Opinion
5:21-CR-00364-FL
03-29-2022
United States of America, v. Dennis Fort, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.
Defendant Dennis Fort is facing several gun- and drug- related charges based on evidence found at his house. Fort now challenges the validity of the warrant permitting that search and asks the court to suppress evidence seized from the home. In his view, the affidavit in the search warrant application did not include sufficient facts about timing to establish probable cause. And, he believes, it failed to establish a nexus between the residence and the alleged criminal activity. But the undersigned concludes that the affidavit provided a substantial basis for the state judge to find probable cause to search Fort's home. It is recommended that the court deny Fort's motion to suppress.
I. Background
Fort's motion challenges the probable cause underlying a search warrant issued by a North Carolina judge. The application contained an affidavit from Agent Evans of the Cumberland County Sheriff's Office outlining these facts:
In January 2020, a confidential informant told the Cumberland County Sheriff's Office Narcotics Unit that Fort was selling heroin and crack cocaine from his home which was located at 1191 Center Street in Fayetteville, North Carolina. Search Warrant Aff. ¶ 6, D.E. 23-1. In response, Evans showed the informant Fort's photograph, but did not tell the informant anything about the identity of the person pictured. Id. ¶ 7. The informant named Fort as the person in the photo. Id. ¶ 7. Other informants and individuals also shared similar information with the Narcotics Unit. Id. ¶ 6. And Evans knew of Fort and his reputation for selling drugs. Id.
Based on previous investigations with this informant, the Narcotics Unit considered the informant to be a reliable source. D.E. 23, 1 ¶ 6.
Evans recounted at least two drug deals that took place at 1191 Center Street in the 30-day period leading up to the warrant application. Law enforcement went to that address with a confidential informant and twice bought heroin from someone at the house. Id. One time they purchased the drugs from Travis Edward Jefferson and on the other occasion they purchased them from Fort. Id. One purchase occurred “within days” of Agent Evans submitting the application. Id. ¶ 9.
The affidavit is unclear about whether the purchase that took place “within days” of submitting the warrant was a third controlled purchase, or one of the two that took place “within the last thirty days.” See Search Warrant Aff. ¶¶ 8, 9, D.E. 23-1. For its analysis, the court assumes there were two controlled purchases but notes that it would not change its conclusion if there were three.
Based on these facts, the agent asked for and received a warrant to search 1191 Center Street. Id. ¶ 11. A search of the house turned up suspected cocaine, cocaine base, fentanyl, and several firearms inside the residence. Gov.'s Resp. 3, D.E. 26. A federal grand jury later indicted Fort on four counts of gun- and drug-related charges. D.E. 1.
II. Analysis
Fort challenges the validity of the warrant used to search the Center Street residence. He contends that there was no probable cause to search the home because the affidavit was too vague about when informants and agents bought drugs there. He also argues that the affidavit does not establish a nexus between Fort, the residence, and the alleged drug activity.
In response, the Government contends that the facts that law enforcement conducted controlled purchases at the residence that month-one just days before submitting the warrant application-provided the judge with sufficient facts to find probable cause to search the home. And in the government's view, these controlled purchases establish not just a sufficient nexus, but a direct connection between drug distribution and 1191 Center Street.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. To protect this right, it instructs that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id.
As a general matter, probable cause “‘exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found' in a particular place.” United States v. Doyle, 650 F.3d 460, 471 (4th Cir. 2011) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). The judicial officer must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him[.]” Illinois v. Gates, 462 U.S. 213, 238 (1983). And the reviewing court is simply to ensure that the magistrate had a “substantial basis” for finding that probable cause existed. Id. at 238-39; United States v. Lull, 824 F.3d 109, 115 (4th Cir. 2016).
A. Timing
Fort argues that the affidavit lacks sufficient facts about the timing of the alleged events for a judge to have been able to make a probable cause determination. Fort correctly points out that “[a] valid search warrant may issue only upon allegations of ‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.'” United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984) (quoting Sgro v. United States, 287 U.S. 206, 210-11 (1932)). The central question is: “did the facts alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises searched?” Id. at 1336. To answer this question, the court must consider “all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized.” Id. Merely “counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit” does not suffice. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). And “where the affidavit properly recites facts indicating activity of protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” Id.
