United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2005 Decided February 10, 2006
No. 04-3144
UNITED STATES OF AMERICA,
APPELLEE
v.
CURTISTINE JOHNSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00175-02)
Thomas J. Saunders, appointed by the court, argued the
cause and filed the brief for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the
time the brief was filed, and Roy W. McLeese III and Elana
Tyrangiel, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, SENTELLE, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Curtistine Yvette Johnson
was convicted of three crimes: unlawful possession with intent
to distribute five grams or more of cocaine base in violation of
21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B)(iii); using, carrying, and
possessing a firearm in violation of 18 U.S.C. § 924(c)(1); and
unlawful maintenance of premises to manufacture, distribute,
store, and use a controlled substance during a drug trafficking
offense in violation of 21 U.S.C. § 856(a)(2). Her conviction
rested on evidence discovered by the police in a search of her
apartment—some 5.5 grams of cocaine base packaged into 61
small plastic bags, cocaine cooking equipment, other drug
paraphernalia, and guns. On appeal, she claims that the warrant
for the search was invalid. She asserts primarily that some of
the supporting evidence was old and that the warrant
misspecified her address, locating the site in Washington’s
Northwest quadrant rather than, as it actually was, in the
Southeast. Accordingly, she says, the district court erred in not
suppressing the seized evidence. She also argues that her
conviction for possession of cocaine base should be reversed
because the government failed to prove that the substance seized
was smokable cocaine base or crack cocaine; in the absence of
such proof, we may not, under United States v. Brisbane, 367
F.3d 910 (D.C. Cir. 2004), uphold the higher penalties that § 841
prescribes for crimes involving “cocaine base.” We reject both
challenges.
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* * *
The affidavit attached to the search warrant makes clear that
the search’s target was not Johnson but her co-defendant,
Melvin Lawrence, who, it showed, had been involved in drug
trafficking and had claimed to live much of the time at
Johnson’s address. Included in the March 12, 2003, affidavit’s
evidence of drug trafficking were incidents both old and new.
The old ones involved three purchases of drugs from Lawrence
by undercover officers, occurring between April and June 2002,
each for more than $1,000 cash, and each for a tan rock
substance that tested positive for cocaine. The most recent event
was a chance encounter between one of the undercover officers
and Lawrence at a gas station on February 4, 2003, a little more
than a month before the affidavit. The affidavit recounts that
Lawrence asked the officer for his cell phone number, and urged
him to “come around the way and holla at me for some more
shit.”
There was nothing so recent to connect Lawrence to
Johnson’s apartment. The affidavit said that in an interview
with the District of Columbia Pretrial Services Agency on
March 26, 2002 (almost a year before the affidavit and search),
Lawrence had given as his current addresses both his parents’
home on Ogden Street in the Northwest quadrant and Johnson’s
apartment in the Southeast. The affidavit includes two other
pieces of information linking Lawrence to Johnson’s apartment,
both undated: Lawrence called the undercover officer to cancel
a sale from a cell phone registered to Y. Johnson (“Yvette” is
Johnson’s middle name) at the 30th Street address. And on
more than one occasion, it said, investigators had observed
Lawrence walking out of the 30th Street address.
The affidavit also offered expert evidence on dealers’
practices. It said that narcotics traffickers frequently keep
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various items related to trafficking in secure locations, “most
often in the homes of the individuals involved in the
organization,” and that, in the expert’s experience, “[i]t is not
uncommon for those involved in illegal narcotics activity to use
multiple residences and/or properties to elude detection.”
In evaluating Johnson’s objections to the district court’s
denials of her motion to suppress, we review the district court’s
findings of historical fact for clear error but review the district
court’s conclusions of law de novo. See United States v.
Thomas, 429 F.3d 282, 285 (D.C. Cir. 2005) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). Like the district
court, we must accord “great deference” to the issuing official’s
determination of probable cause. See Illinois v. Gates, 462 U.S.
213, 236-237 (1983).
