United States v. Dixon , 787 F.3d 55 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-1124
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    SAMUEL DIXON,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Joseph L. Tauro,    U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Stahl and Howard, Circuit Judges.
    Judith H. Mizner, Assistant Federal Public Defender, for
    appellant.
    Crystal S. Yang, Special Assistant United States Attorney,
    with whom Carmen M. Ortiz, United States Attorney, was on brief,
    for appellee.
    May 22, 2015
    HOWARD,     Circuit      Judge.      Defendant      Samuel    Dixon    was
    convicted      of    being   a   felon    in    possession    of    a    firearm    and
    ammunition in violation of 18 U.S.C. § 922(g)(1) after police
    executed a search warrant for his apartment and found a pistol and
    eight rounds of ammunition.               Dixon appeals his conviction on
    several bases. First, he argues that the affidavit used to support
    the   search    of    his    person     and    apartment   was     insufficient     to
    establish probable cause and so the trial court erred in denying
    his motion to suppress.            Second, he argues that his conviction
    violates the Commerce Clause because the government did not prove
    the interstate commerce element of the felon-in-possession charge
    and so the court erred in denying his motion for judgment of
    acquittal.          Third, he argues that the district court's jury
    instructions        concerning    the    interstate    commerce         element    were
    erroneous.      We find no merit in his arguments and affirm.
    I.
    On February 11, 2011, Boston Police Detective Michael
    Ross filed an affidavit in support of two search warrants: one for
    Dixon's person and one for 12 York Street, Apartment 1 in the
    Dorchester neighborhood of Boston.               The affidavit first recounted
    Detective Ross's extensive experience with drug investigations,
    then detailed his investigation into a suspected drug trafficking
    scheme in the Dorchester/Roxbury area.
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    The affidavit noted that Ross had received information
    from a confidential informant (CI) "[w]ithin the last few months"
    that a black male with short hair who was approximately forty years
    old, six feet tall, and 200 pounds was selling crack cocaine in
    that area.    The CI had purchased crack cocaine from that man in the
    past.    The CI provided Ross with the phone number he had used to
    contact the suspect and purchase drugs. The CI also told Ross that
    the suspect drove a red Ford SUV.
    The affidavit stated that this CI had provided Ross's
    unit with "reliable information in the past that ha[d] led to the
    arrests and convictions of individual(s) for violation of the drug
    laws and also the seizure of drug(s), money, firearm(s) and
    ammunition."     Ross explained that he had intentionally excluded
    details about those prior investigations from the affidavit in
    order to protect the CI from harm and ensure that the Boston police
    would be able to "cultivate future informants."
    The affidavit then detailed a series of controlled buys
    during which the CI had purchased what appeared to be drugs from
    the suspect.     During the first controlled buy, which took place
    "[w]ithin the last few months," officers searched the CI to
    establish that he was free of contraband or money, then had him
    call the suspect to arrange a purchase.         Officers provided the CI
    with money, and the CI then proceeded to a "meet location."           The
    police   followed   the   CI   and   observed   the   suspect's   arrival.
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    Officers watched the suspect make an exchange with the CI following
    a brief conversation and then followed the suspect to York Street
    in Dorchester.    The CI reconvened with Ross and gave him the
    substance that he had purchased.   Ross's "training and experience
    led [him] to believe the items(s) handed to [him] by [the CI] was
    a quantity of crack cocaine."
    Two additional, nearly identical controlled buys were
    conducted, one "[w]ithin the last couple of months" and one
    "[w]ithin the last ninety-six hours."   Before the latter two buys,
    officers followed the suspect from 12 York Street to the meet
    location and also followed him back to York Street after the
    transaction concluded. The affidavit did not say that the officers
    saw an exchange between the CI and the suspect during either of the
    later buys, but afterward the CI handed Ross a substance that Ross
    believed was crack cocaine.
    The affidavit described other efforts to confirm the CI's
    information.   After the first controlled buy, Ross observed a red
    Ford Expedition, matching the CI's description of the suspect's
    vehicle, parked in the driveway at 12 York Street.     Ross ran the
    Ford's plates and determined that it belonged to a man named Samuel
    Dixon, age 43, with an address of 12 York Street, Apartment 1.
    With that name in hand, Ross obtained a photograph of Dixon, and
    the CI identified him as the person from whom he had purchased
    cocaine.   Dixon's driver's license listed his address as 12 York
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    Street, Apartment 1, and Ross observed Dixon driving the red Ford
    SUV in the area on several occasions.        Ross also called the
    telephone number that the CI had provided, which directed him to
    the voicemail of "Mr. Dixon."     Finally, Ross confirmed with the
    area utility provider that Dixon was the listed subscriber at 12
    York Street, Apartment 1, with a phone number matching the one the
    CI had provided.
    As to Dixon's apartment, the affidavit stated that, based
    on Ross's "training and experience" and the three controlled buys,
    and based on his observations of Dixon "entering and/or exiting 12
    York St. . . . before and/or after the purchases of crack cocaine,"
    Ross believed Dixon was "conducting a delivery service of crack
    cocaine" and using his apartment "as his base of operation."   Ross
    "believe[d] items used in the cooking, packaging and sale of crack
    cocaine" would be found there.
