United States v. Nozette ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
v. : Crim. Action No. 09-0276 (JR)
:
STEWART DAVID NOZETTE, :
:
Defendant. :
MEMORANDUM
Defendant Stewart David Nozette is charged with
attempted espionage. On October 19, 2009, the FBI conducted a
search of his home, his car, and his person pursuant to a
warrant. Nozette moved [Dkt #30] to suppress the fruits of that
search, arguing that the affidavit supporting the warrant had
failed to establish probable cause for the searches. I denied
the motion in open court on February 17, 2010, and said I would
issue a written statement of my reasons. This is that statement.
In reviewing a warrant application, “[t]he task of the
issuing magistrate is simply to make a practical, common-sense
determination” of whether probable cause exists. Illinois v.
Gates, 462 U.S. 213, 238 (1983). In turn, “the duty of the
reviewing court is simply to ensure that the magistrate had a
substantial basis for . . . concluding that probable cause
existed.” Id. at 238-39.
Home Search
Probable cause to search a residence exists when “there
is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Id. at 238. “[T]he nexus
between the objects to be seized and the premises searched can be
established from the particular circumstances involved and need
not rest on direct observation.” United States v. Lockett, 674
F.2d 843, 846 (11th Cir. 1982). “A magistrate may infer a nexus
between a suspect and [evidence in] his residence, depending upon
the type of crime being investigated, the nature of things to be
seized, the extent of an opportunity to conceal the evidence
elsewhere and the normal inferences that may be drawn as to
likely hiding places.” United States v. Williams, 544 F.3d 683,
687 (6th Cir. 2008).
The affidavit supporting the search gave substantial
details about the FBI’s “false flag” meetings with Nozette,
details that the government argued supplied probable cause to
believe that Nozette had committed crimes. See Aff. ¶¶ 42-63,
attached to Mem. in Opp. Nozette argued that whatever inference
these meetings may have permitted as to his guilt, they did not
establish probable cause to believe that he had stored classified
material in his home. He argued that, in the false flag
conversations, he specifically and repeatedly denied possessing
any classified documents (suggesting instead that any classified
material he could supply would be derived from his memory).
Proof of probable cause that a person committed a crime
can help support a search of that person’s home for crime-related
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items, if such items are typically stored by criminals in their
homes. See, e.g., United States v. Abboud, 438 F.3d 554, 572
(6th Cir. 2006) (“One does not need Supreme Court precedent to
support the simple fact that records of illegal business activity
are usually kept at either a business location or at the
defendant’s home); United States v. Laury, 985 F.2d 1293, 1313-14
(5th Cir. 1993); United States v. Jenkins, 901 F.2d 1075, 1080-81
(11th Cir. 1990). The mere inference that such items are
typically stored in homes is insufficient without more to supply
probable cause, see Jenkins, 901 F.2d at 1081, but additional
support, such as statements from experienced law enforcement
officials that the items to be found are typically stored in
homes, can add enough weight to create probable cause. See,
e.g., id. at 1081; Abboud, 438 F.3d at 572; Laury, 985 F.2d at
1313-14.
Here, there was considerable additional support for the
search. First, in a prior search of Nozette’s home executed in
2007, agents had found computers containing restricted
technology. Second, during the “false flag” process, the agents
received from Nozette a “dead dropped” thumb drive containing
classified information as well as material containing typewritten
text. It was reasonable to expect that the computer and
typewriter equipment Nozette used would have been stored in his
home. Third, the affiant was a seven-year veteran of the FBI who
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had previously worked as a state court prosecutor in Ohio for
four years, so his experience supported the reasonableness of
relying on his belief that a search would turn up evidence and/or
classified information. See Aff. ¶ 1. Finally, the complex
nature of the scientific classified information at issue belied
Nozette’s assertion that he had memorized it all. Nozette
attacked each of these elements as inadequate in isolation, but
their combined force was sufficient for me to find that the
magistrate had a substantial basis for concluding that probable
cause existed.
Auto Search
Nozette objected to the search of his vehicle. See
Mot. 7. The search was supported by the affiant’s statement that
Nozette drove his car to the “dead drop” site four times. Resp.
9 n.9. Further, affiant stated that Nozette had used the car to
transport items he picked up from and dropped off to the agents,
including a thumb drive containing classified information. Id.
The affidavit therefore established probable cause that evidence,
including material picked up from the dead drop site, might be
held in Nozette’s car.
Search of Nozette’s Person
Nozette mentioned the search of his person only in
passing. The search was done incident to his lawful arrest and
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was thus itself lawful. See Chimel v. California, 395 U.S. 752,
763 (1969).
JAMES ROBERTSON
United States District Judge
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