Opinion
IP 02-46-CR-01-T/F
December 3, 2002.
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Defendant, Jesse Tyrone Buchanan, moves to suppress evidence obtained from a police search of a house at 1020 East 5th Street, Muncie, Indiana. The Government opposes the motion. The court rules as explained below.
On March 12, 2002, Officer Jess E. Neal of the Muncie, Indiana Police Department filed with Delaware County Circuit Judge Robert Barnet an affidavit setting forth the results and means of an investigation of Buchanan for cocaine trafficking and requesting a search warrant for two Muncie residences linked to the Defendant, 1020 East 5th Street and 1122 South Brotherton Street. Judge Barnet found the affidavit contained probable cause to believe that contraband or other evidence of criminal activity would be found at the two residences. On March 12, 2002, at 11:30 a.m. he accordingly issued a warrant describing the locations to be searched and the type of evidence to be sought. (Def.'s Br., Search Warrant). A subsequent search of 1020 East 5th Street later that day uncovered in excess of 300 grams of powder cocaine; approximately 150 grams of cocaine base; a .38 caliber Smith Wesson Revolver; $5,190.00 in U.S. currency; three sets of electronic scales; and various items of documentation such as letters and mail. (Def.'s Br. at 1.)
The search of 1122 South Brotherton Street is not being challenged in this motion.
The Defendant maintains that he has standing to contest the search of 1020 East 5th Street on the grounds that he resided intermittently at that address during the period surrounding the date of the search. Thus, he had a privacy interest in the bedroom and other areas of the house where the contraband and additional evidence were found. The Government does not challenge this assertion.
Buchanan moves to suppress the fruits of the search of 1020 East 5th Street on the basis that the supporting affidavit was insufficient to establish probable cause. In essence, he asserts the affidavit failed to demonstrate an adequate nexus between himself, the illegal drug trafficking, and the residence at 1020 East 5th Street.
A judge's determination of probable cause should rest on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). "The task of the issuing [judge] is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him. . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238. See also Ornelas v. United States, 517 U.S. 690, 696 (1996) (probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found[.]") Although probable cause denotes more than "mere suspicion," United States v. Ellery, 678 F.2d 674, 677 (7th Cir. 1982), it does not require an actual showing of criminal activity, but only a "probability or substantial chance" of such activity, Gates, 462 U.S. at 243 n. 13. In short, probable cause is a flexible, practical, nontechnical concept. See United States v. McNeese, 901 F.2d 585, 592 (7th Cir. 1996), overruled on other grounds by United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001) (citing Gates, 462 U.S. at 232; Brinegar v. United States, 338 U.S. 160, 175 (1949)).
A judge's probable cause determination is entitled to "considerable weight" and should only be overturned where "the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." United States v. Spry, 190 F.3d 829, 835 (7th Cir. 1999). So long as there is a "substantial basis" for the magistrate's conclusion that probable cause existed, that finding will not be disturbed on review. Gates, 462 U.S. at 238-39.
Buchanan is not asserting that the affidavit failed to supply probable cause to connect him to the crime of cocaine trafficking, as it details three controlled cocaine sales he allegedly made to a confidential informant, the last of which, according to Officer Neal, was captured on videotape. Instead, the Defendant's principal claim is that the affidavit did not establish a sufficient nexus between his alleged criminal activity and the residence at 1020 East 5th Street. Buchanan contends that the affidavit is limited to assertions that he was observed arriving and leaving from that address on several occasions, and that he was videotaped departing the residence prior to the controlled purchase on March 7, 2002, and then returning there with Tyjuana S. Thompson, the primary resident, shortly afterward.
