TANELL RASHAAD CURRY, PETITIONER V. UNITED STATES OF AMERICA No. 90-6191 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 911 F.2d 72. JURISDICTION The judgment of the court of appeals was entered on August 7, 1990. Pet. App. 1b. The petition for a writ of certiorari was filed on November 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the evidence was sufficient to sustain petitioner's conviction for use of a firearm during or in relation to a drug-trafficking crime. 2. Whether a police officer's reliance on a search warrant for petitioner's residence was objectively reasonable. STATEMENT Following a bench trial in the United States District Court for the District of Minnesota, petitioner was convicted of possession with intent to distribute 527 grams of cocaine, in violation of 21 U.S.C. 841(a)(1) (Count 1), and of use of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. 924(c)(1) (Count 2). The district court sentenced him to a term of 87 months' imprisonment on Count 1, to be followed by a four-year period of supervised release, and to a consecutive term of 60 months' imprisonment on Count 2, to be followed by a two-year period of supervised release, to be served concurrently with the term of supervised release on Count 1. The district court also fined petitioner $12,500, and imposed special assessments of $100. Pet. 2-3. 1. On October 6, 1988, Bloomington, Minnesota, police searched petitioner's townhouse residence at 1209 Devonshire Curve pursuant to a warrant issued by a state judge. The police were seeking evidence relating to a series of robberies in which women approached men in Bloomington-area bars, spiked their drinks, then stole the men's valuables from their hotel rooms after the men became unconscious. During the search of petitioner's residence, the police saw drug paraphernalia and a small amount of what appeared to be cocaine. They secured the residence and obtained a second search warrant. Execution of the warrant uncovered 527 grams of cocaine and two firearms. Pet. 3; Pet. App. 2a, 10a. 2. Petitioner moved to suppress the evidence seized pursuant to the two search warrants, alleging that the warrants were not supported by probable cause and that the first warrant did not satisfy the particularity requirement of the Fourth Amendment. Petitioner also moved for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), on the ground that the affidavit supporting the first warrant contained material misrepresentations. A United States magistrate recommended denial of the suppression motion and denied the motion for a Franks hearing. The district court reviewed the record and the magistrate's findings, then denied both motions. The case was then tried to the district court pursuant to a stipulation of facts that the district court adopted as the factual basis for its judgment of conviction. Pet. App. 2a, 4a-5a. 3.a. The court of appeals affirmed. Pet. App. 1a-14a. It found initially (id. at 6a-8a) that both search warrants for petitioner's residence were invalid. The first was deficient, the court explained, because it neither stated the address of the place to be searched nor incorporated by reference the supporting affidavit of Detective Swanson that correctly stated the address of petitioner's residence; the space on the warrant form in which the address was to be entered was simply left blank. Id. at 6a. Accordingly, the court concluded that the warrant did not satisfy the Fourth Amendment's particularity requirement. Id. at 8a. Because probable cause for the second warrant was based on information gained during execution of the first, the second was likewise invalid. Ibid. The court declined, however, to suppress the evidence seized pursuant to the warrants. Relying on United States v. Leon, 468 U.S. 897, 922 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 988-991 (1984), the court observed (Pet. App. 8a) that in the circumstances of a particular case the "good faith" exception to the exclusionary rule might apply even though a warrant had been found invalid because insufficiently particular. It noted (id. at 9a) that in this case Detective Swanson, who had executed the warrants, had prepared the application for the first warrant and the supporting affidavit, which stated the address of the place to be searched. It found this fact "significant because in assessing whether reliance on a search warrant was objectively reasonable under the totality of the circumstances, it is appropriate to take into account the knowledge that an officer in the searching officer's position would have possessed." Ibid. The court further noted (ibid.) the magistrate's findings that Swanson had executed the warrant in good faith and that the failure to fill out the warrant form completely was "more a clerical error than an indication of bad faith." Because the inclusion of the address in the warrant was the responsibility of the issuing judicial officer, and because the purpose of the exclusionary rule is not to "deter the errors of judges, but rather the erors of police officers" (ibid., citing Leon, 468 U.S. at 916), the court concluded (Pet. App. 9a) that suppression of the evidence seized from petitioner's residence would not further the purposes of the rule, and that the district court had properly determined that the Leon exception applied to the evidence seized pursuant to the first warrant. In addition, because reliance on the first warrant was objectively reasonable, an objectively reasonable police officer could also believe that the information in the affidavit supporting the second warrant had been lawfully obtained. Id. at 10a. As a result, the court concluded, evidence seized pursuant to the second warrant was also admissible under Leon. Pet. App. 10a. /1/ b. Relying on its decision in United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir. 1985), which had