2 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20359

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONNIE LAMONT BLOUNT;

GAYLIN TEROD JOHNSON,

Defendants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas

October 22, 1996

Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Donnie Blount and Ga ylin Johnson appeal their convictions for drug

trafficking and firearms off enses. Concluding that the evidence presented was

legally insufficient to convict on the firearms counts and that the district court erred

in denying the defendants’ motion to suppress, we reverse, render in part, and

remand in part.

Background

Near dawn on September 15, 1994, plai nclothes officers of the Houston1 This suspicion was based solely upon an HPD computer entry reporting a sexual assault

involving a firearm at the Campbell Street address. This report, entered two months prior

to the execution of the sea rch warrant, listed persons named “Ricky” and “Lamont” as

suspects. At the time the Campbell Street warrant was executed there was no extant arrest

warrant for Thomas.

2 Cooks ey identified a photograph of Richard J. Thomas shown her by agent

Brown.

3 2302 Bleker Street is catercorner to 3717 Campbell Street.

3 Police Department and agents with the Bureau of Alcohol, Tobacco, and Firearms

executed a search warrant on 3717 Campbell Street, a suspected cr ack house in

Houston’s Fifth Ward. As the police entered the house, a person matching the

description of Richard J. Thomas, a/k/a “Ricky,” whom the police suspected might

be present and armed, 1 exited the rear of the house, jumped a fenc e, and fled on

foot. Several ATF agents gave chase, lost contact with the suspect, searched the

surrounding area for a few minutes, and then r e turned to the Campbell Street

residence. Drugs, money, and a handgun were retrieved from the house.

After the Campbell Street resi dence had been secured, ATF agents Brown

and Gary and HPD officer Weston resumed the search for Thomas, driving around

the block, questioning neighbors, and searching an abandoned warehouse. Officer

Weston saw Dorothy Cooksey who was standing on her stoop in her bathrobe and

appeared agitated. Cooksey told Weston that minutes before Thomas had tried to

force his way into her house. 2 Cooksey also told Weston that Thomas would “end

up” at 2302 Bleker Street, 3 where “Lamont with the afro” lived and drugs were

sold.

At this point , more than 30 minutes after the execution of the Campbell4

Street warrant, the two agents and officer Weston approached 2302 Bleker Street,

knocked on the front door, identified themselves, and asked the inhabitants to come

out and talk to them. Someone inside shouted “who is it?” but no one opened the

door; the agents could hear voices and shuffling sounds.

While the agents continued to knock on the front door, Weston went to the

rear of the house and found a window with a broken pane. Although a piece of

plywood covered most of the opening, by leaning against the house and pressing

his face within inches of a small gap in the plywood covering, Weston was able to

see inside where he saw Blount handling a combinat ion lock on a closet door.

Blount then walked out of view.

After trying for 20 minutes to gain consensual entry into the house, Brown

radioed for reinforcements and ordered electrical services to the house cut off.

Meanwhile Blount had called 911 and reported a burglary in progress; within

minutes three mar ked police units arrived. The two police groups discussed the

situation, and then Brown and a uniformed officer went to the front door and

knocked.

Blount, seein g a uniformed officer, opened the door and was immediately

seized, thrown to the ground, and handcuffed. The two other inhabitants of the

house, defendant Johnson and a juvenile, came out and also were se ized and

handcuffed. All three were given a pat-down search.

After the defendants had been secured, Brown and Weston dr ew their

weapons and entered the residence to conduct a “perimeter sweep.” The stated5

purpose of this sweep was to look for Thomas whom they bel ieved, based on

Cooksey’s statement, might be hiding within. In the kitchen the officers observed

a razor blade with a white residue which Weston field-tested and determined to be

cocaine.

At this point Weston decided to secure a search warrant. He placed the

residence under a police guard while the defendants were transported to police

headquarters. The affidavit Weston submitted to a state magistrate included the

facts set forth in the preceding narrative and a statement from Blount, made shortly

after his arrest, stating that he had not answered the door because he was smoking

marihuana. The police obtained a search warrant authorizing a search of 2302

Bleker S treet and the seizure of any controlled substances found therein. The

warrant also authorized the arre st of defendant Blount “and other persons unknown,

accused in said affidavit.”

Several hours after the initial search of 2302 Bleker Street the police

exe cuted the search warrant. In the closet secured by the aforementioned

combination lock officers found a zippered shaving bag containing 168.1 grams of

crack cocaine, 56.2 grams of powdered crack cocaine, assorted drug paraphernalia,

a pistol, and a loaded .22 caliber rifle with a silencer and sawed-off stock. Police

also found a .38 caliber revolver, later found to bear Blount’s fingerprints, on top

of a television stand in the living room. They also found a strongbox containing

more cocaine and cash in a bedroom.

Blount and J ohnson were indicted for conspiracy to possess with intent to4 We consider the factual sufficiency of t he evidence presented prior to

considering any alleged legal error to determine whether a retrial on these counts

would violate the double jeopardy clause. B urks v. United States , 437 U.S. 1

(1978).

5 United States v. I nocencio , 40 F.3d 716 (5th Cir. 1994). In this case the

relevant narcotics law was possession wit h intent to distribute, which requires

knowing possession, actual or constructive, of the cocaine and intent to distribute.

6 distribute 50 grams or more of cocaine, 21 U.S.C. § 846; aiding and abetting such

possession, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2(a); using and carrying a firearm

in re lation to a drug trafficking offense, 18 U.S.C. § 924(c)(1); and using and

carrying a firearm silencer or muffler in relation to a drug trafficking offense,

18 U.S.C. § 924(c)(1). The defendants moved to suppress the evidence obtained

from execution of the Bleker Street search warrant, claiming that m uch of the

information which formed the basis of the warrant application had been obtained

unconstitutionally. This motion was denied.

Blount and Johnson were tried before the same jury. Blount was convicted

on all four counts; Johnson was convicted on the drug charges but acquitted on the

weapons charges. Both appeal.

Analysis

Both defendants challeng e the sufficiency of the evidence for their

conspiracy and aiding and abetting convictions. 4 To convict a defendant of

participating in a drug conspiracy, the government must prove that an agreement

existed between two or more persons to violate narcotics laws, that the defendant

knew of the conspiracy and intended to join it, and that the defendant voluntarily

participated in the co nspiracy. 5 To convict on an aiding and abetting count, theId.

