United States of America, Plaintiff-appellee, v. Ernest R. Thompson, Defendants-appellant.united States of America, Plaintiff-appellee, v. Leonard Garfield Vaughn, Defendants-appellant, 862 F.2d 871 (4th Cir. 1988)

The question presented is whether probable cause supported the issuance of a search warrant which led to the seizure of narcotics and cash, and the arrest of appellants Ernest R. Thompson and Leonard Vaughn. We hold that the evidence supported the magistrate's finding of probable cause, and affirm appellants' convictions.

On October 29, 1987, Officer Michael Coffey of the Huntington, West Virginia Police Department spoke with an anonymous female informant. The caller stated that she had been with three black males, Thompson, Vaughn, and one "Masio," at 1821 West Fifth Avenue and at the 6117 Country Club Avenue address of one Clarence Beard. The caller revealed that she had observed cocaine, marijuana, and cash in the kitchen at 1821 West Fifth and that she had seen cocaine, marijuana, cash, and a safe containing money and drugs in a bedroom at 6117 Country Club. The informant also described two vehicles used by the men, a Lincoln Towncar and a Cadillac El Dorado.

After receiving this information, Coffey verified the existence of the addresses, and the fact that the 6117 Country Club Avenue residence was occupied by Clarence Beard. Coffey also conducted surveillance of the West Fifth Avenue residence, and verified that Vaughn was living there while the usual occupant was away. Coffey had received prior tips that Vaughn was a drug dealer. Coffey observed a black male exit a 1986 Lincoln Towncar with Ohio license 923HTD and enter the residence. The subject later left the residence with Vaughn and entered a blue Cadillac El Dorado bearing Ohio license number 268PEP. Coffey followed the two men until he lost them in a construction area. After returning to continue the surveillance at approximately 9:00 p.m., Coffey learned that the Towncar had been stolen in Ohio.

Coffey then prepared a two-page affidavit in support of a search warrant for the West Fifth Avenue premises and the Lincoln Towncar. The affidavit recounted the telephone tip, including the description of the men, the drugs and cash at the West Fifth Avenue address, and the two vehicles. He recited his verification that Vaughn lived at the address, and the previous anonymous tips that Vaughn was a drug dealer. Coffey also stated that Vaughn was named as a drug dealer by a "cooperating federal witness" in a December 1986 interview with FBI Special Agent Scott DuFour. Coffey related his observation of the two men and their departure in the El Dorado. In addition to reporting that the Towncar was stolen, Coffey reported that several weeks earlier, the same Towncar was observed making a heroin delivery. The state magistrate issued the warrant.

Coffey then returned to West Fifth Avenue, but before he could execute the warrants two black females exited a taxicab, entered the Towncar, and drove away. Coffey stopped the vehicle at approximately 11:40 p.m. and arrested the driver. A search of her purse revealed a "money transfer application" made payable to Vaughn, and listing Vaughn's address as 6117 Country Club Avenue. Coffey was advised at approximately 11:45 that the Cadillac El Dorado was parked at that same address.

Shortly after midnight, Coffey returned to the same magistrate. He submitted a one page "supplement" to his initial affidavit, specifically stating that it was a "continuation of the affidavit for search warrant of 1821 West Ave." In the affidavit, Coffey recounted the caller's description of the drugs and cash at 6117 Country Club, and the confirmation that Beard was the occupant of the premises. Coffey also stated that a "confidential informant" had told him on April 4, 1987 that Beard was a drug user and dealer. Finally, he stated that the El Dorado was parked at the Country Club address and that the money order found during the arrest of the driver of the stolen vehicle indicated that Vaughn lived at 6117 Country Club Avenue. The magistrate issued a warrant to search the Country Club address, and the discovery of drugs and arrest of appellants ensued.

The state officers executing the warrant seized approximately nine ounces of cocaine, 567 grams of marijuana, $5,483 in United States currency, three handguns, and various drug paraphernalia. After they were indicted on federal charges of possessing with intent to distribute marijuana and cocaine, appellants moved for suppression of the evidence on the ground that probable cause for the issuance of the search warrant was lacking. The district court denied suppression. Appellants then pled guilty to possession with intent to distribute marijuana, but reserved the right to appeal the suppression ruling in accordance with Fed. R. Crim. P. 11(a) (2).

The existence of probable cause is determined under a common-sense "totality of the circumstances" approach. Illinois v. Gates, 462 U.S. 213 (1983). The task of the magistrate is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238. Courts reviewing a magistrate's decision look for a "substantial basis" for the issuance of the warrant, and are to accord the magistrate's determination of probable cause "great deference." Id. at 236.

Appellants present three arguments in support of their claim that the warrant for the search of 6117 Country Club Avenue was invalid. First, they contend that it was improper for the magistrate to consider the two-page affidavit submitted in support of the warrant for West Fifth Avenue and the Towncar in determining whether to issue the second warrant for the Country Club Avenue residence. This argument is without merit. The application for the second warrant specifically stated that it incorporated the first application by reference. The two affidavits together reveal the "totality of circumstances" that connected the Country Club Avenue premises to suspected criminal activity. Indeed, the purpose of the second affidavit was mainly to tie the suspected criminal activity described in the first affidavit to the Country Club Avenue address.

Appellants next contend that the affidavits were inadequate because they contained insufficient evidence of the "veracity or reliability" of the unnamed informants. We disagree. Under the totality of the circumstances test of Gates, reliability of the informant remains a relevant consideration, but other factors can support a finding of probable cause even where veracity of an informant may be in doubt. For example, "detailed description of the alleged wrongdoing, along with a statement that the event was observed firsthand" entitles a tip to greater weight. Gates, 462 U.S. at 234. Here, the informant specifically described the location and type of drugs at both residences, and a safe in the bedroom of the Country Club Avenue premises. Similarly, corroboration of the details of a tip by independent police work supports reliability. Id. at 241. Here, Coffey verified the addresses and occupants named by the informant, as well as the vehicles appellants used. We cannot accept appellants' argument that the independent corroboration here was insufficient because only innocent details were confirmed. The Supreme Court in Gates, that also involved police verification of innocent details of a tip, stated that "innocent behavior frequently will provide the basis for a showing of probable cause." Id. at 243 n. 13.

The totality of the circumstances revealed ample evidence indicating a probability of criminal activity at 6117 Country Club Avenue. The Lincoln Towncar described by the informant turned out to be stolen, and a money order listing the address as Vaughn's was found in the possession of the driver. That same stolen Towncar had been observed delivering drugs previously. These facts, combined with commendable police verification of details of the informant's tip and previous information connecting Vaughn with illegal drug activity, clearly supported the issuance of the warrant. Accordingly, appellants' convictions are hereby

AFFIRMED.