Johnson’s weakest objection is her argument that the
affidavit failed to connect Lawrence’s criminal activity to
Johnson’s residence. In a case similarly without direct evidence
of drug dealing or possession at the address to be searched,
United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993),
we found the affidavit sufficient, relying on expert testimony
very like that provided here—that in the affiant’s experience,
“drug dealers frequently keep business records, narcotics,
proceeds from sales, and firearms in their houses.” Id. at 1254.
Though the 30th Street dwelling wasn’t Lawrence’s sole
dwelling, the affidavit showed it to be one of two.
More compelling is Johnson’s claim that the evidence relied
upon was stale. Everything else being equal, of course, dated
information is less likely to show probable cause than fresh
evidence. In Schoeneman v. United States, 317 F.2d 173 (D.C.
Cir. 1963), we found a lack of probable cause on the date the
search warrant was issued because of the “great delay” of 107
days in between the observations of criminal activity at issue
(displaying classified documents describing the Navy’s planned
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purchases) and the application for a warrant. We objected to the
absence of any updates: “There is no allegation that the books
[containing the classified information] had not been moved in
the intervening three and one-half months or, indeed, that the
[defendant] himself had not moved.” Id. at 177. More recently,
in United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001), 109
days passed in between the last controlled drug transaction
between Webb and a government informant. When the
informant attempted to purchase more drugs just 12 days before
the swearing of the affidavit, Webb told him he didn’t have any
crack for sale. Id. at 892. We were troubled by the delay, and
in the end didn’t rule on the existence of probable cause but
relied on United States v. Leon, 468 U.S. 897 (1984), which
directs courts not to suppress evidence “obtained in objectively
reasonable reliance on a subsequently invalidated search
warrant.” Id. at 922.
Most significantly for our purposes, our decision in Webb
made clear that different kinds of information go stale at
different rates. “[E]ven if Webb did not have drugs in his
apartment at the time of the application, it would not necessarily
have been unreasonable for an officer to conclude that a
longtime drug dealer, whose most recent known deal had
occurred three months earlier, would still retain papers
permitting him to get back in touch with his customers or—as
turned out to be the case—his supplier.” 255 F.3d at 905. As
records might well be retained even during a lull in sales, there
was considerable prospect that such records would still be
available in the defendant’s dwelling even 109 days after his
most recent known sale.
Thus we agree with the district court here “that greater
lengths of time should be tolerated in assessing the staleness of
information regarding a person’s address, as opposed to their
possession of contraband, because a person’s address is often
less fluid than a person’s possession of incriminating evidence.”
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Mem. Op. (1/30/04) at 17 n.9. Whereas in Webb the most recent
information on the suspect’s drug activity was negative, here,
four and a half weeks before the affidavit, Lawrence invited the
agent to just “holla.” As the information about drug dealing was
fairly fresh, and the relatively old information related only to
Lawrence’s residence, we conclude that staleness didn’t
undermine the showing of probable cause.
Johnson’s final objection to the warrant is its
misspecification of her address. The warrant locates her
apartment in the Northwest quadrant of Washington rather than
the Southeast. While that was undoubtedly wrong, the warrant
incorporated an affidavit that used the correct address four times
but in one place substituted “Northwest” for “Southeast.”
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized” (emphasis
added). In evaluating whether a warrant satisfies the
particularity requirement in spite of an error in the description
of the place to be searched, nearly every other circuit court
considers (1) whether the description is sufficient to enable the
executing officer to locate and identify the premises with
reasonable effort, and (2) whether there is any reasonable
probability that another place might be searched mistakenly.
See, e.g., United States v. Mann, 389 F.3d 869, 876 (9th Cir.
2004); United States v. Lora-Solano, 330 F.3d 1288, 1293 (10th
Cir. 2003); United States v. Pelayo-Landero, 285 F.3d 491, 496
(6th Cir. 2002); United States v. Vega-Figueroa, 234 F.3d 744,
756 (1st Cir. 2000); Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir.