6 United States v. Chavez , 947 F.2d 742 (5th Cir. 1991).

7 United States v. Carrillo-Morales

, 27 F.3d 1054 (5th Cir. 1994), cert

. denied

, 115 S.Ct. 1163 (1995).

8 A key seized from Johnson fit a lock box in which cocaine and currency, in

denominations usually associated with drug transactions, were found; a key taken

from Blount’s belt fit the door to 3717 Campbell Street; and a handgun seized in

the Bleker Street residence carried Blount’s fingerprints.

7 government must prove that the defendants associated with, participated in, and in

some way acted to further the possession and distribution of cocaine. 6 We review

the evidence in the light most favorable to the verdict to determine whether a

rational juror could have found the defendants guilty beyond a reasonable doubt of

the charged offenses. 7

We find the evidence sufficient to sustain the convictions. The defendants

were arrested in a house cont aining cocaine, drug paraphernalia, and weapons.

Both defendants were members of or affiliated with a gang involved in the drug

trade. Dorothy Cooksey and La Shundra Faye Houston testified that they witnessed

both Blount and Johnson handling and selling cocaine at the Campbell Street

residence. Items and money seized from each of the defendants suggest

involvement in narcotics trafficking. 8 These facts, and the reasonable inferences

which they give rise to, adequately establish the defendants’ guilt on the conspiracy

and aiding and abetting counts.

Next, Blount attacks the sufficiency of the evidence on the firearms

convictions. The only evidence that Blount ever used or carried a firearm is the9 Trial testimony and record photographs of the television stand reflect its height

to be over six feet, making the presence of the subject pistol less than obvious. We

consider this fact in assessing the plausibility of the government’s theory.

1 0 Bailey v. United States

, 116 S.Ct. 501, 508 (1995). Merely having a weapon

concealed nearby does not constitute a “use” under section 924(c)(1). Id.

1 1 Id. A ccord

, United States v. Andrade

, 83 F.3d 729 (5th Cir. 1996); U nited

States v. Fike

, 82 F.3d 1315 (5th Cir. 1996); United States v. Wilson

, 77 F.3d 105

(5th Cir. 1996).

8 presence of his fingerprints on a .38 caliber revolver recovered fro m the top of a

television stand in the Bleker Street residence and the fact of his arrest in the house

where that weapon was located. The government hypothesizes that Blount may

have “used” the revolver by placing it out in the open to intimidate others during

drug transactions. 9 While “the silent but obvious and forceful presence of a gun on

a tabl e can be a ‘use’” under section 924(c)(1), 1 0 the government offered no

evidence of this or a similar utilization. In the absence of any evidence suggesting

that the revolver was “used” or “carried” for some end or purpose related to drug

trafficking, this conviction cannot be upheld; “th e inert presence of a firearm,

without more, is not enough to trigger § 924(c)(1).” 11 We accordingly reverse this

conviction and enter a judgment of acquittal as to Count 3 of the indictment.

Blount’s conviction on the fourth count of the indictment, which charges use

or car rying of a silencer-equipped firearm, warrants identical treatment. The

government, whose entire case rests on Blount’s activity at the door of the closet

where the rifle was found, speculates that Blount “carried” the rifle and cocaine to

the closet to conceal them from the ATF agents then at his front door. We

conclude and hold that such an inference is not reasonable and sufficient to sustain12 See Fike

.

1 3 Ornelas v. United States , 116 S.Ct. 1657 (1996); U nited States v. Rico

, 51

F.3d 495 (5th Cir.), cert

. denied , 116 S.Ct. 220 (1995).

1 4 Uni ted States v. Hassan , 83 F.3d 693 (5th Cir. 1996); U nited States v. Restrepo

, 966 F.2d 964 (5th Cir.1992), cert

. denied

, 506 U.S. 1049 (1993).

Accord

, United States v. Shamaeizadeh

, 80 F.3d 1 1 31 (6th Cir. 1996); United

States v. Markling , 7 F.3d 1309 (7th Cir. 1993).

1 5 United States v. Roch

, 5 F.3d 894 (5th Cir. 1993). See also R ico (government

be ars burden of proving existence of exigent circumstances sufficient to rebut

presumption that a warrantless search is unreasonable).

9 a conviction, 1 2 and we therefore reverse the conviction and render a judgment of

acquittal.

Both defendants also challenge the district court’s denial of their motion to

suppress. We review for clear error the district court’s factual findings, including

those regarding the presence of exigent circumstances, and review d e novo the

ultimate conclusions on fourth amendment issues drawn from those fa cts. 13 In

cases involving the use in a warrant affidavit of unconstitutionally obtained

information, we first consider the propriety of the antecedent searches and seizures,

excise from the warrant affidavit any tainted information, and then r e view that

remaining de novo to determine the existence vel non of probable cause for issuance

of the warrant. 14 We make the initial inquiry mindful that it is the government’s

burden to prove the admissibility of evidence obtained from warrantless searches

and seizures. 15

Proceeding chronologically, we begin with Weston’s observation of Blount

through the small aperture in the rear window. The district court found that16 See W hren v. United States

, 116 S.Ct. 1769 (1996) (proper focus o f fourth

a mendment inquiry is objective conduct, and not subjective intent, of police

officer); United States v. Causey

, 834 F.2d 1179 (5th Cir. 1987) ( en banc ) (same).

Because the district court’s ruling was influenced by an incorrect view of the law

the factual findings on this issue are due no deference. U nited States v. CapoteCapote

, 946 F.2d 1100 (5th Cir. 1991) (citation omitted), cert

. denied

, 504 U.S. 942

(1992).

1 7 Brock v. United States

, 223 F.2d 681, 685 (5th Cir. 1955) (internal quotation

marks om itted) (citation omitted) (“Whatever quibbles there may be as to where

the curtilage begins and ends, clear it is that standing on a man’s premises and

looking in his bedroom window is a violation of his right to be let alone as

guaranteed by the Fourth Amendment”). See also U nited States v. Dunn

, 480 U.S.

