William Douglas Montgomery pleaded guilty to two counts of possession of a firearm by an unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g). Having reserved his right to do so, Montgomery appeals from the district court’s 1 denial of his motion to suppress the evidence seized during two searches of his residence, the denial having been recommended by a magistrate judge 2 following a hearing on the matter. We affirm.
I. Background
On March 1, 2005, Jerry Lawson, a private citizen, contacted Scott Richardson, a Missouri State Highway Patrol trooper, to report that Montgomery had taken his Jeep Cherokee without permission. Lawson produced proof of ownership and took Richardson and a Mountain Grove, Missouri, police officer, Danny Bledsoe, to Montgomery’s residence. No one was home, so after verifying the vehicle identi
WTiile Montgomery was driving in Springfield, Missouri, on March 17, 2005, he was stopped by police for crossing the center line. Two local law enforcement officers had been following him, one of whom had been asked by an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives to follow Montgomery. Gabel was again Montgomery’s passenger. Both parties consented to a search of their persons and the vehicle, which revealed a baggie of methamphetamine and a baggie of cocaine in the vehicle, each containing approximately two grams. Gabel possessed some methamphetamine and drug paraphernalia on her person. Montgomery admitted that he was a methamphetamine user, that he had purchased some for purely personal use, and that he had used it the previous night. Gabel stated that Montgomery was returning to his home later that day. This information was placed in an affidavit for a warrant for a second search of Montgomery’s home. The affidavit noted that the earlier search had uncovered drugs, drug paraphernalia, and guns. Additionally, the affidavit incorrectly stated that Montgomery had been arrested for possession and distribution of a controlled substance on March 1, 2005. The affiant testified at the suppression hearing that another officer had told him about the March 1 arrest and that he had included that information in the affidavit without further verifying it. Montgomery’s rifle and shotguns were seized during the execution of the second warrant and formed the basis of the second count to which Montgomery pleaded guilty.
A judge’s finding of probable cause to support the issuance of a search warrant is afforded great deference on review.
United States v. Caswell,
“For a search warrant to be valid, the warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, [or] contraband ... may be found in the place to be searched.”
United States v. Proell,
Montgomery first argues that the March 1 affidavit was insufficient to establish probable cause that drugs would be found at his residence because the affidavit does not allege that contraband was actually seen at Montgomery’s residence or that any contraband was found in his vehicle or on his person. True enough, but Montgomery was observed making several trips between his house and his vehicle during which he appeared to be trying to avoid observation. He also either retrieved or hid something underneath his vehicle. When he and Gabel left his residence, Gabel immediately reclined her seat as if attempting to avoid being seen. After being searched, Gabel was found with illegal drugs and a variety of drug paraphernalia. Regardless of whether the drugs in Montgomery’s residence belonged to him or to Gabel, the circumstances created a fair probability that drugs were located in his residence and vehicles.
Montgomery next argues that the March 17 affidavit was insufficient to establish probable cause that drugs would be found at his residence. That affidavit noted that Montgomery had been found driving with a baggie of cocaine and a baggie of methamphetamine. Gabel, again his passenger, said that he was dropping her off and then returning to his home. Montgomery admitted to being a user of methamphetamine and that he had recently purchased some. The affidavit further noted the recent search of his residence, which had resulted in the seizure of illegal drugs and drug paraphernalia. These facts established a fair probability that drugs would be found at Montgomery’s residence.
Montgomery argues that the information gained from the first search warrant should not be considered as support for the March 17 warrant because the first search was invalid. Because we have determined that the first search was not invalid, it was permissible to use the information derived therefrom in the March 17 warrant application.
Montgomery also argues that the March 17 affidavit was insufficient to create probable cause because it contained a materially false statement. A warrant is invalid if the affiant knowingly includes a material misstatement or includes a statement with reckless disregard for its falsity, and if the affidavit would not support a finding of probable cause if the false information were omitted.
United States v. Davis,
III. Scope of the Searches
We review
de novo
whether a search violated the Fourth Amendment.
United States v. Olivera-Mendez,
Montgomery’s final argument is that the seizure of the guns exceeded the scope of the search because the search warrants did not include firearms and because the handgun seized in the first search was found in a vehicle on the premises, not in the house. Police may lawfully search all buildings, containers, and vehicles on the property to be searched in which the contraband sought might be found.
United States v. Gamboa,
IV. Conclusion
The issuing judge possessed a substantial basis for signing the search warrants, and neither search exceeded its scope, The judgment is affirmed,