United States v. Custis , 150 F. App'x 265 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4099
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
GREGORY CUSTIS, a/k/a Peanut,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-04-
149-AMD)
Argued: September 22, 2005 Decided: October 19, 2005
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Robert J. CONRAD, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Steven Hale Levin, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.
Alan Royce Lee Bussard, Towson, Maryland, for Appellee. ON BRIEF:
Allen F. Loucks, United States Attorney, Jason M. Weinstein,
Assistant United States Attorney, Baltimore, Maryland, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In this criminal appeal, the government seeks relief from the
district court’s order granting the defendant’s motion to suppress
evidence seized from the defendant’s residence pursuant to a search
warrant. Concluding the district court erred in determining that
the search warrant was not supported by probable cause, we vacate
and remand for further proceedings.
I.
On June 17, 2003, members of the Baltimore County Police
Narcotics Division executed a search warrant at 44 Flaxton Court,
Baltimore, Maryland. As described in the affidavit submitted in
support of the application for the search warrant at issue (the
Supporting Affidavit), during the first week of June 2003,
Detective Brian High (Detective High) of the Baltimore City Police
Department spoke with a confidential informant. The Supporting
Affidavit, sworn to by Detective High, identified the confidential
informant as NWD# 497 and stated that “NWD# 497 has proven to give
very reliable information in the past, which has led to numerous
[s]eizures of drugs, money and the arrests of those responsible.”
(J.A. 16).
NWD# 497 (the CI) told Detective High that the defendant,
Gregory Custis, also known as “Peanut” (Custis), sells heroin and
cocaine through street dealers located at the 2700 block of West
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Coldspring Lane, Baltimore, Maryland and the nearby 4400 block of
Park Heights Avenue, Baltimore, Maryland. According to the CI, the
street name for Custis’ heroin product was “Murder Inc.” and such
product had been sold in this area, on a daily basis, for over a
year. The CI reported that Custis sells the heroin for $10.00 per
unit and the cocaine for $5.00 per unit.
The CI further advised Detective High that Custis transported
the heroin and cocaine as needed to his street dealers on site in
a red and white Ford Bronco from 8:00 a.m. until 6:00 p.m. The CI
provided the license plate number for the Ford Bronco and further
stated that Custis kept the drugs in his vehicle throughout the day
for resupply purposes.
The CI advised Detective High that several males worked for
Custis as the street dealers at the above described locations.
Specifically, the CI described a black male known as “Mo,” who sold
heroin for Custis, and a male by the name of William Horshaw, who
sold both heroin and cocaine for Custis.
On June 3, 2003, as a result of learning the aforementioned
information, Detective High and fellow Baltimore Police Detective
Rager, set up covert surveillance in the 2700 block of West
Coldspring Lane and observed what appeared to them to be a street-
level drug transaction. Specifically, the detectives observed the
male known as “Mo” standing on the block and being approached by an
unknown male. The unknown male then handed Mo currency in exchange
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for a small object which the detectives suspected contained illegal
drugs. The unknown male thereafter left the area. “Mo” then
handed the currency to another individual, identified as Reginald
Lott. The detectives, along with an arrest team, approached and
searched Mo and Reginald Lott for illegal drugs, but found none.
The next day, on June 4, 2003, Detectives High and Rager set
up surveillance in the 4400 block of Reisterstown Road at 2700 West
Coldspring Lane.1 At that location, they saw William Horshaw
retrieve a small object from his shoe as an unknown male approached
him. Horshaw and the male walked out of the detectives’ view, but
reappeared approximately ten seconds later. Both individuals then
walked away from each other. The two detectives approached the
unknown male and recovered a zip lock bag with a miniature zip lock
bag containing a rock powder substance, which the detectives
suspected was heroin. The detectives “then approached Mr. Horshaw
and seized a tops tobacco pouch containing a piece of news paper
containing 5 black top vials with rock substance, suspected heroin,
from his left shoe and a piece of plastic containing 9 green top
vials with rock substance, suspected cocaine, from his right shoe
and 7 small zip locks with a miniature zip lock with rock powder
substance, suspected heroin, from his right watch pocket in his
pants.” (J.A. 17).
1
The 4400 block of Park Heights Avenue and the 4400 block of
Reisterstown Road run parallel to each other, and are one block
apart at the 2700 block of West Coldspring Lane.
