United States v. Charles Edward Deering ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 20, 2008
No. 08-11244 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00023-CR-1-SPM-AK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES EDWARD DEERING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 20, 2008)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Charles Edward Deering appeals his conviction on one count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). After review, we affirm.
I. BACKGROUND
A. Application for Search Warrant
After receiving information from a confidential source (“CS”), special agent
Victor D. Washington started an investigation into the unlawful possession of
firearms by Deering, a convicted felon.1 As part of the investigation, Agent
Washington spoke with the CS on “several occasions” between April 2, 2007, and
April 30, 2007.
The CS told Agent Washington she had observed firearms and ammunition
inside Deering’s residence on several occasions during the prior three months and
as late as February 15. The CS described one firearm as a rifle with a brown
wooden stock and a dark colored barrel. The CS stated that this rifle was kept
against a wall by the front door and that Deering described the rifle as a “‘.22
caliber rifle.’” The CS saw a second firearm on the couch in the living room,
which the CS described as a “‘stainless steel,’” bottom-loading firearm “‘with a
black handle.’” The CS stated that Deering described this firearm as a “‘Russian
.380 caliber pistol.’” The CS observed a third firearm in the bedroom that had a
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The CS requested anonymity based on fear of reprisal or injury. The record contains Agent
Washington’s detailed affidavit of what occurred.
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brown wooden stock and a gray barrel that had been cut down to approximately
eight or ten inches in length. Deering described this firearm to the CS as a
“‘rifle.’” From a firearms manual procured by Agent Washington, the CS
subsequently identified two firearms as firearms similar to the ones the CS saw in
Deering’s residence.
The CS also observed several boxes containing various sizes of ammunition
inside Deering’s residence. The CS heard Deering target shooting at the residence
and saw shell casings in the front and back yards. The CS described the premises
as large enough to target shoot without disturbing, or being seen by, neighbors.
The CS provided Agent Washington with this information: (1) Deering’s
birthdate, Social Security number, physical description, address and telephone
number; (2) his wife’s name and description; and (3) a description of his residence,
his dog (including the dog’s name), and his vehicles. The CS told Agent
Washington that Deering: (1) had a prior conviction for aggravated battery; (2) had
been arrested for battery, kidnaping, and possession of marijuana; (3) had
physically abused his wife; (4) claimed he had served in the Army and been
employed as a deputy with the Levy County Sheriff’s office; and (5) had his
driver’s license revoked.
Another law enforcement officer informed Agent Washington that
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information matching Deering’s date of birth, general description, and address
indicated Deering had an expired driver’s license, as well as two vehicles and a
motorcycle registered in his name. In investigating the information provided by
the CS, Agent Washington learned Deering: (1) had been arrested for, inter alia,
battery, kidnaping, possession of marijuana, and battery domestic violence; (2) had
worked as a deputy with the Levy County Sheriff’s Office; (3) had domestic
problems with his wife, Patricia S. Deering; (4) had been arrested for domestic
violence, violation of a no-contact order, and violation of probation, and
adjudicated guilty of aggravated battery; (5) had been convicted of aggravated
battery with a deadly weapon; (6) worked for two years as a military police officer
in the army; (7) was wanted for failure to pay child support; (8) subscribed to the
same telephone number as the one provided by the CS; and (9) had not had his
right to possess firearms restored.
On April 17, 2007, Agent Washington met with the CS, and the CS
identified Deering from a print-out of his driver’s license. The CS directed Agent
Washington to Deering’s residence and identified Deering’s dog, “‘Tank.’” Taken
together, the information gathered confirmed much of what the CS provided to
Agent Washington. Consequently, Agent Washington concluded that there was
probable cause to believe Deering had firearms and ammunition in his residence.
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On May 10, 2007, Agent Washington prepared an application for a search
warrant to search Deering’s home and attached an affidavit detailing the
information gathered. In addition, Agent Washington averred that he had
participated in the execution of numerous search warrants for firearms violations
and that, in his experience, people who own firearms, including convicted felons,
commonly store firearms and ammunition in their residences. Based on this
information, a search warrant was issued and executed the same day. The search
resulted in the seizure of three firearms and multiple rounds of ammunition from
Deering’s residence.
B. Motion to Suppress
A federal grand jury indicted Deering on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Deering filed a motion to suppress the evidence seized from his home pursuant to
the search warrant. Deering’s motion alleged that: (1) the application contained no
information indicating that weapons would be located in his residence; (2) the
application contained no information as to the bias of the CS or any indication that
law enforcement had used the CS before or that the CS was trustworthy; and (3)
the CS’s information was stale because law enforcement last had contact with the
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CS twenty-one days before the search warrant was executed.2 Based on these
allegations, Deering’s motion argued there was no nexus between the firearms and
the residence, and thus no probable cause existed to support the search warrant.
