United States v. Derrick Stewart ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1616
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United States of America
Plaintiff - Appellee
v.
Derrick Anthony Stewart, also known as Derrick Stewart
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: December 13, 2018
Filed: March 13, 2019
[Unpublished]
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Before LOKEN and ERICKSON, Circuit Judges, and MAGNUSON,1 District
Judge.
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PER CURIAM.
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
On November 13, 2017, Derrick Anthony Stewart entered a conditional guilty
plea to conspiracy to distribute a substance containing detectable amounts of heroin
and possession of a firearm in furtherance of a drug trafficking crime. The plea
reserved Stewart’s right to appeal the district court’s2 denial of his motion to suppress.
Stewart was sentenced on March 19, 2018. He now appeals the district court’s denial
of his motion to suppress.
Stewart came to the attention of law enforcement when he was identified by
name as a seller and user of heroin. In February of 2017, an employee with the
Department of Human Services (“DHS”) contacted Scott County Deputy Sheriff Dan
Furlong and informed him that Stewart’s daughter had recently survived a heroin
overdose. The DHS employee also told Furlong that during the ensuing investigation,
Stewart’s grandchild had tested positive for opiates. In addition to Stewart’s current
connection to heroin use and trafficking, Furlong knew Stewart had a 2008 felony
conviction for possession of heroin.
In March of 2017, DHS received a tip from an anonymous informant that
Stewart was using and selling heroin in his residence and that he kept a firearm in a
safe in his bedroom. DHS put the informant in contact with Furlong. Following the
conversation with the informant, Furlong conducted surveillance on Stewart’s
residence. Furlong saw Stewart leave the residence and followed him. Furlong
observed Stewart meet separately with two persons known by Furlong to be connected
to heroin-related activities. When Stewart left the second meeting, Furlong confronted
the individual Stewart had spoken to and found heroin paraphernalia. Another agent
continued to tail Stewart and reported observing Stewart “conduct another suspected
heroin delivery.”
2
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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Furlong sought a search warrant. The affidavit and application were reviewed
by an Assistant Scott County Attorney. A judge in Iowa’s Seventh Judicial District
issued the warrant. When the warrant was executed, the search revealed drugs,
firearms, and an amount of cash in excess of $10,000.
Stewart was indicted shortly thereafter. Stewart filed a motion to suppress the
evidence derived from the warrant search. As the challenge was to the sufficiency of
the affidavit, no evidence was taken at the suppression hearing. After taking argument
of counsel and considering the supporting affidavit to the warrant application, the
court denied the motion to suppress.
On appeal, Stewart asserts the warrant was unsupported by probable cause.
“On appeal from the denial of a motion to suppress, we review a district court’s
findings of fact for clear error and its determination of probable cause and the
application of the Leon exception de novo.” United States v. Conant, 799 F.3d 1195,
1201 (8th Cir. 2015) (quoting United States v. Jackson, 784 F.3d 1227, 1231 (8th Cir.
2015)). “Probable cause to issue a search warrant exists when an affidavit [or
testimony] in support of the warrant sets forth sufficient facts to establish that there
is a fair probability that contraband or evidence of criminal activity will be found in
the particular place to be searched.” United States v. Proell, 485 F.3d 427, 430 (8th
Cir. 2007) (internal quotation marks omitted) (quoting United States v. Davis, 471
F.3d 938, 946 (8th Cir. 2006)). “Though the issue of probable cause is reviewed de
novo, this court accords ‘great deference to the issuing judge’s determination that [the]
affidavit established probable cause.’” United States v. Keele, 589 F.3d 940, 943 (8th
Cir. 2009) (quoting United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009)). Our
“duty on appeal is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.” Id. (quoting United States v. Montes-Medina,
570 F.3d 1052, 1059 (8th Cir. 2009)). Under Leon’s good-faith exception, evidence
seized pursuant to a warrant will not be suppressed if the executing officer’s reliance
upon the warrant was objectively reasonable—even if the warrant is later found
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invalid. Proell, 485 F.3d at 430; see United States v. Leon, 468 U.S. 897, 920-21
(1984).
The facts set forth in the warrant application establish sufficient probable cause
to support the warrant. The affidavit informed the state district judge that the
testifying officer was trained in drug apprehension and enforcement and had been
working on the special operations unit for six years. The affidavit informed the state
judge that Stewart had a history of heroin sales and use and that he had a prior felony
drug conviction. The affidavit also informed the judge that Stewart resided with his
girlfriend, that she was a known drug user and seller, and that she had been observed
with a strong odor of marijuana on her person. The affidavit also informed the court
that a “concerned citizen” had reported that Stewart and his girlfriend sold drugs from
the residence at all hours of the day and night and that Stewart kept a gun in a safe in
the residence. The affidavit stated that DHS had informed law enforcement that
Stewart’s 17-year-old daughter had suffered a non-fatal overdose at the residence and
that her child had tested positive for opiates. The affidavit said that as a result of this
information, law enforcement had conducted surveillance of Stewart and his residence
and had followed Stewart and his girlfriend as they made a series of short stops
consistent with drug-dealing behavior. The affidavit further stated that one of the
persons Stewart had met with was found to be in possession of heroin paraphernalia
(though he had denied buying drugs from Stewart). Finally, the affidavit related that
while the affidavit was being prepared, officers were still following Stewart, that
Stewart had made another stop consistent with drug-trafficking behavior, and that
Stewart did not have a valid driver’s license. Whatever difficulties Stewart claims
arise from the nature of the concerned citizen’s report, there is more than sufficient
remaining and corroborating evidence to support a finding of probable cause. See
United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001) (“Even ‘the corroboration
of minor, innocent details can suffice to establish probable cause.’”) (citation omitted);
see also Illinois v. Gates, 462 U.S. 213, 244 (1983) (explaining that “independent
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investigative work” can support a determination of probable cause in cases where the
tip that gave rise to the investigation might not have sufficed on its own).
Even if this were not so, the officers’ personal observations while investigating
Stewart, coupled with the process of submitting the warrant application, are sufficient
to bring the officers’ conduct well within the parameters of Leon’s good-faith
exception. After receiving the anonymous tip, law enforcement observed Stewart
meet with several individuals and conduct what they believed to be heroin-related
transactions. On the basis of that surveillance, Furlong prepared an affidavit and
application that was reviewed by the county attorney and approved by a state judge.
Under these circumstances, Furlong acted in good-faith when he carried out a search
pursuant to the warrant. Cf. United States v. Puckett, 466 F.3d 626, 630 (8th Cir.
2006) (quoting Leon, 468 U.S. at 923) (explaining that there are “four circumstances
in which the good-faith exception does not apply: (1) when there is a Franks violation;
(2) when an issuing judge has ‘wholly abandoned his judicial role’; (3) when it is
entirely unreasonable to believe that an affidavit provides probable cause to issue a
warrant; and (4) when the warrant is ‘so facially deficient’ that no police officer could
reasonably presume the warrant to be valid”). We affirm the district court’s denial of
Stewart’s motion to suppress the evidence obtained from that search.
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