FILED
United States Court of Appeals
Tenth Circuit
April 20, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 08-3155
MICHAEL L. BIGLOW,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CR-10221-MLB-3)
Richard A. Friedman, Appellate Section, Criminal Division, United States
Department of Justice (Eric F. Melgren, United States Attorney, Kansas City,
Kansas, James A. Brown, Assistant United States Attorney, Topeka, Kansas, and
Debra L. Barnett, Assistant United States Attorney, Wichita, Kansas, with him on the
briefs), Washington, D.C., for Plaintiff-Appellant.
John Jenab, Jenab & McCauley, LLP, Olathe, Kansas, for Defendant-Appellee.
Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.
BALDOCK, Circuit Judge.
Defendant Michael L. Biglow’s contacts with a major drug dealer, Tyrone
Andrews, led the Government to suspect Defendant was also engaged in drug
trafficking. Based on the Government’s affidavit, which described investigators’
surveillance activities and information gleaned from confidential informants, a
United States Magistrate Judge issued a warrant to search Defendant’s home for
evidence related to his alleged drug dealing activities. Authorities’ search of
Defendant’s residence located $769.11 in United States currency, a scale, packaging
material, firearms, ammunition, drugs, and drug paraphernalia.
Subsequently, a grand jury charged Defendant with (1) possessing cocaine, in
violation of 21 U.S.C. § 841(a)(1); (2) possessing cocaine with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); (3) conspiring to distribute cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) & 846; (4) using a communication facility to
facilitate a felony, in violation of 21 U.S.C. § 843(b); and (5) unlawfully possessing
two firearms, in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress
the evidence found in his home, arguing that authorities lacked probable cause to
search his residence. In response, the Government defended the magistrate judge’s
probable-cause determination and, in the alternative, suggested the good-faith
exception established in United States v. Leon, 468 U.S. 897 (1984) should apply.
The district court considered the matter and concluded the Government’s
affidavit failed to establish the probable cause necessary to search Defendant’s home.
Because it viewed the Government’s evidence as utterly failing to establish (1) that
Defendant was engaged in selling drugs to others and (2) the required nexus between
Defendant’s drug-related activities and his residence, the district court also ruled that
the good-faith exception did not apply. Consequently, the district court suppressed
the evidence found in Defendant’s home. See United States v. Cunningham, 413
2
F.3d 1199, 1203 (10th Cir. 2005) (recognizing the exclusionary rule mandates the
suppression of evidence obtained as the result of an illegal search). The Government
maintains, on appeal, that the magistrate judge’s probable-cause determination
should stand. In the alternative, it argues that the good-faith exception forestalls the
exclusionary rule’s application in this case. We have jurisdiction under 18 U.S.C.
§ 3731, and reverse.
I.
Probable cause must support the warrant authorizing the Government’s
search of Defendant’s residence. See U.S. Const. amend. IV. (stating “no warrants
shall issue, but upon probable cause”). Indeed, the “physical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed.”
United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972). Our analysis of the
lawfulness of this search begins with a summary of the evidence presented in the
Government’s probable-cause affidavit and the terms of the search warrant issued by
the magistrate judge. We then proceed to outline why the district court found the
Government’s affidavit lacked the indicia of probable cause necessary to justify a
search under the Fourth Amendment.
A.
Special Agent Greg Heiert of the United States Bureau of Alcohol, Tobacco,
Firearms and Explosives executed the Government’s affidavit. The affidavit
describes a series of revelations by confidential informants related to a major
3
supplier of cocaine in Wichita, Kansas known as “Roni.” These confidential sources
revealed that “Roni” (1) supplied local gang members with large amounts of cocaine,
(2) usually sold cocaine in amounts ranging from a half to a whole kilogram, (3) was
considered a “big fish” who purchased cocaine imported from Mexico, (4) regularly
obtained around ten kilograms of cocaine a week, and (5) owned a stash house near
the intersection of Mt. Vernon and Oliver. Through additional personal information
provided by informants and one photo identification, authorities learned that
“Roni’s” true name was Tyrone Andrews. 1
Tyrone Andrews worked at an aerosystems company. Real estate records
revealed that he owned six properties in the Wichita area. One of these properties,
a home on South Ridgewood (Ridgewood), was located only a half mile east of the
intersection of Mt. Vernon and Oliver. Based on the tip they had received regarding
the location of Andrews’ stash house, authorities began periodic surveillance of the
Ridgewood residence in May 2007. Investigators observed Andrews entering the
house either after work or on the weekends. He never stayed for long and
subsequently made stops at various residences in the Wichita area.