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Detective High subsequently ran a license plate check on the
license plate number that the CI had given him for Custis’ Ford
Bronco (Maryland license plate number M987078). The check
confirmed that the number corresponded to a Ford truck registered
to Custis. Notably, the check also revealed that the same license
plate had been suspended effective April 25, 2003.
Detective High learned via a records check with the Baltimore
Gas & Electric Company that as of February 25, 2003, Custis
received utility service from the company at 44 Flaxton Court in
Baltimore, Maryland.2 Thereafter, Detective High drove to 44
Flaxton Court and observed the red and white Ford Bronco with
Maryland license plate number M987078 parked in front of 44 Flaxton
Court.
The balance of the Supporting Affidavit stated as follows:
Your Affiant know[s] that Gregory Custis Jr. is
married to Roxanne Custis. On 6 June 2003 at
approximately 3:35 P.M. Your Affi[an]ts went to 44
Flaxton Court in attempts to locate the Ford Bronco that
is driven by Gregory Custis. At this time we observed a
female getting out of a Burgundy station wagon in front
of 44 Flaxton Court. The station wagon had a Maryland
tag LDY-149 and the same was [run] through MVA and found
to be listed to Roxanne Custis DOB 7/4/68.
Your Affiant have also had experience[] in the past
that drug dealers keep a large quantity of drugs and
money in their permanent residence for security from
others. We have also found that drug dealers transport
2
Custis’ residence at 44 Flaxton Court is approximately seven
miles away from the locations where Detectives High and Rager set
up surveillance based upon the CI’s information.
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drugs to a given area for street sales away from their
residence.
Based on the information given by NWD# 497 we have
reason to believe that Gregory Custis Jr. is transporting
Heroin and Cocaine in his 1989 Ford Bronco Maryland tag
M987078 to the 2700 block W. Coldspring Lane for street
sales in this area. We also have reason to believe that
Gregory Custis Jr. is packaging and sorting heroin and
Cocaine at 44 Flaxton Court, which is his residence.
(J.A. 18).
Detective High and co-affiant Detective John Burns (also of
the Baltimore City Police Department) applied for a search warrant
for 44 Flaxton Court and Custis’ red Ford Bronco on June 13, 2003.
In addition to submitting the Supporting Affidavit as part of the
search warrant application, Detectives High and Burns each
submitted sworn statements describing their respective substantial
training and experience in illegal drug interdiction.
On June 13, 2003, Judge Yvonne Holt-Stone, a judge for the
District Court of Maryland, Baltimore City (the Maryland Judge)
issued a search warrant for Custis’ residence and his Ford Bronco.
Members of the Baltimore County Police Narcotics Division executed
the warrant on June 17, 2003, leading to the seizure of three
firearms, ammunition, illegal drugs, drug paraphernalia, and other
assorted papers from Custis’ residence.
On March 17, 2004, a federal grand jury sitting in the
District of Maryland indicted Custis in a five-count indictment
charging him with various federal drug and firearm offenses. See
18 U.S.C. § 2; 18 U.S.C. § 924(c); 21 U.S.C. §§ 841(a)(1),
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(b)(1)(B); 21 U.S.C. § 846. Custis filed a motion to suppress the
items seized from his residence on June 17, 2003 and any derivative
evidence.
The district court granted Custis’ suppression motion in open
court on December 20, 2004. In so granting, the district court
found probable cause lacking in support of the search warrant for
his residence. Additionally, the district court held that Leon’s
good faith exception to the exclusionary rule did not operate to
save the search. See United States v. Leon, 468 U.S. 897 (1984).
The government noted this timely appeal in challenge of the
district court’s grant of Custis’ suppression motion.
II.
The Fourth Amendment protects against unreasonable searches
and seizures, and mandates that: “no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.” U.S. Const. amend. IV. “[P]robable cause
is a fluid concept--turning on the assessment of probabilities in
particular factual contexts--not readily, or even usefully, reduced
to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213,
232 (1983). And although the Supreme Court has noted that probable
cause is not susceptible to precise definition, the Court has
expressly described probable cause as “existing where the known
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facts and circumstances are sufficient to warrant a man of
reasonable prudence in the belief that contraband or evidence of a
crime will be found.” Ornelas v. United States, 517 U.S. 690, 696
(1996). Under this totality-of-the-circumstances approach, a
judicial officer presented with a search warrant application must
determine whether “there is a fair probability that contraband or
evidence of a crime will be found in a particular place” based on
“the veracity and basis of knowledge of persons supplying hearsay
information.” Gates, 462 U.S. at 238 (internal quotation marks
omitted).
