RITO ANDRES VILLA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6061 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A12-A16) is unreported, but the judgment is noted at 904 F.2d 42 (Table). JURISDICTION The judgment of the court of appeals was entered on May 24, 1990. A petition for rehearing was denied on July 25, 1990 (Pet. App. A17). The petition for a writ of certiorari was filed on October 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the affidavit submitted in support of the warrant to search petitioner's house established probable cause for the search. STATEMENT After a jury trial in the United States District Court for the District of Oregon, petitioner was convicted of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to seven years' imprisonment, to be followed by a four-year term of special parole. The court of appeals affirmed. Pet. App. A12-A16. 1. On August 24, 1988, DEA agents and police officers applied for a search warrant to search petitioner's house at 1516 Kenyon Street in Medford, Oregon. The affidavit in support of the application reported that on June 15, 1988, police officers, acting through an undercover informant, purchased one ounce of heroin from Oscar Velazquez. On that date, the informant met with Velazquez and gave him money to purchase the heroin. Velazquez walked a short distance to a red Ford pickup truck, later identified as belonging to petitioner. Inside the truck was a person matching petitioner's description. After a few minutes, Velazquez returned with the heroin. C.A. App. 29. Subsequent dealings with Velazquez confirmed that he was obtaining drugs from others for resale. Id. at 31, 32. The affidavit also stated that police officers had determined that petitioner lived at the Kenyon Street address and that it appeared that based on the events of June 15 petitioner was supplying Velazquez with heroin. Id. at 37. The affidavit further reported that the confidential informant had arranged for another delivery of heroin on August 24, 1988. Finally, the agent who executed the affidavit set forth his conclusion based on his "training and experience conducting investigations of drug controlled substance violations that individuals engaged in those violations * * * often utilize apartments, houses and businesses of their own and their confederates to conceal illegal drugs and related paraphernalia." Id. at 36. Based on the affidavit, a magistrate issued a warrant to search petitioner's house. In the course of the search, police officers discovered 796 grams of cocaine and several firearms. Gov't C.A. Br. 8-10. Prior to trial, petitioner filed a motion to suppress the evidence found at his house. The district court denied the motion without an opinion. C.A. App. 3-5, 56. 2. The court of appeals affirmed. Pet. App. A12-A16. It rejected petitioner's claim that the affidavit failed to furnish the magistrate with a sufficient basis to find probable cause. Specifically, the court found that "(t)he affidavit indicated not only that (petitioner) was involved in illegal drug activity but also that evidence of drug dealing would be found at (petitioner's) house." In particular, the court held that "the affidavit provides a basis for concluding drugs would be found at (petitioner's) house (1) because the affidavit indicates (petitioner) is a drug dealer; and (2) the affidavit presents the conclusion * * * of a trained police officer that evidence of dealing drugs would be found at the residence of a drug dealer, like (petitioner)." Pet. App. A13. The court added that "if there is reason to believe that (petitioner) was a drug dealer, then there is reason to believe evidence of drug trafficking would be at (petitioner's) residence." Id. at A14. ARGUMENT Petitioner contends (Pet. 6-10) that the affidavit submitted in support of the application for the warrant to search his house did not establish probable cause. In particular, petitioner argues that it was improper for the issuing magistrate to rely on the opinion of the DEA agent that persons engaged in drug trafficking often use their homes and businesses to conceal drugs and related paraphernalia. Probable cause to search a particular place exists if an issuing magistrate finds, based on "a practical, common sense" evaluation of the affidavit in support of the warrant, that there is a "fair probability that contraband or evidence of a crime will be found in (that) place." Illinois v. Gates, 462 U.S. 213, 238 (1983). In this case, the affidavit provided a strong basis for concluding that petitioner was engaged in an ongoing heroin business. Although petitioner challenges the conclusion of the DEA agent in the affidavit that persons who sell drugs often keep evidence of drug dealing at their residences, the magistrate was entitled to credit that opinion, which merely stated a common-sense conclusion shared by anyone familiar with the drug trade. See United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987); see also United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977) ("evidence that a defendant has stolen material which one normally would expect him to hide at his residence will support a search of the residence"). The evidence of petitioner's narcotics dealings, together with the legitimate inference that he kept the narcotics and other related evidence at his home, was sufficient to establish probable cause for the search. Petitioner cites no case that suggests that a magistrate may not consider an experienced police officer's opinion on a matter such as where a particular item of evidence is likely to be kept. While such an opinion may be suspect if it is based on limited information or appears contrary to common sense, it is certainly entitled to consideration if