United States v. Brundidge , 170 F.3d 1350 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 98-2200 U.S. COURT OF APPEALS
--------------------------------------------ELEVENTH CIRCUIT
04/02/99
D. C. Docket No. 3:97-CR-104-LAC THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHANCEY WADE BRUNDIDGE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(April 2, 1999)
Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*,
Judge.
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* Honorable Jane A. Restani, Judge, U.S. Court of International
Trade, sitting by designation.
PER CURIAM:
Chancey Brundidge (“Brundidge”) appeals the district court’s denial
of his motion to suppress evidence. He also appeals his sentence. We see
no reversible error, so we affirm.
Background
A confidential informant (“CI”), with a companion, went to a
motel room where they met Brundidge, also known as “Smoke.” Based on
this meeting, the CI contacted Investigator Frank Forte (“Forte”). Forte
drove the CI to the motel, and the CI pointed out Brundidge’s room. The
CI also described Brundidge’s car. Forte left the motel to get a search
warrant, after calling a surveillance unit to the scene.
2
The affidavit supporting the warrant was the only information
on probable cause provided to the judge. Although some other information
was included in the affidavit, the following facts provided the main
support for the showing of probable cause:
On September 11th, 1997, your affiant [Forte] was
contacted by a reliable confidential informant, hereafter
referred to as RCI who stated to your affiant that a black
male known only to the RCI as Smoke, was selling Cocaine
Base and Cocaine HCL at the above described location. The RCI
stated to your affiant that on this same date, the RCI
accompanied another individual to the above described
location and entered. The RCI stated to your affiant that
individual to [sic] whom the RCI was with, purchased a
quantity of Cocaine Base from Smoke while inside the above
described location. The RCI stated to your affiant that Smoke
attempted to sell the individual to [sic] whom the RCI was with
a quantity of Cocaine HCL, however the individual refused. The
RCI stated to your affiant that while inside the above
described location, the RCI observed two cookies of Cocaine
Base, a large quantity of Cocaine Base cut for distribution,
approximately three eighth of an ounce quantities of Cocaine
HCL, and a semi-automatic handgun.
3
The RCI is familiar with the physical appearance of
Cocaine Base and Cocaine HCL and has seen Cocaine Base on
at least one hundred (100) occasions, and has seen Cocaine HCL
on at least two hundred (200) occasions. The RCI has provided
information to law enforcement concerning illegal activity
on at least eight occasions and has proven to be truthful and
reliable on every occasion. The RCI is responsible for the
arrests of at least five persons and the recovery of
approximately $3,500.00 in illegal narcotics.
The judge issued the search warrant for Brundidge’s motel room.
Brundidge was arrested after leaving the motel room later that
afternoon. Police found cocaine and a weapon in Brundidge’s car during
a warrantless search. Then, a search of Brundidge’s motel room, based on
Forte’s search warrant, found more drugs.
Brundidge pled guilty to three counts: (1) possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 922(g), 924(c); (2) knowing and
intentional possession of cocaine and cocaine base with intent to
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distribute, in violation of 18 U.S.C. §§ 841(a), 841(b)(1)(B)(iii); and (3)
possession of a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c).
Discussion
First, we address Brundidge’s claim that the district court should
have granted his motion to suppress the evidence obtained from the
search of Brundidge’s motel room. Rulings on motions to suppress
evidence involve mixed questions of law and fact. We review the factual
findings of the district court for clear error and the application of the
law to those facts de novo. See United States v. Anderton, 136 F.3d 747,
749 (11th Cir. 1998).
5
Probable cause to support a search warrant exists when the totality
of the circumstances allow a conclusion that there is a fair probability
of finding contraband or evidence at a particular location. See United
States v. Gonzalez, 940 F.2d 1413, 1419 (11th Cir. 1991). We give “[g]reat
deference” to a lower court judge’s determination of probable cause. Id.We think it will be useful to the resolution of Brundidge’s claim to
recite some well-established law on probable cause. “[P]robable cause is a
fluid concept -- turning on the assessment of probabilities in particular
factual contexts[.]” Illinois v. Gates, 462 U.S. 213, 232 (1983). To avoid
“rigid” legal rules, Gates changed the “two-pronged test” of Aguilar v. Texas,
378 U.S. 108, 114 (1964), into a totality of the circumstances test. See Gates,
462 U.S. at 230-35. Under the Gates totality of the circumstances test,
the “veracity” and “basis of knowledge” prongs of Aguilar, for assessing
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the usefulness of an informant’s tips, are not independent. “[T]hey are
better understood as relevant considerations in the totality of the
circumstances analysis that traditionally has guided probable cause
determinations: a deficiency in one may be compensated for . . . by a
strong showing as to the other[.]” Id. at 233.
Brundidge’s main contention is that probable cause for the search
warrant did not exist because the affidavit failed to reflect independent
police corroboration of the CI’s story. But we think requiring
1
independent police corroboration -- as a per se rule in each and every
case -- is contrary to Gates and other precedent for two reasons. First,
1
Independent police corroboration of a CI’s tip must be
distinguished from other kinds of corroboration. For example,
corroboration of a CI’s tip can also occur by “creating
circumstances under which [the informant] is unlikely to lie.”
United States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995).
