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United States v. Majeed

August 4, 2009

UNITED STATES OF AMERICA
v.
BURNIE MAJEED AND KELVIN GANDY



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

I. THE DELAWARE RESIDENCE SEARCH WARRANTS*fn1

A. BACKGROUND

Defendant Burnie Majeed ("Majeed") has moved to suppress all evidence obtained from the searches conducted at the residences located at 311 Watchgate Way in Townsend, Delaware, and 823 Cornstalk Drive in New Castle, Delaware. Majeed challenges the validity of the search warrants that authorized those searches by arguing that they were not adequately supported by probable cause because: 1) "[t]he conclusions reached by the [troopers in the affidavits were] based on assumptions, speculation, and conjecture" regarding the meaning of the intercepted conversations and therefore "cannot form the basis of probable cause"*fn2 ; 2) the warrants do not provide the requisite nexus between criminal activity and the residences to be searched; and 3) the affidavits supporting the warrants do not establish that Majeed was taking part in ongoing criminal activity at the time the warrants were obtained. (Def.'s 1st Supplemental Mot. Suppress 29.) Majeed further asserts that, if the warrants are found to be invalid, the good faith exception to the exclusionary rule cannot apply because "the affidavit[s] in this case [are] so lacking in probable cause that good faith cannot be the basis for justifying the search." (Id.)

B. DISCUSSION

1. The Validity of the Search Warrants

It is axiomatic that "a search warrant, supported by probable cause, is normally necessary before law enforcement may lawfully search a person's property." United States v. Burton, 288 F.3d 91, 102 (3d Cir. 2002) (citing Payton v. New York, 445 U.S. 573, 586 (1980)). An issuing judge may find probable cause when, "viewing the totality of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). In reviewing the issuing judge's determination, "we are to determine whether the [judge] had a 'substantial basis' for concluding that probable cause was present." United States v. Ritter, 416 F.3d 256, 262 (3d Cir. 2005). Under governing precedent, "[d]irect evidence linking the place to be searched to the crime is not required for the issuance of a search warrant." Hodge, 246 F.3d at 305. "Instead, probable cause can be, and often is, inferred by 'considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide' the fruits of his crime." Id. In determining whether there is sufficient probable cause to support the issuance of a warrant, a court "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense." Id.

Majeed argues that the warrant affidavits do not provide sufficient probable cause because they are based on interpretations of coded conversations by the troopers involved in the investigation.*fn3 He asserts that the troopers' interpretations "cannot form the basis of probable cause" because they are based "on assumptions, speculation, and conjecture." (Def.'s 1st Supplemental Mot. Suppress 29.) We disagree. The troopers' interpretations contained in the affidavits were based on their training and experience and their "expert[ise] in the fields of drugs and drug investigations." (Id. ¶ 71.) Courts have found that troopers' interpretations of coded conversations can support probable cause in obtaining a warrant. See United States v. Beltran, 11 Fed. App'x 786, 787 (9th Cir. 2001) ("We see no reason why the district court could not rely on [the agent's] interpretations [of intercepted conversations] to find probable cause."); United States v. Carr, No. 07-40034, 2007 U.S. Dist. LEXIS 56149, at *10 (D. Kan. July 31, 2007) (finding that "cryptic or coded conversations can support a finding of probable cause"); United States v. Feola, 651 F. Supp. 1068, 1096 (S.D.N.Y. 1987) (holding that the agents' interpretations "properly contributed to a finding of probable cause"). Even those courts that have expressed skepticism regarding heavy reliance on interpreted conversations have found that this is a "close question" and have acknowledged that interpreted conversations can support a finding of probable cause. See, e.g., United States v. Johnson, 4 Fed. App'x 169, 174 (4th Cir. 2001) (finding that "it is a close question whether the affidavit was sufficient to establish probable cause" where the affidavit supporting a warrant relied mostly on interpreted conversations). In United States v. Cancelmo, for example, the Second Circuit Court of Appeals expressed skepticism about a warrant application that relied heavily on the interpretation of cryptic conversations. 64 F.3d at 808-09. Although the Cancelmo decision did not rule on the sufficiency of probable cause, it did observe that the "agents' interpretation of the conversations arguably established probable cause, even in the absence of other corroborative facts." Id. at 808.

We agree with the conclusion that a law enforcement officer's interpretations of intercepted conversations can form the basis of a finding of probable cause.*fn4 In addition, we note that the issuing judge "was entitled to 'give considerable weight to the conclusions of this experienced law enforcement officer[] regarding where evidence of a crime [was] likely to be found.'" Hodge, 246 F.3d at 307. Turning to the case at hand, we find that the troopers' interpretations of the coded conversations constituted a proper basis for establishing probable cause.

Majeed next argues that the warrant affidavits fail to establish a nexus between the criminal activity and the searched residences. The Third Circuit Court of Appeals has consistently found that, in narcotics cases, "evidence . . . is likely to be found where the [drug] dealers reside." Burton, 288 F.3d at 103 (citing United States v. Whitner, 219 F.3d 289, 297 (3d Cir. 2000)). The rationale applied by the Third Circuit in so finding is that:

[E]vidence associated with drug dealing needs to be stored somewhere, and . . . a dealer will have the opportunity to conceal it in his home. After all, a dealer logically could conclude that his residence is the best, and probably the only, location to store items such as records of illicit activity, phone books, address books, large amounts of cash, assets purchased with proceeds of drug transactions, guns to protect drugs and cash, and large quantities of drugs to be sold.

Whitner, 219 F.3d at 298. The application of this inference depends on a preliminary showing of evidence that supports the following premises:

(1) that the person suspected of drug dealing is actually a drug dealer;

(2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer's drug activities.

Burton, 288 F.3d at 104.

First, the inference regarding Majeed's status as a drug trafficker is well supported by the troopers' interpretations of the intercepted conversations. (Id. ¶ 71.) The troopers concluded that many of Majeed's intercepted conversations signaled that he consistently engaged in drug trafficking activities. (See, e.g., id. ¶¶ 24, 30, 32, 34, 60.) In fact, the troopers concluded that the conversations evidenced that Majeed was a leader in his drug-trafficking organization. (Id. ¶ 29.) Secondly, the affidavits for the search warrants provide sufficient evidence to support the conclusion that the subject residences are possessed by, or the domicile of, Majeed. Through surveillance, the detectives determined that Majeed lived at 311 Watchgate Way in Townsend, Delaware, and spent many nights at his girlfriend's residence at 823 Cornstalk Drive in New Castle, Delaware. (Affs. ¶ 73.) The affidavits state that, in several of the intercepted conversations, Majeed scheduled furniture and appliance deliveries to the Watchgate residence and made arrangements for the lawn care of that residence. (Id. ¶ 74.) He also arranged to have his girlfriend ...


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