    The two warrants were issued on February 11, 2011, and
    executed on February 16, 2011.    Police stopped Dixon in his Ford
    Expedition less than a mile away from 12 York Street and informed
    him of the warrant.   They searched Dixon, found no contraband, and
    took him to his apartment.    Once there, the officers gave Dixon
    Miranda warnings and asked him if there were drugs or firearms in
    the apartment.   He told them that there were drugs in his dresser
    and a firearm in either a toilet or his closet.       The officers
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    searched these locations and found drugs, drug paraphernalia, a
    firearm, and ammunition.
    Dixon   was   charged   with   possession   with   intent   to
    distribute cocaine, see 21 U.S.C. § 841(a), and being a felon in
    possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1).
    He moved to suppress the fruits of the search on the same grounds
    he raises here -- that the affidavit lacked sufficient facts to
    satisfy the probable cause requirement -- but the district court
    denied the motion.1     Dixon was tried on the firearm charge and
    convicted by a jury.2   This appeal followed.
    II.
    Our review of a district court's denial of a motion to
    suppress is plenary.    United States v. McCarthy, 
    77 F.3d 522
    , 529
    (1st Cir. 1996). Where our independent assessment of a suppression
    motion requires us to review the sufficiency of an affidavit
    supporting a search warrant, however, we afford an ample amount of
    deference to the issuing magistrate's finding of probable cause.
    See United States v. Ribeiro, 
    397 F.3d 43
    , 48 (1st Cir. 2005); see
    also Illinois v. Gates, 
    462 U.S. 213
    , 236 (1983) ("[W]e have
    repeatedly said that after-the-fact scrutiny by courts of the
    sufficiency of an affidavit should not take the form of de novo
    1
    Dixon also moved for a Franks hearing. On appeal he does
    not challenge the district court's denial of that motion.
    2
    The government dismissed the drug charge before trial.
    -6-
    review.").      Accordingly, we will reverse "the magistrate judge's
    initial evaluation . . . only if we see no substantial basis for
    concluding that probable cause existed."         
    Ribeiro, 397 F.3d at 48
    (internal quotation marks omitted).
    "A warrant application must demonstrate probable cause to
    believe that (1) a crime has been committed -- the 'commission'
    element, and (2) enumerated evidence of the offense will be found
    at the place searched -- the so-called 'nexus' element."            United
    States v. Feliz, 
    182 F.3d 82
    , 86 (1st Cir. 1999).         "Where, as here,
    the   basis     for    the   magistrate's   probable   cause   finding   was
    information provided by an unnamed information, the affidavit must
    provide some information from which the magistrate can assess the
    informant's credibility." United States v. Greenburg, 
    410 F.3d 63
    ,
    67 (1st Cir. 2005).
    Our inquiry is a "practical, common-sense" one, 
    Feliz, 182 F.3d at 86
    (quoting 
    Gates, 462 U.S. at 238
    ), that takes into
    account the "totality of the circumstances," United States v.
    Khounsavanh, 
    113 F.3d 279
    , 283 (1st Cir. 1997) (internal quotation
    marks omitted). "[T]he facts presented to the magistrate need only
    'warrant a man of reasonable caution' to believe that evidence of
    a crime will be found."         
    Feliz, 182 F.3d at 86
    (quoting Texas v.
    Brown, 
    460 U.S. 730
    , 742 (1983) (plurality opinion)).            "Probable
    cause does not require either certainty or an unusually high degree
    of assurance."        United States v. Clark, 
    685 F.3d 72
    , 76 (1st Cir.
    -7-
    2012).     Rather, "[p]robability is the touchstone."                  
    Khounsavanh, 113 F.3d at 283
    (quoting United States v. Aguirre, 
    839 F.2d 854
    ,
    857 (1st Cir. 1988)) (internal quotation marks omitted).
    Dixon's basic argument is that the affidavit was not
    specific      enough   as    to    the      informant's     reliability     or     the
    conclusions that Dixon had committed a crime or that drugs would be
    found at the York Street apartment.             He also faults the failure to
    do a field test.
    We are satisfied that Ross's affidavit was sufficient to
    provide    probable    cause      as   to    both   the    commission    and     nexus
    elements.      The affidavit provided numerous facts from which a
    magistrate could have easily concluded that the CI who advised Ross
    of Dixon's illegal drug sales was credible.                 First, Ross "met with
    the informant in person on several occasions. . . .                    This sort of
    face-to-face contact between the agent and informant supports the
    informant's reliability."          
    Greenburg, 410 F.3d at 67
    .           Second, the
    CI had given Ross fruitful tips in the past.                     See, e.g., United
    States v. Tiem Trinh, 
    665 F.3d 1
    , 10-11 (1st Cir. 2011).                        Third,
    because of Ross's extensive contact with the CI, Ross would have
    been   able    to   hold    the   CI   responsible        had   he   provided    false
    information, which created an incentive for the CI to tell the
    truth.     See id.; 
    Greenburg, 410 F.3d at 67
    .                  Fourth, the CI, in
    describing his purchases from Dixon, provided "[a] specific, first-
    hand account of possible criminal activity" -- "a hallmark of a
    -8-
    credible tip" -- and in doing so "implicated himself in the
    wrongdoing."     
