corey moore motion for reconsideration

8/6/2019 Corey Moore Motion For Reconsideration

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

*

v. **

COREY A. MOORE, *

*

Defendant *

*

*******

CRIMINAL NO. AW-10-0648

UNITED STATES MEMORANDUM IN SUPPORT OF MOTION TO

RECONSIDER ORDER SUPPRESSING EVIDENCE

The United States has moved this Court to reconsider its April 13, 2011 Order suppressing

the firearms, jug of PCP, scale, and other evidence seized from an apartment rented by the defendant

pursuant to a search warrant. As discussed below, the affidavit in support of the search warrant

adequately established probable cause to believe that evidence of drug dealing was located in the

apartment. Indeed, the affidavit amply supported the conclusion that the defendant was walking with

a package containing almost a half kilogram of cocaine, a quantity that would garner $10,000 on the

street, in close proximity to an apartment he rented. Together, the normal inference that a drug

dealer maintains the tools of his trade in his residence, the close proximity of the cocaine and the

defendants apartment, and the investigators training and experience that drug dealers maintain their

tools in a secure location that offers ready access, more than suffices to establish a fair probability

that his tools were located within that apartment.

Moreover, a reasonable law enforcement officer executing this warrant could rely in good

faith on the determination of a Montgomery County Circuit Court judge that the affidavit was

sufficient. Under the circumstances, there was no reason for the officers executing this warrant to

second-guess the Circuit Court judges determination that the affidavit was sufficient. The

Case 8:10-cr-00648-AW Document 26-1 Filed 04/27/11 Page 1 of 22


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exclusionary rule is designed as a prophylactic measure to deter police misconduct; in this case, the

officers did precisely what the framers of the Constitution and the law required they sought a

warrant from a neutral and detached judicial officer to search the apartment. And that judicial officer

with no dog in this fight reviewed the circumstances set forth in the affidavit and determined that

it was sufficient (a determination, we submit, is supported by the law in this circuit). After following

the law, the officers executed the judicial officers mandate to search the premises and seize evidence

of a crime. Under these circumstances, the government respectfully submits that neither the law nor

the policy underlying the exclusionary rule justifies suppression of the seized evidence. Even if the

Court remains unconvinced that the Fourth Circuit law compels the conclusion that the affidavit was

sufficient, that same Fourth Circuit law more than supports the officers reliance on the conclusion

of a neutral and detached judicial officer. For these reasons, and those described below, the

government respectfully requests that this Court reconsider its order suppressing the drugs, firearms,

and other evidence seized from the defendants residence.

BACKGROUND

A. The Search Warrant Signed and Issued by a Circuit Court Judge

Before searching the defendants apartment, the law enforcement officers presented an

Affidavit in Support of an Application for Search Warrant to a judge of the Montgomery County

Circuit Court. See search warrant for basement of 118 Sherman Avenue, Takoma Park, attached

hereto as Exhibit 1, at 1.

1. The Officers Training and Experience in Narcotics Matters

The affidavit first described the background of the investigator. The affidavit explained that

the affiant has been a sworn law enforcement officer for about seven years, and that he was assigned

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as an investigator with the City of Takoma Park Police Department in Montgomery County,

Maryland.Id. 1. The affidavit further explained that the investigator has completed police training

in street level law enforcement, as well as narcotics training provided by the DEA. Id. The affidavit

further stateD that the investigator has been involved in numerous arrests for narcotics violations and

narcotics seizures, and numerous search warrants leading to seizures of drugs. Id.

Citing his training, experience, and participation in narcotics investigations, the

investigator also outlined his knowledge of certain attributes of drug dealers. He explained that

narcotic traffickers maintain books, records, receipts, notes, ledgers ... and other papers relating to

the transportation, ordering, sales, and distribution of narcotics. Id. 2. He also explained that

these items are contained within computer hard drives and safes, and generally maintained where

the narcotics trafficker can obtain ready access to them. Id. The investigator also discussed that

it was common for drug traffickers to hide contraband, proceeds of drug trafficking, and records

of drug transactions ... in a secure location. Id. The purpose that drug traffickers store documents

in secure locations, the affidavit outlined, was to protect them from discovery by law enforcement

authorities and to attempt to hide their ties to organizations of other traffickers. Id. And the

investigator also characterized as common knowledge that drug traffickers many times arm

themselves with firearms and keep firearms, ammunition and other weapons in locations which

allow for ready access. Id.