In late June 2007, officials arranged for a confidential source to make two
controlled drug buys from Andrews. Detectives contacted Andrews by telephone and
1
For instance, a confidential source described “Roni” as driving a two-door,
newer, white Honda. Andrews regularly drove a two-door, 2003, white Honda
Accord.
4
asked him to supply the informant with cocaine. Subsequently, Andrews stopped at
the Ridgewood house for a few minutes, drove to the confidential informant’s
location, and sold him cocaine. Authorities arranged a similar drug buy four days
later, while Andrews was at his Ridgewood residence. After the purchase was
arranged, Andrews again drove to the confidential source’s location and sold
him cocaine.
Authorities witnessed Defendant Biglow’s first interaction with Andrews
approximately two weeks later. Shortly after Andrews appeared at his Ridgewood
address, Defendant arrived at the house in a silver Volvo. He entered the residence
carrying a black briefcase, remained inside for approximately half an hour, and then
left carrying the briefcase. Trailing investigators orchestrated a stop of Defendant’s
vehicle, for an observed traffic violation, near the intersection of Kellogg and Rock
Road. The detaining officer observed the black briefcase on the front passenger seat
of the vehicle, issued Defendant a traffic citation, and sent him on his way.
Approximately seventeen days later, a confidential source reported that Andrews was
concerned authorities were monitoring his activities because a customer to whom he
had sold two kilograms of cocaine had recently been followed by police and stopped
in the area of Kellogg and Rock Road.
Based on the evidence gleaned from their ongoing investigation, officials
received authorization to wiretap two phone numbers belonging to Andrews.
Monitoring of these lines began on September 6, 2007. At the same time,
5
investigators stepped up their surveillance of Andrews. They discovered that
Andrews normally left work around 2:30 pm, arriving at the Ridgewood property by
3:00 pm. Thereafter, he would receive phone calls from individuals ordering varying
amounts of drugs. Andrews would then go on “runs” to deliver these orders to his
customers’ homes.
Over a twelve-day period beginning on September 10th and ending on
September 21st, the Government’s wiretaps revealed a series of seven phone calls
between Andrews and a male caller using a phone number belonging to Defendant.
During the first call, the caller asked Andrews “how we lookin?” When Andrews
inquired as to who was calling, the caller identified himself as “Big.” Andrews
stated that the “other people, they said today but they ain’t called me” and the caller
indicated he would call Andrews back. The next day, the caller asked if he could
meet Andrews either that day or the next. Andrews said it would be tomorrow and
the caller indicated he would call after Andrews returned from work.
This third call took place as planned. Andrews stated that he would need to
talk to his people before the two met, indicated that “Fat Boy” had called, and
explained that he needed to contact him. After he spoke with “Fat Boy,” Andrews
suggested he might have to “go mess with [his] regular people.” Investigators
learned that “Fat Boy” is a Hispanic male named Jose Pizana, who supplied Andrews
with several kilograms of cocaine. The next day the caller again rang Andrews and
asked if his “boy [had] come through.” Andrews responded in the affirmative and
6
the caller asked, “How many points is that?,” to which Andrews replied “one-nine.”
The caller asked Andrews to repeat himself. Once Andrews had done so, the caller
responded “okay, uh-two” and arranged to call Andrews back.
The next morning Andrews contacted the caller. The caller indicated he was
about to go to work but he would “take it with” him. To this Andrews responded,
“Alright, just call me.” Approximately an hour later, the caller contacted Andrews,
stated that he was at work, and asked if anything was about to come through.
