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Probable cause for a search warrant.

Author: Jim Chapman

 

A jury in the United States District Court for the Northern District of Indiana convicted Adonnis Carswell on four drug and firearm offenses. On appeal to the United States Court of Appeals for the Seventh Circuit, Carswell raised two issues. United States v. Carswell, 996 F.3d 785 (7th Cir. 2021). First, Carswell argued that the search warrant for his residence was issued without probable cause, and therefore, the District Court should have suppressed the heroin, cash, and firearms found therein as evidence at his trial. Second, Carswell contended that several portions of the prosecutor’s closing arguments violated his Constitutional rights. This article will focus exclusively on Carswell’s argument regarding the lack of probable cause necessary to issue the search warrant of his residence. The relevant facts are as follows.


On June 26, 2017, police officers observed Carswell driving a Porsche over 100 miles per hour through a 45 miles per hour zone of New Haven, Indiana. When the police stopped him, Carswell gave his home address on Green Road in New Haven. Law enforcement officers had suspected Carswell of drug dealing, but they had not yet figured out where he lived. After ATF Officer Caleb Anderson learned of Carswell’s arrest, he carried out surveillance at the Green Road address for four days, and he consistently observed a vehicle registered to Carswell parked in the driveway.


On the first evening of surveillance, Officer Anderson noticed two trash bins at the end of the driveway. Officer Anderson returned to the address just before midnight and removed several bags from the bins, including: (i) three opened food-saver bags; (ii) two one-gallon Ziploc bags containing residue that field-tested positive for cocaine; (iii) two sandwich bags that field-tested positive for cocaine; (iv) two pairs of white latex gloves; and (v) packaging that resembled a kilogram wrapper for cocaine that field-tested positive for cocaine. The kilogram packaging, which Officer Anderson identified as green saran wrap, matched photographs of drug packaging used in a 2014 Indiana State Police case involving Carswell. Officer Anderson’s affidavit (that he submitted to a federal magistrate judge in support of a search warrant of Carswell’s residence) also indicated that green saran wrap is commonly used to wrap kilogram packages of cocaine.

In a second trash bag, Officer Anderson found three grams of a pink crystal substance that he recognized as crystal methamphetamine and that later field-tested positive for methamphetamine. Officer Anderson’s affidavit stated that a personal user of methamphetamine was unlikely to discard three grams of the drug (valued at approximately $300).

Officer Anderson also found receipts showing that Ms. Evans had purchased a CZ Scorpion EVO 3 pistol and four boxes of ammunition from a Fort Wayne firearms dealer in April 2017. Officer Anderson explained that, in his training and experience, it was common for people with prior felony convictions to have close associates, including girlfriends, buy firearms for them.

Officer Anderson’s affidavit also provided background information on Carswell and Evans. Specifically, the affidavit revealed that Carswell had a 2004 felony conviction for armed bank robbery. Officer Anderson’s affidavit also described a recent Indiana State Police investigation involving intercepted shipments of marijuana to Fort Wayne addresses associated with Carswell. In March 2015, officers identified a five-pound package of marijuana on its way to one of those addresses, located on Stormy Court. Officers had obtained a warrant and had made a controlled delivery at that address. When Carswell, Evans, and two children arrived, Carswell took the package inside. When the package was opened, officers executed their search warrant. The officers found the bundle of marijuana encased in green saran wrap, as well as $7,240 in cash, a Glock .40 caliber pistol, a ballistic body-armor vest, documents and mail in Evans’ name, documents and mail in Carswell’s name, three drug ledgers, several cell phones belonging to Carswell, a digital scale with cocaine residue, a plate with cocaine residue, plastic bags, and rubber gloves. Carswell was eventually convicted in Indiana state court of maintaining a common nuisance.

Finally, Officer Anderson’s affidavit reported certain May 2017 statements made by a person arrested for unlawful possession of a firearm. The arrestee’s residence contained evidence of drug trafficking, including $3,000 in cash, a firearm near materials used to dilute cocaine and heroin, 386 grams of marijuana, 24 grams of crack cocaine, 58 grams of heroin, and 6 grams of fentanyl. The arrestee told Officer Anderson that he/she earned about $20,000 per month by dealing drugs. The person identified Carswell and Carswell’s brother, Jashod Thomas, as the suppliers. The arrestee also claimed that Thomas had supplied cocaine, crack cocaine, and heroin to him/her two days prior to the arrest. The arrestee further claimed that Thomas had been supplied with the drugs by Carswell.