2. The Defendants Disposal of Almost a Half Kilogram of Cocaine

The affidavit also explained the circumstances surrounding the defendants arrest after

attempting to dispose of a package containing almost a half kilogram of cocaine worth $10,000. The

affidavit explained that in the early evening of September 25, 2010, a police officer was on patrol

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in uniform and in a marked police car when he observed an individual, later identified as the

defendant, walking in the 100 block of Sherman Avenue in Takoma Park, Maryland; the affidavit

also explained that the defendant rented a basement apartment on the same block of Sherman

Avenue. Id. 3. Thedefendant was holding what the officer believed was a bottle of suspected

alcohol. Id. at 2. To attempt to further investigate the possible alcohol violation, the officer

turned his police car around. Id. 3. When in close proximity, the officer motioned to the

defendant. Id. 3 at 2. But when the officer opened his police car door, the defendant fled from the

officer on foot, and a chase ensued. Id. During the chase, the officer yell[ed] loud and clear verbal

commands for the defendant to stop. Id. Despite these commands from a uniformed police officer,

the defendant continued to flee. Id.

The affidavit recounted that the chase continued to the front of 7611 Maple Avenue, when

the officer and a civilian witness observed the defendant throw an object. Id. The officer eventually

caught the defendant, who was identified as Corey Moore by his District of Columbia drivers

license. Id. Meanwhile, a detective responded to the dumpster area where [the defendant] was

observed throwing the object. Id. The detective observed one large object covered in plastic and

no other objects similar in appearance to the object described by the officer. Id. The affidavit

explained that closer inspection of the object revealed it to contain a white substance which was

suspected to be cocaine, and that a field test yielded a positive color reaction for the presence of

cocaine. Id. The package contained a substance that field tested positive for cocaine, which

weighed about half of a kilogram. Id. The affidavit explained that the quantity of cocaine seized

was indicative of intent to distribute, and had an estimated street value of about $10,000. Id.

3. Investigation of an Incident at the Defendants Apartment

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The affidavit next recounted how the officers discovered the location of the defendants

residence while investigating a possible attempted burglary there two days later. The affidavit stated

that at 3:18 a.m. on September 27, 2010 precisely 34 hours after the defendant was observed

walking on the 100 block of Sherman Avenue police officers were dispatched to 118 Sherman

Avenue in reference to an attempt[ed] residential burglary. Id. The complainant, who lived in

close proximity to 118 Sherman Avenue, indicated that the complainant heard a thumping noise

outside and then observed two males running from the driveway of 118 Sherman Avenue. Id. After

finding a broken basement window at the residence of 118 Sherman Avenue, officers contacted the

homeowner who indicated that he rents out the basement of the home to Corey Moore, the

defendant. Id.

4. Application and Warrant to Search the Defendants Apartment

Later the same day, the investigator applied to the Circuit Court for Montgomery County,

Maryland, for a warrant to search the defendants residence. Id. at 3 (application signed on

September 27, 2011). The affidavit described the location to be searched as the basement of 118

Sherman Avenue, Takoma Park. Id. at 1. Attached to the application is a document entitled

Oath, which states that the investigator personally appeared before a Judge of the District/Circuit

Court For Montgomery County, Maryland, on this 27th day of September 2010, and made oath in

due form of law that the contents of this 5 page application are true and correct to the best of his

knowledge, information and belief. Id. at 5. The application is signed by a Circuit Court Judge for

Montgomery County. Id.

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The Circuit Court judge also signed the search warrant. The warrant stated AFFIDAVIT,

herewith attached, having been made before me by Officer Charles Hoetzel #8406, Takoma Park,

Police Department that he has probable cause to believe that in the premises known as the basement

of 118 Sherman Avenue Takoma Park, Montgomery County, Maryland .... there is now being

concealed property, including cocaine, firearms, and other items. Id. at 1. The search warrant

signed by the Circuit Court Judge concluded that I am satisfied that there is probable cause to

believe that the property so described is being concealed in the above designated premises and that

the foregoing grounds for issuance of the warrant exist. Id. The signed warrant further stated that

law enforcement officers are AUTHORIZED ... to search ... the designated premises for the

property specified, and if the property be found there YOU ARE COMMANDED TO SEIZE IT ....

Id. The search warrant bears signatures of the investigator and the Circuit Court Judge.