The district court denied Deering’s motion. The district court found a
sufficient nexus between the firearms and the residence because the CS observed
the firearms and ammunition at the residence and Agent Washington indicated that,
based on his experience and knowledge, most people store firearms in their home.
With regard to the veracity and reliability of the CS, the district court indicated
that, under the totality-of-the-circumstances analysis, the magistrate judge’s
finding of probable cause was entirely reasonable. As to the staleness issue, the
district court concluded that the information was not stale because the nature of
firearm possession is such that it is usually ongoing.
Deering filed a motion for reconsideration, contending that the district court
misinterpreted his suppression argument. Deering’s motion argued that the
staleness argument was not about the twenty-one days since last contact, but the
eighty-five-day time lapse between the date the firearms were seen last by the CS
in the residence and the date the warrant was executed. The court denied Deering’s
2
Deering’s motion to suppress alleged the “last contact” law enforcement had with the CS
was on April 17, 2007, which was twenty-one days before the search warrant was executed. The
affidavit, however, indicates that Agent Washington “spoke” to the CS as late as April 30, 2007.
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motion for reconsideration. The district court acknowledged it had made an error
in its factual summary.3 However, the district court concluded the eighty-five-day
time lapse did not render the information too stale to support a finding of probable
cause because of the “type of items that were being searched for, the corroboration
of the source’s information by law enforcement, and the number of firearms that
the source had seen in the residence.”
C. Guilty Plea and Sentencing
Deering pled guilty pursuant to a written plea agreement that reserved
Deering’s right to appeal any pretrial rulings. During the plea hearing it was
revealed the CS was Deering’s wife who had left Deering because they could not
get along anymore.
At sentencing, Deering’s counsel revealed that Deering’s marriage had been
legally dissolved after the presentence investigation report had been prepared and
Deering’s ex-wife had been awarded the land and mobile home. The court
sentenced Deering to sixty-five months’ imprisonment. Deering appealed.
II. DISCUSSION
A. Timeliness of Information in Warrant Application
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The district court had stated in the order denying the motion to suppress that the defendant
“argues that the 21-day lapse in time between the last date on which the source saw firearms in the
Defendant’s house and the date that the warrant was executed rendered the information stale.”
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On appeal, Deering argues that the district court should have granted his
motion to suppress because the search warrant application was based on stale
information.4
To show probable cause, the government’s application for a search warrant
must be timely, that is it “must reveal facts that make it likely that the items being
sought are in that place when the warrant issues.” United States v. Harris, 20 F.3d
445, 450 (11th Cir. 1994) (quotation marks omitted). “Warrant applications based
upon stale information fail to create a probable cause that similar or other improper
conduct is continuing.” Id. To evaluate staleness claims, we look at the unique
facts of each case and may consider “the maturity of the information, nature of the
suspected crime (discrete crimes or ongoing conspiracy), habits of the accused,
character of the items sought, and nature and function of the premises to be
searched.” Id. “There is no particular rule or time limit for when information
becomes stale.” United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000).
Here, the information contained in Agent Washington’s affidavit was not too
stale to provide probable cause. First, the CS’s information indicated Deering’s
4
“In reviewing a district court’s ruling on a motion to suppress, we review findings of fact
for clear error and the application of the law to those facts de novo.” United States v. Martinelli,
454 F.3d 1300, 1306 (11th Cir. 2006). We “give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.” United States v. Jiminez, 224 F.3d 1243,
1248 (11th Cir. 2000) (quotation marks omitted).
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firearm possession was ongoing. Specifically, the affidavit stated that the CS had
observed firearms and ammunition at Deering’s residence “several times” within a
three-month period, that there were three different guns in different locations of the
house, and that the CS had heard Deering engage in target practice and seen shells
scattered in the front and back yards. These facts support a finding that Deering’s
firearm possession was for his personal use and was ongoing. See United States v.
Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (“[I]f an affidavit recites activity
indicating protracted or continuous conduct, time is of less significance.”)
(quotation marks omitted).
Second, the nature of the evidence sought made the eighty-five-day time
lapse less significant. Agent Washington averred in his affidavit that people who
own firearms and ammunition commonly store those items in their homes.
Furthermore, as the district court noted, common sense suggests that firearms,
unlike drugs, are generally not items that are dispersed quickly, particularly when
multiple firearms are possessed in the residence for personal use.