A court sitting in review of a probable cause finding may ask
only whether the issuing judicial officer had a “‘substantial basis
. . . for conclud[ing]’ that probable cause existed.” Id. at
238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
Below, the district court determined that a substantial basis for
probable cause was lacking, a legal determination we review de
novo. See United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.
1996).
Appellate briefing and oral argument in this case have
narrowed the probable cause issue before us down to whether the
Supporting Affidavit adequately linked Custis and his residence to
the street-level drug dealing activity described in the Supporting
Affidavit such that the Maryland Judge had a substantial basis for
concluding that probable cause existed that “cocaine, heroin,
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controlled dangerous substances, paraphernalia, weapons, related
objects, records, U.S. currency and personal papers showing
occupancy and proprietary interest” would be found at Custis’
residence. (J.A. 11). In answering this question, we are entitled
to consider only the information presented under oath to the
Maryland Judge, Wilhelm, 80 F.3d at 118, and must interpret such
information in a commonsense, rather than a hypertechnical manner,
Gates, 462 U.S. at 236.
We begin our analysis of the probable cause issue before us by
recognizing that several statements in the Supporting Affidavit,
without any doubt, directly link Custis and his residence to the
street-level drug dealing activity described in the Supporting
Affidavit. First, the CI identified Custis as the drug dealer who
operates and has operated for over a year on a daily basis the
street-level, drug-sale operations at the 2700 block of West
Coldspring Lane and the 4400 block of Park Heights Avenue,
Baltimore, Maryland. Second, the CI expressly reported that Custis
used his red and white Ford Bronco with Maryland license plate
M987078 to transport the drugs necessary to initially supply these
operations for business beginning at 8:00 a.m. Third, the CI
expressly reported that Custis used the same vehicle to resupply
the same operations throughout the day.
Notably, and we believe wisely, Custis does not dispute that
these statements, if sufficiently credible to be reasonably relied
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upon by a judicial officer in issuing a search warrant, serve to
link Custis and his residence to the nearby drug dealing activity
described in the Supporting Affidavit, such that probable cause
existed to believe that the evidence of criminal activity sought
would be found at Custis’ residence. Accordingly, the discrete
attack that Custis makes upon the sufficiency of the Supporting
Affidavit to provide probable cause heavily focuses upon the
reliability of the CI.
We hold without hesitation that the Supporting Affidavit
contained sufficient indicia of the CI’s reliability such that the
Maryland Judge was objectively reasonable in relying upon the
statements of the CI as reported by Detective High. The CI was
known to Detective High, and thus, Detective High could personally
assess the CI’s credibility. Moreover, the fact that the CI was
known to Detective High supplies an important indicia of
reliability because, unlike an anonymous tipster, the CI had a
significant interest in being truthful given that if he was
untruthful, he risked criminal prosecution for giving a false
police report. United States v. Christmas, 222 F.3d 141, 144 (4th
Cir. 2000); United States v. Riley, 351 F.3d 1265, 1268 (D.C. Cir.
1993). That history had proven the CI to have previously given
reliable information to law enforcement which led to numerous
seizures of drugs, money, and the arrests of those responsible
supplies yet another important indicia of reliability. United
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States v. Hodge, 354 F.3d 305, 311 (4th Cir. 2004) (“a proven,
reliable informant is entitled to far more credence than an
unknown, anonymous tipster . . . .”) (internal quotation marks
omitted)); United States v. Jackson, 818 F.2d 345, 348 (5th Cir.
1987) (reliability of an informant may be established by showing
that informant has previously given tips proven to be correct).