The Defendant is correct to state that there must be a reasonable connection between any evidence related to the crime and the place to be searched. United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997); United States v. Sleet, 54 F.3d 303, 306-307 (7th Cir. 1995); United States v. Dickerson, 975 F.2d 1245 (7th Cir. 1992). But even were the affidavit limited to the aforementioned allegations, it would likely support a finding of probable cause to search the East 5th Street residence. From the fact that Buchanan was seen coming and going from that address on different occasions, and, specifically, shortly before and after the March 7, 2002, transaction, it could be reasonably inferred that he either lived or spent a significant amount of time there. Moreover, additional facts contained in the affidavit besides those cited by the Defendant strengthen this inference, in particular: a check on the license plate number of the vehicle Buchanan was seen driving in connection with the drug transactions returned a registration to Tyjuana S. Thompson, the woman Buchanan was seen with shortly after the March 7th cocaine sale (Affidavit ¶ 31), at the East 5th Street address (Affidavit ¶ 18); a subpoena of Sprint Cellular Telephone Company records revealed that the subscriber of telephone #765-278-3881 was Jesse Buchanan, whose mailing address was listed as 1020 East 5th Street, Muncie, Indiana (Affidavit ¶ 20); the affiant and other investigators observed Buchanan coming and going from the East 5th Street residence on various other occasions during the course of the investigation (Affidavit ¶ 19); and a videotape showed the Defendant using a key to gain entrance to the East 5th Street residence (Affidavit ¶ 32). Together, these averments support a reasonable belief of at least temporary or intermittent residence at that address. And as a matter of common sense, it would be likely that evidence relating to the Defendant's alleged drug trafficking activities would be found in the place where he resides. See United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (7th Cir. 1986) ("A magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense. In the case of drug dealers, evidence is likely to be found where the dealers live.")
But even regardless of whether the judge inferred that the East 5th Street location was Buchanan's full or part time residence, there was plenty of evidence in the affidavit to closely connect Buchanan to that address at times near the drug transactions. Even if it were not considered to be his residence, it was a place that he had continuous and ready access to during the brief period of the drug investigation, and thus, a place that was likely to yield evidence regarding his observed drug activities.
In sum, there was clearly a substantial basis for Judge Barnet's finding of probable cause to search 1020 East 5th Street. See Gates, 462 U.S. at 238-39.
The Defendant also maintains that the inclusion in the affidavit of information pertaining to his prior 1994 conviction on drug trafficking and Officer Neal's claim to have developed familiarity as a police officer with the indicia of drug trafficking unduly prejudiced Judge Barnet in making his determination. The court assumes this argument is meant to deny the Government the shelter of the "good faith" exception to the warrant requirement in the event this court found the warrant deficient. See United States v. Leon, 468 U.S. 897, 923 (1984) (good faith rule inapplicable where magistrate "wholly abandoned his judicial role.")
The court need not reach that argument because it has determined that the information contained in the affidavit was more than enough to show probable cause. The reference to the prior conviction is at most surplus information; the firsthand observations of present drug activity and Buchanan's connection to the address were plenty support for a probable cause determination. Nor were the affiant's expertise and opinions about the practices of drug dealers necessary to the judge's determination.
Recourse to the good faith exception to the warrant requirement is, therefore, unnecessary to uphold the search. It suffices to note here that the Defendant's assertion of bias due to the inclusion of this information is not compelling. The prior convictions of a suspect are a permissible element in a probable cause determination, see United States v. Angles, 234 F.3d 326, 334 (7th Cir. 2000) (upholding search based on affidavit that included information as to defendant's prior convictions for sex crimes); United States v. Ellery, 678 F.2d 674, 678 (7th Cir. 1982) (finding probable cause to search residence where, inter alia, defendant had a prior conviction for possession of marijuana), and law enforcement officers routinely testify as experts in the field of illegal drug trafficking, see United States v. Sanchez-Galvez, 33 F.3d 829, 832 (7th Cir. 1994) ("We have held on prior occasion that because the clandestine nature of narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers may testify as experts in order to assist the jury in understanding these transactions.") It is unclear how either of these averments on the part of Officer Neal prejudiced the judge in his decision to issue the warrant. Judges are regularly subjected to such information without losing neutrality.
For the reasons discussed above, the Defendant's Motion to Suppress is DENIED.
ALL OF WHICH IS ORDERED this 3rd day of December 2002.