B. Execution of the Search Warrant at the Defendants Apartment

After the Circuit Court judge found that the affidavit established probable cause to search the

apartment and issued a warrant, law enforcement officers executed the warrant the same day.

Officers recovered from the defendants apartment 2,800 grams of phencyclidine, commonly known

as PCP; a scale containing cocaine residue; more than $44,000 in U.S. currency; a Smith & Wesson,

Model 64-3, .38 caliber revolver; an Israel Weapon Industries, Model Desert Eagle, .44 caliber,

semi-automatic pistol; and six Winchester .38 caliber cartridges.

Based on the evidence seized from the defendant and his apartment on September 25 and 27,

2010, a federal grand jury returned an indictment charging the defendant with possessing with intent

to distribute cocaine and phencyclidine under 21 U.S.C. 841(a)(1); possessing firearms in

furtherance of a drug trafficking crime under 18 U.S.C. 924(c); and possessing firearms and

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ammunition by a convicted felon under 18 U.S.C. 922(g)(1).

C. Order Suppressing Evidence Seized from the Defendants Apartment

On January 2, 2011, the defendant filed a motion to suppress the evidence seized as a result

of the execution of the search warrant. The government filed a response in opposition to the

defendants motion, and later supplemented its response with additional precedent.

The Court held a hearing on the suppression motion on April 13, 2011. The Court described

the affidavit as inadequate, and lacking normal strong things such as the defendants reputation

as a drug dealer, his criminal record, information from a confidential informant, and controlled buys

of drugs. See Transcript of April 13, 2011 Hearing, attached as Exhibit 2, at 25. The Court did not

think that we can generalize to say every person found with drugs on the street automatically and

in every instance has drugs in their home. Id. At the conclusion of the hearing, the Court

suppressed the evidence seized from the defendants apartment, finding that (1) there was not

sufficient probable cause to establish that evidence of a crime would be located in the defendants

apartment, and (2) that the affidavit was so lacking in indicia of reliability and probable cause as to

render belief in its existence entirely unreasonable, precluding application of the good-faith

exception. Id. at 24-27.

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ARGUMENT

I. THE SEARCH WARRANT AFFIDAVIT ESTABLISHED PROBABLE CAUSE

THAT EVIDENCE OF A CRIME WAS LOCATED IN THE DEFENDANTS

APARTMENT.

The government respectfully requests that the Court reconsider its finding that the affidavit

did not articulate sufficient probable cause that evidence of a crime would be located in the

defendants apartment. As discussed below, based on the defendants possession of a half-kilogram

of cocaine on the same block as an apartment he rented, coupled with the normal inference that drug

dealers keep drugs and guns in their residence, along with the investigators training and experience

that drug dealers maintain drugs and guns in secure locations to which they have ready access, the

Circuit Court judge was entitled to infer that tools of the drug trade drugs and firearms were in

the defendants apartment.

A. The Nexus Between Evidence of Criminal Conduct and the Place to Be Searched

May Be Established By Normal Inferences Regarding Where Evidence of That

Nature Likely Would Be Kept.

Citing the right of the people to be secure in their ... houses ... against unreasonable searches

and seizures, the Fourth Amendment provides that no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the

person or things to be seized. U.S. Const. amend. IV. The probable cause standard involves a

practical, common sense decision by the issuing judge as to whether the circumstances set forth in

the affidavit establish a fair probability that contraband or evidence of a crime will be found in a

particular place. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Rather than being defined

by bright lines and rigid boundaries, the standard requires simply that the facts warrant a man of

reasonable caution to believe that evidence of a crime will be found. United States v. Williams, 974

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F.2d 480, 481 (4th Cir. 1992) (citation and quotation marks omitted). The law does not demand

showing that such a belief be correct or more likely true than false. Id. To establish probable cause

that evidence of a crime is located in a particular place, an affidavit must establish a connection

between the evidence of a crime and the place to be searched. It is axiomatic that the affidavit need

not contain direct evidence that evidence will be found in the location to be searched. Rather, the

nexus between the place to be searched and the items to be seized may be established by the nature

of the item and the normal inferences of where one would likely keep the evidence. See United

States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988)(upholding the denial of a motion to suppress

evidence seized pursuant to a search warrant, reasoning that it was reasonable for the magistrate to

believe that the defendants gun and the silencer would be found in his residence [even though] the

affidavit contained no facts that the weapons were located in the defendants trailer); United States

v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (finding that our cases indicate that a sufficient

nexus can exist between a defendants criminal conduct and his residence even when the affidavit

supporting the warrant contains no factual assertions directly linking the items sought to the

defendants residence) (citation and internal quotation marks omitted). Because [r]easonable

minds frequently may differ on the question whether a particular affidavit establishes probable

cause, courts have concluded that the preference for a warrant is most appropriately effectuated

by according great deference to a magistrates determination. United States v. Leon, 468 U.S.

