United States Court of Appeals
For the First Circuit
No. 08-1359
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD RODRIGUE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, John R. Gibson,* and Howard,
Circuit Judges.
Leonard I. Sharon and Sharon Leary & DeTroy, on brief for
appellant.
Paula D. Silsby, United States Attorney and Margaret D.
McGaughey, Appellate Chief on brief for appellee.
March 13, 2009
*
Of the Eighth Circuit, sitting by designation.
HOWARD, Circuit Judge. In this appeal from a criminal
conviction following a jury trial, appellant Richard Rodrigue
asserts that the district court erred in denying his motion to
suppress evidence seized pursuant to a state search warrant. His
sole argument on appeal is that the affidavit submitted by law
enforcement in support of the requested search warrant failed to
establish probable cause. For the reasons that follow, we affirm.
I. BACKGROUND
The relevant background facts, gleaned from the affidavit
of Deputy Guy E. Dow of the Piscataquis County (Maine) Sheriff’s
Department (the “Sheriff’s Department”), are undisputed. On May
24, 2002, Agent Jon Richards of the Maine Drug Enforcement Agency
notified the Sheriff’s Department that he had seen a large rental
truck on a back logging road. The next day, Sheriff’s Deputy
George McCormick investigated the report and followed tire tracks
to a large quantity of Pro-Mix brand potting soil deposited at the
end of the dead-end road. Two days later, Agent Richards informed
Deputy McCormick of another large deposit of potting soil nearby,
and two days after that, while surveying the area from an airplane,
Deputy McCormick spotted a large marijuana cultivation site. Also
visible from the air was a red car parked at the end of a road near
the site. Later the same day, while surveying the logging road
from the ground, Deputy McCormick observed a similar red car
bearing a Maine license plate emerging from the area. According to
-2-
the Maine Department of Motor Vehicles (“DMV”) records, the license
plate was listed to a white Chevrolet Caprice, and it had expired
in 2001.
The following day, May 30, 2002, Deputy McCormick and a
colleague returned to the logging road to photograph the potting
soil, which had not been disturbed. They then proceeded to the
cultivation site, where they observed a roughly 300 square-foot
growing area with Pro-Mix potting soil distributed across it, and
approximately 100 marijuana plants still in containers. Also
present at the cultivation site was an unregistered white Polaris
all-terrain vehicle (“ATV”). A path suitable for the ATV led from
the cultivation site to the location on the logging road where the
original deposit of potting soil had been discovered.
On June 1, 2002, Deputy McCormick located a maroon Subaru
station wagon approximately five miles from the cultivation and
deposit sites that bore the same Maine license plate number as the
red car he spotted on the logging road three days earlier. Deputy
Dow could see loose potting soil, which he identified as Pro-Mix,
in the rear of the car. He also observed that both front tires of
the car were flat.
Two days later, on June 3, 2002, Deputy McCormick and a
colleague returned to the cultivation site and observed that the
marijuana plants had not yet been transplanted from their
containers, but that the ATV had been moved. The following day,
-3-
Deputy McCormick inspected the Subaru and saw that the license
plate had been removed. He also observed a red gasoline can and
two spare tires in the rear of the station wagon.
On June 6, 2002, Deputy McCormick and a colleague again
visited the Subaru and the soil deposit site on the logging road.
The Subaru’s tires had been replaced and the license plate was
still missing, and the amount of potting soil on the logging road
was significantly reduced. As the officers left the deposit site,
they passed a small black Volkswagen truck driving towards the
deposit site bearing a license plate registered to Rodrigue. A
short time later, the truck exited the area loaded with Pro-Mix
potting soil; the officers attempted to follow the truck but soon
lost it. They checked the cultivation site and observed that while
the marijuana plants were still not transplanted, the ATV was no
longer parked at the site.
The next day, Deputy McCormick and two of his colleagues
decided to confiscate the marijuana plants. Upon arriving at the
cultivation site, they observed that the marijuana had been removed
from the containers and planted in the soil. They dug up and
confiscated 85 plants and some of the Pro-Mix from the site. The
lot numbers from this Pro-Mix matched the lot numbers from the Pro-
Mix observed earlier at the deposit site.
