United States v. Dixon

United States Court of Appeals
For the First Circuit

No. 14-1124

UNITED STATES OF AMERICA,

Appellee,

v.

SAMUEL DIXON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Crystal S. Yang, Special Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.

May 22, 2015
 HOWARD, Circuit Judge. Defendant Samuel Dixon was

convicted of being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g)(1) after police

executed a search warrant for his apartment and found a pistol and

eight rounds of ammunition. Dixon appeals his conviction on

several bases. First, he argues that the affidavit used to support

the search of his person and apartment was insufficient to

establish probable cause and so the trial court erred in denying

his motion to suppress. Second, he argues that his conviction

violates the Commerce Clause because the government did not prove

the interstate commerce element of the felon-in-possession charge

and so the court erred in denying his motion for judgment of

acquittal. Third, he argues that the district court's jury

instructions concerning the interstate commerce element were

erroneous. We find no merit in his arguments and affirm.

I.

On February 11, 2011, Boston Police Detective Michael

Ross filed an affidavit in support of two search warrants: one for

Dixon's person and one for 12 York Street, Apartment 1 in the

Dorchester neighborhood of Boston. The affidavit first recounted

Detective Ross's extensive experience with drug investigations,

then detailed his investigation into a suspected drug trafficking

scheme in the Dorchester/Roxbury area.

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 The affidavit noted that Ross had received information

from a confidential informant (CI) "[w]ithin the last few months"

that a black male with short hair who was approximately forty years

old, six feet tall, and 200 pounds was selling crack cocaine in

that area. The CI had purchased crack cocaine from that man in the

past. The CI provided Ross with the phone number he had used to

contact the suspect and purchase drugs. The CI also told Ross that

the suspect drove a red Ford SUV.

The affidavit stated that this CI had provided Ross's

unit with "reliable information in the past that ha[d] led to the

arrests and convictions of individual(s) for violation of the drug

laws and also the seizure of drug(s), money, firearm(s) and

ammunition." Ross explained that he had intentionally excluded

details about those prior investigations from the affidavit in

order to protect the CI from harm and ensure that the Boston police

would be able to "cultivate future informants."

The affidavit then detailed a series of controlled buys

during which the CI had purchased what appeared to be drugs from

the suspect. During the first controlled buy, which took place

"[w]ithin the last few months," officers searched the CI to

establish that he was free of contraband or money, then had him

call the suspect to arrange a purchase. Officers provided the CI

with money, and the CI then proceeded to a "meet location." The

police followed the CI and observed the suspect's arrival.

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Officers watched the suspect make an exchange with the CI following

a brief conversation and then followed the suspect to York Street

in Dorchester. The CI reconvened with Ross and gave him the

substance that he had purchased. Ross's "training and experience

led [him] to believe the items(s) handed to [him] by [the CI] was

a quantity of crack cocaine."

Two additional, nearly identical controlled buys were

conducted, one "[w]ithin the last couple of months" and one

"[w]ithin the last ninety-six hours." Before the latter two buys,

officers followed the suspect from 12 York Street to the meet

location and also followed him back to York Street after the

transaction concluded. The affidavit did not say that the officers

saw an exchange between the CI and the suspect during either of the

later buys, but afterward the CI handed Ross a substance that Ross

believed was crack cocaine.

The affidavit described other efforts to confirm the CI's

information. After the first controlled buy, Ross observed a red

Ford Expedition, matching the CI's description of the suspect's

vehicle, parked in the driveway at 12 York Street. Ross ran the

Ford's plates and determined that it belonged to a man named Samuel

Dixon, age 43, with an address of 12 York Street, Apartment 1.

With that name in hand, Ross obtained a photograph of Dixon, and

the CI identified him as the person from whom he had purchased

cocaine. Dixon's driver's license listed his address as 12 York

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Street, Apartment 1, and Ross observed Dixon driving the red Ford

SUV in the area on several occasions. Ross also called the

telephone number that the CI had provided, which directed him to

the voicemail of "Mr. Dixon." Finally, Ross confirmed with the

area utility provider that Dixon was the listed subscriber at 12

York Street, Apartment 1, with a phone number matching the one the

CI had provided.