897, 914 (1984); Williams, 974 F.2d at 481 (citation and quotation marks omitted) (Great deference

is to be given a magistrates assessment of the facts when making a determination of probable

cause).

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Relying on the well-established principle that an issuing court may rely on normal inferences

of where evidence might be kept, the Fourth Circuit and other courts have upheld warrants to search

a subjects residence for evidence of a crime without direct evidence of a connection between the

two. The Fourth Circuit directly addressed this principle in Anderson, 851 F.2d at 729. The

defendant in Anderson was convicted of unlawful possession of an unregistered silencer after

investigators found the silencer, along with a pistol, in the defendants residence, a trailer.Id. at 728.

Officers found the evidence pursuant to a search warrant secured during a murder investigation. Id.

The affidavit in support of the warrant application indicated that the defendant had offered to sell

the pistol and silencer to three informants, whom he told that the gun had been used to kill

somebody. Id.

Squarely addressing an affidavit that contained no direct evidence whatsoever linking the

firearm to the defendants residence, the Fourth Circuit found that the circumstances supported the

normal inference that the evidence would be found at the defendants dwelling. Id. at 728-29. After

noting a split among the circuits, the court adopted the majority view (of then four circuits) that the

nexus between the place to be searched and the items to be seized may be established by the nature

of the item and the normal inferences of where one would likely keep such evidence. Id. at 729

(citing United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983) (it was reasonable for the

magistrate to conclude that articles of clothing would remain at the residence); United States v.

Steeves, 626 F.2d 33, 38 (8th Cir. 1975) (people who own pistols generally keep them at home or

on their persons); United States v. Rahn, 511 F.2d 290, 293 (10th Cir. 1975) (it was reasonable to

assume that individuals keep weapons in their homes);Bastida v. Henderson , 487 F.2d 860, 863 (5th

Cir. 1973) (a very likely place to find pistols would be either on the persons of the assailants or about

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the premises where they lived)). The court rejected the view of the Eleventh Circuit that there must

be a substantial basis to conclude that the instrumentalities of the crime will be discovered on the

searched premises. Id. at 729. Rather, the court concluded that it was reasonable for the

magistrate to believe that the defendants gun and the silencer would be found at his residence ...

even though the affidavit contained no facts that the weapons were located in the defendants trailer

.... Id.

B. The Search Warrant Articulated More Than a Sufficient Connection Between

the Evidence of Criminal Conduct and the Defendants Apartment.

ApplyingAnderson in the context of a search of a drug dealers residence, the Fourth Circuit

has admonished that [w]e have consistently determined that there was probable cause to support

search warrants ... to search suspects residences and even temporary abodes on the basis of (1)

evidence of the suspects involvement in drug trafficking combined with (2) the reasonable suspicion

(whether explicitly articulated by the applying officer or implicitly arrived at by the magistrate judge)

that drug traffickers store drug-related evidence in their homes. United States v. Williams, 548 F.3d

311, 319 (4th Cir. 2008) (reversing district courts order suppressing evidence seized from drug

dealers residences, and discussing probable cause standard in addressing good-faith analysis). The

affidavit in this case more than satisfied this standard, and contained evidence of a connection

between the drugs and the apartment far beyond that found sufficient inAnderson.

First, the affidavit outlined ample evidence that the defendant was involved in the distribution

of cocaine. Specifically, a police officer saw the defendant throw a package that was determined to

contain a half-kilogram of cocaine. Exh. 1 at 3. Supporting the officers account that the defendant

threw such a package was a civilian witness, who also saw the defendant throw a package. Id.