Andrews indicated that it would be in the next thirty to forty minutes. Surveillance
units proceeded to follow Andrews to a parking lot outside the shopping center
where Defendant Biglow worked as a security guard. Investigators witnessed
Defendant meet with Andrews, but their view of this rendezvous was partially
obstructed by another vehicle.
One week later, the caller again contacted Andrews and asked, “How we
lookin’ man?” Andrews replied that he had not heard from “Fat Boy,” which
prompted the caller to question whether Andrews had heard from “the high boy.”
Andrews explained that “the high boy” “only had them other ones left and I got them
last night.” The caller asked Andrews what he was “lettin’ it go for?” Andrews
explained to him that he could not have “it” because “it” was already sold.
Subsequently, the caller expressed frustration that Fat Boy had not called Andrews
back and inquired whether Andrews’ “high people [were] coming any time soon.”
Andrews stated that it would be a week. Over a period of several months, authorities
7
observed a Hispanic male carrying a brown bag into the Ridgewood house, whom
they believed to be Andrews’ “high dollar” source.
One day after the final monitored call between Andrews and the male caller,
investigators witnessed Andrews leaving his Ridgewood residence with a black bag
in his car. Police stopped Andrews car, but when the officers attempted to get
Andrews to exit the vehicle he sped away. While in pursuit, officers witnessed
Andrews throw a black bag out his car window. They stopped to recover the bag and
found a large quantity of cocaine. Authorities later took Andrews into custody.
Based on the forgoing evidence, a United States Magistrate Judge found
probable cause existed to search Defendant Biglow’s residence for (1) records related
to drug distribution, (2) financial records and receipts, (3) U.S. currency and
financial instruments, (4) address and telephone books, (5) communications devices,
recordings, and bills, and (6) photographs. In authorizing a search for these items,
the magistrate judge credited Special Agent Heiert’s observation, in his affidavit,
that in his training and experience people frequently maintain financial records and
work-related documents at home, and that those involved in the sale and use of
illegal substances commonly possess U.S. currency and customer contact information
in their place of residence.
Authorities uncovered cocaine residue in a clear plastic bag and a firearm in
Defendant’s home. The Government subsequently obtained a second warrant to
search Defendant’s residence for drugs and drug paraphernalia. As the propriety of
8
the second search warrant depends entirely on that of the first, we address only the
original warrant in this appeal.
B.
In granting Defendant’s motion to suppress, the district court identified two
main deficiencies in the Government’s probable-cause affidavit. First, the district
court noted that our precedents require a nexus between suspected criminal activity
and the place to be searched. See United States v. Corral-Corral, 899 F.2d 927, 937
(10th Cir. 1990). Because the Government’s affidavit did “not establish that drug
activity was observed at the home being searched,” the district court determined that
this nexus requirement had not been met. United States v. Biglow, No. 07-10221,
at 6 (D. Kan. June 6, 2008) (Suppression Order). Indeed, pointing to the ambiguity
of the terms used in the wiretap transcripts, the district court viewed it as uncertain
that Andrews and Defendant were even arranging the sale of illegal drugs. See id.
Second, the district court recognized that an affiant officer’s statement that
drug dealers often keep records in their homes, in conjunction with evidence that an
individual is a drug dealer, may establish probable cause to search that person’s
home. See United States v. One Hundred Forty-Nine Thousand Four Hundred Forty-
Two and 43/100 Dollars ($149,422.43) in U.S. Currency, 965 F.2d 868, 874 (10th
Cir. 1992). But it concluded the Government’s affidavit provided no evidence that
Defendant supplied drugs to others. See Suppression Order at 7-8. Thus, the
district court opined that “no evidence” supported “the conclusion that records of
9
drug sales and/or co-conspirators would be found at” Defendant’s residence. Id.;
see also id. (“[I]t would be a stretch to presume that defendant would have records
of drug transactions in his home, a location that was never visited by anyone”).
The district court also rejected the Government’s argument that the good-faith
exception should apply. Based on its conclusion that the Government’s affidavit
failed to establish a nexus between Defendant’s alleged criminal activities and his
residence, the court ruled that the Government’s evidence was “so lacking in indicia
of probable cause as to render official belief in its existence entirely unreasonable.”
