Crack in da Pocket Does Not Equal Crack in da HOUUUUUUUSE

UNITED STATES v. MCPHEARSON, USCA-6 No. 05-5534, 2006 U.S.App. LEXIS 29129, appeal from USDC-TNWD, before Circuit Judges Gibbons and Rogers and USDJ-OHSD Holschuh, opinion by Gibbons, dissent by Rogers, filed 27 Nov 2006.

LONG STORY SHORT: Finding 6.4 grams of cocaine during a search incident to arrest is not by itself probable cause to search the residence for evidence of illegal drug dealing.

FACTS: Two investigators of the Jackson, Tennessee Police Department arrived at what E-911 records showed to be Defendant's house to arrest Defendant on a warrant for simple assault. Defendant responded to a knock on the front door and was promptly arrested. The officers walked Defendant to the police car and searched him incident to the arrest, finding 6.4 grams of a white chalky substance in a clear plastic bag in his front pocket. A field test indicated the substance to be cocaine. Two officers went to obtain a search warrant based only on this information. while more officers secured the house, told two females they could not leave, and conducted a protective sweep inside, finding another male subject later charged in the case. Search pursuant to warrant produced firearms and distribution quantities of crack cocaine in the house.

PROCEDURE: The United States prosecuted Defendant in US District Court for possession of a firearm by a convicted felon, possession of crack cocaine with intent to distribute, and possession of a firearm during and in relation to a drug-trafficking crime. Defendant moved to suppress all evidence obtained during the protective sweep and warranted search. The district court held that a bare-bones affidavit swearing only to a relatively small amount of cocaine found on Defendant's person, without more, was not enough to support probable cause. This was not the same as finding distribution quantities or hearing evasive answers to any questions about where Defendant got the drugs, or even a statement that the scenario was consistent with drug dealing based on the officer's training and experience, which might have been probable cause. Since there was no basis for the warrant, neither was there any basis for the protective sweep prior to serving it. Neither could such a facially defective affidavit support a good-faith mistake argument. MOTION TO SUPPRESS GRANTED in all respects. The United States appealed the suppression of evidence gotten from the warranted search, but not from the protective sweep.

HELD: Search warrant affidavits must establish a nexus between the place to be searched and the evidence sought. This affidavit failed to do so because all it stated was that officers arrested Defendant for a non-drug offense at his residence and then happened to find a non-distribution quantity of controlled substances on his person. With additional facts, such as a history of drug dealing, a reliable informant reporting drugs and paraphernalia at the house, heavy traffic in and out of the house, and so on, the search might have stood, but none of that was present in the affidavit. As it was, the affidavit was so vague and conclusory as to be meaningless, so the search was invalid. By not raising the issue on appeal, the United States conceded that the protective sweep was invalid. SUPPRESSION AFFIRMED.

The dissent would have held the search valid because 6.4 grams is a relatively large quantity to be found on a person, and even though that aspect of it was a close case, the good faith exception should apply.

EDITORIAL: If you can get a judge to dissent in this kind of a case, it was close indeed. A little more evidence would have pushed it over the edge. Hard to fault the officers for taking initiative to preserve evidence. Had they just taken the guy to jail, the other dopeslingers in the house would have made the goodies disappear before the next commercial break. Even if you find a shipload of crack in individually wrapped packets, it's a capital idea to include all that "training and experience" in your affidavit, and also to make a few quick calls to any narcs who know the guy to be a dealer.