United States v. Blizzard , 313 F. App'x 620 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4520
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARC A. BLIZZARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00367-RLW-1)
Submitted: January 30, 2009 Decided: February 25, 2009
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary K. Martin, Hopewell, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a guilty plea, Marc A. Blizzard was
convicted of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006), and possession with
intent to distribute cocaine and marijuana, in violation of 21
U.S.C. § 841 (2006). The district court sentenced Blizzard to
151 months in prison. Blizzard appeals, contending that the
district court erred by denying his motion to suppress evidence
because the search warrant was stale at its execution. Finding
no error, we affirm.
Blizzard argues the search warrant was stale because
the facts alleged in the affidavit in support of the warrant did
not provide a basis to believe evidence of criminal activity
would be found on the premises at the time of the warrant’s
execution. Blizzard further contends that the police did not
justify an eight-day delay in executing the warrant.
This court reviews a district court’s disposition of a
motion to suppress de novo. United States v. Hurwitz, 459 F.3d
463, 470 (4th Cir. 2006). “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.’” 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)). Stale search warrants arise in two
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situations: (1) the government waited an extended period of time
between the information provided and the execution of the
warrant; and (2) the information supporting the search warrant
was too old to provide “present” probable cause. McCall, 740
F.2d at 1336.
When a defendant challenges a warrant due to a delay
between the warrant’s issuance and its execution, a court “must
decide whether a valid warrant became invalid due to the lapse
of time.” Id. The central question for the evaluating court to
determine is whether the facts alleged in the warrant provided
probable cause to believe that evidence of a crime was located
on the premises, at the time of the search. Id. In determining
staleness, a court must consider “all the facts and
circumstances of the case,” such as the nature of the alleged
criminal activity, the duration of the activity, and the nature
of the property to be seized. United States v. Farmer, 370 F.3d
435, 439 (4th Cir. 2004).
The warrant here authorized police to seize evidence
of narcotics distribution, a crime often part of an ongoing
enterprise rather than an isolated incident. See, e.g., United
States v. Alvarez, 358 F.3d 1194, 1204 (9th Cir. 2004) (holding
that information from one to three years before the issuance of
the warrant did not render the warrant stale because the case
involved an longstanding drug conspiracy); United States v.
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Rhynes, 196 F.2d 207, 234 (4th Cir. 1999), vacated in part on
other grounds, 218 F.3d 310 (4th Cir. 2000), (holding the
warrant was not stale where the evidence sought pertained to
drug trafficking). The ongoing nature of the crime, the
location to be searched, and the recency of the information in
the warrant suggested that probable cause was not diminished
solely by the passage of eight days between the issuance of the
warrant and its execution. See Farmer, 370 F.3d at 439
(upholding a warrant for a counterfeit clothing operation in
part due to the extended nature of the operation). Thus, the
district court did not err in denying the motion to suppress.
Blizzard additionally argues that the delay in the
warrant’s execution was unreasonable. Blizzard relies upon
United States v. Wilson, 491 F.2d 724 (6th Cir. 1974), for the
proposition that an unreasonable delay mandates suppression of
the evidence discovered during the execution of the search
warrant. The issue in Wilson hinged upon the wording of a
previous version of Rule 41 of the Federal Rules of Criminal
Procedure, which provided that the search warrant should be
executed “forthwith.” Id. at 724. By the time the Sixth
Circuit Court of Appeals considered Wilson, the rule had been
amended to omit the “forthwith” requirement, leading the court
itself to note “this case has little precedential value.”
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Wilson, 491 F.2d at 725. Therefore, we conclude that the
reasoning in Wilson does not affect the outcome in this case.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the 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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