    Greenburg, 410 F.3d at 67
    -68.
    Fifth, Ross independently corroborated facts that he had
    learned from the CI.       "'[C]orroboration of even innocent activity
    reported in the tip may support a finding of probable cause.'" 
    Id. at 69
    (alteration in original) (quoting United States v. Perez, 
    67 F.3d 1371
    , 1383 (9th Cir. 1995)).                  Here, not only did Ross
    corroborate innocent facts about Dixon -- such as, for example, his
    phone number and the type of car he drove -- he also corroborated
    the   CI's    statement    that    Dixon    sold   drugs     through     the    three
    controlled buys, which were carefully monitored and regulated to
    minimize the chance that the CI could have falsely implicated
    Dixon.       "[A] properly conducted controlled buy is formidable
    evidence to support a search."             United States v. Genao, 
    281 F.3d 305
    , 308 (1st Cir. 2002).         A field test of the substance suspected
    to be illegal drugs is not per se required.                See United States v.
    Dessesaure, 
    429 F.3d 359
    , 368-69 (1st Cir. 2005).
    Finally,     Ross    was    highly    experienced      in    the    drug
    trafficking     field,     having       participated    in       over    1000   drug
    investigations during his sixteen-year tenure in the Boston police
    Department.       "[T]he    issuing       judge    making    a    probable      cause
    determination 'may credit the experience and pertinent expertise of
    a law enforcement affiant in evaluating the authenticity of the
    informant's description of the target's modus operandi.'"                       Tiem
    -9-
    
    Trinh, 665 F.3d at 12-13
    (quoting United States v. Taylor, 
    985 F.2d 3
    , 6 (1st Cir. 1993)).           Ross's extensive experience buttresses our
    conclusion that the magistrate reasonably found that the CI's
    information was reliable.           See 
    id. The magistrate
    judge did not err in concluding that there
    was a reasonable probability that evidence of Dixon's criminal
    activity would be found at 12 York Street, Apartment 1.3                     Dixon was
    registered for utilities there, his driver's license listed that
    address as his residence, and Ross saw him driving around the
    residence on numerous occasions.                 In drug cases, there is often
    probable cause to believe that evidence of the crime will be found
    where the suspected drug dealer lives, at least where, as here,
    "[n]o        other   residence     or   drug-dealing          headquarters   of     [the
    defendant's has been] identified."                   See 
    Feliz, 182 F.3d at 88
    .
    Here there is even more.            Officers observed Dixon returning to 12
    York        Street   immediately    after      all    three    controlled    buys   and
    observed him leaving there to go to the last two controlled buys.
    There was ample probable cause to believe that Dixon kept drug-
    related materials at his York Street apartment.                    See 
    Ribeiro, 397 F.3d at 52
    .
    Dixon    protests       that    the     affidavit     "reported       no
    observations of [him] carrying anything from or into the building"
    3
    Dixon does not challenge the nexus between Ross's affidavit
    and the warrant to search his person.
    -10-
    and   "contained     no   observations    of   [him]   engaging   in    other
    activities deemed to be drug related in or in the vicinity of" his
    apartment.     But the probable cause inquiry requires only a "fair
    probability" -- not certainty -- that evidence of a crime will be
    found in a particular location.         See, e.g., 
    Feliz, 182 F.3d at 86
    (citation omitted).
    The court correctly denied the motion to suppress.4
    III.
    Dixon also argues that the government did not establish
    the interstate commerce element of the felon-in-possession charge
    because the district court erred in instructing the jury on that
    element.      But, as Dixon candidly concedes, his arguments are
    squarely foreclosed by our precedent in United States v. Corey, 
    207 F.3d 84
    (1st Cir. 2000).      He raises them only to preserve them for
    further review.
    Under   Corey,   Section    922(g)   requires   only      that   a
    defendant have possessed a firearm in a state other than the one in
    which it was manufactured, 
    id. at 88
    -- that is, that the defendant
    have possessed a firearm that has crossed state lines at some
    point.     See also Scarborough v. United States, 
    431 U.S. 563
    , 577
    4
    Below, Dixon also filed a motion to suppress statements he
    made to police while detained during the execution of the search
    warrants. On appeal, he only cursorily challenges those statements
    as the tainted fruits of his arrest and the subsequent searches.
    Because probable cause existed, however, this argument necessarily
    fails.
    -11-
    (1977) (finding that an earlier version of § 922(g) embodied only
    a "minimal nexus requirement").       The district court instructed the
    jury accordingly, and the government presented evidence at trial
    that   the    gun   found   in   Dixon's   home   in   Massachusetts   was
    manufactured in Ohio and the ammunition was manufactured in either
    Connecticut or Arkansas.         The instructions were correct and the
    government met its burden.        No more was required.
    IV.
    We affirm the judgment of the district court.
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