Based solely upon Officer Anderson’s affidavit, a federal magistrate judge issued a warrant to search Carswell’s Green Road residence. Upon executing the search warrant, officers confiscated 64 grams of heroin, five cell phones, $25,000 in cash, firearms and ammunition, and drug packaging materials, including two digital scales that field-tested positive for cocaine and a machete laced with marijuana residue. As a result, Carswell was charged with federal drug and firearm offenses.

Prior to trial, Carswell moved to suppress all of the evidence seized in the search of his residence, asserting that the warrant failed to establish probable cause sufficient to justify the issuance of the search warrant. The District Court denied the motion, finding that Officer Anderson’s affidavit established a fair probability that a search of Carswell’s residence would reveal evidence of drug trafficking and unlawful possession of a firearm. Carswell, then, filed a timely notice of appeal.

The Seventh Circuit began its consideration of Carswell’s first argument (i.e., that the District Court erred in denying his motion to suppress because Officer Anderson’s affidavit lacked probable cause sufficient for the magistrate judge to have issued the search warrant of his residence) by reiterating that probable cause for a search warrant is established when, based on the totality of the circumstances, the Government presents a judge with evidence showing a fair probability that contraband or evidence of a crime will be found in a particular place. When an affidavit is the only evidence presented to support a search warrant, the validity of the warrant rests solely on the strength of the affidavit.

Therefore, the task of the issuing judge is to make a practical, commonsense decision whether, in light of the facts in the affidavit, there is a fair probability that contraband or evidence of a crime will be discovered in a particular place. In making this determination, the issuing judge is entitled to draw reasonable inferences about where evidence is likely to be kept and must conclude only that it would be reasonable to seek the evidence in the location identified in the affidavit. However, a judge may not rely solely upon conclusory allegations or a bare bones affidavit in issuing a warrant.

In this case, the Seventh Circuit noted that the issuing judge reasonably found a fair probability that evidence of drug and firearms crimes would be found at Carswell’s residence. On appeal, Carswell challenged each conclusion that the issuing judge made in order to support a finding of probable cause sufficient to issue a search warrant.

First, the issuing judge relied upon Officer Anderson’s recitation in his affidavit of the trash pull in which he found drugs, drug residue, drug packaging materials, and a receipt for a firearm and ammunition, as providing substantial reason to think that one might find drug distribution and firearm evidence in Carswell’s residence. Carswell argued that two trash pulls with drug evidence would be more compelling than just one because of the possibility that someone else could have dropped her trash in the bins at the end of his driveway. The Seventh Circuit conceded that it was possible that other people dropped their drug-related trash in Carswell’s bins that particular week, but the Seventh Circuit rejected the proposition that this possibility defeated probable cause. Specifically, the Seventh Circuit noted that probable cause deals with probability, not certainty.

In addition to the drug and firearm evidence from the trash pull, the Seventh Circuit highlighted the fact that Officer Anderson’s affidavit noted Carswell’s criminal history, including the armed robbery and the nuisance conviction from the receipt of distribution quantities of marijuana. The Seventh Circuit explained that such prior convictions would not, by themselves, establish probable cause for a present search. But, those prior convictions can be relevant and can retain some corroborative value.

Second, Carswell argued that the informant’s tip lacked detail and that no information was provided about the informant’s reliability or basis of knowledge. The Seventh Circuit assumed that the informant’s tip would not have been enough—by itself—to support a search warrant, noting that is why courts ordinarily expect police officers to corroborate information from tipsters of unknown reliability.

But here, the investigators had, contrary to Carswell’s argument, substantial corroboration. When evaluating a probable cause finding, reviewing courts do not view the individual facts in isolation. Rather, reviewing courts consider the totality of the circumstances presented to the issuing judge. The determination of whether probable cause is present is rooted in common sense. It requires only a fair probability—not certainty—that the search will uncover evidence of criminal activity.


Accordingly, the Seventh Circuit concluded that the combination of the drug and firearm evidence from the trash pull, Carswell’s prior convictions, and the informant’s tip was enough to support, even if not to require, a finding of probable cause for the search warrant. As a result, the Seventh Circuit held that the District Court properly denied Carswell’s motion to suppress the drug and firearm evidence seized pursuant to the search warrant and search of his residence.

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