These circumstances, taken together, make it more likely than not that the
firearms sought were still in Deering’s residence. Accordingly, we conclude that
the district court did not err in finding that the eighty-five-day time lapse – from
the last date the CS witnessed the firearms in Deering’s residence to the date the
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warrant was issued – did not render the information too stale to support probable
cause.
B. Probable Cause for Search Warrant
Whether an affidavit is sufficient to establish probable cause is subject to a
“totality-of-the-circumstances analysis.” Illinois v. Gates, 462 U.S. 213, 238, 103
S. Ct. 2317, 2332 (1983). “The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Id. The reviewing
court’s task is to ensure the magistrate judge had a “substantial basis” for finding
probable cause. Id. at 238-39, 103 S. Ct. at 2332. “A magistrate’s determination
of probable cause should be paid great deference by reviewing courts.” Id. at 236,
103 S. Ct. at 2331 (quotation marks omitted).
Here, a sufficient basis for finding probable cause existed. The CS showed a
detailed knowledge of the wrongdoing; described in detail the various firearms, the
ammunition, and its packaging; described the locations of the firearms and
ammunition; and indicated that she personally observed the firearms and
ammunition in the residence on several occasions.
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Deering argues the affidavit failed to provide a sufficient basis to find
probable cause because the affidavit provided no basis to measure the CS’s
veracity and reliability. Furthermore, he argues the affidavit only corroborated
innocent information provided by the CS. However, to have a substantial basis for
making a probable cause determination, the police do not need to corroborate the
criminal activity. A finding of probable cause “requires only a probability . . . of
criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 243
n.13, 103 S. Ct. at 2335 n.13. Moreover, the corroboration of innocent activity
may serve to bolster veracity under the totality-of-the-circumstances analysis
because when “an informant is right about some things, [she] is more probably
right about other facts.” Id. at 244, 103 S. Ct. at 2335 (quotation marks omitted).
This is especially true where, as here, the CS’s information is of a character likely
obtained only from the defendant or from someone intimately familiar with his
information. In such cases, “a magistrate could properly conclude that it was not
unlikely that [the CS] also had access to reliable information of the [defendant’s]
alleged illegal activities.” Id. at 245, 103 S. Ct. at 2336.
Thus, Agent Washington’s inability to corroborate criminal activity prior to
the application for the search warrant does not preclude a finding of probable
cause. In issuing the search warrant, the magistrate judge was called upon to make
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a practical, common-sense judgment regarding probable cause. Based on the
record, we conclude that a substantial basis existed for probable cause because the
CS demonstrated detailed knowledge and Agent Washington corroborated a
significant amount of innocent information, some of which could have been
obtained only by someone close to Deering. Therefore, the district court properly
determined the search warrant issued by the magistrate judge was supported by
probable cause.
C. Failure to Disclose CS’s Identity
Finally, Deering challenges the probable cause finding on the basis that law
enforcement should have disclosed that the CS was Deering’s estranged wife. “To
justify suppression of evidence seized under a warrant, the alleged deliberate or
reckless failure to include material information in the affidavit must conceal
information that would defeat probable cause.” United States v. Steiger, 318 F.3d
1039, 1046 (11th Cir. 2003); see also United States v. Jenkins, 901 F.2d 1075,
1080 (11th Cir. 1990) (noting that insignificant or immaterial omissions will not
invalidate a warrant).
Here, Deering has not shown that the inclusion of the CS’s identity would
have defeated the probable cause finding. Even if the CS’s identity had been
disclosed, the affidavit still would contain enough facts to allow the magistrate
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judge to conclude reasonably that Deering likely possessed firearms at his
residence. Furthermore, contrary to Deering’s argument, the disclosure of the CS’s
identity, if anything, would have strengthened the government’s application for the
search warrant because the magistrate judge was free to infer that a spouse has
intimate knowledge of the other spouse’s activities and would not lie about the
spouse’s illegal activities. See United States v. Martinelli, 454 F.3d 1300, 1307
(11th Cir. 2006) (“[C]ourts have traditionally viewed information drawn from an
ordinary witness or crime victim with considerably less skepticism than
information derived from anonymous sources.”). Finally, given the level of detail
in the information the CS provided, the issuing magistrate judge could have
inferred that the CS was someone with close ties to Deering but was not on good
terms with him. Therefore, there is nothing in the record that indicates the
disclosure of the CS’s identity would have altered the outcome of the probable
cause analysis. See Gates 462 U.S. at 234, 103 S. Ct. at 2330 (“[E]ven if we
entertain some doubt as to an informant’s motive, his explicit and detailed
description of alleged wrongdoing, along with a statement that the event was
observed first-hand, entitles [the informant’s] tip to greater weight than might
otherwise be the case.”).
AFFIRMED.
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