applied a prior version of 18 U.S.C. 924(c)(1) not materially different from the current version applicable to petitioner's case, /2/ the court of appeals determined (Pet. App. 13a) that "there was substantial evidence to support a finding that (petitioner's) loaded .357 caliber revolver was present and readily available to secure the possession of his cocaine and cash stored in the townhouse." In reaching this result, the court rejected (id. at 12a-13a) petitioner's arguments that United States v. Lyman, 892 F.2d 751, 753 (8th Cir. 1989), cert. denied, 111 S.Ct. 45 (1990), had established a heightened standard for "use" under Section 924(c)(1), and that the court's reliance in Lyman on United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir. 1988), meant that no conviction could be sustained under Section 924(c)(1) that did not satisfy the standard enuciated in Feliz-Cordero. Conceding that the instant case presented "a much closer question" than previous cases where it upheld Section 924(c)(1) convictions, the court nevertheless concluded (Pet. App. 14a) that the acknowledged use of firearms by drug traffickers, the presence in petitioner's townhouse of "large quantities of high purity cocaine * * * clearly intended for distribution" (id. at 13a), and the permissible inference that the cash found in the bedroom came in part from drug sales supported a finding that petitioner's possession of the loaded handgun helped him to protect his cocaine supply and his cash, and thus "facilitate(d)" his commission of a drug trafficking offense (id. at 14a, quoting United States v. LaGuardia, 774 F.2d at 321). ARGUMENT 1. Petitioner claims (Pet. 5-11) that the evidence was insufficient to support his conviction for use of a firearm during or in relation to a drug trafficking crime. Petitioner's fact-bound claim is without merit. Petitioner was not present at his residence, a two-bedroom townhouse with a tuck-under garage, when the police search of the residence began, but was arrested during the search as he approached the townhouse. The search uncovered substantial amounts of cocaine, drug distribution paraphernalia, large sums of cash, ammunition, and two handguns. In the entryway closet on the first floor, the officers found a carry-on bag and a garment bag with luggage tags bearing the name Tanell Curry. Inside the carry-on bag was a briefcase containing 388 grams of 97 percent pure cocaine. Inside the garment bag was a zippered bag containing 125 grams of 97 percent pure cocaine. In the closet of the master bedroom on the second floor of the townhouse, the officers discovered an operable, fully loaded .357 caliber revolver and an operable, unloaded .38 caliber revolver. In the same bedroom, they found $15,950 in cash under the mattress of the bed, and $3,000 in a drawer of the nightstand. A briefcase containing a desk reference book on the identification of pharmaceutical drugs was located on the bedroom floor. In the kitchen of the townhouse, the officers discovered an electric scale, a sifter and a tray, a 300-count box of plastic baggies, and a plate containing traces of cocaine. In the garage, they found a zippered bag containing both a triple beam scale and a box with 47 loaded 9 mm. cartridges. They also found, in petitioner's car in the garage, 14 grams of 87 percent pure cocaine. After his arrest, petitioner told the officers that the handguns and the money were his. Pet. App. 10a-11a. /3/ The presence of two firearms, one of them fully loaded, in close proximity to a large quantity of cash and located a floor above a closet containing distribution-sized amounts of illegal narcotics suggests that petitioner strategically placed the firearms so that they would be easily accessible to protect the proceeds of his drug sales in the first instance, and to protect his drugs as well. Thus, contrary to petitioner's contention, there was a substantial nexus between the two firearms and petitioner's crime of drug trafficking. Furthermore, there is no conflict between the court of appeals' decision and United States v. Feliz-Cordero, 859 F.2d 250 (2d Cir. 1988). In Feliz-Cordero, there was no evidence that the firearm in question was related to any of the drug trafficking offenses charged in the indictment. The firearm was located in a dresser drawer in the same bedroom of an apartment as drug paraphernalia and a small amount of cocaine. Although those facts indicated that the use of drugs had taken place in the apartment, they did not suggest that the distribution of drugs had occurred there. Indeed, in Feliz-Cordero large quantities of drugs tied to the distribution charges were found in an entirely different apartment one floor above the apartment in which the firearm was located. Id. at 251-252. Consequently, the court of appeals in Feliz-Cordero held that the jury had no basis for concluding that the firearm was strategically placed to provide security for a drug trafficking operation or that the gun would have been quickly accessible during a drug transaction. Id. at 254. See United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 110 S.Ct. 166 (1989) (explaining Feliz-Cordero). In the present case, however, the firearms were found in close proximity to a large amount of cash and in the same townhouse as drug distribution paraphernalia and a quantity of cocaine so large that its owner must have intended to sell it to others. The proximity of the firearms to a large amount of cash that a factfinder could reasonably conclude to have been drug proceeds supplied the nexus that was absent in Feliz-Cordero, and satisfied the requirement in that case that a firearm be in such a location that it would have been quickly accessible if needed during a drug transaction. The same proximity between firearms and cash, as the court of appeals explained (Pet. App. 13a-14a), provided evidence from which a