1994); United States v. Gilliam, 975 F.2d 1050, 1055 (4th Cir.
1992); United States v. Clement, 747 F.2d 460, 461 (8th Cir.
1984); United States v. Avarello, 592 F.2d 1339, 1344 (5th Cir.
1979). Where a warrant incorporates the supporting affidavit by
reference, we read the description in the warrant in the light of
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descriptions in the affidavit. United States v. Vaughn, 830 F.2d
1185, 1186 (D.C. Cir. 1987).
Neither of the relevant concerns is troubling here. A
physical description of the building accompanied the street
address on the affidavit. Furthermore, the district court found
that two members of the search team, Officers Jackson and
DiGirolamo, had been familiar with the 30th Street address for
some time before the warrant was executed and thus knew that
they were searching the correct location. Mem. Op. (1/30/04)
at 8. Officer Jackson had observed Lawrence entering and
leaving the building on several occasions. Id. at 7. Jackson also
obtained keys to the building (but not to any apartment) from the
building management company, and tested those keys to make
sure the search team would be able to approach the apartment
readily. Id. at 7-8. Finally, both officers testified that there was
no “3030 30th Street” in the Northwest quadrant of D.C.
The situation is thus quite like that of United States v.
Occhipinti, 998 F.2d 791 (10th Cir. 1993), where the warrant
identified the premises to be searched as being in a particular
area of “East Township 225 South, Section 36 of CO, KS,”
while in fact the intended site was in township “22 South.”
Upholding the search, the court relied on (1) the accuracy of the
attached supporting affidavit (which gave the correct township
number and also specified the county, which the warrant had
omitted), (2) the non-existence of any township numbered “225
South” or “25 South,” so that “a person serving the warrant
would have further reason to seek the necessary clarification in
the attached documents,” id. at 799, and (3) the familiarity with
the premises of the officer who had applied for and executed the
warrant. All three features have their analogues here and assure
us that the two risks that an address error may pose are absent.
Contrast Groh v. Ramirez, 540 U.S. 551 (2004), where the
portion of the warrant that was supposed to identify the items to
be seized instead described the house to be searched, creating a
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blatant facial gap that the affidavit, since it wasn’t incorporated,
did not correct.
* * *
Johnson challenges her conviction for possession of cocaine
base, invoking United States v. Brisbane, 367 F.3d 910 (D.C.
Cir. 2004), where we addressed an ambiguity in 21 U.S.C.
§ 841. That provision imposes higher penalties for drug crimes
involving “cocaine base” than for those involving “cocaine, its
salts, optical and geometric isomers, and salts of isomers.” 367
F.3d at 911. We found the statute ambiguous because, as a
chemical matter, “cocaine” and “cocaine base” mean the same
thing. Id.
Looking to the legislative history, we found that two
particular characteristics of crack cocaine motivated Congress
to impose higher penalties on cocaine base. First, crack cocaine
“could be smoked, making it more potent and addictive.” Id. at
913. Second, its “low cost and ease of manufacture made it
more widely available than other forms of smokable cocaine,
especially among the nation’s youth.” Id. By reference to these
criteria, we saw uncertainty for the classification of a third
category of cocaine products—those which are smokable but are
not crack cocaine—such as “‘traditional’ freebase cocaine and
cocaine paste.” Id. at 914. Because in Brisbane the government
had proved neither that the drugs in question were crack nor that
they were smokable, we were able to leave open the
classification of smokable non-crack cocaine. Either way, we
could uphold only a conviction for the lesser included offense of
distributing cocaine. Here too we need not resolve the
ambiguity, as the government adduced sufficient evidence that
the substances involved were crack cocaine to meet the plain
error standard. Because Johnson may have waived the claim
completely by failing to renew her motion for acquittal at the
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close of all the evidence, see United States v. Sherod, 960 F.2d
1075, 1077 (D.C. Cir. 1992), plain error is, of the possibly
applicable standards of review, the one most favorable to her.