294 (1987) (discussing fourth amendment protection of residential curtilage). To

support its contrary proposition the government cites United States v. James , 40

F.3d 850 (7th Cir. 1994), cert

. denied

, 115 S.Ct. 948 (1995). This Seventh Circuit

case, aside from being in some respects contrary

to this circuit’s pr ecedent in B rock

, is factually distinguishable. In J ames

, the

police approached the back door of a duplex reasonably believed to be “a principal

means of access to the dwelling” along a paved walkway “readily accessible to the

general public.” Id. , 40 F.3d at 862. The defendants’ yard had no such walkway

and there is no record evidence suggesting that anyone considered the back door

a “principal means of access” to 2302 Bleker Street.

10 Weston’s actions did not constitute an ill egal search because he was in the

backyard to seal an avenue of escape and not to peer into the window. This factual

finding regarding Weston’s subjective state of mind is inapposite to the question

presented, i.e. , whether Weston’s objective conduct invaded the defendants’

legitimate expectation of privacy in the curtilage of their home. 16 We conclude and

hold that when a police officer walks into the parti ally fenced back yard of a

residential dwelling, using a passage not open to the general public, and places his

face within inches of a small opening in an almost completely covered rear window

to look into the house and at the inhabitants, that officer has performed a “search”

within the meaning of the fourth amendment. 171 8 We assume arguendo the highly debatable pro position that Weston had

probable cause to believe that Thomas was hiding inside the house.

19 Rico ; United States v. Richard , 994 F.2d 244 (5th Cir. 1993).

20 Id.

21 Thus, this case does not involve the exigent circumstance of “hot pursuit.”

Welsh v. Wisconsin

, 466 U.S. 740, 753 (1984) ( “the claim of hot pursuit is

unconvincing because there was no immedi ate or continuous pursuit of the

petitioner from the scene of a crime”); United States v. Santana , 427 U.S. 38, 43

(1976) (“‘hot pursuit’ means some sort of a chase”).

11 The district court also found that, due to the exigent circumstances

surrounding the police search for Ricky Thomas, Weston’s actions did not require

the preapproval of a search warrant. 1 8 Exigent circumstances include those in

which officers reasonably fear for their safety or where there is the risk of a suspect

fleeing or the destruction of evidence. 1 9 We consider several relevant factors in

determining whether exigent circumstances exist, including

(1) the degree of

urgency involved and the amount of time

necessary to obtain a warrant;

(2) whether there is a reaso nable belief that contraband is

about to be removed or a suspect may flee;

(3) the possibility of danger to police officers guarding the

target site while a search warrant is sought;

(4) information indicating that the suspects are aware that the

police are on their trail; and

(5) the ready destructibility of any contraband present. 20

Any continuous police pursuit of Thomas had ended over 30 minutes before

the police approached 2302 Bleker St reet. 21 There is no evidence that the

inhabitants of the hou se were aware of the police presence before the agents2 2 Compare Richard ; United States v. Munoz-Guerra

, 788 F.2d 2 95 (5th Cir.

1986).

2 3 There is no record evidence that Thomas was armed when he fled the

Campbell Street residence. Although several officers who were involved in the

initial chase testified, none of them reported seeing a firearm on Thomas. In

addition, the confidential informant behind the Campbell Street warrant affidavit

stated that the only firearm in the Campbell Street residence was the .38 caliber

revolver which was seized after Thomas had fled the scene. Thus, police suspicion

that Thomas was armed stemmed entirely from a computer report, several months

old, implicating Thomas in an offense involving a firearm. See Note 1, supra

. While the facts of this case do not require us to confront the issue, we observe that

there is conflicting case law in this circuit regarding whether the presence of

fire a rms alone creates exigent circumstances. C ontrast Rico

, 51 F.3d 495, 501

(exigent circumstances exist “where firearms are present”), quoting United States

v. Mendoza-Burciaga

, 981 F.2d 192, 196 (5th Cir. 1992), cert

. denied

, 114 S.Ct.

356 (1993), with Capote-Capote

, 946 F.2d at 1103 (5th Cir. 1991) (“the mere

presence of weapons

. . . does not alone create exigent circumstances”), citing

Munoz-Guerra , 788 F.2d at 298 (listing cases).

12 kn ocked on the door and introduced themselves. 2 2 Aside from Cooksey’s broad and

uncorroborated statement, there was no indication that contraband would be found

in the house and certainly no evidence regarding its “ready destructibility” or the

risk of its removal or destruction. While the prospect of danger attends every

narcotics investigation, the police were u naware of any particular danger to

themselves or others which might distinguish this ca se from the norm. 2 3 Agent

Brown was in a position to call in reinforcements, which he subsequently did, and

seek a warrant while keeping the house under surveillance, a markedly safer course

of action than brazenly confronting the unknown in 2302 Bleker Street. In short,

“[t]here was no basis, on these facts, for believing that resort to a magistrate would

have created risks of a greater magnitude than those which are present in any case

where the police hav e probable cause but delay entry pending receipt of a24 Munoz-Guerra , 788 F.2d at 298.

2 5 United States v. Wilson

, 36 F.3d 1298 (5th Cir. 1994). Because we focus upon

the defendants ’ custodial arrest we do not reach the question whether the police

containment of 2302 Bleker Street at some point amounted to a search or seizure

cognizable under the fourth amendment.

2 6 Our review of the record persuades that this justification for the arrests evolved

during the defendants’ trial, with supporting testimony from Weston elicited by the

leading questions from the prosecutor. Our holding in C ausey

, however, requires

t hat we ignore this pretextual submission and confine our examination to the

propriety of the

officers’ objective actions. U nited States v. Flores

, 63 F.3d 1342 (5th Cir. 1995).

2 7 Illinois v. Gates

, 462 U.S. 213 (1983). See also W hiteley v. Warden

, 401 U.S.

560 (1971) (the same probable cause standard gover ns arrests with or without a

warrant).

28 18 U.S.C. § 1071.

13 warrant.” 24 The district court’s finding of exigent circumstances was clearly

erroneous; Weston’s observations through the rear window must be excised from

the warrant affidavit.

Defendants next claim that Blount’s statement that he had been smoking

marihuana in the Bleker Stre et residence was the fruit of an unconstitutional

arrest. 25 The district court found that the police had probable cause to arrest Blount

and Johnson for the crimes of harboring a fugitive (Thomas) and possessing

contraband. 26 We therefore must consider whether under the totality of the

circumstances that the police had probable cause to arrest the defendants for these

offenses. 27

A precondition to the crime of harboring a fugitive under federal law 28 is the2 9 Id. See U nited States v. Zerba

, 21 F.3d 250 (8th Cir. 1994); United States v.