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Further supporting the account that the defendant possessed the illegal drugs was his reaction to the

officers initial contact headlong flight. And the affidavit clearly explained that based on the1

investigators training and experience, that volume of cocaine a half-kilogram was worth $10,000

on the street, and was indicative of an intent to distribute. In short, the circumstances amply pointed

to the conclusion that in the early evening of September 25, 2010, the defendant possessed a

substantial quantity of cocaine intended for distribution. Because the nexus between the place to be

searched and the evidence to be seized may be established by the nature of the item and the normal

inferences of where one would likely keep such evidence,Anderson, 851 F.2d at 729, this evidence

alone warrants a search of the defendants residence. Indeed, people often keep their trade tools at

home medical bags for doctors; legal texts for lawyers; assorted tools for an automobile mechanic;

and drugs and guns for a drug dealer. In the case of drug dealers, evidence is likely to be found

where the dealers live. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)

(upholding denial of motion to suppress evidence from a drug dealers residence). This common

sense principle is borne out by case books that brim with examples of law enforcement officers

/ Although not dispositive, a suspects flight certainly is consistent with illicit behavior.1

United States v. Smith, 396 F.3d 579, 584 (4th Cir. 2005) (evasive reactions to the presence of

police may be considered in determining whether reasonable suspicion exists for an investigatory

stop); United States v. Humphries, 372 F.3d 653, 657, 660 (4th Cir. 2004) (explaining, in context

of probable cause analysis, that officers may consider evasive conduct that falls short of

headlong flight, such as walking away from approaching officers at a quick pace and ignoring

commands to stop); United States v. Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997) (Evasive

conduct can, of course, assist an officer in forming reasonable suspicion); United States v.

Crittendon, 883 F.2d 326, 328 (4th Cir. 1989) (suspects companions flight after officers

identified themselves was sufficient to create reasonable suspicion to stop the suspect); United

States v. Haye, 825 F.2d 32, 34 (4th Cir. 1987) (suspects immediate flight after officers

identified themselves was sufficient to create reasonable suspicion).

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seizing drugs and guns from a drug dealers residence. Coupled with the evidence of the2

defendants possession with intent to distribute a half-kilogram of cocaine, the normal inference as

to where drug dealers keep the tools of their trade is sufficient to establish probable cause to search

his apartment. See Williams, 548 F.3d at 319. But this affidavit contained more.

The normal inferences that a drug dealer would keep drugs at home was buttressed by the

affidavits discussion that drug dealers often maintain the tools of their trade in a secure location

to which they have ready access. See Exh. 1 at 2. The investigator outlined common attributes

of a drug dealer based on his training by both the police and the Drug Enforcement Administration,

as well as his experience enforcing drug laws. He explained that narcotic traffickers commonly hide

contraband and proceeds of drug trafficking in a secure location, and often possess firearms in

locations that allow for ready access. Id. The most common secure location to which one has ready

access where valuables are commonly kept is ones home. Consequently, the normal inferences

of where a drug dealer might store contraband, alone found sufficient inAnderson, were supported

here with the officers training and experience that drug dealers commonly maintain those items in

a secure location to which they have ready access, a description that fits an apartment to a tee. This

evidence is more than sufficient underAnderson and Williams to establish probable cause to search

the defendants apartment. But this affidavit contained still more.

/ See, e.g., United States v. Perry, 560 F.3d 246, 249-50 (4th Cir. 2009) (law2

enforcement officers found firearms and drugs in drug dealers residence); United States v.

Griffin, 2006 WL 980793 (4th Cir. 2006) (firearms, ammunition, and drugs found in drug

dealers residence); United States v. Mayes, 2003 WL 22718788 (4th Cir. 2003) (drugs, a

firearm, and ammunition found in drug dealers residence); United States v. Feury, 1993 WL

185638 at *4 (4th Cir. 1993) (firearms and marijuana found in marijuana distributors residence).

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In addition to supporting normal inferences about where drug dealers keep contraband, and

outlining the officers training and experience in that regard, the affidavit also made clear that the

defendant possessed the distribution quantity of cocaine in close proximity to his residence. The

defendant was found walking on the same block as his apartment when he fled with the half-

kilogram of cocaine. The affidavit explained that the uniformed officer first saw the defendant

walking in the 100 block of Sherman Avenue in Takoma Park, Maryland, and that the owner of 118

Sherman Avenue indicated that he rented out his basement to the defendant. See Exh. 1 at 3.

Supporting the disinterested landlords account was the presence of a car to which the defendant had

access on the same road Sherman Avenue. Id. On top of all this was the close temporal proximity

between the defendants presence near the apartment and the application for the warrant less than

48 hours. The defendants presence with a half-kilogram of cocaine on the same block as his

apartment, a secure location to which he has ready access a place where drug dealers commonly

maintain drugs and firearms offers a stronger connection between the crime and the search location

than those found sufficient inAnderson, and establishes more than a fair probability that contraband

or evidence of a crime would be found in the apartment. See Gates, 462 U.S. at 238-39.

