United States v. Davis

867 F.3d 1021

UNITED STATES of America, Plaintiff–Appellee

v.Steven B. DAVIS, Defendant–Appellee

No. 16-3345

United States Court of Appeals, Eighth Circuit.

Submitted: April 7, 2017

Filed: August 15, 2017

Rehearing and Rehearing En Banc Denied September 27, 2017^*

Maureen McGuire, Katherine Ann McNamara, Richard E. Rothrock, Assistant U.S. Attorneys, U.S. Attorney's Office, Council Bluffs, IA, for Plaintiff–Appellee.

Sean M. Conway, Dornan & Troia, Omaha, NE, for Defendant–Appellant.

Steven B. Davis, Pro se.

Before SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER, District Judge.¹

SMITH, Chief Judge.

Steven Davis was convicted of conspiracy to distribute methamphetamine. Davis appeals, arguing that the district court² erred in denying his motion to suppress, motions in limine, motion for mistrial, motion for judgment of acquittal, and proposed buyer–seller instruction. For the reasons below, we affirm.

I. Background

In June 2014, the Iowa Division of Narcotics Enforcement (DNE) began investigating Randy Heinrichs for selling methamphetamine. On August 26, 2014, an undercover DNE agent arranged to purchase methamphetamine from Heinrichs on August 28, 2014. When the undercover agent met with Heinrichs, Heinrichs was arrested, and the DNE searched his residence. The DNE recovered four ounces of methamphetamine.

In a post- Miranda³ interview, Heinrichs identified his source of supply as "Steve." Heinrichs described Steve's approximate age, hair color, telephone number, and two vehicles: a white panel van and a red Dodge pickup. Heinrichs told the DNE that he had been purchasing methamphetamine from Steve for approximately one year—beginning with one ounce every two to three weeks and increasing to two ounces every one to one and one-half weeks. Heinrichs admitted that at the time of his last purchase, on August 27, 2014, he purchased four ounces of methamphetamine for $1,600 per ounce. The purchase occurred at a gas station on the northwest corner of the intersection of 96th Street and F Street in Omaha, Nebraska.

The Drug Enforcement Administration (DEA) traced the phone number that Heinrichs identified to Steven B. Davis at 4936 South 95th Avenue in Omaha, Nebraska. The DEA closely watched the residence on September 12 and 15, 2014, and observed a white panel van and a red Dodge pickup matching those that Heinrichs described. On September 22, 2014, DEA agents found methamphetamine residue and mail addressed to Davis in the trash outside the residence.

Based on this information, DEA Special Agent James Wahle obtained a warrant to search the residence on September 24, 2014. In his affidavit and application in support of the search warrant, Special Agent Wahle detailed Heinrichs's post- Miranda statements; the method and results of tracing the telephone number that Heinrichs said belonged to Davis; the proximity of the residence to the gas station that Heinrichs described as the most recent point of sale (less than one mile away); the observation of a white panel van and a red Dodge pickup at the residence, matching the vehicles that Heinrichs described; the methamphetamine residue and mail addressed to Davis found in the trash outside the residence; and Davis's prior convictions related to the possession and distribution of methamphetamine.

On October 3, 2014, Special Agent Wahle amended his affidavit in support of the search warrant. In the amended affidavit, Special Agent Wahle noted that Nebraska parole officers spot-checked Carrie Long, a parolee and Davis's roommate, on September 29, 2014. During the spot check, officers seized .9 grams of methamphetamine from Long's bedroom. Special Agent Whale stated that Long told the parole officers that "DAVIS and some of his associates possessed and used illegal drugs in the white work van ... belong[ing] to DAVIS."

On October 9, 2014, DEA agents executed the search warrant and arrested Davis. During the search, agents recovered approximately one ounce of methamphetamine; two digital scales; $12,970 in cash ($200 of which was serialized money used to purchase methamphetamine from Heinrichs); drug paraphernalia; packaging materials; and a cell phone with a phone number matching the number that Heinrichs reported to be Davis's.

Davis was indicted on one count of conspiracy to distribute methamphetamine. The district court granted Davis pretrial release, but it required Davis to wear a GPS ankle bracelet. The court set a preliminary hearing for November 5, 2015. On the morning of the hearing, Davis removed his ankle bracelet and absconded. Davis was apprehended 11 days later in Indiana. He was returned to Iowa and detained pending trial. Ultimately, a jury convicted Davis of conspiracy to distribute methamphetamine, and Davis was sentenced to 180 months' imprisonment.