Lockhart , 956 F.2d 1418 (7th Cir. 1992).

30 See Note 1, supra

.

31 Tex. Penal Code Ann. § 38.05.

32 Antu v. Eddy , 914 S.W.2d 166, 173 (Tex.App. - San Antonio 1995)

(“[w]ithout some indication that the Eddys not only knew that Bradley was in the

house, but that the officers were seeking to arrest Bradley, no reasonably prudent

officer could conclude that there was probable cause to believe that Billy Eddy

harbored Bradley”).

3 3 Ornelas at 1661-62 (“[t]he principal components of a determination of . . .

probable cause will be the events which occurred leading up to the stop or search,

and then the decision whether these historical facts, viewed from the standpoint of

an objectively reasonable police officer, amount to . . . probable cause”).

14 issuance of an arrest warrant. 29 The police were well aware that there was no extant

arrest warrant for Thomas at the time the defendants were arrested. 3 0 The

analogous Texas statute 3 1 requires knowledge of the fugitive’s status and some

affirmative action hindering police access to a felon. 3 2 The police in this case

simply arrested the defenda nts on first sight, inquiring about Thomas’s whereabouts

only after the defendants had been “secured.” On these facts we conclude that an

objectively reasonable police officer would have had no pr o bable cause to arrest

the defendants for harboring a fugitive. 33

We reach a similar conclusion regarding the “possession of contraband”

argument. The only factual basis for this theory is the statement of Dorothy

Cooksey, whom the police had spoken to only briefly and about whom they knew

nothing. Her vague assertion that drugs were sold at 2302 Bleker Street was3 4 United States v. Fisher

, 22 F.3d 574 (5th Cir.), cert

. denied

, 115 S.Ct. 529-30

(1994 ); Roch ; U nited States v. Laury

, 985 F.2d 1293 (5th Cir. 1993). The

government contends that an “average citizen” like Cooksey should be presumed

credible. The government cites to U nited States v. Fooladi

, 703 F.2d 180, 183 (5th

Cir. 1983), a pre- Gates case applying the now superseded Aguilar-Spinelli test to

discern probable cause. While d icta in Fooladi supports the government’s position,

its holding does not: “[b]ecause the information came from a non-professional

informant, was detailed, and was corroborated by the personal observations and

investigations of the police, we hold that the reliability prong of Aguilar and

Spinelli was satisfied.” Here, we state only the uncontroversial proposition that

under the “total ity of the circumstances” standard announced in G ates the

generalized and uncorroborated statement of a “citizen informant,” without more, is not enough.

3 5 Dunaway v. New York

, 442 U.S. 200 (1979); Brown v. Illinois

, 422 U.S. 590

(1975); Wilson

.

36 Id.

15 uncorroborated and bereft of detail, i.e. lacking in any indicia of reliability. 3 4

Under the totality of these circumstances we conclude th at Blount’s arrest was

without probable cause and therefore violated the fourth amendment.

This does not end our inquiry, however; a statement made by a suspect after

an illegal arrest should no t be suppressed if it is both voluntary and sufficiently

removed from the illegal seizure to break the causal chain linking the statement to

the ar rest. 3 5 Assuming a rguendo that Blount’s statement was voluntary, we

nonetheless find that given the brief period of time between the arrest and the

statement, the domineering police presence, and the absence of any intervening

circum stances, the statement is not so attenuated as to be purged of the illegal

arrest’s taint. 36 Blount’s inculpatory statement must also be excised from the

Bleker Street warrant affidavit.

Finally, we turn to Brown’s and Weston’s warrantless s earch of the37 Richard , 994 F.2d at 248 (citations omitted).

38 C ompare Richard ; Munoz-Guerra

. C ontrast Rico

, 51 F.3d at 506

(distinguishing Munoz-Guerra and Richard on grounds that “[h]ere it was the

unprovoked conduct of the suspects that led the agents reasonably to believe that

the suspects intended to depart mo mentarily in a vehicle likely containing

contraband”).

39 494 U.S. 325 (1990).

40 See, e.g., Mendoza-Burciaga

.

41 S ee Oregon v. Elstad

, 470 U.S. 298 (1985) (contrasting exclusionary rule

governing Miranda and fourth amendment violations); W ong Sun v. United States

, 37 1 U.S. 471 (1963) (discussing “fruit of poisonous tree” doctrine of the fourth

amendment’s exclusionary rule).

16 residence. The district court found that the search was justified due to exigent

circumstances and as a “protective sweep” incident to la wful arrest. “Exigent

circumstances

. . . do not pass Fourth Amendment muster if the officers deliberately

create them.” 37 We have already noted the absence of exigent circumstances at the

time of Weston’s rear window search. The only new circumstances present at the

time the house was searched were those created by the agents’ persistent efforts to

question the defendants and search their home. 38 We restate our conclusion that the

district court’s ruling on this point constitutes clear error.

The “protective sweep” rationale must also fail. While we have extended the

Supreme Court’s holding in Maryland v. Buie 39 to permit a protective sweep

ancillary to a warrantless arrest, 40 the fourth amendment decidedly does not

sanction such a search incident to an i llegal arrest. 41 Our prior holding that the42 T hus, we have no occasion to consider whether the police action, gi ven its

timi ng (after outdoors arrest effectuated) and scope (entire residence), exceeded the

exception to the warrant requirement articulated in Buie

.

4 3 This representation appears to vary somewhat from Cooksey’s and Weston’s

trial testimony regarding what Weston was told by Cooksey duri ng their initial

encounter. Because the defendants did not challenge this portion of the affidavit

in the district court or on ap peal, we do not consider the issue. F eldt v. Mentor

Corp.

, 61 F.3d 431, 436 n.7 (5th Cir. 1995), cert. granted and judgment vacated

, 116 S.Ct. 2575 (1996).

17 de fendants were illegally arrested forecloses this argument. 4 2 Accordingly, all

information obtained from the warrantless search of 2302 Bleker Street must be

excised from the warrant affidavit.

