United States v. Burless Anderson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_______________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11099 October 24, 2005
_______________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00559-CR-JTC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BURLESS ANDERSON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(October 24, 2005)

Before DUBINA, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
Defendant-Appellant, Burless Anderson, appeals his conviction for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On appeal,

Anderson argues that the district court erred in denying his motion to suppress

firearms and ammunition found at his home because the affidavit submitted in

support of the search warrant was insufficient to establish probable cause. For the

reasons that follow, we affirm.

I. Background

The affidavit submitted in support of the search warrant in this case reveals the

following facts. Bureau of Alcohol, Tobacco and Firearms Agent Lee Clinard was

conducting surveillance when she observed a brown Lincoln Towncar with license

2685 ALE that appeared to be engaged in a drug transaction. The car was registered

to Burless Anderson. Upon obtaining this information, Clinard went to Anderson’s

home and collected evidence from the trash can at the curb, including three syringe

wrappers, three syringes, and three metal containers that appeared to have been

heated on the bottom. Clinard also found a tissue spotted with blood inside one of

the metal containers and, in another, a piece of cotton that tested positive for heroin

in a field test. Based on Clinard’s experience, she associated these items with the use

of heroin. The same trash can in which she found the above items also contained

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portions of an insurance bill addressed to Anderson. Clinard saw the brown Lincoln

Towncar in the driveway.

The following day, Atlanta police observed Anderson in an open-air drug

market speaking with men the police identified as known drug dealers. Clinard

performed a criminal history check on Anderson and found that he had numerous

felony convictions, many of which involved drugs. Clinard included all of the above

information in an affidavit that she submitted to the magistrate judge. The judge

found the affidavit sufficient and issued a warrant to search Anderson’s home. When

police executed the warrant, they found three firearms and several rounds of

ammunition.

At a hearing on the motion to dismiss, Clinard testified that while engaging in

routine surveillance, she observed Anderson’s car in a known drug area. She further

testified that she conducted a search of the trash can placed outside his home about

a week after she observed him in his towncar. She described the items she discovered

in his trash can as well as the positive results of the heroin test she ran on one of the

pieces of cotton or cloth that she found. Clinard admitted, however, that she had not

obtained any fingerprints from the syringes she found.

In his post-hearing brief, Anderson asserted that the affidavit was insufficient

because it did not establish a link between himself, the evidence, and his home. He

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claimed that the evidence Clinard found did not demonstrate either that he had drugs

in his home or that he had purchased drugs. He further argued that if the affidavit

were insufficient, officers failed to act in an objectively reasonable manner, and,

therefore, the “good faith” exception did not justify the search of his home.

The government responded that, taking into account the totality of the

circumstances, the evidence found in the trash can and through surveillance

established a reasonable probability that there were drugs in the house. The

government further asserted that, even if the affidavit was deficient, officers acted in

good faith based on an objectively reasonable belief that probable cause existed for

the search.

The magistrate judge recommended denying the motion to suppress because

the affidavit was sufficient to establish probable cause or, in the alternative, the good

faith exception would apply under these circumstances. The district court adopted

the magistrate judge’s recommendation over Anderson’s objections, and Anderson

entered a conditional guilty plea, reserving his right to appeal the court’s ruling on

the motion to suppress. The district court accepted the guilty plea and sentenced

Anderson to 84 months imprisonment. He now appeals.

II. Standard of Review

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We review the district court's determination of whether an affidavit established

probable cause de novo. United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.

2000). But we “take care both to review findings of historical fact only for clear error

and to give due weight to inferences drawn from those facts by resident judges and

local law enforcement officers.” Id. (citation omitted). Importantly, when reviewing

a district court’s judgment on a motion to suppress, we construe the facts “in the light

most favorable to the prevailing party.” United States v. Gordon, 231 F.3d 750, 754

(11th Cir. 2000). We also “review[] de novo whether the Leon good faith exception

to the exclusionary rule applies to a search, but the underlying facts upon which that

determination is based are binding on appeal unless clearly erroneous.” United States

v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002).

III.

The Fourth Amendment to the U.S. Constitution provides that “no Warrants

shall issue, but upon probable cause....” U.S. Const. Amend. IV. In order to obtain

a warrant, police must establish that there is probable cause to believe they will find

contraband or evidence at a particular location. See, e.g., United States v. Brundidge,

170 F.3d 1350, 1352 (11th Cir. 1999). This requires that the affidavit submitted in

support of the warrant application proffer sufficient facts such that “under the totality

of the circumstances ‘there is a fair probability that contraband or evidence of a crime

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will be found in a particular place.’ ” United States v. Goddard, 312 F.3d 1360, 1363

(11th Cir.2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332,

76 L.Ed.2d 527 (1983)). Specifically, the affidavit should “establish a connection

between the defendant and the residence to be searched and a link between the

residence and any criminal activity.” United States v. Martin, 297 F.3d 1308, 1314

(11th Cir. 2002). We look to the face of a particular affidavit to evaluate whether the

affidavit was “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Id. at 1313 (citation omitted).

Anderson argues that the affidavit submitted to obtain a warrant to search his

home failed to establish probable cause because it contained no evidence that drugs

were stored in his home or that he had purchased drugs. Considering the totality of

the circumstances, however, the affidavit was sufficient to establish probable cause,

as it demonstrated a link between Anderson, his home, and illegal activity. The

affidavit listed a variety of evidence, including syringes and other evidence

consistent with heroin use, that Clinard found in a trash can outside of Anderson’s

residence. One piece of evidence Clinard collected, a piece of cotton or cloth, tested

positive for heroin in a field test. The affidavit also stated that Clinard found bills

addressed to Anderson in that same trash can, and the police subsequently observed

Anderson in an open-air drug market speaking with men the police identified as

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known drug dealers. Furthermore, the police performed a criminal history check on

Anderson that revealed numerous felony convictions, many of which involved drugs.

In contrast to cases like United States v. Flanagan, 423 F.2d 745 (5th Cir.

1970), and United States v. Lockett, 674 F.2d 843 (11th Cir. 1982), where courts held

searches of the defendants’ homes unreasonable, the evidence outlined in the affidavit

in the instant case established a clear nexus between Anderson’s home and the illegal

activity. Accordingly, the observations and evidence described in the affidavit are

more than adequate to establish probable cause to believe that illegal controlled

substances would be found in Anderson’s home.

Because we hold that the district court did not err in denying Anderson’s

motion to suppress, we need not consider whether the search of his home falls within

the Leon good faith exception.

For the foregoing reasons, the judgment of the district court is AFFIRMED.