Plain error allows an appellate court to vacate the
conviction for a new trial or to reverse outright where (1) there
is error (2) that is plain and (3) that affects substantial rights, and
(4) the court of appeals finds that the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993).
In inquiring into plain error we assume in Johnson’s favor
that an error under Brisbane would qualify as “plain.” In
Johnson v. United States, 520 U.S. 461 (1997), the Court
addressed the problem of law changing between trial and appeal.
In order to relieve counsel of having to raise objections clearly
precluded under existing law, the Court held that an error was
plain if the “law at the time of trial was settled and clearly
contrary to the law at the time of appeal.” Id. at 468. Cf. Olano,
507 U.S. at 734 (declining to consider what law should govern
in “the special case where the error was unclear at the time of
trial but becomes clear on appeal because the applicable law has
been clarified”). Brisbane was decided on May 11, 2004, more
than a month after the end of Lawrence’s trial. Before Brisbane
there was no law affirmatively excusing the government from
the obligation of proving that the cocaine at issue in the case was
either crack cocaine or smokable, so we are presented with the
“special case” left open by Johnson and Olano. Nonetheless, we
assume arguendo that Brisbane defines the applicable
requirement.
In United States v. Eli, 379 F.3d 1016 (D.C. Cir. 2004), a
post-Brisbane case, we found the district court’s conclusion that
the drugs at issue were crack cocaine was well-supported and
not clearly erroneous, id. at 1022, where:
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First, the government chemist testified, and Eli did not
dispute, that Eli’s drugs tested positive for cocaine base.
Second, both the Drug Enforcement Agency’s (DEA’s)
lab report and the U.S. Probation Office’s Presentence
Investigation Report (to which Eli acceded) stated that
the drugs recovered in the sales were “rock-like.” Third,
the chemist indicated that the drugs were smokable.
Finally, he concluded that the drugs were properly
identified as crack cocaine
Id. at 1021 (citations omitted).
The evidence here is similar. As in Eli, a forensic chemist
testified that the substance recovered from Johnson’s apartment
was cocaine base. (Moreover, the substance was 55% pure; Eli
notes that the typical purity of crack cocaine is between 50%
and 60%, 379 F.3d at 1021.). Second, as in Eli, officers testified
that the recovered drugs were “rock” or “white rock,” a physical
description that reflects crack cocaine. Third, a law enforcement
officer executing the search warrant testified that he found,
inside a brown basket, a “cocaine cooking kit” consisting of
Inositol, a dietary supplement that is a “fine powdery
substance”; hospital masks; a glass pot and plate with white
residue; a digital scale; a beater; and loose, empty, Ziploc bags
that were one-quarter to one-half inch in diameter. A detective
qualified as an expert in the distribution and use of narcotics
explained in some detail how each of these items could be used
to convert cocaine hydrochloride into “cocaine base or crack
cocaine.” Finally, the same expert testified that the quantity and
packaging of the drugs found in Johnson’s apartment—5.5
grams of cocaine packaged in 61 tiny Ziploc bags—were
consistent with “the typical $10 ziploc bags of crack cocaine
that’s sold on the streets.”
The case differs from Eli in that there was no evidence
about the substance’s smokability and no expert offered a
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specific conclusion that the drugs in question were crack
cocaine, although the forensic chemist did testify that the
substance was not cocaine hydrochloride or powder cocaine.
Besides that negative point, the evidence consists of many
features consistent with crack cocaine—the purity and rocklike
character of the drugs and the nature of the equipment and of the
packaging. We do not know the frequency with which each of
those features occurs with non-crack cocaine (if at all); but
under plain error the burden is on the defendant to show the
likelihood that the (supposed) error could have affected the
outcome. See Olano, 507 U.S. at 734-35. Johnson has failed to
show that such ambiguity as may remain was likely to have
adversely affected the outcome of the trial.
The judgment of conviction is
Affirmed.