United States v. Redd

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4538
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY LAYNE REDD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:07-cr-00035-sgw-1)
Submitted: June 1, 2009 Decided: August 19, 2009
Before TRAXLER, Chief Judge, and MICHAEL and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Julia C.
Dudley, United States Attorney, Jeb T. Terrien, Assistant United
States Attorney, Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Layne Redd was indicted on one count of
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii) (2006). Subsequent to the district court’s
denial of his motion to suppress evidence seized during a search
of his home and vehicle, Redd entered a conditional guilty plea,
preserving the right to appeal the district court’s denial of
his motion. The district court sentenced Redd to 120 months’
imprisonment. On appeal, Redd challenges the district court’s
denial of his motion to suppress on two grounds: (1) the
statements obtained from the Source of Information (“SOI”) are
stale; and (2) the statements obtained from the Confidential
Informant (“CI”) do not support probable cause. Finding no
reversible error, we affirm.
In reviewing a district court’s ruling on a motion to
suppress, this court defers to the district court’s factual
findings, setting them aside only if clearly erroneous, and
reviews its legal conclusions de novo. United States v.
Uzenski, 434 F.3d 690, 704 (4th Cir. 2006). When the district
court has denied a motion to suppress, “the evidence must be
construed in the light most favorable to the Government.” Id.2
I.
“A valid search warrant may issue only upon
allegations of ‘facts so closely related to the time of the
issue of the warrant as to justify a finding of probable cause
at that time. Whether the proof meets this test must be
determined by the circumstances of each case.’” United
States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984)
(quoting Sgro v. United States, 287 U.S. 206, 210-11) (1932)).
However, “the vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit.” Id. at 1336
(internal quotation marks, alteration, and citation omitted).
To determine whether the information used to support the warrant
is stale, this court must take into account “the nature of the
unlawful activity alleged, the length of the activity, and the
nature of the property to be seized.” Id. If the criminal
activity alleged is not ongoing in nature or the evidence is not
likely to remain at the place it was observed, “indicia external
to the evidence itself should demonstrate that probable cause
has not lapsed.” Id. at 1337.
Redd argues that the information obtained from the SOI
is stale because there is no indication that his “alleged
narcotics operations were elaborate and ongoing” or that there
was any “ongoing continuous criminal activity” from September,
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2006 to March, 2007. Redd’s argument is without merit. The SOI
admitted to purchasing crack cocaine from Redd at Redd’s
residence between June of 2006 and the SOI’s arrest in September
of 2006. Importantly, the SOI admitted to purchasing sixty-two
grams of crack cocaine from Redd on a weekly basis. Although
there is no evidence showing Redd’s activity continued between
September of 2006 and March of 2007, the CI provided information
that Redd was selling crack cocaine at his residence a mere two-
and-a-half days before the warrant’s execution. The fact that
the SOI purchased crack cocaine on a weekly basis and the CI
obtained information about Redd’s activities less than seventy-
two hours before the search warrant was executed lends credence
to a determination that Redd’s activity was ongoing. However,
even if Redd’s narcotics distribution was not ongoing as he
alleges, the CI’s information provides “indicia external” to the
SOI’s evidence demonstrating that probable cause had not lapsed.
Accordingly, we find that the SOI’s statements are not stale.
II.
Redd also argues that the CI’s statements do not
support probable cause. A court must consider the totality of
the circumstances in determining whether probable cause exists
to support the issuance of a search warrant. Illinois v. Gates,
462 U.S. 213, 238 (1983). The magistrate’s task is to determine
whether, given the totality of the circumstances, “there is a
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fair probability that contraband or evidence of a crime will be
found in a particular place.” Id. at 238. “A magistrate’s
‘determination of probable cause should be paid great deference
by reviewing courts.’” Id. at 236 (quoting Spinelli v. United
States, 393 U.S. 410, 419 (1969)). Thus, this court’s duty “is
simply to ensure that the magistrate had a ‘substantial basis
for . . . conclud[ing]’ that probable cause existed.” Gates,
462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S.
257, 271 (1960)) (alterations in original).
On Friday, March 9, 2007, the CI met with Special
Agent Joseph Fleming and informed him that she took an
individual to Redd’s residence at 6:45 p.m. on Thursday, March
8, 2007, where that individual purchased crack cocaine. Fleming
went to a magistrate and obtained a search warrant in the early
morning hours of Saturday, March 10, 2007, just hours after
meeting with the CI and less than forty-eight hours after the CI
saw the crack cocaine purchased from Redd’s residence. We find
that the magistrate could fairly conclude contraband or evidence
of a crime would be found at Redd’s residence less than two days
after the CI’s observation.
“An important factor in determining whether an
informant’s report establishes probable cause is the degree to
which it is corroborated.” United States v. Lalor, 996 F.2d
1578, 1581 (4th Cir. 1993). The informant’s veracity,
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reliability, and basis of knowledge are also relevant, although
they are not independent requirements. Id. Here, the CI’s
veracity, reliability, and basis of knowledge are well-
established. Fleming testified that the CI had worked with him
and other members of the Virginia State Police on controlled
drug purchases for the prior four or five months. He confirmed
the CI’s reliability and credibility over that time period. The
CI was also identified as a past cocaine user, who was “familiar
with the odor, texture, appearance, packaging, and effects of
Cocaine.” Redd argues that the CI should not be relied upon
because she did not purchase the crack cocaine or witness the
alleged transaction and there is no information about the
identity and reliability of the “unwitting informant.” However,
Fleming made it clear that the CI made statements against her
penal interests in this case, and thus had no motivation to lie.
Moreover, the CI’s report was corroborated by the SOI, who
described Redd’s residence and its location and detailed his
weekly purchases of crack cocaine from Redd at that residence.
Based on the foregoing, we find that the magistrate had a
substantial basis for concluding probable cause existed.
Viewing the evidence in the light most favorable to
the Government, we find that the district court did not err in
denying Redd’s motion to suppress and we affirm the judgment of
the district court. We dispense with oral argument because the
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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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