United States v. Tory Djuan Patterson

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Raymond W. Gruender and Bobby E. Shepherd (UNPUBLISHED) [4482661] [15-3947]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3947
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tory Djuan Patterson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 21, 2016
Filed: December 22, 2016
[Unpublished]
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Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Tory Djuan Patterson appeals a district court1 order denying his motion to
suppress evidence obtained during an allegedly unlawful search. For the reasons
discussed below, we affirm.
1

The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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On April 15, 2014, a Minnesota state court judge issued a warrant authorizing
the search of a private dwelling located at 1006 East 6th Street in Duluth and of the
person of Barbara Nicole Gilliam, a known drug dealer believed to reside at this
address. Law enforcement agents believed they might find heroin, other controlled
substances, and various items associated with drug trafficking based on their
surveillance of Gilliam and knowledge of her prior criminal activity. Specifically, the
affidavit in support of the warrant recounted Gilliam’s history of and convictions for
distributing crack cocaine in 2009 and 2010, and it established her transition to
selling heroin in late 2013. There was some discrepancy, however, as to the precise
location of her drug-trafficking activities at the time. On the one hand, a confidential
reliable informant reported that Gilliam had sold heroin four times in the vicinity of
10th Avenue West and 6th Street, with one of the sales occurring in the seventy-two
hours preceding the warrant application. Also within seventy-two hours of the
application, investigators observed Gilliam meeting with several individuals,
including a known drug dealer, near the same intersection. On the other hand,
investigators noted that, between the suspicious meetings, Gilliam entered and exited
a house near 10th Avenue East on 6th Street, later determined to be located at 1006
East 6th Street. The affidavit then confirmed that Gilliam’s address of record was
1006 East 6th Street based on “police records, property information, and other
databases,” including Gilliam’s own report to the Minnesota Department of
Corrections as part of her supervised release. The warrant application also explained
that “it is common for those involved in the distribution of controlled substances to
meet with customers in the vicinity of their residence but not right at the residence.”
Police executed the search warrant on April 16, the day after it was issued, only
to discover that Patterson, his girlfriend, and several other individuals were living in
the house. Gilliam was a frequent visitor who used the residence for storage.
Nevertheless, the search still yielded evidence of criminal activity. In Patterson’s
bedroom closet, police discovered a sawed-off shotgun, marijuana, and drug
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paraphenalia. The shotgun formed the basis of the subsequent charges against
Patterson, which included one count of possession of an unregistered short-barreled
shotgun and one count of felon in possession of a firearm.
Before trial, Patterson filed a motion to suppress this evidence, arguing that the
search warrant failed to establish probable cause because much of the information in
the affidavit was stale and, relatedly, because there was an insufficient nexus between
the contraband to be discovered and the place to be searched. The magistrate judge
agreed. His report and recommendation concluded that the search violated
Patterson’s Fourth Amendment rights, explaining that the evidence linking Gilliam’s
criminal activities around the intersection of 6th Street and 10th Avenue West with
the residence on 6th Street near 10th Avenue East was “far too attenuated” to
establish the requisite nexus for a search. The magistrate also deemed the Leon goodfaith exception inapplicable because of his finding that law enforcement presented
“no evidence of any reasonable connection between Gilliam’s criminal activity and
the residence at 1006 East 6th Street.” After considering the matter de novo, the
district court rejected the magistrate’s recommendation. Of particular relevance, the
court made the factual finding that “the references to 10th Avenue West were clear
typographical errors, [intended to mean 10th Avenue East,] evidenced by the context
in which the references were used.” Further, even if Gilliam had been dealing drugs
twenty blocks from the house, the district court concluded, the affidavit still
established a sufficient nexus between the house and drug contraband to justify a
search. With these pretrial issues resolved, the case proceeded to trial, Patterson was
found guilty, and the district court sentenced him to 96 months’ imprisonment.
Patterson timely appealed, renewing his insufficient-nexus and staleness arguments
as grounds for invalidating the search of the residence.
“On an appeal of a denial of a motion to suppress evidence, we review the
district court’s factual findings for clear error and its legal conclusions de novo.”
United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (citation omitted). In
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cases such as this, “[o]ur role is to ensure that the evidence as a whole provides a
substantial basis for finding probable cause to support the issuance of the search
warrant.” United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005) (citation
omitted). “Probable cause exists when a ‘practical, common-sense’ inquiry that
considers the totality of the circumstances set forth in the information before the
issuing judge yields a ‘fair probability that contraband or evidence of a crime will be
found in a particular place.’” United States v. Stevens, 530 F.3d 714, 718 (8th Cir.
2008) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Although Patterson casts his challenge to the search as a question of law, both
of his arguments turn on an implicit rejection of the district court’s factual finding
that the affidavit’s “references to 10th Avenue West were clear typographical errors.”
Throughout his brief, Patterson suggests that Gilliam’s drug peddling occurred near
the intersection of 6th Street and 10th Avenue West, rather than 6th Street and 10th
Avenue East. Based on this literal interpretation, not only were the reports of
Gilliam’s illicit activities near 10th Avenue West unhelpful to the investigators’
attempt to show a nexus as to 1006 East 6th Street, but they actually cut against the
likelihood that contraband would be found at the residence. Additionally, given that
the averments concerning 10th Avenue West were the only two that occurred within
seventy-two hours of the warrant application, Patterson suggests that the remaining
information tying Gilliam to the residence was stale. Even if these arguments were
valid on their face, we reject Patterson’s underlying premise. The district court amply
and convincingly explained why the affidavit references to 10th Avenue West
“obviously referred to 10th Avenue East.” As the court observed, the warrant
application itself stated that Gilliam repeatedly came and went from a house in close
proximity to her suspicious meetings, which would make little sense if the illicit
activities had taken place near 10th Avenue West, on the other side of town. It is far
easier to accept that the agent-affiant meant to refer to 10th Avenue East, which is
just down the street from 1006 East 6th Street, than that he believed that an
intersection located twenty blocks away was “in the vicinity of” the residence. Read
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in this light, there is no doubt that the affidavit was sufficient to establish probable
cause. See United States v. Butler, 594 F.3d 955, 961-62 (8th Cir. 2010) (“A mere
typographical error does not . . . cast doubt on the affidavit’s showing of probable
cause to search the residence.”) (citations omitted). Moreover, probable cause existed
at the time of the search given the observations of illicit activity in the area within
seventy-two hours of the affidavit. See United States v. Formaro, 152 F.3d 768, 771
(8th Cir. 1998) (noting that “there is no bright-line test for determining when
information is stale” but rejecting one such argument in a narcotics case involving
information more than two-weeks old) (citation omitted).
Accordingly, we affirm the district court’s denial of the motion to suppress.
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