Lead Opinion
delivered the opinion of the court, in which McKEAGUE, J., joined. MOORE, J. (pp. 690-96), delivered a separate dissenting opinion.
OPINION
In 2004, police officers in Detroit, Michigan executed a search warrant at a residence, where they arrested Defendant David Williams and seized evidence, including illegal drugs and a firearm. Based on this evidence, Williams was indicted for possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. Williams moved to suppress the seizure of the drugs and firearm. After the district court denied that motion, Williams entered a conditional plea of guilty to both crimes.
Williams now appeals the denial of his motion to suppress the evidence seized during the search. He argues that the district court erred in denying his motion because the search warrant that established Williams’s illegal use of handguns and identified his apartment did not state any further connection between Williams and the apartment, and because the search warrant failed to establish probable cause in that it relied on “unreliable, conflicting, and uncorroborated information.”
For the following reasons, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Factual Background
In 2004, the Detroit Police Department’s Firearm Investigative Team (“FIT”) and the United States Bureau of Alcohol, Tobacco, and Firearms (“ATF”), were engaged in a joint investigation, during which they obtained and executed multiple search warrants for residences in Detroit. Officers searched 5950 Hedwig Street on July 12, 2004, which led to a search of 5409 Springwells Street on July 15, 2004. Both locations were residences of Jose Cosme, who owned two firearms seized during the searches. Cosme told the officers that an individual identified as “D-Bird” moved two firearms from the residences just before the searches, namely, a .25 caliber handgun and a .45 caliber handgun. Cosme also told the officers that a few weeks prior to the searches, “D-Bird” robbed a drug trafficker of five pounds of marijuana using one of those handguns. Cosme reported that “D-Bird” lived on Tarnow Street, between Michigan Avenue and the 1-94 service drive, and that “D-Bird” drove a silver Monte Carlo car. Cosme’s mother, Stella Reinoso, confirmed Cosme’s statements to the officers.
On July 16, 2004, officers arrested Kam-ico Jackson, a known associate of Cosme and “D-Bird.” Jackson identified “D~ Bird” as Williams and showed the officers Williams’s residence. Jackson identified Williams’s residence as the upper apartment unit at 4900 Tarnow Street, which corroborated Cosme’s description of the address. Jackson also substantiated Cosme’s statements to the officers, informing them that he also saw Williams with a .25 caliber handgun and a .45 caliber handgun, that Williams drove a silver Monte Carlo, and that Williams robbed a drug trafficker at gunpoint in the preceding weeks. Jackson also told the officers that
On July 17, 2004, Officer Darryl Stewart conducted surveillance at 4900 Tarnow Street, where he saw a silver Monte Carlo. He also observed a man standing next to the Monte Carlo who fit the description of Williams as given by Cosme, Reinoso, and Jackson. On July 22, 2004, Officer Stewart again saw the Monte Carlo at 4900 Tarnow Street, after which he searched police databases using the description of Williams. That search yielded a photograph of Williams, and confirmed that police arrested Williams on June 26, 2004, for carrying a concealed weapon.
On July 23, 2004, Officer Stewart sought and obtained a search warrant for 4900 Tarnow Street. In his warrant application, he alleged that (i) Williams resided in the upper level apartment at 4900 Tarnow Street; (ii) Williams possessed two firearms, a .25 caliber handgun and a .45 caliber handgun; (iii) one month prior to the warrant application, Williams used a .45 caliber handgun to rob five pounds of marijuana from a drug trafficker; (iv) Williams was arrested for carrying a concealed weapon on June 26, 2004; and (v) Williams was recently arrested for possession of a stolen vehicle where a gun was found in the vehicle.
The officers executed the search warrant on July 23, 2004, when they entered the residence through an open, outside back door that led into a common hallway shared by other residents. The officers moved up a common stairwell to Williams’s upper-level residence, where through the open door to the residence, they saw Williams cutting crack cocaine on a table. The police then entered the residence, arrested Williams, and searched the residence, which yielded a short-barreled shotgun and cocaine base.
II. The Procedural Background
Williams was later indicted on charges óf possession of a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a short-barreled shotgun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(B)(I). The district court denied Williams’s motion to suppress. Williams entered a conditional guilty plea on both charges and was sentenced to 130 months imprisonment.
STANDARDS OF REVIEW
When reviewing a district court’s decision on a motion to suppress, we must uphold the district court’s factual findings unless those findings are clearly erroneous, and we review the district court’s legal conclusion as to the existence of probable cause de novo. United States v. Combs,
I. The district court correctly found that the search warrant established a nexus between Williams’s suspected possession of the handguns and his residence sufficient to support the issuing judge’s finding of probable cause.