rational trier of fact could have concluded that petitioner intended to use the firearms for protection during a drug transaction. See United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988); United States v. Matra, 841 F.2d 837, 842 (8th Cir. 1988); see also United States v. Lyman, 892 F.2d at 753; United States v. Poole, 878 F.2d 1389, 1393-1394 (11th Cir. 1989); United States v. Acosta-Cazares, 878 F.2d 945, 951-953 (6th Cir.), cert. denied, 110 S.Ct. 255 (1989); United States v. Meggett, 875 F.2d at 28-29. /4/ 2. Petitioner further contends (Pet. 11-13) that the initial search warrant for his home was so facially deficient that no police officer could have reasonably relied on it, and that the "good faith" exception to the exclusionary rule (United States v. Leon, 468 U.S. at 922) therefore did not apply. In support of these contentions, petitioner alleges that the warrant failed to state the address or location of the premises to be searched. Petitioner's contentions were properly rejected by the courts below. In United States v. Leon, 468 U.S. at 922, this Court held that the exclusionary rule does not apply when a police officer acts "in objectively reasonable reliance on a subsequently invalidated search warrant." The suppression of evidence obtained pursuant to such an invalid warrant "should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Id. at 918. As an example of a situation where suppression might remain proper, the Court said that "depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid." Id. at 923. The phrase, "depending on the circumstances of the particular case," however, makes it clear that the Leon exception may apply even where a warrant is ruled invalid by reason of insufficient particularity. See Massachusetts v. Sheppard, 468 U.S. at 988-991; United States v. Bonner, 808 F.2d 864, 867 (1st Cir. 1986), cert. denied, 481 U.S. 1006 (1987). In the present case, the court of appeals correctly determined that the "good faith" exception of Leon applied to the evidence seized pursuant to the first search warrant. As the court noted (Pet. App. 9a), the application for the warrant and the supporting affidavit both stated the address of petitioner's residence. The application and affidavit were a single document, and were attached to the warrant. The issuing judge signed both the application/affidavit and the warrant. The latter was executed by Detective Swanson, who had prepared the application and affidavit, and thus knew with particularity the place to be searched. The United States magistrate who considered petitioner's suppression motion found no evidence that Swanson had not acted in good faith, and determined that the failure to add the address to the warrant was more a clerical error than a sign of bad faith. In these circumstances, and because the omission of the address was the fault of the issuing judge (see United States v. Bonner, 808 F.2d at 867), whose errors the exclusionary rule was not designed to deter (see Leon, 468 U.S. at 916), the court of appeals correctly concluded (Pet. App. 9a) that suppression was not warranted, and that the district court had properly applied the Leon exception to the evidence seized under the first warrant. In addition, because Officer Swanson's reliance on the first warrant was objectively reasonable, it was likewise objectively reasonable for him to have believed that the information in the affidavit supporting the second warrant was obtained legally, and therefore to have relied on the second warrant as well. The court of appeals therefore correctly concluded that the evidence seized pursuant to the second warrant was also admissible under Leon. That determination does not warrant this Court's review. See United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989), cert. denied, 111 S.Ct. 77 (1990). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney JANUARY 1991 /1/ The court of appeals also rejected petitioner's arguments that the affidavits underlying the two search warrants had not stated probable cause (see Pet. App. 2a-4a), and that a Franks hearing should have been conducted because the affidavit supporting the initial warrant had contained material misrepresentations (see Pet. App. 4a-6a). Petitioner does not pursue those arguments in this Court. See Pet. 11. /2/ In pertinent part, the current version of the statute provides: Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, use or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years * * *. /3/ The parties stipulated that an experienced Drug Enforcement Administration officer would have testified that "handguns are a 'tool of the trade' for drug dealers and are used to protect their drugs, to protect the proceeds of drug sales, or to assist in collecting debts owed in drug dealing," and that "the finding of 47 loaded cartridges in the same bag with an OHaus scale is consistent with a drug dealer maintaining two 'tools' of his trade together." Pet. App. 11a n.5. /4/ Petitioner's assertion of a conflict between the decision below and United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.), mandamus denied, 489 U.S. 1009 (1989), is likewise mistaken. In Theodoropoulos, which cited Feliz-Cordero with approval, 866 F.2d at 597, a conviction under 18 U.S.C. 924(c)(1) was overturned because the jury's verdict might have been based on three firearms, one of them disassembled, found in a trash can on the porch outside an apartment used for drug trafficking, rather than on a loaded shotgun found in plain view inside the apartment. 866 F.2d at 596-598. In the present case, the close proximity between the loaded .357 caliber revolver and almost $19,000 in cash that a factfinder could reasonably conclude to have been drug proceeds furnished a nexus that did not exist for the three firearms found in the trash can on the outside porch in Theodoropoulos.