it represents the observations of an experienced officer and seems entirely reasonable, as was true in this case. Relying on United States v. Anderson, 851 F.2d 727 (4th Cir. 1988), cert. denied, 109 S. Ct. 841 (1989), petitioner claims (Pet. 7) that there is a conflict among the courts of appeals on whether a residence may be searched without some evidence other than the opinion of a law enforcement officer connecting the crime and the residence. In Anderson, the court of appeals stated that "the Fifth, Eighth, and Ninth Circuits have held that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would be likely to keep such evidence." Id. at 729. The Fourth Circuit adopted that standard in Anderson. By contrast, according to the Anderson court, the Eleventh and First Circuits require a showing of a "substantial basis" to believe that instrumentalities of a crime will be discovered on the searched premises. Ibid. As we argued in our opposition to the petition for certiorari filed in Anderson, that court's conclusion that there is a conflict among the circuits on this issue does not accurately reflect the current state of the law. First, nothing in the cases from the First and Eleventh Circuits suggests that those courts would have suppressed the evidence found in this case. Both of those cases involved unusual facts, and the opinions in those cases reveal almost nothing about how those courts would decide this case. The First Circuit case, United States v. Charest, 602 F.2d 1015 (1979), involved a search for a weapon that had been used in a murder three weeks earlier. The court of appeals noted that there was no evidence that the gun would be found at the suspect's home, and that it was "contrary to common sense and logic to expect a murderer to keep the murder weapon in his own premises for almost three weeks." 602 F.2d at 1018. The Eleventh Circuit case, United States v. Lockett, 674 F.2d 843 (1982), involved a search for illegally stored dynamite. The court held that there was an insufficient showing that the dynamite was stored (and stored illegally) at the suspect's home more than a month after he purchased it. 674 F.2d at 846. In neither case was there any expert evidence presented to the magistrate regarding the place where such items might be stored, and in each case, the reasonableness of the inference of home storage was much weaker than in a case such as this one. After all, there are substantial disincentives to storing either live dynamite or a murder weapon at one's home; the same disincentives are not likely to be present in the case of a drug dealer's decision about where to store his cache of drugs and his drug dealing records and other paraphernalia. Moreover, both Lockett and Charest were decided before this Court's decision in Gates. Gates makes clear that the magistrate's probable cause determination must rest on a commonsense assessment of the totality of the circumstances, and that a warrant may properly issue if the magistrate concludes that there was a "fair probability" that evidence of a crime would be found in the place to be searched. 462 U.S. at 246. Thus, a magistrate is free to conclude that a particular item of evidence could be found in a suspect's residence, based on the nature of the item, the normal inferences regarding where one would be likely to keep that item, and related evidence, including expert opinion to the extent that it is pertinent and persuasive. Therefore, the standard that the Anderson court ascribed to the Fifth, Sixth, Eighth, and Ninth Circuits -- and adopted for itself -- is the standard set by this Court's own decisions. Moreover, this Court denied certiorari in Anderson, and petitioner has not pointed to any subsequent development that warrants a different result here. /1/ Even if the circuits could be said to take a different position on the strength of the evidence needed to tie criminal activity to the place to be searched, as petitioner asserts, it is unlikely that any differences in the way the courts treat that issue will produce differing results in the outcome of cases. The issue petitioner presents arises only in cases in which the warrant affidavit provides a magistrate with probable cause to believe that a suspect is trafficking in drugs, but provides little or no direct evidence to believe that the drugs or other evidence will be located at the suspect's residence. In that setting, the validity of the warrant turns upon the reasonableness of the inference that the evidence may be kept at the suspect's residence. The strength of that inference, in turn, depends on factors such as whether the suspect's activities appear to be continuing in nature, whether he has a base of operations other than his home, and whether he appears to be a supplier of the drugs or only a broker of transactions. A magistrate's acceptance in a particular case of the inference that evidence is likely to be found at the suspect's home is precisely the kind of determination that will ordinarily be protected by the good faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897, 912-913 (1984). /2/ Therefore, even if a magistrate makes an error in finding the inference of home possession adequate in a particular case, it is not often likely to result in the suppression of evidence. 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 J. DOUGLAS WILSON Attorney DECEMBER 1990 /1/ This Court also recently denied certiorari in United States v. Jenkins, 901 F.2d 1075 (11th Cir.), cert. denied, 111 S. Ct. 259 (1990), another case raising this issue. /2/ Although the court of appeals did not feel it necessary to address the good faith exception to the exclusionary rule, it could have upheld the search of petitioner's residence on that basis.