The Fourth Amendment requires probable cause for a search warrant to issue, Laughton,
In making this practical, common sense determination, the issuing judge must look for certain criteria. First, the affidavit or warrant request “must state a nexus between the place to be searched and the evidence sought.” Bethal,
Neither the issuing judge nor the reviewing courts should engage in line-byline scrutiny of the warrant application’s affidavit. Id. at 465; United States v. Allen,
To support his argument that the search warrant lacked probable cause, Williams asserts numerous allegations, the first of which is that the warrant application did not establish a nexus between the targeted handguns and the residence at 4900 Tarnow Street. While Williams correctly asserts that the warrant affidavit never tied the .25 and .45 caliber handguns to the Tarnow Street residence, he overlooks the Government’s logical, and indeed legally correct, assertion that “it is reason
A magistrate may infer a nexus between a suspect and his residence, depending upon “the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places.” United States v. Savoca,
In a recent line of cases, we have held that an issuing judge may infer that drug traffickers use their homes to store drugs and otherwise further their drug trafficking. See, e.g., United States v. Miggins,
Although Williams acknowledges our precedents, he argues that an issuing judge may infer a nexus between a suspect and his residence only when the suspect is a suspected drug trafficker, and in doing so relies on United States v. McPhearson,
In affirming the district court’s suppression of the crack cocaine, we rejected the government’s argument that the defendant’s arrest outside his residence with drugs on his person established a fair
Here, however, Williams incorrectly assumes that the facts do not provide the additional evidence of his criminal activity that this court required in McPhearson, and Williams attempts to stretch our holding too far by arguing that unless the suspect is a drug dealer, an issuing judge may not issue a search warrant that lacks evidence linking a suspect’s criminal activity to his residence. In the present case, the warrant affidavit set forth sufficient facts to permit the issuing judge to infer a link between the handguns sought and Williams’s residence. The warrant application named two informants, Cosme and Jackson, both of whom informed Officer Stewart that Williams possessed two handguns recently used to commit the robbery of marijuana from a drug trafficker. Several sources substantiated this information, including Detroit Police Department records that indicated police recently arrested Williams for carrying a concealed firearm. Given the evidence that Williams possessed multiple guns, and had recently used them to further his criminal activity, the issuing judge could have reasonably inferred that Williams kept at least one handgun at his residence.
In making this holding, we join other circuits which have held, in cases involving a variety of suspected crimes, that an issuing judge may infer that a criminal suspect keeps the “instrumentalities and fruits” of his crime in his residence. See United States v. Jones,
Much like a bank robber would keep the proceeds and instrumentalities of his robbery in his home, so too could Williams be expected to keep the instrumentalities of his criminal activity at his residence. Further, the evidence given to Officer Stewart by the informants seemed to indicate only two locations where Williams would possibly store the handguns: his car or his residence. As Williams was recently arrested in his car, without both handguns, it was reasonable to conclude that Williams kept at least one of the handguns sought at his residence.
In addition to his argument that the warrant lacked the necessary nexus between Williams’s suspected criminal activity and his residence, Williams also argues that Officer Stewart’s affidavit testimony was insufficient to establish probable cause. Like his nexus argument, this argument also fails.
Williams argues that the affidavit cited “unreliable, conflicting” testimony that he possessed the handguns, but the district court correctly found that Officer Stewart’s affidavit tied Williams to the handguns and their illegal use through interlocking and corroborating information from multiple sources: statements from Cosme, Reinoso, and Jackson; Officer Stewart’s own surveillance; and Detroit Police Department records. As if to underscore the failure of his argument, Williams points to only one alleged inconsistency in Officer Stewart’s affidavit. Williams contrasts Cosme’s statement that Williams removed the handguns from Cosme’s residence “just prior” to the police raids in mid-July with Jackson’s assertion that Williams used the .45 caliber handgun to rob a drug trafficker “a month earlier,” in mid-June. Williams contends that he could not have used the .45 caliber handgun in a robbery a month before he took it from Cosme’s house, and asserts that, consequently, the issuing judge erred in finding probable cause to issue the warrant.
Williams incorrectly assumes that these statements contradict each other. Williams’s removal of the handguns from Cosme’s residence in mid-July does not speak to Williams’s access to the gun prior to that time. Indeed, Cosme told Officer Stewart that Williams used the .45 caliber handgun to rob the drug traffickers a month earlier, thus indicating that Williams had access to the handguns before he removed them from Cosme’s residence. Moreover, the affidavit shows Williams’s access to the handguns during that time period because it established that the police arrested Williams on June 26, 2004, for carrying a concealed weapon. In light of these facts, there is no contradiction in Officer Stewart’s affidavit.
