United States v. Phillip Craig ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP EDWARD CRAIG,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:11-cr-00181-1)
Submitted: October 5, 2012 Decided: November 26, 2012
Before AGEE, DAVIS, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory J. Campbell, CAMPBELL LAW OFFICE, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, R. Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Edward Craig entered a conditional guilty
plea, see Fed. R. Crim. P. 11(a)(2), to possession with intent
to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). Craig’s plea preserved his right to appeal
the district court’s order denying his motion to suppress
evidence seized pursuant to a search warrant of his apartment.
On appeal, he argues that the district court erred in denying
his motion to suppress. We affirm.
Craig claims in this court that the search warrant was
invalid because the supporting affidavit failed to establish
probable cause that drugs were stored at his residence.
Specifically, Craig asserts that there was insufficient
corroboration of information provided by the anonymous informant
and that Craig’s roommate’s statement concerning Craig’s
possession of drugs was too unreliable to establish probable
cause. Craig also contends that the fact that officers followed
him to a high drug trafficking area was not sufficient to
justify probable cause. Finally, Craig notes that, although the
affidavit mentioned that a drug dog gave a positive indication
for drugs, it failed to acknowledge that no drugs were found
pursuant to the search of the vehicle.
Craig, however, did not raise these claims in the
motion to suppress he filed in the district court. Accordingly,
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we conclude that his new claims are waived. See Fed. R. Crim.
P. 12(b)(3), (e); United States v. Ricco, 52 F.3d 58, 62 (4th
Cir. 1995); see also United States v. Green, 691 F.3d 960, 963-
64 (8th Cir. 2012) (“[T]he waiver provision of Rule 12 precludes
appellate review of arguments to suppress evidence that are not
raised in a pretrial motion to suppress.”); United States v.
Lockett, 406 F.3d 207, 212 (3d Cir. 2005) (“[I]n the context of
a motion to suppress, a defendant must have advanced
substantially the same theories of suppression in the district
court as he . . . seeks to rely upon in this [c]ourt.”).
Even if Craig had not waived these new claims, we
conclude that the district court did not plainly err in denying
his motion to suppress. See United States v. Servance, 394 F.3d
222, 231 (4th Cir. 2005) (stating standard of review), vacated
on other grounds, 544 U.S. 1047 (2005); see also United States
v. Olano, 507 U.S. 725, 732 (1993) (detailing plain error
standard). When considering the denial of a motion to suppress,
we review de novo a district court’s legal conclusions, while
its factual findings are reviewed for clear error. See Ornelas
v. United States, 517 U.S. 690, 699 (1996); United States v.
Guijon-Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). The evidence
is construed in the light most favorable to the Government, the
prevailing party below. United States v. Perkins, 363 F.3d 317,
320 (4th Cir. 2004).
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To comport with the Fourth Amendment, a magistrate
issuing a search warrant must find probable cause based on “a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit . . . , there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983). “[I]n reviewing the sufficiency of a supporting
affidavit, we avoid applying hypertechnical scrutiny,” instead
granting great deference to the issuing magistrate. Owens ex
rel. Owens v. Lott, 372 F.3d 267, 274 (4th Cir. 2004) (internal
quotation marks omitted); see Gates, 462 U.S. at 236. We must
determine whether, under the totality of the circumstances, the
issuing judge had a substantial basis for finding probable cause
to issue the warrant. Gates, 462 U.S. at 238-39; United States
v. Allen, 631 F.3d 164, 172 (4th Cir. 2011). We conclude that
the supporting affidavit provided a substantial basis for the
magistrate’s finding of probable cause because it described an
anonymous tip corroborated by independent police investigation
indicating that Craig was a drug dealer, and it included a
statement by Craig’s roommate to the police that Craig probably
had marijuana in his room.
Craig’s argument that there was insufficient
corroboration of information provided by the anonymous informant
is unpersuasive. Confirmation of even the innocent details of
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an informant’s tip lend credibility to unconfirmed allegations
of criminal conduct. See United States v. Lalor, 996 F.2d 1578,
1581 (4th Cir. 1993). Here, the detectives confirmed
particularized information provided by the anonymous informant,
including the specific address where the drugs were stored and
the description of particular vehicles.
Moreover, the anonymous tip was corroborated by
further independent police investigation when the detectives
followed Craig to “a high drug trafficking area.” (J.A. 17). ∗
Although Craig correctly contends that his mere presence in a
high-crime neighborhood, standing alone, did not justify
probable cause, see Brown v. Texas, 443 U.S. 47, 52 (1979), even
seemingly innocent activity may be deemed suspicious in light of
an initial tip, such as the anonymous letter here. See Gates,
462 U.S. at 243-44 n.13. Further, Craig’s conduct was more
suspect because the detectives recognized Craig based on a 2006
drug arrest and had current information linking him to heroin-
dealing in the area. We conclude that these factors, taken in
the totality of the circumstances, indicate sufficient
corroboration of the information provided by the anonymous
informant.
∗
“J.A.” refers to the joint appendix filed by the parties.
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We also reject Craig’s argument that his roommate’s
statement concerning Craig’s possession of drugs was too
unreliable to establish probable cause because there are several
indicia of credibility in the statement. First, Craig’s
roommate admitted to having a drug problem when making the
statement concerning Craig’s possession of drugs. See United
States v. Harris, 403 U.S. 573, 583-84 (1971) (finding that, as
a matter of common sense, “[a]dmissions of crime . . . carry
their own indicia of credibility”). Further, Craig’s roommate
made the statement in person to the police, which also supports
its credibility. See United States v. DeQuasie, 373 F.3d 509,
523 (4th Cir. 2004) (noting that “an informant who meets face-
to-face with an officer provides the officer with an opportunity
to assess his credibility and demeanor and also exposes himself
to accountability for making a false statement”).
Finally, Craig argues that, although the affidavit
mentioned that a drug dog gave a positive indication for drugs,
it failed to acknowledge that no drugs were found pursuant to
the search of the vehicle. We conclude that this omission was
immaterial to the finding of probable cause. Thus, the search
warrant remains valid. See United States v. Gary, 528 F.3d 324,
328 (4th Cir. 2008).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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