That same day, a black Volkswagen truck and a white
Polaris ATV were reported parked at a campsite at Knight’s Landing
-4-
on Schoodic Lake.1 When Deputy Dow visited the campsite on June
10, 2002, he determined that the ATV parked behind the campsite was
“very similar” to the one depicted in pictures from the cultivation
site, and that the license plate on the black Volkswagen truck
matched the license plate on the black Volkswagen truck that had
been observed hauling Pro-Mix on the logging road. With this
information collected, Deputy Dow prepared an affidavit in support
of an application for a warrant to search the campsite for, inter
alia, marijuana, drug paraphernalia and the ATV.
The application was filed the next day, and a state
district court judge concluded that probable cause existed and
therefore issued the warrant. The ensuing search at Knight’s
Landing resulted in the seizure of marijuana plants. Rodrigue, who
was asleep inside the camp at the time of the search, was
subsequently charged with five criminal counts of violating federal
drug laws. After a jury trial, he was convicted of three of the
charges, viz., conspiracy to possess with intent to manufacture and
distribute 100 or more marijuana plants, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2 (Count I);
manufacture and possession with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. §
2 (Count II); and use of a firearm during and in relation to, or
1
The campsite included a small, permanent housing structure, which
was subject to the search in question.
-5-
possessing a firearm in furtherance of, the commission of the
offenses outlined in Counts I and II, in violation of 18 U.S.C. §
924(c)(1)(A)(i).2
Before trial, Rodrigue moved to suppress all evidence
seized pursuant to the state search warrant, asserting that there
was no probable cause to support the warrant, and also that the
officers violated the “knock and announce” rule of the Fourth
Amendment. The magistrate judge recommended denying the motion on
both grounds. In determining whether there was a sufficient nexus
between the marijuana growing operation and the camp to support the
probable cause determination, the magistrate judge focused on the
fact that the black Volkswagen truck and the white Polaris ATV were
seen parked adjacent to the camp on two separate occasions
Describing the case as a “close call,” and citing United States v.
Barnard, 299 F.3d 90, 93 (1st Cir. 2002), for the proposition that
“in a doubtful or marginal case, the court defers to the issuing
magistrate’s determination of probable cause,” the magistrate judge
recommended that the district court defer to the state court's
“common-sense” conclusion. The district court adopted the
magistrate judge's factual findings and accepted without discussion
2
Rodrigue was ultimately sentenced to sixty months incarceration on
each of the first two counts, to be served concurrently, and sixty
months for the third count, to be served consecutively, for a total
of 120 months incarceration, followed by four years of supervised
release. The other two counts from the original indictment were
dismissed on the government’s motion.
-6-
the conclusion that the warrant was supported by probable cause.3
United States v. Sherman, 344 F. Supp. 2d 223, 227 n.3 (D. Me.
2004). Evidence of the seized marijuana plants was introduced at
trial.
II. LEGAL STANDARDS
“In reviewing the district court's denial of a
defendant’s motion to suppress, we review the district court’s
finding of fact for clear error and its legal determinations,
including whether a particular set of facts constitutes probable
cause, de novo.” United States v. Dickerson, 514 F.3d 60, 65-66
(1st Cir. 2008) (citing United States v. Woodbury, 511 F.3d 93, 95
(1st Cir. 2007)).
“A warrant application must demonstrate probable cause to
believe that (1) a crime has been committed – the ‘commission’
element, and (2) enumerated evidence of the offense will be found
at the place to be searched - the so-called ‘nexus’ element.”
United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005) (quoting
United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)) (internal
quotation marks omitted). With regard to the “nexus” element,
3
The district court rejected the magistrate judge’s other
recommendation, concluding that there had been a violation of the
knock and announce rule that required suppression of the evidence
seized. After an interlocutory appeal, we vacated the suppression
order on the basis of the Supreme Court’s decision in Hudson v.
Michigan, 547 U.S. 586 (2006), which was decided during the
pendency of the government’s appeal. United States v. Sherman, No.
05-1458 (1st Cir. October 12, 2006) (unpublished order).
-7-
which is the only issue in dispute here, “a magistrate has 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 49 (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). “Put differently, the
application must give someone of ‘reasonable caution’ reason to
believe that evidence of a crime will be found at the place to be
searched.” Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)
(plurality op.)). “The probable-cause nexus between enumerated
evidence of the crime and the place ‘can be inferred from the type
of crime, the nature of the items sought, the extent of an
opportunity for concealment and normal inferences as to where a
criminal would hide [evidence of a crime].’” Id. (quoting United
States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979)).