As to Dixon's apartment, the affidavit stated that, based

on Ross's "training and experience" and the three controlled buys,

and based on his observations of Dixon "entering and/or exiting 12

York St. . . . before and/or after the purchases of crack cocaine,"

Ross believed Dixon was "conducting a delivery service of crack

cocaine" and using his apartment "as his base of operation." Ross

"believe[d] items used in the cooking, packaging and sale of crack

cocaine" would be found there.

The two warrants were issued on February 11, 2011, and

executed on February 16, 2011. Police stopped Dixon in his Ford

Expedition less than a mile away from 12 York Street and informed

him of the warrant. They searched Dixon, found no contraband, and

took him to his apartment. Once there, the officers gave Dixon

Miranda warnings and asked him if there were drugs or firearms in

the apartment. He told them that there were drugs in his dresser

and a firearm in either a toilet or his closet. The officers

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searched these locations and found drugs, drug paraphernalia, a

firearm, and ammunition.

Dixon was charged with possession with intent to

distribute cocaine, see 21 U.S.C. § 841(a), and being a felon in

possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1).

He moved to suppress the fruits of the search on the same grounds

he raises here -- that the affidavit lacked sufficient facts to

satisfy the probable cause requirement -- but the district court

denied the motion.1 Dixon was tried on the firearm charge and

convicted by a jury.2 This appeal followed.

II.

Our review of a district court's denial of a motion to

suppress is plenary. United States v. McCarthy, 77 F.3d 522, 529

(1st Cir. 1996). Where our independent assessment of a suppression

motion requires us to review the sufficiency of an affidavit

supporting a search warrant, however, we afford an ample amount of

deference to the issuing magistrate's finding of probable cause.

See United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005); see

also Illinois v. Gates, 462 U.S. 213, 236 (1983) ("[W]e have

repeatedly said that after-the-fact scrutiny by courts of the

sufficiency of an affidavit should not take the form of de novo

1
Dixon also moved for a Franks hearing. On appeal he does
not challenge the district court's denial of that motion.
2
The government dismissed the drug charge before trial.

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review."). Accordingly, we will reverse "the magistrate judge's

initial evaluation . . . only if we see no substantial basis for

concluding that probable cause existed." Ribeiro, 397 F.3d at 48

(internal quotation marks omitted).

"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 searched -- the so-called 'nexus' element." United

States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). "Where, as here,

the basis for the magistrate's probable cause finding was

information provided by an unnamed information, the affidavit must

provide some information from which the magistrate can assess the

informant's credibility." United States v. Greenburg, 410 F.3d 63,

67 (1st Cir. 2005).

Our inquiry is a "practical, common-sense" one, Feliz,

182 F.3d at 86 (quoting Gates, 462 U.S. at 238), that takes into

account the "totality of the circumstances," United States v.

Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (internal quotation

marks omitted). "[T]he facts presented to the magistrate need only

'warrant a man of reasonable caution' to believe that evidence of

a crime will be found." Feliz, 182 F.3d at 86 (quoting Texas v.

Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). "Probable

cause does not require either certainty or an unusually high degree

of assurance." United States v. Clark, 685 F.3d 72, 76 (1st Cir.

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2012). Rather, "[p]robability is the touchstone." Khounsavanh,

113 F.3d at 283 (quoting United States v. Aguirre, 839 F.2d 854,

857 (1st Cir. 1988)) (internal quotation marks omitted).

Dixon's basic argument is that the affidavit was not

specific enough as to the informant's reliability or the

conclusions that Dixon had committed a crime or that drugs would be

found at the York Street apartment. He also faults the failure to

do a field test.

We are satisfied that Ross's affidavit was sufficient to

provide probable cause as to both the commission and nexus

elements. The affidavit provided numerous facts from which a

magistrate could have easily concluded that the CI who advised Ross

of Dixon's illegal drug sales was credible. First, Ross "met with

the informant in person on several occasions. . . . This sort of

face-to-face contact between the agent and informant supports the

informant's reliability." Greenburg, 410 F.3d at 67. Second, the

CI had given Ross fruitful tips in the past. See, e.g., United

States v. Tiem Trinh, 665 F.3d 1, 10-11 (1st Cir. 2011). Third,

because of Ross's extensive contact with the CI, Ross would have

been able to hold the CI responsible had he provided false

information, which created an incentive for the CI to tell the

truth. See id.; Greenburg, 410 F.3d at 67. Fourth, the CI, in

describing his purchases from Dixon, provided "[a] specific, first-

hand account of possible criminal activity" -- "a hallmark of a

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credible tip" -- and in doing so "implicated himself in the

wrongdoing." Greenburg, 410 F.3d at 67-68.