We review de novo the redacted search warrant affidavit for 2302 Bl eker

Street to determine whether it demonstrates probable cause. The redacted affidavit

sets out the following facts:

(1) the circumstances surrounding the exec u tion of the

Campbell Street warrant and the search for Thomas (who

is not named);

(2) the statement of Cooksey (wh o is not named) that 2302

Bleker Street was Thomas’s “reside nce” and that it was

also a “known drug house”; 43

(3) the police knocking and announcing at 2302 Bleker

Street;

(4) the refusal of inhabitants to open the door;

(5) the sounds of persons “moving around ” inside the

residence;

(6) the arrival of m arked patrol cars due to a 911 call from

the occupants of the residence;

(7) the front door ultimately being opened by Blount;

(8) the affiant’s “personal knowledge” that drug dealers keep

all mann er of documents and paraphernalia in their

residences or places of business.4 4 The search warrant did not authorize the police to search the house for Ricky

Thomas. We therefore need not discuss whether the police had probable cause to

search the h ouse for and arrest Thomas. See note 17, s upra ; Steagald v. United

States , 451 U.S. 204 (1981); Payton v. New York , 445 U.S. 573 (1980).

45 United States v. Satterwhite , 980 F.2d 317 (5th Cir. 1992).

18 The search warrant authorizes the seizure of controlled substances. 44 Of the listed

facts only Cooksey’s statement suggests that controlled substances were located in

2302 Bleker Street. That statement is extremely generalized, i .e.

, “the residence

at 2302 Bleker [is] a known drug house,” is attributed to a source not identified in

the affidavit and, as we have already discussed, bears no indicia of reliability. Such

a “bare bones” allegation of criminal activity cannot sustain the warrant. 45 Because

there was no probable cause for the warrant’s issuance, all of the evidence seized

pursuant to the warrant must be suppressed. Given the substantial amount of

evidence thus excluded, the error was not harmless and, ac c ordingly, the

convictions of both of the defendants on Counts 1 and 2 of the indictment must be

vacated and remanded for further proceedings.

In sum, we vacate and remand the defendants’ convictions on Counts 1 and

2 of t he indictment. We reverse Blount’s convictions on Counts 3 and 4 of the

indictment and render a judgment of acquittal on those counts. Finally, we reverse

the district court’s ruling on the motion to suppress, concluding that all evidence

seized pursuant to the Bleker Street search warrant must be suppressed.

REVERSED in part, VACATED and REMANDED in part.19

ENDRECORDRHESA HAWKINS BARKSDALE, Circuit Judge, concu rring in part, and

dissenting in part:

Sadly, the appellants’ criminal conduct is not remarkable; instead, it is

typical of that unearthed by the ongoing, dangerous fight, under federal and state

law, against gang-related drug trafficking. What is remarkable, however, is the

conclusion reached by the majority on the suppression issue. For it, the majority

opinion appears to “dot all the i’s and cross all the t’s”; it is facially appealing. But,

with all due respect, it is wrong. It is wrong on the facts; it is wrong on the law.

For example, the opinion refers to the Officers involved in the raid as “plainclothes

officers of the Houston Police Department and agents with the Bureau of Alcohol,

Tobacco, and Firearms”. O p. at 2 (emphasis added). Incredibly, no mention is

made of, nor consideration given to, the fact that they were attired in plainly

marked raid gear and were members of a violent gang task force.

Accordingly, although I concur that the evidence was sufficient to support

the convic tions for conspiracy and aiding and abetting, and, although d ubitante

, that

the evidence was not sufficient to support Blount’s firearms convictions, I must

dissent from the reversal of the denial of the suppression motions.

I.

The facts are straightforward and, as stated, quite typical. Acting pursuant- 21 -

to a search and arrest warrant that is not challenged on appeal, police officers and

ATF agents assigned to a violent gang task force, and attired in clearly marked raid

jackets, searched the designated house and found the expected drugs, money, and

handgun. They pursued, but could not apprehend, the suspect, whose escape

through the ba ck of the house was aided by the presence of a pit bull dog that

confronted the Officers when they went behind the house. Shortly thereafter, as the

search continued, a neighbor, who lived only two houses away from the house just

searched and who had just seen the suspect because he tried to break into her home,

advised the Officers that the suspect could be found at the house adjacent to ( 15 feet

from ) the house just searched. The Officers proceeded to that nearby adjacent

house and announced their presence. One Officer understandably stationed himself

between the house just searched and that adjacent house. When the occupants

refused t o open the door, the Officer understandably knocked on a partially

uncovered window that faced the house just searched, announced the Officers’

presence and desire to talk to the occupants, and, understandably, looked inside the

house. And, when the occupants finally opened the door, the Officers

understandably arrested them and made a protective sweep; during it, they found

cocaine residue in plain view. Based on the foregoing, a search and arrest warrant

was obtained for this second house. Evidence of drug trafficking and weapons

were found, and convictions obtained.

To say the lea st, the procedures followed for the second house were

reasonable, especially in light of the immediacy and danger surrounding any drug- 22 -

trafficking raid, and, most especially, where, as here, there is reliable information

that weapons are involved. In fact, the procedures followed were far more than

reasonable; they were mandated by the circumstances. In any event, the procedures

certainly were not the “unreasonable searches and seizures” proscr ibed by the

Fourth Amendment. Yet, the majority finds them to be so. It is correct that

probable cause rulings are reviewed de novo ; but, in so doing, the majority insists

upon unreasonable, not reasonable, actions. And, for those rulings reviewed only

for clear error, the majority acts instead, I am afraid, as the trier of fact.

II.

The majority concludes that th e evidence seized, pursuant to a search

warrant, from the adjacent house, 2302 Bleker Street, must be suppressed because

the supporting warrant affidavit is based on information obtained in violation of the

Fourth Amendment. Specifically, it holds that Officer Weston’s observation of

Blount through an opening in the rear window of 2302 Bleker was an illegal search

because there were no exigent circumstances that justified the Officer’s presence

at that location; and that the Officers did not have probable cause to arrest Blount

and Johnson for the crimes of harb oring a fugitive (Thomas) and possession of

contraband. Pursuant to these holdings, the ensuing protective sweep of 2302

Bleker, during which the Officers observed cocaine residue on a razor blade in the

kitchen, was unlawful, and Blount’ s statement was the product of an unlawful

arrest.