III. ANALYSIS
Rodrigue’s sole challenge on appeal is his assertion that
Deputy Dow’s affidavit did not establish a sufficient nexus between
the marijuana plants and the campsite. Specifically, he argues
first that there was no direct evidence linking criminal activity
to Rodrigue’s residence, and second that the indirect evidence
could not support the inference that evidence of marijuana
cultivation would be found there. We disagree.
-8-
The factual recitation in the affidavit is sufficient to
establish the required nexus between the marijuana cultivation and
the campsite. Two vehicles were observed at the areas associated
with the illegal marijuana cultivation. One of the vehicles, the
truck, was observed hauling the potting soil initially observed at
the deposit site on the logging road and later spread on the
cultivation site. The other vehicle, the ATV, was observed at the
cultivation site on multiple occasions. On two later occasions,
these vehicles were observed parked at the campsite. The
identification of these vehicles was carefully done: the vehicles’
makes and colors were matched using prior reports from Deputy
McCormick and photographs taken at the cultivation site (each of
which were attached to the warrant application), and the truck’s
license plate was matched to a prior report from Deputy McCormick,
which also noted his having observed the truck hauling Pro-Mix away
from the deposit site. Deputy Dow’s affidavit also included his
opinion, based on his training and experience in investigating
marijuana cultivation schemes, that drug traffickers commonly kept
evidence of drug trafficking in their vehicles, at the cultivation
sites, or at their homes. The state court judge was entitled to
give weight to the opinions of a trained investigator such as Dow.
See Feliz, 182 F.3d at 87. Based on the totality of the
circumstances, see Gates, 462 U.S. at 238, it was reasonable for
the state court judge to conclude that the campsite was connected
-9-
to the illegal marijuana cultivation, and that there was a fair
probability that evidence of that activity, including marijuana
plants, would be found inside. This case is therefore not one of
speculative inferences piled upon inferences, as Rodrigue would
have us believe. Rather, this is a case where the affidavit
recited facts establishing a clear and substantial connection
between the illegal activity and the place searched; whatever
inferences were required to find probable cause, they were
reasonable.
Rodrigue’s arguments to the contrary are unpersuasive.
His argument that “the evidence fails to establish . . . that
Rodrigue was engaged in criminal activity and that he lived at the
Knight’s Landing camp” is beside the point. The probable cause in
this case did not depend on the connection between a person and the
illegal marijuana cultivation (although clearly someone drove the
vehicles and cultivated the marijuana), but rather on the
connections between the cultivation and the campsite. All that was
required was “a fair probability that contraband or evidence of a
crime will be found in a particular place,” Gates, 462 U.S. at 238;
Rodrigue’s relationship to the campsite was neither here nor there
for purposes of establishing probable cause to search for
marijuana. See Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978)
(“Under existing law, valid warrants may be issued to search any
property . . . at which there is probable cause to believe that
-10-
fruits, instrumentalities, or evidence of a crime will be found.”);
id. at 556-57 n.6 (endorsing the view, expressed in Wayne R.
LaFave, Search and Seizure: “The Course of True Law . . . Has Not
. . . Run Smooth,” 1966 U. Ill. L.F. 255, 260-61 (1966), that “a
search warrant may be issued on a complaint which does not identify
any particular person as the likely offender. . . . [I]t need not
identify the person in charge of the premises or name the person in
possession or any other person as the offender” (internal quotation
mark omitted)); see also, e.g., Hunnewell v. United States, 923
F.2d 839, 1990 WL 254067, at *1 (1st Cir. 1990) (unpublished per
curiam table decision) (same); United States v. McNally, 473 F.2d
924, 941 (3d Cir. 1973) (“[P]robable cause might well be
established to suspect that illegal activity, evidence thereof or
contraband, was at a given location without implicating any
particular person.”).
Similarly, the cases Rodrigue relies upon dealing with
the search of a suspect’s residence, such as United States v.