Finally, that Detectives High and Rager were able to
corroborate a substantial amount of the information supplied by the
CI provides strong indicia of the CI’s reliability. Hodge, 354
F.3d at 309 (informant’s reliability may be bolstered by degree to
which informant’s story is corroborated). Specifically, Detectives
High and Rager checked out the two street-level dealers identified
by the CI and found them at the locations described by the CI. At
one location the detectives observed a suspected drug transaction
and at the other location they observed what they were able to
verify as a drug transaction. Detective High corroborated that a
Ford Bronco with Maryland license plate M987078 was registered to
Custis. After learning that the local utility company listed
Custis’ address as 44 Flaxton Court, Detective High observed a red
and white Ford Bronco with Maryland license plate M987078 parked in
front of the address.
Despite the substantial corroboration of the detailed
information supplied by the CI regarding Custis’ drug dealing modus
operandi, Custis argues that the Maryland Judge was objectively
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unreasonable in relying upon any portion of the information
supplied by the CI because no law enforcement officer ever
corroborated the CI’s statement that he delivered drugs to Mo and
William Horshaw in the area of the 2700 block of West Coldspring
Lane and the 4400 block of Park Heights Avenue.
Custis’ argument misses the mark. As we have previously
quoted from the Fifth Circuit’s en banc decision in United States
v. Blount, 123 F.3d 831, 836 (5th Cir. 1997), “‘[t]here is no set
requirement that all tips be corroborated by subsequent police
investigation in order to be considered credible. Whether
subsequent corroboration is necessary must be determined in the
light of the totality of the circumstances presented by the
particular set of facts.’” United States v. DeQuasie, 373 F.3d
509, 519 (4th Cir. 2004) (quoting Blount, 123 F.3d at 836). Here,
Detectives High and Rager corroborated without discrepancy a
substantial amount of the extremely detailed information regarding
criminal activity supplied by the CI, including personally
witnessing a verified drug deal and a suspected drug deal at the
very locations and involving the very persons identified by the CI.
Given that the CI was known to Detective High; the CI put himself
at risk of prosecution for giving false information to a police
officer by supplying the information he did about Custis; the CI
had a past history of giving reliable information to law
enforcement regarding drug dealing in the area; and Detective High
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had located Custis’ residence approximately seven miles from the
street-dealing locations at issue, the Maryland Judge was
objectively reasonable in relying upon/crediting the information
supplied by the CI in the absence of corroboration of the CI’s tip
that Custis physically delivered/supplied drugs to the two
locations at issue.
Custis also takes issue with the credibility of Detectives
High and Burns. He does so on the sole basis that the preprinted
form these detectives submitted in applying for the search warrant
erroneously stated that his residence was located in the City of
Baltimore, when in fact, his residence was outside the city limits
in Baltimore County. According to Custis, this misstatement made
the Maryland Judge’s reliance upon the statements of Detectives
High and Burns in the Supporting Affidavit objectively
unreasonable.3
While we urge law enforcement officers to take extreme care in
preparing their search warrant applications to ensure the accuracy
of all information contained therein, we do not believe that the
single misstatement at issue here rendered the Maryland Judge’s
reliance on the sworn statements of Detectives High and Burns to be
objectively unreasonable. The information was not material.
3
We note that the parties agree that the Maryland Judge here
had the authority under Maryland law to issue the search warrant
for Custis’ residence despite the residence’s location outside
Baltimore City limits. Moreover, Custis does not argue that the
misstatement itself invalidates the search warrant.
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Indeed, as the record shows, the detectives had nothing to gain by
portraying Custis’ residence as being located within Baltimore City
limits as opposed to simply being located within Baltimore County
but outside the city limits.
In conclusion, we hold the district court erred in granting
Custis’ motion to suppress the evidence found and seized during the
execution of the search warrant at his residence at 44 Flaxton
Court. Reading the Supporting Affidavit in a commonsense, rather
than a hypertechnical manner, as we are required to do, Gates, 462
U.S. at 236, we are convinced that the Maryland Judge had a
substantial basis for concluding that probable cause existed to
believe that the evidence of criminal activity identified in the
warrant application would be found at 44 Flaxton Court.
Accordingly, we vacate the district court’s order granting Custis’
suppression motion and remand for further proceedings.4
VACATED AND REMANDED
4
Because we vacate and remand this case to the district court
on the basis that the search warrant for Custis’ residence was
supported by probable cause, we need not reach the issue of whether
the district court erred in holding that Leon’s good faith
exception to the exclusionary rule did not operate to save the
search.
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