When a district court did not applyAndersons principle regarding the normal inferences

where evidence of a drug dealing may be concealed, and instead suppressed evidence because the

affidavit articulated no direct connection between drug dealing and a particular rented room, the

Fourth Circuit reversed the suppression order. InUnited States v. Williams,a law enforcement officer

presented a magistrate judge with an affidavit in support of a warrant to search a suspected drug

dealers motel room. 974 F.2d at 481. The affidavit clearly establishe[d] that Williams was a drug

dealer, as police had found drugs and three guns at his house less than three weeks earlier, among

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other things. Id. But there was no direct connection between the drug dealing and his stay at the

motel room. See id. Finding no evidence linking [the suspects] past drug-related activities with

[the suspects] motel room, the district court suppressed the evidence. Id. at 481. The government

appealed, and the Fourth Circuit reversed.

Noting that the magistrates conclusion that the affidavit was sufficient was consistent with

Anderson, 851 F.2d 727, the Fourth Circuit concluded that the affidavit fully supported the

conclusion that there was a fair probability that drug paraphernalia would be found in the defendants

motel room. To be sure, the evidence that the defendant was a drug dealer in Williams was more

substantial than the evidence in this case; but the connection between the drugs and the location to

be searched in this case is even stronger. In Williams, the affidavit contained no evidence of any

proximity of the drugs to his motel room; here, in contrast, the defendant was carrying $10,000 worth

of cocaine on the same block as the apartment.

The Fourth Circuit in United States v. Grossman applied these same principles in rejecting

a challenge to search warrants for a drug dealers residences without direct evidence of a connection

between the residences and the drug dealing. 400 F.3d at 216-17. In Grossman, the defendant

likewise argued that search warrants were invalid because the affidavit did not establish a nexus

between the suspected drug dealing and the residences to be searched. 400 F.3d at 216-17.

Although the affidavit did not establish any direct connection between the defendants drug dealing

and the residences, the Fourth Circuit again upheld the probable cause finding by the issuing judicial

officer. Id. at 217. Reasoning that the case law requires no direct connection between the criminal

activity (drug dealing) and the place to be searched (three residences), the court concluded that

[u]nder the circumstances, it is reasonable to suspect that a drug dealer stores drugs in a home to

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which he owns a key. Id. Likewise, it was reasonable in this case for the Circuit Court judge to

suspect that the defendant stored drugs and guns in an apartment he rented, and around which he

carried a distribution quantity of cocaine.

Courts in other circuits likewise have concluded that search warrant affidavits adequately

established a connection between the evidence of a crime and the search location based on normal

inferences of where such items normally are maintained. See, e.g., United States v. Cruz, 785 F.2d

399, 406 (2d Cir. 1986) (probable cause found to search defendants apartment, although no witness

ever saw defendant or his associates use apartment); United States v. Restrepo, 994 F.2d 173, 188

(5th Cir. 1993) (upholding search warrant for narcotics trafficking at defendants house where officer

indicated that in his eleven years of experience, records and other evidence of drug trafficking are

maintained at a home); United States v. Riedesel, 987 F.2d 1383 (8th Cir. 1993) (lawful seizure of

drugs from defendants car provided probable cause to support issuance of warrant to search his

house); United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (probable cause existed

to search defendants residence, based on reasonable inference that suspected drug dealer would keep

evidence at home); United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir. 1979) (same); United

States v. Thomas, 989 F.2d 1252, 1254-55 (D.C. Cir. 1993) (holding, in case in which a search

warrant for a suspects residence was obtained after an officer made a controlled buy of cocaine from

the defendant, that observations of illegal activity occurring away from the suspects residence, can

support a finding of probable cause to issue a search warrant for the residence, if there is a reasonable

basis to infer from the nature of the illegal activity observed, that relevant evidence will be found in

the residence.)

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The defendants possession of nearly half a kilogram of cocaine only two days before the

search warrant was issued, together with the evidence that the defendant was residing at the search

location when he possessed the cocaine, the agents experience and training regarding locations

where drug dealers secret evidence, and the common-sense inference as to where traffickers keep

their tools, was sufficient to establish a fair probability that evidence of a crime would be found at

the defendants apartment.