Keene, 341 F.3d 78 (1st Cir. 2003), and Feliz, 182 F.3d 82, are all
inapposite. Those cases deal with searches justified by a
suspect’s connection to a place, whereas the place searched in this
case, the campsite, was itself connected to the marijuana
cultivation by way of the vehicles.
Rodrigue’s other arguments are no more compelling. The
fact that the affidavit omitted the actual distance between the
-11-
deposit site and the cultivation site was not of consequence under
the circumstances. The affidavit recited facts indicating that the
sites were likely related to the same illegal cultivation
operation, as bags of Pro-Mix with identical lot numbers were found
at both the deposit and cultivation sites, and an ATV path
connected the two. Whether the sites were near or far does nothing
to undermine their clear relationship to each other, or to the
vehicles observed at each location and then later at the campsite.
Moreover, even if distance were somehow relevant, a judicial
officer could reasonably have inferred from the affidavit that the
sites were sufficiently close to each other. The affidavit
described the officers’ visits to both sites in a single day and
observed that the sites were close enough to each other for an ATV
to traverse the distance. The affidavit also incorporated a map of
the area depicting all of the relevant cultivation and deposit
sites. That map, although ambiguous as to precise distances, at
least indicated that the deposit and cultivation sites were in the
same general area.
Rodrigue’s reliance on United States v. Carpenter, 317
F.3d 618 (6th Cir. 2003) is also inapposite. That case, like this
one, involved a cultivation site observed from the air and clear
connections between the cultivation site and the place searched --
in Carpenter, the connection was a path beaten from the site to the
back door of the house eventually searched, and known occupants of
-12-
the house traversing the path. In ruling the affidavit
insufficient to support a determination of probable cause, however,
the Sixth Circuit focused not on the underlying facts, but on the
summary nature of the affidavit:
Although the affidavit states [the affiant’s] belief that
contraband would be found in the residence, it fails to
set forth the facts supporting that belief. There was no
mention of the beaten paths leading to the backdoor of
the residence. There was no reference to any Defendant
being near the marijuana. There was no reference to any
knowledge that the residence had been used in any manner
to facilitate the manufacture of marijuana or that any
drugs or drug paraphernalia had been seen in or around
the residence.
Id. at 622. And notably, the Sixth Circuit went on to suggest
that, if referred to in the affidavit, the path itself would have
been enough to create the necessary nexus: “Of course, had the
affidavit properly referred to the beaten path leading from the
back door of the residence to the marijuana patches, a much
stronger nexus between the two would have been established.” Id.
at 623. Deputy Dow’s affidavit carefully states facts supporting
a probable cause finding, with particular attention to the nexus
between the illegal marijuana cultivation and the campsite. His
affidavit is sufficient, and Carpenter is not to the contrary.
Rodrigue’s reliance on United States v. Lalor, 996 F.2d
1578 (4th Cir. 1993), and United States v. Danhauer, 229 F.3d 1002
(10th Cir. 2000), is misplaced for the same reason. The affidavit
in Lalor was deemed “devoid of any basis from which the magistrate
could infer that evidence of drug activity would be found at [the
-13-
search location]” because, inter alia, it “does not describe
circumstances that indicate such evidence was likely to be stored
at Lalor's residence”; the Fourth Circuit therefore concluded that
“the magistrate was given no basis for making a judgment concerning
this aspect of probable cause.” 996 F.2d at 1582-83. Similarly,
the affidavit in Danhauer was deemed defective because it omitted
facts tending to support the most crucial allegation in the case,
namely an informant’s claim that the defendants were manufacturing
methamphetamine, and because it was “replete with repetitive and
tenuous facts” and therefore did not “provide [the] magistrate with
a sufficient basis for drawing a reasonable inference that a search
would uncover evidence of criminal activity.” 229 F.3d at 1006.
As explained above, Deputy Dow’s affidavit contains no such defect.
Finally, even assuming arguendo that this might be a
close case, the district court properly deferred to the state court
judge’s practical, common-sense probable cause determination. See
Ribeiro, 397 F.3d at 48-49; Barnard, 299 F.3d at 93.4
Affirmed.
4
Because we find that the suppression motion was properly denied on
probable cause grounds, we do not reach the question of whether the
“good faith” exception to the exclusionary rule applies. See
United States v. Leon, 468 U.S. 897, 922 (1984).
-14-