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as we have discussed, Gates criticizes per se rules for the determination
of probable cause. Second, independent police corroboration has never
been treated as a requirement in each and every case. See United
States v. Harris, 403 U.S. 573, 576 (1971) (approving, without discussing
corroboration, an affidavit with no police corroboration); United States
v. Farese, 612 F.2d 1376, 1378 (5th Cir. 1980) (even though some
corroboration of informant’s story took place, probable cause likely
existed without corroboration). Brundidge cites to no case in which
2
independent police corroboration was treated as a requirement.
2
Brundidge relies heavily on United States v. Foree, 43 F.3d
1572 (11th Cir. 1995), a case purporting to “demarcat[e] the outer
limits of probable cause.” Id. at 1577 n.6. Because Foree was an
“outer limit[],” and the case contained some independent police
corroboration of an informant’s affidavit, says Brundidge, a
case with less independent police corroboration cannot create
probable cause. We disagree for two reasons. First, the veracity
8
Even under Aguilar’s “two-pronged test,” independent police
corroboration was not explicitly required: the test talks only about the
informant’s veracity and basis of knowledge.
Using the CI’s “veracity” and “basis of knowledge” as guides for
assessing the affidavit’s showing of probable cause, we think Forte’s
affidavit made a sufficient showing of probable cause to justify the
search warrant. The CI’s basis of knowledge was good: The CI gave a
detailed description of the drugs in the room and the sale of some of
those drugs in his presence. An “explicit and detailed description of
of the Foree informant was not impressive because of the
near-conclusory allegations about the informant’s reliability
in the search-warrant affidavit. In this case, the CI has more
demonstrated veracity (as discussed later). Second, once Foree
concluded that probable cause existed on the circumstances
before it, the Foree court could say nothing binding as precedent
about the “outer limits” of probable cause.
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alleged wrongdoing, along with a statement that the event was observed
firsthand, entitles [the CI’s] tip to greater weight than might otherwise
be the case.” Gates, 462 U.S. at 234.
The CI’s basis of knowledge made up for any weaknesses in the CI’s
veracity. But we think the CI’s veracity was satisfactory, too. The
affidavit explained that the CI had provided information to law
enforcement “at least” eight times in the past and that the CI was
“truthful and reliable” on each occasion. Also, the CI’s past tips led to the
arrest of five persons and the recovery of $3,500 in illegal drugs.
Although some information is not included -- like whether the CI’s tips
were essential to past arrests, or whether the tips were the result of the
CI’s own drug activity -- it is apparent that the CI had not lied about
these past events, had provided useful enough information to provide
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probable cause for five arrests, and helped recover some illegal drugs. We
agree with the district court’s finding that the CI “was reliable in the
past instances.”
In addition to providing the basis of the CI’s knowledge, the level of
detail meant that the CI was unlikely to lie, because “if the warrant
issued, lies would likely be discovered in short order and favors falsely
curried would dissipate rapidly.” Foree, 43 F.3d at 1576 (creating
circumstances under which CI is unlikely to lie is a way to corroborate
3
informant’s veracity).
3
We note that Forte kept track of the CI’s whereabouts after
receiving tips from the CI.
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We think the CI’s veracity and basis of knowledge, in the totality of
these circumstances, justify the district court’s decision that the search
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warrant was supported by probable cause.
4
Because of our resolution of the probable cause issue, we do
not decide the government’s alternative reason for affirming
the district court: that Brundidge waived his right to appeal the
search warrant of the motel room because it was not in his
written suppression motion. We note that the government’s
waiver argument was close. Although the district court relied in
part on the waiver argument to deny the suppression motion,
Brundidge may not have seen the motel room search warrant
affidavit before submitting his written suppression motion,
and he disputed the existence of probable cause to search the
motel room at the hearing on the suppression motion.
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5
Brundidge makes one sentencing argument worthy of discussion.
The district court sentenced Brundidge to 294 months on Counts I and
II, served concurrently, and five years on Count III (for violating 18
U.S.C. § 924(c)), served consecutively to his 294-month sentence.
Sentences for violating Section 924(c) must be served consecutively.
Brundidge correctly notes that a Section 924(c) sentence must be
served before a sentence for the underlying offense. See Jackson v.
United States, 976 F.2d 679, 682 (11th Cir. 1992). So, the district court
committed an error in sentencing Brundidge to serve his five-year
sentence for violating Section 924(c) after the sentence for Counts I
and II.
5
Brundidge’s claim that 18 U.S.C. § 924(e) conflicts with 18 U.S.C. §
924(A)(2) is without substantial merit, so we decline to address
it.
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Brundidge, however, cannot explain why this error was harmful.
Brundidge admits he “is unclear how an amended sentence might affect
Mr. Brundidge.” He does suggest that, “possibl[y],” changing Brundidge’s
sentence would make a difference to the Bureau of Prisons. But without a
sufficiently concrete harm, we will not remand the case for
6
resentencing. See Barnes v. Estelle, 518 F.2d 182,183 (5th Cir. 1975)
(finding harmless error when resentencing would produce same
sentence); see also United States v. Langford, 946 F.2d 798, 804-805 (11th
Cir. 1991) (multiple counts for same offense not prejudicial and not
6
Jackson does not require reversal in this case: Jackson’s
underlying offense was parolable, but Brundidge’s underlying
offense is not parolable. So, unlike Jackson’s sentence,
Brundidge’s sentence for the underlying offense cannot be
shortened.
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creating danger of receiving multiple sentences for single offense
because sentences were concurrent).
We conclude that Brundidge’s motion to suppress evidence was
properly denied and that no harmful error requires us to remand this
case for resentencing. Therefore, we affirm.
AFFIRMED.
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