United States v. Biglow

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.

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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.

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