B. A Reasonable Officer Could Rely in Good Faith on the Circuit Court Judges

Finding of Probable Cause.

In addition to establishing probable cause for the warrant, the above discussion also

demonstrates that a reasonable officer in the same shoes as the investigator would not second-guess

the determination by a Circuit Court judge that the affidavit was sufficient. The exclusionary rule

is a judicially created remedy designed to safeguard Fourth Amendment rights generally through

its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States

v. Leon, 468 U.S. 897, 906 (1984). The rule is designed to deter police misconduct, rather than to

punish the errors of judges and magistrates. Id. at 916. The policy behind the rule is not furthered

by excluding evidence when an officer acting with objective good faith has obtained a search

warrant from a judge or magistrate and acted within its scope. Id. at 920. As the policy of the rule

is not furthered by excluding evidence secured in good faith, the rule does not bar the admission of

evidence obtained from a defective warrant where the executing agents acted in good faith. Id. The

good-faith analysis takes the objective perspective whether a reasonable officer standing in the

agents shoes could be expected to have known that the warrant was invalid. See United States v.

Clutchette, 24 F.3d 577, 582 (4th Cir. 1994). In the ordinary case, an officer cannot be expected

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to question the magistrates probable-cause determination or his judgment that the form of the

warrant is technically sufficient. Leon, 468 U.S. at 921. But an officers reliance on a judges

probable cause determination is unreasonable where (1) the officer provided knowingly or recklessly

false information; (2) the magistrate wholly abandoned his judicial role; (3) the affidavit was so

deficient in probable cause as to render reliance entirely unreasonable; or (4) the warrant was so

facially deficient as to render reliance unreasonable. Id. In this case, the Court rejected the claim

that the officers omitted material information, but found that the affidavit was so deficient in

probable cause that the agents could not rely on the Circuit Court judges determination. The

government respectfully submits that under the circumstances, a reasonable officer could rely on the

judges finding.

As discussed above, the law amply supports the Circuit Court judges conclusion that there

was a fair probability that evidence of drug dealing would be found in the apartment rented by a man,

who less than 48 hours before, was carrying $10,000 worth of cocaine on the same block as that

apartment, in light of the normal inferences that drug dealers maintain drugs where they live,

buttressed by the investigators training and experience that traffickers keep contraband and firearms

in secure locations to which they have ready access. To be sure, [r]easonable minds frequently may

differ on the question whether a particular affidavit establishes probable cause .... Leon, 468 U.S.

at 914. But even if this Court concludes that probable cause is lacking despite the deference

traditionally afforded to the issuing judicial officer, the analysis discussed above more than supports

the notion that the affidavit was not so unreasonable as to preclude reliance by the officers.

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Citing the officers good-faith, the Fourth Circuit reversed an order suppressing evidence in

United States v. Williams despite the fact that the affidavit lacked not only information linking the

drug dealing to the residence, it also was devoid of facts establishing that the defendant even resided

at the location. 548 F.3d 311, 321 (4th Cir. 2008). In Williams, investigators submitted to a

Maryland state court judge an application for a warrant to search two dwellings in and around

Baltimore, alleged to be owned by two suspects. Id. at 313-16. Although the affidavits detailed

considerable evidence that two individuals were involved in drug trafficking, they did not specify

any particular evidence such as evidence gathered from intercepted phone calls or physical

surveillance linking the [locations to be searched] to drug trafficking activity. Id. at 314-15.

Even more, the affidavit contained no facts indicating that the suspects lived at the residences, other

than the bare assertions that the targeted dwellings were [the suspects] residences, without

explicitly describing how [the investigator] came to believe it was so. Id. at 321. Deeming the

affidavits fatally bare bones, id. at 319, the district court concluded that the affidavits were so

lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

Id. at 318. The district court rejected the governments reliance on the affiants assertion of his

training and experience, and observed that there were no reports of any drug use at either location3

to be searched and any suspicious activity of the defendants near the premises. Id. at 318-19.

/ The affiant asserted that he knows based on his training and experience that drug3

dealers tend to maintain quantities of narcotics, firearms and proceeds from drug sales and

records of drug transactions in their houses ... for safekeeping ... that drug dealers often utilize

safes and other locked containers in their residence to secure quantities of drugs, firearms and

proceeds from drug sales.... [and] that narcotic dealers tend to stash quantities of narcotics,

monies, and handguns in their houses. Id. at 314.

