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United States v. Mihelich , 334 F. App'x 555 ( 2009 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY MIHELICH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:08-cr-00069-IMK-JSK-1)
Submitted:    September 30, 2009            Decided:   October 22, 2009
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.      Sharon L. Potter, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Mihelich pleaded guilty, pursuant to a plea
agreement, to one count of possession with intent to distribute
less than fifty kilograms of marijuana and less than 500 grams
of cocaine within 1000 feet of a school, in violation of
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(C), (b)(1)(D), 860 (2006).                    Mihelich
entered   a    conditional       guilty   plea    and   reserved   his    right    to
appeal the district court’s denial of his motion to suppress
evidence.      On appeal, he argues that the district court erred in
denying his motion to suppress because the affidavit in support
of the search warrant lacked sufficient information to establish
probable cause, and that the good-faith exception established by
the Supreme Court in United States v. Leon,
    468 U.S. 897
     (1984),
did not apply to uphold the search of his apartment.                  We affirm.
We       review   the    district    court’s      factual   findings
underlying         a   motion   to    suppress    for   clear    error,   and     the
district court’s legal determinations de novo.                   United States v.
Grossman,
    400 F.3d 212
    , 216 (4th Cir. 2005).                 When a suppression
motion has been denied, we review the evidence in the light most
favorable to the Government.
    Id.
         This court gives due regard
to the district court’s opportunity to judge the credibility of
witnesses and does not review credibility determinations.                         See
United States v. Lowe,
    65 F.3d 1137
    , 1142 (4th Cir. 1995).
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In reviewing the validity of a search warrant, the
relevant    inquiry       is     whether,         under        the     totality        of    the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois    v.    Gates,
    462 U.S. 213
    ,    238       (1983);     see     United
States v. Chandia,
    514 F.3d 365
    , 373-74 (4th Cir. 2008) (noting
that magistrate’s probable cause determination is entitled to
“great     deference”).           “When        reviewing         the     probable           cause
supporting a warrant, a reviewing court must consider only the
information presented to the magistrate who issued the warrant.”
United States v. Wilhelm,
    80 F.3d 116
    , 118 (4th Cir. 1996).
The       judge     reviewing         the     warrant        application          is
required    “simply      to     make    a     practical,        common-sense          decision
whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or
evidence    of    a   crime     will     be    found      in    a     particular       place.”
Gates,
    462 U.S. at 238
    .        The     crucial          element    determining
probable cause is “whether it is reasonable to believe that the
items to be seized will be found in the place to be searched.”
United States v. Lalor,
    996 F.2d 1578
    , 1582 (4th Cir. 1993).
Information      must    link    criminal         activity       to    the     place    to     be
searched.
    Id. at 1583
    .            Our review of the record leads us to
conclude that the district court correctly concluded that the
affidavit was sufficient to support a finding of probable cause
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for the search of Mihelich’s apartment.        Additionally, we find
that, even assuming the affidavit was deficient, the district
court correctly concluded that the good-faith exception would
apply to the search of Mihelich’s apartment.         The district court
therefore properly denied Mihelich’s suppression motion.
Accordingly   we   affirm    Mihelich’s   conviction.     We
dispense   with   oral   argument   because   the    facts   and   legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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