Leon, 468 U.S. at 923. A reasonable “officer would know that the [Tenth] Circuit
requires that nexus to exist.” Suppression Order at 9. Thus, the district court
concluded that a “complete lack of any nexus cannot be saved by the Leon good-faith
exception.” Id.
II.
Before we consider the sufficiency of the Government’s affidavit, we must
address a potential conflict in our precedents regarding the Fourth’s Amendment’s
nexus requirement. All agree that a nexus must exist between suspected criminal
activity and the place to be searched, but the parties dispute the strength of the
evidence that must link the two. 2 On one hand, Defendant cites our decision in
2
We identified this potential conflict in United States v. Nolan, 199 F.3d
1180, 1183-84 (10th Cir. 1999), but declined to resolve it. See 199 F.3d at 1184.
Instead, we exercised “our discretion to decide [that] case under the good-faith
exception to the exclusionary rule” and left “for another day the probable cause
(continued...)
10
Rowland v. United States, 145 F.3d 1194, 1204 (10th Cir. 1998) for the proposition
that probable cause “to search a person’s residence does not arise based solely upon
probable cause that the person is guilty of a crime.” We noted, in that case, that
“additional evidence” must link a defendant’s home to “the suspected criminal
activity.” 145 F.3d at 1204. On the other hand, the Government relies on a line of
cases associated with United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986),
which suggest that evidence indicating a defendant is a drug trafficker is alone
sufficient to establish probable cause to search that defendant’s residence for drugs
and related evidence. See United States v. Sanchez, 555 F.3d 910, 912, 914 (10th
Cir. 2009) (indicating that once probable cause exists that a person is a supplier of
illegal drugs, probable cause also exists to search that person’s home for contraband
and other evidence).
We recognize that our cases in this area are open to conflicting interpretations,
but we believe the application of basic Fourth Amendment principles avoids such
internal strife. The “touchstone” of the Fourth Amendment is “reasonableness.”
Samson v. California, 547 U.S. 843, 855 n.4 (2006). Whether a sufficient nexus has
been established between a defendant’s suspected criminal activity and his residence
thus necessarily depends upon the facts of each case. See Maryland v. Pringle, 540
U.S. 366, 371 (2003) (noting that probable cause “deals with probabilities and
2
(...continued)
inquiry.” Id.; see also United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009).
11
depends on the totality of the circumstances”). Certain non-exhaustive factors
relevant to our nexus analysis include (1) the type of crime at issue, (2) the extent
of a suspect’s opportunity for concealment, (3) the nature of the evidence sought, and
(4) all reasonable inferences as to where a criminal would likely keep such evidence.
See Anthony v. United States, 667 F.2d 870, 874 (10th Cir. 1981); United States v.
Rahn, 511 F.2d 290, 293 (10th Cir. 1975).
While the nexus requirement — like probable cause itself — is not reducible
“to a neat set of legal rules,” see Pringle, 540 U.S. at 371, our case law reveals that
little “additional evidence” is generally required to satisfy the Fourth Amendment’s
strictures. We have never required, for example, that hard evidence or “personal
knowledge of illegal activity” link a Defendant’s suspected unlawful activity to his
home. $149,422.43, 965 F.2d at 874; see also United States v. Tisdale, 248 F.3d
964, 971 (10th Cir. 2001) (explaining that probable cause to “believe certain items
will be found in a specific location is a practical, nontechnical conception . . . that
need not be based on direct, first-hand, or ‘hard’ evidence”) (quoting United States
v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985)). Instead, we have indicated that a
sufficient nexus is established once “an affidavit describes circumstances which
would warrant a person of reasonable caution” in the belief that “the articles sought”
are at a particular place. $149,422.43, 965 F.2d at 874; see also Rahn, 511 F.2d
at 293.
We have long recognized that magistrate judges may “rely on the opinion” of
12
law enforcement officers “as to where contraband” or other evidence “may be kept.”