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The Fourth Circuit reversed. Simply put, the district courts view is directly at odds with

our precedent. Id. at 319. Suggesting (but not stating) that the affidavit not only satisfiedLeon but

also established probable cause, the Fourth Circuit made clear that probable cause exists to search

suspects residences and even temporary abodes based on evidence of the suspects drug dealing

coupled with the reasonable suspicion whether explicitly articulated by the applying officer or

implicitly arrived at by the magistrate judge that drug traffickers store drug-related evidence in

their homes. Id. at 319.

The district court erroneously discounted the affiants assertion of training-and-

experience-based knowledge to tie the defendants drug trafficking activities to their residences,

according to the court. Id. at 320. Had the court given due consideration to [the affiants] assertion,

together with the extensive evidence of [the defendants] drug trafficking activities detailed in the

[search warrant] affidavits, it could not have concluded that the affidavits were bare bones with

respect to the criminal activity-dwelling nexus. Id. (citation omitted). By crediting the agents

training and experience as to where drug dealers maintain their tools, the court would have

necessarily determined that the affidavits were not so lacking in indicia of probable cause tying the

targeted dwellings to criminal activity as to render official belief in its existence entirely

unreasonable.Id. (citation and internal quotation marks omitted). The evidence linking the drugs

to the defendants apartment in this case was even stronger than the evidence in Williams. In

Williams, the suspicious activity of the suspects occurred nowhere near the premises, and there

were no facts establishing that they even lived at the dwellings. Id. at 319. But here, the affidavit

amply supported the inference that the defendant was walking with a half-kilogram of cocaine on

the same block as his apartment, and his landlord confirmed that he rented the basement. See Exh. 1

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at 3.

Application of the good faith doctrine also is supported by United States v. Lalor, 996 F.2d

1578 (4th Cir. 1993). The affidavit inLalordid not describe circumstances that indicate that the

evidence was likely to be stored at the residence. Id. at 1582-83. Even though the affidavit inLalor

was devoid of any basis from which the magistrate could infer that evidence of drug activity would

be found at the search location, the court found that the officers nevertheless relied reasonably on

the warrant. Id. at 1583. Specifically, the court noted that two judicial officers determined that the

affidavit established probable cause to believe that evidence of a crime would be located at the

search location. Id. In this case, in contrast, the link between the drugs and the apartment is even

stronger, as the investigator explained in detail the notion that drug dealers commonly maintain

drugs and firearms in secure locations, and where the narcotics trafficker can obtain ready access

to them. Exh. 1 at 2.

Finally, a bare bones affidavit is one that contains wholly conclusory statements, which

lack the facts and circumstances from which a magistrate can independently determine probable

cause. United States v. DeQuasie, 373 F.3d 509, 521 (4th Cir. 2004) (internal citation and quotation

marks omitted); United States v. Williams, 224 F.3d 530, 533 (6th Cir. 2000) (a bare bones

affidavit is similar to one, if not the same as, a conclusory affidavit. It is one which states only the

affiants belief that probable cause existed) (citation and internal punctuation omitted). Whereas

in Wilhelm, the magistrate acted as a rubber stamp by finding probable cause when the information

presented by the affiant simply stated the affiants belief that probable cause existed, 393 F.3d at 533,

the affidavit in this case furnished sufficient information to allow the conclusion that a fair

probability existed that evidence would be found in the defendants apartment. See also United

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States v. Bynum, 293 F.3d 192, 199 (4th Cir. 2002) (holding that even if there was lack of probable

cause to support search warrant, good faith exception to exclusionary rule applied so as to permit

admission of fruits of a search).

CONCLUSION

For the foregoing reasons, the government respectfully submits that this Court should

reconsider its Order suppressing evidence and find that (1) the affidavit amply demonstrated

probable cause that evidence of drug dealing would be located in the defendants apartment, and in

any event, (2) that a reasonable officer under the circumstances could rely on the state judicial

officers conclusion that the warrant was valid.

Respectfully submitted,

ROD J. ROSENSTEIN

United States Attorney

Date: April 27, 2011 By: ____/s/_______________________

Mara Zusman GreenbergJonathan F. Lenzner

Assistant United States Attorneys

U.S. Courthouse, Suite 400

6500 Cherrywood Lane

Greenbelt, Maryland 20770

(301) 344-4433

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corey moore motion for reconsideration

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