II. Discussion

On appeal, Davis argues that the district court erred in denying his motion to suppress, motions in limine, motion for mistrial, motion for judgment of acquittal, and proposed buyer–seller instruction. We address each challenge in turn.

A. Motion to Suppress

Before trial, Davis moved to suppress the evidence seized from his residence. Davis argued that the search warrant lacked sufficient probable cause and that its information was fatally stale.

The district court found that the warrant was supported by probable cause because

[i]t was based on the August 2014 statements of Mr. Heinrichs indicating that he had purchased methamphetamine from the defendant for approximately one year. It reported that he had purchased substantial quantities from the defendant. The defendant's criminal history supported Mr. Heinrichs'[s] information about the defendant being a drug dealer. The trash pull which revealed a baggie containing methamphetamine residue also corroborated Heinrichs'[s] statements. It also suggested that some drug activity was taking place recently at the residence. Then the amended affidavit provided evidence of the seizure of methamphetamine from the residence and Ms. Long's statements about the defendant's drug activity at the residence.

The court determined that the information in the warrant was not stale because the amended affidavit described multiple acts that "demonstrate[ ] a reasonable belief that drug activity was recently associated with the residence and had been ongoing for some[ ]time." The court concluded by noting that "[i]n the unlikely event that a court were to find that probable cause did not support the issuance of th[e] warrant, the good[-]faith exception to the exclusionary rule in Leon^{[5 ]} would obviously apply."

On appeal, Davis argues that no information in the search warrant connected Davis's drug-related activities to the residence,⁶ and that the information contained in the warrant was stale because too much time elapsed between Heinrichs's statements and the execution of the warrant. Further, Davis asserts that the good-faith exception does not apply because Special Agent Wahle had "no information linking [Davis's] alleged drug distribution to the residence" and was "aware of specific information that excluded Davis from selling drugs from the residence."

1. Probable Cause

"We review the district court's factual determinations in support of its denial of a motion to suppress for clear error and its legal conclusions de novo." United States v. Johnson , 848 F.3d 872, 876 (8th Cir. 2017) (quoting United States v. Johnson , 601 F.3d 869, 872 (8th Cir. 2010) ). "Whether probable cause to issue a search warrant has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge should be paid great deference by reviewing courts." United States v. Brackett , 846 F.3d 987, 992 (8th Cir.), cert. denied , ––– U.S. ––––, 137 S.Ct. 2177, 198 L.Ed.2d 245 (2017) (internal quotation marks omitted) (quoting United States v. Brewer , 588 F.3d 1165, 1170 (8th Cir. 2009) ). "We will not disturb a court's finding of probable cause ‘unless there was no substantial basis for that finding.’ " Id. (quoting United States v. Montgomery , 527 F.3d 682, 686 (8th Cir. 2008) ).

"We assess probable cause from the viewpoint of a reasonably prudent police officer acting in the circumstances of the particular case." United States v. Seidel , 677 F.3d 334, 337 (8th Cir. 2012) (per curiam) (quoting United States v. Reinholz , 245 F.3d 765, 776 (8th Cir. 2001) ). "A supporting affidavit establishes probable cause to issue a search warrant if it ‘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.’ " Brackett , 846 F.3d at 992 (quoting United States v. Snyder , 511 F.3d 813, 817 (8th Cir. 2008) ). "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." Seidel , 677 F.3d at 338 (quoting United States v. Sumpter , 669 F.2d 1215, 1218 (8th Cir. 1982) ).

We conclude that the search warrant application supports a finding of probable cause. The affidavits in support of the warrant detailed Heinrichs's post- Miranda statements; the method and results of tracing the telephone number that Heinrichs said belonged to Davis; the close proximity of the residence to the gas station that Heinrichs described; the observation of a white panel van and a red Dodge pickup at the residence (matching the vehicles that Heinrichs described); the methamphetamine residue and mail addressed to Davis found in the trash outside the residence; Davis's prior methamphetamine-related convictions; the September 29, 2014 spot check that recovered methamphetamine in Long's bedroom; and Long's statements about Davis's drug-related activities. Considering the totality of the circumstances, the affidavits and application in support of the search warrant contain sufficient facts to establish a fair probability that evidence of criminal activity would be found in...