Fifth, Ross independently corroborated facts that he had

learned from the CI. "'[C]orroboration of even innocent activity

reported in the tip may support a finding of probable cause.'" Id.

at 69 (alteration in original) (quoting United States v. Perez, 67

F.3d 1371, 1383 (9th Cir. 1995)). Here, not only did Ross

corroborate innocent facts about Dixon -- such as, for example, his

phone number and the type of car he drove -- he also corroborated

the CI's statement that Dixon sold drugs through the three

controlled buys, which were carefully monitored and regulated to

minimize the chance that the CI could have falsely implicated

Dixon. "[A] properly conducted controlled buy is formidable

evidence to support a search." United States v. Genao, 281 F.3d

305, 308 (1st Cir. 2002). A field test of the substance suspected

to be illegal drugs is not per se required. See United States v.

Dessesaure, 429 F.3d 359, 368-69 (1st Cir. 2005).

Finally, Ross was highly experienced in the drug

trafficking field, having participated in over 1000 drug

investigations during his sixteen-year tenure in the Boston police

Department. "[T]he issuing judge making a probable cause

determination 'may credit the experience and pertinent expertise of

a law enforcement affiant in evaluating the authenticity of the

informant's description of the target's modus operandi.'" Tiem

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Trinh, 665 F.3d at 12-13 (quoting United States v. Taylor, 985 F.2d

3, 6 (1st Cir. 1993)). Ross's extensive experience buttresses our

conclusion that the magistrate reasonably found that the CI's

information was reliable. See id.

The magistrate judge did not err in concluding that there

was a reasonable probability that evidence of Dixon's criminal

activity would be found at 12 York Street, Apartment 1.3 Dixon was

registered for utilities there, his driver's license listed that

address as his residence, and Ross saw him driving around the

residence on numerous occasions. In drug cases, there is often

probable cause to believe that evidence of the crime will be found

where the suspected drug dealer lives, at least where, as here,

"[n]o other residence or drug-dealing headquarters of [the

defendant's has been] identified." See Feliz, 182 F.3d at 88.

Here there is even more. Officers observed Dixon returning to 12

York Street immediately after all three controlled buys and

observed him leaving there to go to the last two controlled buys.

There was ample probable cause to believe that Dixon kept drug-

related materials at his York Street apartment. See Ribeiro, 397

F.3d at 52.

Dixon protests that the affidavit "reported no

observations of [him] carrying anything from or into the building"

3
Dixon does not challenge the nexus between Ross's affidavit
and the warrant to search his person.

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and "contained no observations of [him] engaging in other

activities deemed to be drug related in or in the vicinity of" his

apartment. But the probable cause inquiry requires only a "fair

probability" -- not certainty -- that evidence of a crime will be

found in a particular location. See, e.g., Feliz, 182 F.3d at 86

(citation omitted).

The court correctly denied the motion to suppress.4

III.

Dixon also argues that the government did not establish

the interstate commerce element of the felon-in-possession charge

because the district court erred in instructing the jury on that

element. But, as Dixon candidly concedes, his arguments are

squarely foreclosed by our precedent in United States v. Corey, 207

F.3d 84 (1st Cir. 2000). He raises them only to preserve them for

further review.

Under Corey, Section 922(g) requires only that a

defendant have possessed a firearm in a state other than the one in

which it was manufactured, id. at 88 -- that is, that the defendant

have possessed a firearm that has crossed state lines at some

point. See also Scarborough v. United States, 431 U.S. 563, 577

4
Below, Dixon also filed a motion to suppress statements he
made to police while detained during the execution of the search
warrants. On appeal, he only cursorily challenges those statements
as the tainted fruits of his arrest and the subsequent searches.
Because probable cause existed, however, this argument necessarily
fails.

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(1977) (finding that an earlier version of § 922(g) embodied only

a "minimal nexus requirement"). The district court instructed the

jury accordingly, and the government presented evidence at trial

that the gun found in Dixon's home in Massachusetts was

manufactured in Ohio and the ammunition was manufactured in either

Connecticut or Arkansas. The instructions were correct and the

government met its burden. No more was required.

IV.

We affirm the judgment of the district court.

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