The analysis leading to these conclusions is flawed because (1) it fails to give- 23 -

sufficient weight to the information given to the police by the neighbor, Cooksey;

an d (2) it states incorrectly that the Officers did not have a warrant to arrest the

suspect who fled from the f irst house searched, 3717 Campbell. Moreover, the

analysis fails to accord proper deference to the state court judge’s determination of

probable cause , and the invalidation of the search warrant ignores the Supreme

Court’s teaching that “the resolution of doubtful or marginal cases in this area

should be largely determined by the preference to be accorded to warrants”, as well

as the Court’s admonition that “courts should not invalidate warrants by

interpreting affidavits in a hyper technical, rather than a common sense, manner.”

Illinoi s v. Gates , 462 U.S. 213, 236-37 & n.10 (1983). The denial of the

suppress ion motions should be affirmed; the Officers’ conduct which led to the

development of the information in the affidavit for the 2302 Bleker search warrant

was objectively reasonable under the totality of the circumstances.

The Officers’ presence at 2302 Bleker was justified by exigent

circ umstances. Whether such circumstances exist is a factual finding reviewed

only for clear error. E

.g.

, United States v. Richard

, 994 F.2d 244, 248 (5th Cir.

1993). On the other hand, determinations of reasonable suspicion and probable

cause are to be reviewed de novo on appeal; but, the Supreme Cou rt recently

reiterated that, in so doing, “a reviewing court should take care both to review

findings of historical fact only for clear error and to give due weight to inferences

drawn from those facts by resident judges and local law enforcement officers.”

Ornelas v. United States

,

_ __ U.S.

___, 116 S. Ct. 1657, 1663 (1996). “A trial- 24 -

judge views the facts of a particular case in light of the di stinctive features and

events of the community; likewise a police officer views the facts through the lens

of his police experience and expertise”, id

. , and must “formulate[] certain commonse nse conclusions about human behavior”, I llinois v. Gates

, 462 U.S. at 231.

Accordingly, “[a]n appeals court should give due weight to a trial court’s finding

that the officer was credible and the inference was reasonable.” O rnelas

,

___ U.S.

at ___, 116 S. Ct. at 1663.

A.

The circumstances leading up to the Officers’ presence at 2302 Bleker Street

are important to understanding their subsequent actions at that location, including

Officer Weston’s positioning himself outside the partially-uncovered rear window,

which faced the house just searched and was, in fact, only 15 feet from it.

On September 13, 1994, a confidential informant, who had provided reliable

information about narcotics violations to police on at least three prior oc casions,

informed Officer Weston that 3717 Campbell was being used as a “crack house”

by the Fifth Ward Posse, a violent criminal street gang; that he had seen several

black males known to be members of the Fifth Ward Posse at the house; that he had

observed an unknown black male, 19 to 20 years of age, approximately 5'6" to 5'7"

tall, weighing approximately 1 20-125 pounds, selling crack cocaine from the

house; and that he observed a “large, blue ste el pistol” on the couch beside the

unknown black male. Based on that information, which was contained in a warrant

affidavit executed by Officer Weston , a state judge issued a search a nd arrest- 25 -

warrant authorizing the se arch at 3717 Campbell a nd the arrest of the unknown

male who was selling crack cocaine there. The appellants do not challenge that

warrant or the affidavit on which it is based.

Subsequent to obtaining the search a nd arrest warrant, Officer Weston

learned, as a result of a computer inquiry, that “Ricky” Thomas, a convicted felon,

matched the description of the person that the informant had observed selling crack

cocaine at 3717 Campbell. The Officer learned also that, two months earlier,

someone had reported that two suspects, identified as “Ricky” and “Lamont”, had

committed an aggravated sexual assault with a firearm at 3717 Campbell.

During the execution of the warrant at 3717 Campbell, the suspect, a black

male, approximately 5'6" to 5'8", wearing a white T-shirt, fled from the rear of the

house. Two officers chased him, but lost sight of him. Officer Weston participated

in the search of 3717 Campbell, in which the Officers discovered currency, crack

cocaine, and a handgun. Officer Weston, who had over 26 years’ experience as a

police officer, and four years’ experience with the violent gang task force, testified

at the suppression hearing that, based on his experience as a narcotics officer, crack

cocaine dealers often operate out of two separate locations: a “crack” or “smoke”

house, at which persons can buy a $10 or $20 rock of crack cocaine and remain to

smoke it; and a “stash” house, at which the largest amount of crack cocaine is kept,

and at whic h wholesale amounts are sold to other drug dealers. He testified that

3717 Campbell was consistent with a “smoke” house.

After completing the search of 3717 Campbell, Officer Weston and several- 26 -

other Officers joined the ongoing search of the neighborhood for the suspect,

believed to be Ric ky Thomas. During that search, they encountered Dorothy

Cooksey, who lived at 23121⁄2 Bleker (only two houses north of 3717 Campbell).

Cooksey told the Officers that “Ricky” had tried to force his way into her home in

order to hide from the Offic ers pursuing him. She identified a photograph of

Thomas as “Ricky”; stated that he “would end up” at the house at the corner of

Bleker and Campbell Streets (2302 Bleker, only 15 feet from 3717 Campbell ); and

stated that Ricky and “Lamont with the Afro”, along with others, sold drugs at that

house. Officer Weston testified that the Officers proceeded to 2302 Bleker

because, based on “the total circumstances”, they expected to find Thomas hiding

inside the house.

As the majority notes, exigent circumstances include those for which o fficers

reasonabl y fear for their safety and those for which there is a risk of a suspect

fleeing or of evidence being destroyed. The majority concludes that the district

court’s findings of fact were clearly erroneous as to there being exigent

circumstances justifying the Officers’ pre sence at 2302 Bleker because (1) any

continuous police pursuit of Thomas had ended over 30 minutes before the Officers

a pproached 2302 Bleker; (2) there is no evidence that the inhabitants of 2302

Bleker were aware of the Officers’ presence before they knocked on the door and

announced their presence; (3) “[a]side from Cooksey’s broad and uncorroborated

statement, there was no indication that contraband would be found in the house and

certainly no evidence regarding its `ready destructibility’ or the risk of its removal- 27 -

or destruc tion”, Op. a t 12; and (4) the Officers were unaware of any particular

danger to themselves or others which might dist inguish this case from any other

narcotics investigation. I disagree wholeheartedly with each conclusion and

address them in turn.