United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997). In some cases, the
“additional evidence” linking an individual’s suspected illegal activity to his home
has thus come in the form of an affiant officer’s statement that certain evidence —
in his or her professional experience — is likely to be found in a defendant’s
residence. See, e.g., Sanchez, 555 F.3d at 913 (pointing to an affiant officer’s
observation that, in his professional experience, drug dealers often keep evidence
related to their unlawful activities at home); United States v. Sparks, 291 F.3d 683,
685 (10th Cir. 2002) (same); $149,442.43, 965 F.2d at 874 (same). But an affiant
officer need not draw an explicit connection between a suspect’s activities and his
residence for a Fourth Amendment nexus to exist.
“Additional evidence” connecting a defendant’s suspected activity to his
residence may also take the form of inferences a magistrate judge reasonably draws
from the Government’s evidence. See, e.g., Tisdale, 248 F.3d at 971 (concluding a
magistrate judge could infer a nexus existed to search a suspect’s car where a dead
body lay adjacent to the vehicle and an unidentified party had opened the trunk
earlier in the day); Hargus, 128 F.3d at 1362 (inferring a nexus to a suspect’s
residence based on the small scale of his business, the ongoing nature of the
conspiracy at issue, and the fact that he used his home telephone to arrange the sale
of stolen goods); Reyes, 798 F.2d at 382 (approving the inference that evidence
would be found at a defendant’s home based on an affiant officer’s statement that the
13
conspirators maintained records of their activities); Anthony, 667 F.2d at 874
(reasoning that since an illegal wiretap device had to be constructed it was
reasonable to assume evidence related to its assemblage would be found at a
suspect’s home); Rahn, 511 F.2d 293-94 (explaining that it was reasonable to assume
an ATF agent who allegedly possessed a stolen gun and used it to go hunting would
keep the weapon at his home).
In other words, magistrate judges may draw their own reasonable conclusions,
based on the Government’s affidavit and the “practical considerations of everyday
life,” as to the likelihood that certain evidence will be found at a particular place.
Anthony, 667 F.2d at 874. Thus, we have specifically acknowledged that “the nexus
between the place to be searched and the evidence sought may be established through
normal inferences about the location of evidence.” Tisdale, 248 F.3d at 971 (quoting
United States v. Gant, 759 F.2d 484, 488 (5th Cir. 1985)); see also Reyes, 798 F.2d
at 382 (noting that it “is reasonable to assume that certain types of evidence would
be kept at a defendant’s residence”); Anthony, 667 F.2d at 874 (same). Allowing
such inferences to establish a Fourth Amendment nexus is appropriate because
probable cause is a matter of “probabilities and common sense conclusions, not
certainties.” United States v Orr, 864 F.2d 1505, 1508 (10th Cir. 1988); see also
Anthony, 667 F.2d at 874 (recognizing the Government’s affidavit need not establish
to a “certainty that the objects sought will be found as a result of the search”).
One of these two types of “additional evidence” exists in all of the cases the
14
parties have raised in this appeal. We thus conclude that our nexus precedents do not
inexorably conflict. Accordingly, we will apply the above-stated principles to
the facts of this case.
III.
We now turn to the sufficiency of the Government’s affidavit. See United
States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005) (acknowledging that we
have “discretion to address probable cause or to proceed directly to good faith”).
While we review a district court’s probable-cause determination de novo, see Ornelas
v. United States, 517 U.S. 690, 699 (1996), our review of a magistrate judge’s
probable-cause ruling is more deferential. See Massachusetts v. Upton, 466 U.S.
727, 728, 732-33 (1984). The magistrate judge must consider, under the totality of
the circumstances, whether probable cause — defined as a “fair probability” that
contraband or other evidence will be found in a particular place — exists to conduct
a search. Illinois v. Gates, 462 U.S. 213, 238 (1983).
Once a magistrate judge determines probable cause exists, the role of a
reviewing court is merely to ensure the Government’s affidavit provided a
“substantial basis” for reaching that conclusion. Id. at 238-39. “[A]fter-the-fact, de
novo scrutiny” of a magistrate’s probable-cause determination is forbidden. Upton,
466 U.S. at 733. Provided the magistrate judge’s “neutral and detached function”
has been properly fulfilled, we accord a magistrate judge’s probable-cause finding
“great deference.” Gates, 462 U.S. at 236, 240; see also United States v. Ventresca,
15
380 U.S. 102, 109 (1965) (noting that magistrate judges may “not serve merely as
a rubber stamp for the police”).