Williams further argues that the warrant application did not establish that Williams resided at the upper level of the residence at 4900 Tarnow Street. Williams alleges that only Jackson identified 4900 Tarnow Street as his residence, and therefore contends that the warrant violated United States Supreme Court
This argument also lacks merit. First, unlike in Jones, the warrant here named the informants, and named informants, unlike confidential informants, require little corroboration. See, e.g., United States v. Miller,
Finally, before the district court Williams contended that the search warrant did not establish probable cause because it failed to allege that Williams was prohibited from possessing firearms. The district court found that Williams “provided no authority, and the court knows of none, for the implied assertion that a search warrant application must contain probable cause for the specific crime under which a defendant will eventually be charged.” Williams did not, however, raise this argument on appeal; instead, he only passingly alluded to it in his reply brief. To the extent that Williams failed to develop or support his argument with any legal authority, see United States v. Layne,
CONCLUSION
Here, Officer Stewart’s affidavit did not use mere “suspicions, beliefs or conclusions” to link Williams to either 4900 Tar-now Street or the two handguns. See United States v. Weaver,
AFFIRMED.
Notes
. Our dissenting colleague sounds an alarmist tone, charging us with having "expanded a
Moreover, even if reasonable jurists may differ on whether the affidavit established a sufficient nexus between the evidence sought and the place to be searched, it is abundantly clear that the officers who executed the search warrant were entitled to reasonably and in good faith rely on it. The affidavit is not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The district court properly concluded, therefore, as an alternative basis for its ruling, that denial of the suppression motion was justified pursuant to the good faith exception recognized in United States v. Leon,
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s conclusion that the affidavit underlying the search warrant established a sufficient nexus between the apartment searched and the guns that the police sought. I would therefore hold that the search warrant was defective, and the dis
I. BACKGROUND
Williams entered a conditional guilty plea on charges that he had violated 21 U.S.C. § 841(a)(1) (Possession with Intent to Distribute Controlled Substance) and 18 U.S.C. § 924(c)(1)(B)® (Possession of a Short Barreled Shotgun in Furtherance of a Drug Trafficking Crime). Upon sentencing and judgment, he now appeals the district court’s denial of his motion to suppress the evidence on which these convictions are based.
The following facts are drawn from the district court opinion and from the affidavit underlying the search warrant. United States v. Williams,
A few days later, on July 16, 2004, police arrested Kamico Jackson (“Jackson”). Jackson told police that D-Bird’s real name was David Williams, and identified an upper-level apartment on Tarnow as Williams’s residence. The address of this apartment was 4900 Tarnow. Jackson confirmed Cosme’s report that Williams drove a silver Monte Carlo and had robbed a drug trafficker at gun point. Jackson reported that he had seen Williams with both a .25- and a .45-caliber handgun. Finally, Jackson told officers that Williams had recently been arrested for possession of a stolen motor vehicle and that there was a gun in the car during this arrest.
The next day, Detroit Police Officer Darryl Stewart (“Stewart”) observed the apartment at 4900 Tarnow. He saw a man fitting Williams’s description standing next to a silver Monte Carlo outside the building. After seeing the same car there on July 22, 2004, Stewart used the description of Williams to search the police database. He discovered that Williams had been arrested on June 26, 2004 for carrying a concealed weapon. The search also revealed two different addresses for Williams, neither of which corresponded to the apartment on Tarnow. When he was arrested for carrying a concealed weapon, Williams gave his address as 7176 Park-wood, and the license plates on the silver Monte Carlo were registered at 7163 Park-wood.
On July 23, Stewart applied for and received a warrant to search the upper level of 4900 Tarnow for weapons and related materials. Stewart’s affidavit in support of this warrant alleged the following facts: 1) weapons had been seized during searches at 5950 Hedwig and 5409 Spring-wells; 2) Cosme, a resident of both locations, said that D-Bird had a .25- and a .45-caliber handgun that had been moved from these addresses shortly before the searches were conducted; 3) Reinoso confirmed Cosme’s statements, and both Cosme and Reinoso told police that D-
When they executed the warrant at 4900 Tarnow, the police found cocaine base and a short-barreled shotgun, but they did not find either of the two handguns mentioned in the affidavit.
After the search, Williams was indicted and entered a conditional guilty plea to charges of possession of a controlled substance with intent to distribute and possession of a short-barreled shotgun in furtherance of a drug-trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(l)(B)(i), respectively.
II. ANALYSIS
When evaluating the denial of a motion to suppress, we review the district court’s factual findings for clear error, and we review its determination of probable cause de novo. United States v. Rodriguez-Sua-zo,
Under the Fourth Amendment, a warrant can only issue when there is probable cause, or “a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Miller,
In order to establish probable cause, an affidavit must demonstrate a “nexus between the place to be searched and the evidence sought.” United States v. Van Shutters,
The majority’s holding undercuts this court’s precedents and the Fourth Amend
A. A common-sense review of this affidavit reveals that it contains no evidence of a nexus between the place to be searched and the guns to be sought.