1.

After hearing the testimony, the district judge remarked that this was a

“textbook” example of “hot pursuit”. I agree. But, the majority concludes that,

because “continuous police pursuit of Thomas had ended over 30 minutes before

the police approached 2302 Bleker Street”, this case does not involve the requisite

exigent circumstance of “hot pursuit”. Op. at 11-12 & n.21.

Officer Weston testified at the suppression hearing that only “about 25 to 30

minutes” elapsed between the time the Officers forcibly entered 3717 C ampbell

and the time they knocked at 2302 Bleker. Although it is true, as the majority

notes, that “`hot pursuit’ means some sort of a chase”, United States v. Santana

, 427

U.S. 38, 43 (1976), “it need not be an extended hue and cry in and about [the]

public streets”. Id . (brackets in original).

The Officers’ pursuit of the suspect from 3717 C ampbell was immediate.

Although the Officers who initially pursued the suspect lost sight of him, t wo or

more officers continued to search for him, from the moment he fled up to and

including the moment the Officers approached 2302 Bleker, about 25-30 minutes

later

. Officer Weston searched 3717 Campbell for only approximately ten minutes

before he rejoined the ongoing search for the suspect. Accordingly, the search for- 28 -

Thomas involved the exigent circumstance of “hot pursuit”.

2.

The majority’s conclusion that there is no evidence that the occupants of

2302 Bleker were aware of the police presence before the Officers knocked on the

door is implausible. Officer Weston testified at the suppression hearing that, for

the search of 3717 Campbell, the Officers were dressed in police raid jackets with

“Police” written across the f ront, and the special agents wore raid gear that

identified them as “ATF” agents; that, as the Officers approached 3717 Campbell,

they shouted, “Police officers. We have a search warrant”; that a do or ram was

used to gain entry there and the Officers “made a lot of noise getting in” ; and that

th e back of 2302 Bleker is only approximately 15 feet from the side of 3717

Campbell.

Considering the extremely close proximity of the houses, a reasonable officer

could have believed th at the occupants of 2302 Bleker were well aware of the

police presence in the neighborhood prior to the Officers’ arrival at 2302 Bleker.

Moreover, the majority overlooks the salie nt fact that the Officers reasonably

believed that the suspect for whom they had an arrest warrant and who had recently

fled 3717 Campbell was hiding inside 2302 Bleker; certainly the Officers were

justified in believing that the suspect, who had recently tried to force his way into

Cooksey’s home to hide, was aware that they were looking for him.

3.

Bru shing aside the information Cooksey gave the Officers about drug dealing- 29 -

at 2302 Bleker by characterizing her statement as “broad and uncorroborated”, Op.

at 12, the majority asserts t hat there was no indication that contraband would be

found at 2302 Bleker. It fails to give adequate weight to Cooksey’s information,

and ignores evidence of other relevant circumstances, including Officer Weston’s

experience with crack cocain e dealers’ practice of maintaining both a “smoke”

house and a “stash” house.

Only 10 to 15 minutes after the suspect escaped from 3717 Campbell,

Cooksey, a resident of the neighborhood, identified a photograph of Thomas as the

person who had just tried to break into her house while escaping from the police,

and told the Officers that he “would end up” at 2302 Bleker, where he sold drugs

with “Lamont with the Afro” and others. The information provided by Cooksey

was corroborated, to a great degree, by Officer Weston’s knowledge gleaned from

the events that had occurred up to that point. Based on his computer search and

information from a confidential informant, the Officer already suspected Thomas

of h aving sold crack cocaine at 3717 Campbell a few days earlier. Having just

completed the search of 3717 Campbell, the Officer had confirmed that 3717

Campbell was a “crack” house, and was aware that the suspect who fled from 3717

Campbell fit Thomas’ description. He knew also that two months earlier, a sexual

assault had been reported at 3 717 Campbell, involving “Ricky” and “Lamont”.

Based on his experience in the area, which was known for gang and narcotics

activity, he had observed that crack cocaine dealers frequently operated out of both

a “stash” house and a “smoke” house.- 30 -

In any event, there is no indication that Officer Weston had any reason to

believe that Cooksey had a motive to falsify information or that she made her

accus ations merely to spite the occupants of 2302 Bleker. S ee United States v.

Rollins

, 522 F.2d 160, 164 (2d Cir. 1975) (stating that where an informer was not

an anonymous paid informer, but an identified bystander with no apparent motive

to falsify, his report “has a `peculiar likeli hood of accuracy’”), c ert. denied

, 424

U.S. 918 (1976); United State s v. Unger , 469 F.2d 1283 (7th Cir. 1972), c ert.

denied

, 411 U.S. 920 (1973). Based on the totality of these circumstances, the

Officers reasonably could have believed that contraband would be found at 2302

Bleker.

4.

The majority’s concern over the lack of evidence regard ing the “ready

destructibility” of the contraband is misplaced. Our court has long recognized the

common sense fact that drug trafficking evidence is subject to easy and quick

removal or destruction. S ee, e.g., United States v. Rico

, 51 F.3d 495, 501 (5th Cir.)

(internal quotation marks and citations omitted) (one of the f actors relevant to

determining whether exigent circumstances exist is “the knowledge that efforts to

dispose of narcotics and to escape are characteristic behavior of persons engaged

in the narcotics traffic”), cert. denied , ___ U.S. ___, 116 S. Ct. 220 (1995).

5.

Finally, the majority’s assertion that the Officers were unaware of any

particular danger to themselves or others which might distinguish this case from the- 31 -

dangerous circumstances attending every narcotics investigation fails to take into

account the totality of the circumstan ces of which the Officers were aware. The

majority notes that, because none of the Officers saw a firearm on Thomas when

he fled 3717 Campbell, and because the weapon identified by the confidential

informant was seized from 3717 Campbell af ter Thomas had fled, the Officers’

suspic ion that Thomas was armed stemmed entirely from the computer report of

Thomas’ alleged involvement in the sexual assault two months earlier. Once again,

I disagree completely.