A.
One of the Supreme Court’s “central teaching[s]” on the Fourth Amendment
is that probable cause is a “practical, nontechnical conception,” designed to operate
in conjunction with the “commonsense,” “practical considerations of everyday life,”
rather than the elaborate rules employed by “legal technicians.” Gates, 462 U.S. at
230-31; see also Shadwick v. City of Tampa, 407 U.S. 345, 348-49 (1972)
(explaining that warrants were traditionally issued by non-lawyers). Although we
jealously guard “[f]inely-tuned” standards such as proof beyond a reasonable doubt
in the context of criminal trials, standards associated with “ordinary judicial
proceedings” do not inform a magistrate’s decision to issue a warrant. Gates, 462
U.S. at 235. Probable cause “requires only a probability or substantial chance of
criminal activity,” rather than “an actual showing of such activity.” New York v.
P.J. Video, Inc., 475 U.S. 868, 877-78 (1986). Under this standard, innocent conduct
will inevitably support some showings of probable cause. See Gates, 462 U.S. at 243
n.13; see also Upton, 466 U.S. at 734 (recognizing that “probable cause does not
demand the certainty we associate with formal trials”).
A finding of probable cause rests not on whether particular conduct is
“innocent” or “guilty,” but on the “degree of suspicion that attaches” to the
Government’s evidence. Illinois v. Wardlow, 528 U.S. 119, 128 (2000). Measuring
16
the degree of suspicion that attaches to a set of facts requires us to view the
Government’s evidence through the lens of those “versed in the field of law
enforcement.” Texas v. Brown, 460 U.S. 730, 742 (1983). For in this arena, the
Supreme Court has precluded us from adopting the “library analysis” employed by
Fourth Amendment “scholars.” Id.; Ventresca, 380 U.S. at 108 (acknowledging that
courts must test and interpret “affidavits for search warrants” in a “commonsense and
realistic fashion”).
We recognize that magistrate judges are vested with substantial discretion to
draw all “reasonable inferences” from the Government’s evidence. Gates, 462 U.S.
at 240. Indeed, the Supreme Court has cautioned reviewing courts against adopting
a “grudging or negative” attitude towards warrants, regardless of whether the
magistrate judge’s probable-cause determination rests on such inferences. Upton,
466 U.S. at 733. Because probable cause is a “flexible, common-sense standard,”
we must interpret the Government’s affidavit in a flexible, common-sense way.
Gates, 462 U.S. at 239. Resorting to “hypertechnical” constructions of the
Government’s evidence to invalidate a warrant is expressly disallowed. Id. at 236;
see also Ventresca, 380 U.S. at 108 (noting that “the Fourth Amendment’s
commands, like all constitutional requirements, are practical and not abstract”).
The Fourth Amendment’s strong preference for warrants compels us to resolve
“doubtful or marginal cases” by deferring to a magistrate judge’s determination of
probable cause. Upton, 466 U.S. at 734. For reviewing courts will accept less
17
“judicially competent or persuasive” evidence of probable cause when the
Government conducts its search pursuant to a warrant. Aguilar v. Texas, 378 U.S.
108, 111 (1964), overruled on other grounds by Gates, 462 U.S. at 238. Indeed, a
contrary stance would furnish police with the perverse incentive to forgo the warrant
process in the hope that an “exception to the warrant clause” would materialize “at
the time of the search.” Gates, 462 U.S. at 236.
B.
While the evidence in the Government’s affidavit could have been more
compelling, we conclude it provided a “substantial basis” for the magistrate judge’s
determination of probable cause. Ample evidence in the Government’s affidavit
supports the conclusion that Andrews was a leading distributor of drugs in the
Wichita area. Confidential sources, whose reliability was substantially confirmed
by the Government’s independent investigation, indicated that Andrews received
large shipments of drugs from Mexico, owned a stash house, provided drugs to
gangs, and generally dealt in quantities of cocaine ranging from a half to a whole
kilogram. Based on the nature and scope of Andrews’ operation, the magistrate
judge could reasonably infer that he served as a major artery through which drugs
were pumped to lower-level drug traffickers, who operated on a vein-like scale.
