Fairchild, 122 F.3d 605, 609 (8th Cir. 1997). In a motion to compel disclosure of a confidential informant, the defendant bears the burden of demonstrating a need for disclosure. See United States v. Moore, 129 F.3d 989, 992 (8th Cir. 1997) (citing Roviaro v. United States, 353 U.S. 53, 59 (1957)). The court must weigh the defendant‘s right to information against the government‘s privilege to withhold the identity of a confidential informant, see id., and disclosure should not be ordered unless it is deemed “vital to a fair trial,” United States v. Bourbon, 819 F.2d 856, 860 (8th Cir. 1987).
Although the informant in this case made a controlled purchase of crack cocaine in Wright‘s apartment, Wright was not convicted of a drug offense; he was convicted of being a felon in possession of a firearm. The weapons charge upon which Wright was convicted was based on the fact that, in the course of executing the search warrant, officers found a firearm in Wright‘s possession and obtained Wright‘s admission that he possessed the firearm because of the risks inherent in dealing crack cocaine. Under these circumstances, the informant could not offer any evidence, exculpatory or otherwise, bearing on the offense of which Wright was convicted. Wright has therefore not satisfied his burden to show that disclosure was vital to the fairness of his trial. We
Additionally, Wright claims that, because he was subject to an enhancement of his sentence under section 2K2.1(b)(5) or 2K2.1(c)(1) for possessing the firearm in connection with another offense, the district court should have ordered disclosure at least for the purpose of determining the propriety of an enhancement. We disagree. The court found that Wright had used the gun in connection with the offenses of
C. Evidence
Wright also asserts that the district court erred in allowing the government to introduce evidence of crack cocaine found during the search of his apartment. While we do not believe that the district court abused its discretion in admitting the evidence, see, e.g., United States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995) (finding no abuse of discretion in the district court‘s admission of drug evidence “closely and integrally related to” the central issue of whether the defendant possessed the firearm), we find that it was harmless error in any event, in light of the overwhelming other evidence of guilt. See United States v. Hafiz, 129 F.3d 1011, 1012 (8th Cir. 1997).
D. Sentencing
Finally, Wright submits that mere possession of a firearm near narcotics cannot constitute possession “in connection with” another offense to qualify for a sentence enhancement under section 2K2.1(b)(5) or 2K2.1(c)(1), and that his enhanced sentence of 120 months’ imprisonment should therefore be vacated. Without further discussion,
We have considered the other arguments advanced by Wright and we find them to be without merit.
III. CONCLUSION
For the foregoing reasons, we affirm Wright‘s conviction and sentence.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.