United States v. Kenneth Gragg , 576 F. App'x 656 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1404
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kenneth Gragg
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: August 22, 2014
Filed: August 27, 2014
[Unpublished]
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Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kenneth Charles Gragg conditionally pled guilty to two counts of possession
of methamphetamine with intent to distribute, in violation 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and possession of a firearm by an unlawful user of controlled substances,
in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). He appeals, arguing the district
court1 should have suppressed evidence from a search of his home, which included
12.36 grams of actual (pure) meth and a 20-gauge shotgun. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
Gragg contends the warrant to search his home was not supported by probable
cause because the supporting information was both unreliable and stale. This court
reviews de novo the issue of probable cause, giving “great deference to the issuing
judge’s determination that [an] affidavit established probable cause.” United States
v. Smith, 581 F.3d 692, 694 (8th Cir. 2009). This court’s “duty on appeal ‘is simply
to ensure that the magistrate had a substantial basis for concluding that probable
cause existed.’” United States v. Montes-Medina, 570 F.3d 1052, 1059 (8th Cir.
2009) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). “A warrant is
supported by probable cause if there is a fair probability that contraband or evidence
of a crime will be found in the place to be searched.” United States v. Seidel, 677
F.3d 334, 337 (8th Cir. 2012). “The determination of whether or not probable cause
exists to issue a search warrant is to be based upon a common-sense reading of the
entire affidavit.” Id. (quoting United States v. Sumpter, 669 F.2d 1215, 1218 (8th Cir.
1982)).
The affidavit included a substantial basis to find probable cause to search
Gragg’s home. A confidential informant told police in 2005 that Gragg dealt meth
and marijuana. While looking for a federal fugitive in 2006, police searched Gragg’s
home and seized a glass pipe, marijuana, packaging materials, and firearms including
an AK-47. He associated with a known drug dealer from a nearby, larger city in
1
The Honorable Linda R. Reade, Chief Judge for the United States District
Court of the Northern District of Iowa, adopting the report and recommendation of
the Honorable Jon Stuart Scoles, Chief United States Magistrate Judge for the
Northern District of Iowa. See No. 13-CR-59-LRR., 2013WL 5937349 (N.D. Iowa
Oct. 23, 2013), adopting No. CR13-0059, 2013WL 5503663 (N.D. Iowa Oct 1,
2013).
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2012. Finally, in November 2012, an inmate contacted police about cooperating in
return for leniency on her probation violation. She told them she had purchased over
$35,000 of meth from Gragg between 2006 and 2012, about one gram a day. Before
then, police had observed her vehicle parked outside of Gragg’s residence. She
eventually agreed to make two controlled buys from Gragg, which took place on
November 28, 2012, and December 4, 2012.
The defendant claims this information was unreliable because it came from an
informant seeking leniency. This court has “repeatedly rejected any blanket
conclusion that an informant’s drug use, pending charges, or cooperation is so suspect
that is necessarily vitiates probable cause.” United States v. Ketzeback, 358 F.3d 987,
991 (8th Cir. 2004). The informant’s undercover purchases of meth corroborated her
statements about Gragg’s long-term sales. Combined with law enforcement’s prior
contacts with Gragg, this information was sufficiently reliable to provide a substantial
basis for probable cause to search his home.
Gragg also objects to the staleness of the information because police did not
search his home until 42 days after the last controlled buy. “It is axiomatic that
probable cause must exist at the time of the search and not merely at some earlier
time.” United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005). “There is no
fixed formula for determining when information has become stale.” Id. (quoting
United States v. Smith, 266 F.3d 902, 904 (8th Cir. 2001) (finding probable cause
existed where controlled buys took place approximately three months before a
warrant was issued)). “Where suspected criminal activity is continuing in nature and
the property is not likely to be destroyed or dissipated, the passage of time may be
less significant.” Id. at 1142. Police believed Gragg had been distributing meth for
over six years. They had no reason to believe he stopped in the 42 days between the
controlled buy and the search of his residence. See United States v. Gibson, 123 F.3d
1121, 1125 (8th Cir. 1997) (finding a search warrant was not stale because “although
there was no evidence . . . of a large scale drug operation, the police had information
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available to them indicating on-going drug activity . . . The district court concluded
that the confidential informant’s statements about drug trafficking activity at the
apartment . . . were sufficiently indicative of continuing drug dealing”). The district
court properly concluded there was a fair probability that meth would be found at
Gragg’s residence despite the delay. See United States v. Carnahan, 684 F.3d 732,
736 (8th Cir. 2012) (“Moreover, ‘[i]n investigations of ongoing narcotics operations,
intervals of weeks or months between the last described act and the application for
a warrant does not necessarily make the information stale.’”) (quoting United States
v. Jeanetta, 533 F.3d 651, 655 (8th Cir. 2008)).
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The judgment is affirmed.
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