Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Phillip Ernest Johnson appeals his conviction and sentence on nine counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a), eleven counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and seven counts of using a firearm in connection with a violent crime in violation of 18 U.S.C. § 924(c). Johnson contends the district court erred in (1) failing to suppress evidence seized from his residence pursuant to a search warrant because the issuing magistrate lacked a sufficient basis for finding probable cause existed to search his home, (2) failing to suppress evidence seized from Johnson's vehicle located on his property because the first warrant did not specify the vehicle with particularity and the second warrant was based on information obtained during the allegedly illegal first search, and (3) sentencing him to seven consecutive five-year terms for his convictions under 18 U.S.C. § 924(c) rather than one five-year term and one consecutive twenty-year term. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

1. Probable Cause for Issuance of the First Warrant

A magistrate's determination that probable cause exists for the issuance of a warrant must be upheld if, under the totality of the circumstances surrounding the request, the issuing magistrate had a substantial basis for finding probable cause. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir. 1987). A magistrate's finding of a "substantial basis" is to be given great deference by a reviewing court. Fannin, 817 F.2d at 1381; United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986).

Johnson correctly asserts that probable cause to believe that an individual committed a crime does not automatically generate probable cause to search a residence. United States v. Foster, 711 F.2d 871, 878 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984); United States v. Valenzuela, 596 F.2d 824, 828 (9th Cir.), cert. denied, 441 U.S. 965 (1979); United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). However, " [d]irect evidence that contraband or evidence is at a particular location is not essential to establish probable cause to search the location." Angulo-Lopez, 791 F.2d at 1399; see also United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985); United States v. Poland, 659 F.2d 884, 897 (9th Cir.), cert. denied, 454 U.S. 1059 (1981); United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976). Rather, " [a] magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and type of the offense." Angulo-Lopez, 791 F.2d at 1399; see also Spearman, 532 F.2d at 133. The magistrate

need not determine that the evidence sought is in fact on the premises to be searched or that the evidence is more likely than not to be found where the search takes place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.

United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted), cert. denied, 474 U.S. 847 (1985); see also United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034 (1984). In making this determination, the magistrate is entitled to rely on the opinions of experienced law enforcement officials. See Fannin, 817 F.2d at 1381-82; Gann, 732 F.2d at 722.

Here, the search warrant application sought judicial permission to search Johnson's residence for all fruits, evidence and instrumentalities of the ongoing series of bank robberies.¹  See Application and Affidavit for Search Warrant, at 1. Attached to the warrant application was an affidavit from Special Agent Steven M. Dean of the FBI in which he stated that experienced FBI special agents had found that in the execution of search warrants, "fruits, evidence, and instrumentalities of bank robbery were almost always discovered and seized from the residences of bank robbery suspects...." Id. at 7. Given

the ongoing nature of the bank robberies, the personal nature of some of the items sought ... and the testimony of [the] Agent ... regarding the propensity of bank robbers to hide evidence of their crimes in their ... residences, ... [it was] reasonable for the magistrate to have inferred that the items would be hidden in the place [ ] named in the warrant.

Gann, 732 F.2d at 722.

2. Appropriateness of the Search of the Vehicle

Johnson also contends that the search of his vehicle on his property was improper because the vehicle was not described with particularity in the initial warrant and because the second search warrant was obtained as a result of evidence obtained during the execution of the allegedly invalid first warrant. We reject these arguments.

First, the officers did not search Johnson's vehicle while they were executing the first warrant. Rather, they simply observed a cap similar to that worn by the bank robber in plain view through the windshield of the truck while they were lawfully on the premises pursuant to the first warrant. Second, because the initial search warrant was valid, Johnson's contention that the second warrant for the vehicle was invalid because it was based on information obtained during the initial search lacks merit.

3. Proper Sentencing Under 18 U.S.C. § 924(c)

In sentencing Johnson, the district court followed the recommendation of Johnson's trial counsel and sentenced him to seven consecutive five-year terms, for a total of thirty-five years. In this appeal, Johnson argues that the district court should have sentenced him to one five-year term and one consecutive twenty-year term, for a total of twenty-five years imprisonment.

Because this argument was raised for the first time on appeal, we decline to exercise our discretion to consider it and we affirm the sentence imposed by the district court.² 

AFFIRMED.