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United States v. Edwards

United States District Court, E.D. Wisconsin

October 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES N. EDWARDS, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 27) AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. NO. 21)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On January 18, 2017, a grand jury returned a three-count superseding indictment charging defendant Charles N. Edwards with (1) possessing a firearm after having been convicted of a felony; (2) possessing crack cocaine with intent to distribute; and (3) possessing a firearm in furtherance of a drug trafficking offense. Dkt. No. 16. The defendant filed a motion to suppress, seeking to exclude all evidence recovered as a result of the search of the defendant's home on August 30, 2016. Dkt. No. 21. Specifically, the defendant challenged whether the affidavit supporting the search warrant of the defendant's home established probable cause that criminal evidence would be found at the target residence, or that the residence belonged to the defendant. Id. at 2-3. Judge Duffin issued a report and recommendation on April 4, 2017, dkt. no. 27, and the defendant objected on May 19, 2017. Dkt. No. 33. The court adopts Judge Duffin's report and recommendation, and denies the motion.

         I. Factual Background

         Judge Duffin's report lays out the relevant facts. Dkt. No. 27 at 2-4. For the purposes of the motion, the relevant facts are brief: A Milwaukee police officer responding to a report of a fight saw the defendant with a gun on the ground near him. The officer asked the defendant if the gun was his; the defendant responded that it was, and that he had a permit to carry a concealed weapon. The officer also saw a clear, plastic baggie with corner cuts, containing what the officer thought looked like cocaine. It turned out that the substance was cocaine, and that the defendant was a convicted felon. Id. at 2. The issue in the motion to suppress is this: The officer who submitted the affidavit in support of the search warrant for the defendant's residence stated only that a different law enforcement agent had verified that the address to be searched was the defendant's, and that the affiant (based on his training and experience) knew that people hid guns in their residences, as well as indicia of ownership of guns. He also averred that people keep guns for long periods, and that evidence of gun possession often is found on people's cell phones. Id. at 3.

         II. Judge Duffin's Report and Recommendation

         The defendant argued to Judge Duffin that Officer Newport's affidavit (1) failed to establish probable cause that the target residence, 3284 N. Sherman Boulevard, #2 was his; and (2) that the affidavit did not contain a nexus between the criminal conduct alleged and the location to be searched. Dkt. No. 21 at 3. The defendant argued that these errors rendered the affidavit so facially deficient that the officers could not have relied on it in good faith. Dkt. No. 26 at 11.

         Judge Duffin recounted Officer Newport's affidavit and highlighted the sections relating to the target residence. Dkt. No. 27 at 2-3. After reviewing relevant Fourth Amendment precedent, Judge Duffin concluded that the affidavit “provided the issuing judge with probable cause for concluding that [the defendant] was involved in selling drugs.” Id. at 9. Judge Duffin noted that an issuing judge “‘is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense[, ]'” id. (quoting United States v. Jones, 763 F.3d 777, 795 (7th Cir. 2014)), and that “‘in the case of drug dealers, evidence is likely to be found where the dealers live, '” id. (quoting United States v. Sewell, 780 F.3d 839, 846 (7th Cir. 2015)). He concluded that the affidavit provided probable cause for him to issue a warrant to search the defendant's residence. Id. The remaining question was whether the affidavit sufficiently established that the defendant resided at the target residence. Id.

         On this question, Judge Duffin concluded that Newport's affidavit did not contain a substantial basis upon which an issuing judge could find probable cause to believe that Edwards resided at 3284 N. Sherman Boulevard, #2. Id. at 10-11. He noted that the affidavit indicated “[t]hat affiant states that Special Agent Tim Rorabeck went into 3284 North Sherman Boulevard and verified that Charles Edwards is residing in 3284 North Sherman Boulevard #2.” Dkt. No. 24 at 4, ¶7. The affidavit provided no information as to how agent Rorabeck verified that the defendant resided at the target residence. Id. at 10. Judge Duffin cited United States v. Roach, 582 F.3d 1192 (10th Cir. 2009) for the proposition that “‘[i]t has long been established that a warrant must be supported by facts demonstrating probable cause, not by police summaries of what they have concluded from such facts.'” Id. at 10-11 (quoting Roach, 582 F.3d at 1203)). Judge Duffin found that Newport's affidavit “did not contain a substantial basis upon which the issuing judge could find probable cause to believe that Edwards resided at 3284 N. Sherman Boulevard, #2.” Id. at 11.

         Judge Duffin went on to analyze, however, whether the warrant was so lacking in probable cause that the searching officers could not reasonably have relied on it in good faith. Id. Judge Duffin pointed out that Newport's affidavit said more than “the defendant resides at 3284 N. Sherman Boulevard #2.” Id. It stated that Special Agent Rorabeck had verified that the defendant lived at the target residence. Id. Judge Duffin concluded that it was “not unreasonable for an officer to believe that [Newport's] affidavit [wa]s sufficient when [Newport] state[d] that information ha[d] been verified by another officer, without articulating how the information was verified.” Id. He relied on the reasoning in the Roach case, where the Tenth Circuit found that although the affidavit lacked probable cause, it nonetheless met the good faith standard of a “minimal nexus” connecting the defendant to the address. Id. (citing Roach, 582 F.3d at 1204).

         In sum, while Judge Duffin found that the affidavit did not contain the substantial basis to find probable cause that the defendant resided at the relevant address, he found that the officers had a good-faith basis for relying on the warrant. Id. at 11. He recommended that this court deny the motion to suppress. Id. at 12.

         III. The Defendant's Objections

         The defendant objects to Judge Duffin's recommendation on two grounds. First, he argues that Judge Duffin improperly found that Special Agent Rorabeck had conducted “some investigation” into a connection between the defendant and the residence. Dkt. No. 33 at 2-3. The defendant argued that this conclusion was too speculative, because no specific facts in the affidavit support such an inference. Id.

         Second, the defendant argues that the court should not adopt Judge Duffin's report because “Officer Newport's affidavit does not even contain hypothetical methods that Agent Rorabeck may have utilized to ‘verify' [the defendant's] connection to the residence. Indeed, we do not even know whether Newport knows how Rorabeck allegedly verified this information.” Id. at 5. The defendant further asserts that the “bare bones statement from Officer Newport, who has no personal knowledge, that another agent somehow ‘verified' that Edwards lived at the residence searched . . . cannot satisfy the good faith standard of a ‘minimal nexus' as was the case in Roach.” Id. (emphasis in original). In short, the defendant argues that the court should find that the affidavit lacked even the minimal nexus required to meet the ...


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