United States of America, Appellee, v. William Douglas Montgomery, Appellant.
No. 07-2587
United States Court of Appeals FOR THE EIGHTH CIRCUIT
June 6, 2008
Appeal from the United States District Court for the Western District of Missouri. Submitted: February 11, 2008
WOLLMAN, Circuit Judge.
William Douglas Mоntgomery pleaded guilty to two counts of possession of a firearm by an unlawful user of controlled substances, in violation of
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 producеd 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 vehiсle identification
While 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 methamphеtamine 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, thе 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 аnother 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 defеrence on review. United States v. Caswell, 436 F.3d 894, 897 (8th Cir. 2006); Illinois v. Gates, 462 U.S. 213, 236 (1983). We will not upset a judicial finding of probable cause unless there was no substantial basis for that finding. Caswell, 436 F.3d at 897-98.
“For a search warrant to be valid, the warrant must be based upon a finding by a nеutral 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, 485 F.3d 427, 430 (8th Cir. 2007) (internal quotation omitted). Probable cause means a “fair probability” that the object of the search warrant may be found in the place to be searched. Id. (quoting Gates, 462 U.S. at 238). This determination is made by considering the totality of the circumstances. Caswell, 436 F.3d at 897.
Montgomery first argues that the March 1 affidavit was insufficient to establish probable cause that drugs would be found at his residence bеcause 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 fоund 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 usеr 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 cоnsidered 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 derivеd 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 mаterially 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 probablе cause if the false information were omitted. United States v. Davis, 471 F.3d 938, 946 (8th Cir. 2006) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). As indicated earlier, the affidavit
III. Scope of the Searches
We review de novo whether a search violated the Fourth Amendment. United Stаtes v. Olivera-Mendez, 484 F.3d 505, 509 (8th Cir. 2007).
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 searchеd in which the contraband sought might be found. United States v. Gamboa, 439 F.3d 796, 807 (8th Cir. 2006); United States v. Nichols, 344 F.3d 793, 798 (8th Cir. 2003) (per curium). Under the plain view doctrine, officers may seize objects if they are lawfully present where the object is seen and if the incriminating nature of the object is immediately obvious. Nichols, 344 F.3d at 799. The incriminating nature of guns in close proximity to drugs and drug paraphernalia is immediately obvious. Id. In Nichols, we upheld the seizure of guns that were discovered during a lawful searсh for drugs. Id. at 798-99. Similarly, officers in this case discovered the weapons, the incriminating nature of which was immediately obvious, during the lawful search for drugs and drug paraphernalia.
IV. Conclusion
The issuing judge possessed a substantial basis for signing the search warrants, and neither search exceeded its scope. The judgment is affirmed.