Statements about the passage of time in an affidavit may create an issue in two ways. First, information that may have established probable cause can become stale if too much time has lapsed between the occurrence of facts supporting probable cause and the issuance of the warrant. United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984). Or, the facts in the affidavit could just be too vague such that the judge has no basis to make a judgment about this aspect of probable cause. See United States v. Lalor, 996 F.2d 1578, 1580-81 (4th Cir. 1993) (“Sufficient information must be presented to the magistrate to allow for the exercise of independent judgment; the magistrate cannot simply ratify the conclusions of others.”).
To the extent that Fort makes a staleness argument, it fails. In the drug trafficking context, “probable cause may continue for several weeks, if not months, of the last reported instance of suspected activity.” United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (concluding three-week-old information was not stale). Courts have routinely upheld search warrants based on drug activity that is several weeks old because of the ongoing nature of drug dealing. See, e.g., United States v. Tiem Trinh, 665 F.3d 1 (1st Cir. 2011) (two-month-old information); United States v. Morales, 851 F.Supp. 112, 117 (S.D.N.Y. March 21, 1994) (two- week-old information); United States v. Formaro, 152 F.3d 768, 770 (two and a half week old information); United States v. Fama, 785 F.2d 834, 838 (2d Cir. 1985) (five-week-old information); United States v. Martin, 551 F.2d 148, 152 (8th Cir. 1975) (six to seven week old information); United States v. Johnson, 461 F.2d at 287 (three-week-old information).
Here, the controlled purchases at the residence took place within thirty days of the warrant application-at most, the information was a few weeks old. And while evidence of drug activity of this age may suffice to support a finding of probable cause, the affidavit contained more recent information too. One of the buys took place just “days” before the application. So even if the information about the first buy had grown stale, probable cause was refreshed by the second buy. These facts establish confirmed drug distribution activity at the residence at least twice during the month that the warrant was applied for, and as recently as just days before it. Further, these purchases corroborated the confidential informant's tip about Fort's drug distribution activity and showed the initial drug sale was not a one-off occurrence. So based on the facts set forth in the application, the judge had sufficient information from which to believe that Fort and other were currently selling drugs from the residence and that evidence of this crime would be found there.
Fort seems to mainly argue the vagueness point. But it is not as if the affidavit never mentioned any time of the drug sales. See Lalor, 996 F.2d at 1582 (noting affidavit lacked any reference to time of drug sales but concluding magistrate could reasonably infer the drug activity was ongoing because defendant was arrested for selling cocaine five days before issuance of warrant). Though the affidavit here did not include the specific dates of the purchases, it did provide a time frame. It stated that law enforcement, with help from a confidential informant, personally conducted two separate controlled purchases of heroin at the residence within thirty days of applying for the warrant. And the second purchase happened just “days” before the application as submitted. Theses statements provided sufficient information from which the judge could have made a common-sense determination about the timing of the events alleged in the affidavit.
B. Nexus
Next, Fort argues that the affidavit contained insufficient information to establish a nexus between him, the alleged drug activity, and 1191 Center Street. This claim fails as well.
Fort's argument suggesting that probable cause requires a connection between Fort and the residence misunderstands the nature of the nexus requirement. “In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched.” Lalor, 996 F.2d at 1582 (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6 (1978)).
So the relevant nexus in this context is between the drug activity and 1191 Center Street. And here, not only did law enforcement have a corroborated tip from a reliable informant that Fort was a known drug dealer, which would warrant the reasonable belief that Fort kept the drugs in his home See United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005). Here, law enforcement conducted two separate controlled purchases of drugs at that residence in January. They bought heroin there from Fort himself. So there was a substantial basis for the issuing judge to believe that evidence of drug dealing would be found at 1191 Center Street given that drugs were being sold at there just days earlier.
So this claim also fails. The motion to suppress should be denied.
III. Conclusion
For the reasons stated above, the undersigned recommends that the district court deny Fort's motion to suppress. D.E. 23.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.