The magistrate judge also had adequate grounds to find a substantial likelihood
that Andrews sold Defendant distribution-level quantities of drugs. Andrews’
statement that a customer who had purchased two kilograms of cocaine was stopped
18
at the intersection of Kellogg and Rock Road; not long after Defendant (1) left
Andrews’ stash house carrying a briefcase, and (2) was stopped at that location;
strongly suggested that this purchase was made by Defendant. Those versed in the
field of law enforcement are certainly aware that two kilograms of cocaine is a
significant quantity of drugs. See United States v. Edwards, 69 F.3d 419, 427, 431
(10th Cir. 1995) (characterizing the fronting of two kilograms of cocaine as the
distribution of a “large quantit[y] of drugs”); United States v. Soto, 375 F.3d 1219,
1220 (10th Cir. 2004) (recounting a DEA agent’s trial testimony that the sale of two
kilograms of cocaine was a “fairly large drug transaction[]”). Our precedents
establish that an inference of the intent to distribute is justified when an individual
possesses a large quantity of drugs. See, e.g., Sparks, 291 F.3d at 689; United States
v. Delrea-Ordones, 213 F.3d 1263, 1268 n.4 (10th Cir. 2000). In fact, we have
specifically noted that the possession of more than five-hundred grams of cocaine is
“consistent with possession with intent to distribute, and is inconsistent with simple
possession.” United States v. Gama-Bastidas, 222 F.3d 779, 787 (10th Cir. 2000).
Based on the Government’s affidavit, the magistrate judge could also
reasonably conclude that Defendant purchased, or attempted to purchase, additional
amounts of cocaine from Andrews. Defendant repeatedly contacted Andrews to
arrange the purchase of illegal drugs. 3 Indeed, a common-sense interpretation of
3
Viewing the Government’s evidence in the light most favorable to the
district court ruling, as we are required to do, we cannot escape the conclusion that
(continued...)
19
these exchanges suggests Defendant purchased an additional two kilograms of
cocaine when he met with Andrews in a parking lot near his work. See Spinelli v.
United States, 393 U.S. 410, 419 (1969), overruled on other grounds by Gates, 462
U.S. at 238 (noting that, “in judging probable cause,” magistrates are “not to be
confined” by miserly “limitations or by restrictions on the use of their common
sense”). Barely one week later, Defendant contacted Andrews about another drug
buy. The magistrate judge could, therefore, reasonably consider Defendant’s drug
purchases to be not only substantial, but also relatively frequent. Both of these
factors significantly bolster the probability that Defendant was engaged in the
drug trade.
Considering all of the circumstances, a substantial basis in the evidence
supports the magistrate judge’s determination that Defendant was engaged in the sale
of illegal drugs. In addition, Special Agent Heiert noted, in his affidavit, that drug
dealers often keep evidence related to their illegal activities at their homes. This
observation provided the “additional evidence” necessary to establish a nexus
3
(...continued)
the district court clearly erred in suggesting Defendant’s phone conversations with
Andrews did not concern the purchase of illegal drugs. See Sparks, 291 F.3d at 687.
The district court also erred in holding the Government’s evidence to a trial-like
standard of proof. See Suppression Order at 6 (“[T]he affidavit lacks any evidence
that the numbers discussed signify drug quantities. Also, there is no direct
information from the confidential informant or a surveilling officer that an actual
drug transaction occurred.”). As we have explained, probable cause requires “a
probability or substantial chance of criminal activity, not an actual showing of such
activity.” P.J. Video, Inc., 475 U.S. at 877-78.
20
between Defendant’s suspected drug trafficking activities and his residence. See
supra Part II; see also Sanchez, 555 F.3d at 914 (“[W]e think it merely common
sense that a drug supplier will keep evidence of his crimes at his home.”). The
warrant issued by the magistrate judge thus satisfies the requirements of the Fourth
Amendment. 4
REVERSED.
4
As we have upheld the constitutionality of the warrant, we need not consider
the applicability of the good-faith exception established in Leon.
21