The majority fails to apply the agreed-upon totality of the circumstances test to determine whether the affidavit, standing alone, establishes a connection between the place to be searched, 4900 Tarnow, and the guns sought. Instead, the majority isolates the facts from the affidavit that support its conclusion and then finds a nexus based on what hypothetical defendants might or might not do with evidence of their crimes in a variety of circumstances. The majority’s selective view neglects to address two major flaws in the affidavit.
First, the affidavit contains clear indications that, whatever the majority’s hypothetical criminal suspects do with their weapons, Williams did not keep any guns he possessed in his residence. The affidavit establishes that Williams kept two guns, one of which he allegedly used to rob a drug dealer, at 5950 Hedwig and 5409 Springwells. The affidavit does not allege that Williams ever lived at either of these addresses, and Cosme, a resident of both, did not even know Williams’s real name. The affidavit also asserts that Jackson saw Williams with guns at some location not alleged to be Williams’s home, and that Williams once carried a gun in his car. Not only does this information fail to establish a link between 4900 Tarnow and the handguns, but also it highlights the fact that Williams was known to keep his guns in locations other than his own home. Thus, while the majority rests on the government’s supposedly “logical, and indeed legally correct, assertion” that it is reasonable to infer that some criminals keep evidence in their homes, Maj. Op. p. 686-87, the affidavit we must analyze suggests that such an inference is obviously un reasonable in this case. The inference that Williams would take guns he kept at the home of an acquaintance and bring them to his own home only after committing a crime with them is neither rational nor logical. In fact, the opposite inference is more reasonable; that Williams intentionally kept his guns outside his residence, even leaving them with people he did not know well.
In addition to failing to establish that it was logical to conclude that Williams, not a hypothetical defendant, kept his guns at his residence, the affidavit fails to establish that 4900 Tarnow was Williams’s residence. The majority neglects to mention the fact that while two informants tied Williams to the Tarnow apartment, the police department’s own files linked Williams to two different addresses. Williams gave the police one of these other addresses when he was arrested about a month before the search. Stewart saw Williams’s car outside the Tarnow apart
B. The majority’s opinion establishes a precedent that renders the nexus element of the probable-cause requirement of the Fourth Amendment a mere formality.
Apart from ignoring the import of these glaring flaws in the affidavit, the majority expands this court’s precedents in a disturbing way. Our previous caselaw has drawn a line between cases in which investigation revealed complicated, ongoing criminal activity such that a judge could infer that the defendant kept evidence of that activity in his home, and cases in which information about a single crime or an individual’s status did not permit an inference that there would be evidence of further criminal activity in that individual’s home.
Cases in which this court has allowed a nexus to be inferred between a suspect and his residence have all included concrete, specific information tying the location with the crime, beyond just the fact that the defendant may have committed the crime and may live in that location. Each case has included some additional “plus” factor allowing the nexus to be inferred. United States v. Newton,
When the cases discussed above are contrasted with cases in which this court has declined to find a sufficient nexus, it becomes clear that today’s holding has erased even the feeble requirement that there be a “plus” factor tying the item sought to the location to be searched before a proper warrant will issue. In United States v. McPhearson,
The majority holds that although our prior caselaw explicitly required allegations of ongoing drug trafficking activity before a nexus could be inferred, such allegations are not necessary. Compare Maj. Op. p. 688 with McPhearson,
I would hold that this search warrant was defective because it failed to establish a nexus between the items to be seized and the location to be searched. I would therefore reverse Williams’s conviction. The majority’s holding will significantly damage, if not destroy, the protections of the Fourth Amendment as it pertains to search and seizure, and I must, therefore, respectfully dissent.
. While the affidavit identifies this address as 5950 St. Hedwig, the district court and the majority both call it 5950 Hedwig. Following their lead, this opinion will designate this address as 5950 Hedwig.
. In a footnote, the majority quotes a portion of this sentence and charges me with striking "an alarmist tone.” In the same footnote, the majority asserts that it has not established a new rule but has simply performed a common-sense evaluation of the facts in this particular case. The majority opinion does review some of the facts, but in order to uphold the search warrant, the majority must expand the once-limited rule allowing a fact finder to infer a nexus between the place to be searched and the thing to be sought.
The majority also briefly asserts in the same footnote that even if the affidavit did not establish probable cause, suppression is an inappropriate remedy because the police officers reasonably and in good faith relied on the warrant. See United States v. Leon,