The confidential informant who supplied the information underlying the

search and arrest warrant for 3717 Campbell told Officer Weston that 3717

Campbell was being used as a “c rack house” by the Fifth Ward Posse, a violent

criminal street gang with which Officer Weston was familiar as a result of his

participation in the ATF/HPD Violent Gang Task Force, t o which he had been

assigned for four years

, during which time he investigated gang-related narcotics

trafficking activities in the Fifth Ward area (in whic h the Campbell and Bleker

Street houses were located). As our court has acknowledged often, “firearms are

‘tools of the trade’ of those engaged in illegal drug activiti es.” U nited States v.

Ramos , 71 F.3d 1150, 1158 n. 26 (5th Cir. 1995) (internal quotation marks and

citation omitted), cert. denied , ___ U.S. ___, 116 S. Ct. 1864 (1996).

Based on his experience and knowle dge of gang-related narcotics trafficking,

Officer Weston reasonably could have concluded that, even though the weapon

described by the confidential informant was left behind when the suspect fled 3717- 32 -

Campbell, the suspect had access to other weapons. This is especially true because

2302 Bleker had been reported by Cooksey to the Officers as a place where drugs

were sold.

Considering the totality of the circumstances, exigent circumstances

(including pursuit of a fleeing crack cocaine dealer whom the Officers had reason

to believe was armed and dangerous, and for whom they had an arrest warrant, as

discussed infra ) more than justified Officer Weston’s presence at the rear of 2302

Bleker. Once he reached the window there, Officer Weston knocked on it and

announced that police officers wanted to talk with the occupants. Because the

Officer was lawfully at the back of the house for the purpose of preventing Thomas,

whom he reasonably believed to be inside, from fleeing, he did not violate the

Fourth Amendment by failing to blind himself to what he could see -- to possibly

include s omeone with a weapon ready to fire at him -- through the partially

uncovered window.

It bears repeating that our review of an exigent circumstances finding is not

de novo ; we review only for clear error. A finding of fact is clearly erroneous only

“when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and f irm conviction that a mistake has been

c ommitted.” A nderson v. City of Bessemer City, N.C.

, 470 U.S. 564, 573 (1985)

(citation omitted).

If the district court's account of the evidence is plausible

in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have- 33 - weighed the evidence dif ferently. Where there are two

permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous.

I d

. at 573-74. With all due respect, I do not understand how anyone reading the

suppression hearing record could conclude that the district court’s finding was

clearly erroneous.

B.

The officers had probable cause to arrest Blount and Johnson . Again, w e

review a probable cause ruling de novo ; but, in so doing,

we must heed the Supreme Court’s admonition “to review

findings of historical fact only for cl ear error and to

give due weight to inferences drawn from thos e facts by

resident judges and local law enforcement officers.”

Or nelas

,

_ __ U.S. at

___, 116 S. Ct. at 1663. Probable

cause is a “common sense, non-technical conception[] that

deal[s] with ‘the factual and practical considerations of

everyday life on which reasonable and prudent men, not

legal technicians, act.’” Id

. at

___, 116 S. Ct. at 1661

(quoting Illinois v. Gates

, 462 U.S. at 231).

The process does not deal with hard

certainties, but with probabilities.

Long before the law of probabilities was

articulated as such, prac tical people

formulated certain common-sense

conclusions about human behavior; jurors

as fact-finders are permitted to do the

same-- and so ar e law enforcement- 34 - officers

. Finally, the evidence thus

collected must be seen and weighed not

in terms of library analysis by

scholars, but as understood by those

versed in the field of law enforcement.

Gates

, 462 U.S. at 231-32 (emphasis added).

1.

The district court concluded that the police had

probable cause to arrest Blount and Johnson for the

crimes of harboring a fugitive (Thomas) and of possessing

c ontraband. As for the former, the majority concludes

that the police did not have probable cause because

“[t]he police wer e well aware that there was no extant

arrest warrant for Thomas at the time” of the arrests.

Op. at 14. But, although there was no arrest warrant

expressly naming Thomas, the majority erroneously ignores

the fact that the search warrant for 3717 Campbell i s

also an arrest warrant; i t authorizes the arrest of the

individual, whose name was unknown at the time the

warrant was issued, described in the warrant affidavit as

having sold crack cocaine at 3717 Campbell. Accordingly,

the Officers had a warrant to arrest the suspect who fled

from 3717 Campbell when the search warrant w a s executed

at that location less than one-half hour earlier.- 35 -

Based on the totality of the circumstances, including

the Officers’ experience and the information provided to

them by Cooksey, the Officers had probable cause to

believe that the suspect was hiding inside 2302 Blek e r.

In light of those circumstances, as well as the refusal

o f the occupants of 2302 Bleker to open the do or in

response to requests by persons attired in clothing which

clearly identified them as law enforcement officers, and

who loudly announced their identity, until the arrival of

uniformed officers in response to Blount’s 911 call

reporting a burglary in progress, the Officers had

probable cause to believe that the occupant s had

committed the crime of harboring a fugitive.

2.

In the alternative, the majority concludes that the

Officers did not have probable cause to arrest Blount and

John son for possession of contraband because the only

factual basis for that theory was the information

provided by Cooksey. It states that Cooksey’s “vague

assertion that drugs were sold at 2302 Bleker Street was

uncorroborated and bereft of detail, i.e. lacking in any

indicia of reliability.” O p. at 15. It claims to state- 36 -

“only the uncon troversial proposition that under the

‘totality of the circumstances’ standard announced in

Gates the generalized and uncorroborated state ment of a

‘citizen informant,’ without more, is not enough.” O p.

at 15 n.34. Instead, the majority announces a new

standard, casting aside a well-settled standard that has

been accepted and applied both before and after Gates

.

The majority rejects the Government’s contention that

an “ave rage citizen” like Cooksey should be presumed

credible, in part because the case cit e d by the

Government in support of that proposition, United States

v. Fool adi , 703 F.2d 180 (5th Cir. 1983), was decided

under the standar ds of A guilar v. Texas

, 378 U.S. 108

(1964 ), and S

pinelli v. United States

, 393 U.S. 410

(1969), which were superseded by the totality of

circumstances test announced in G ates

. But, G a tes i s

recognized as having replaced the Aguilar-Spinelli test

with “a new, more f lexible standard for evaluating the

facial sufficiency of an affidavit based on a hearsay

a ccount of an informant’s tip.” U nited States v.

Phillips

, 727 F.2d 392, 395 (5th Cir. 1984); see also

Gates , 462 U.S. at 237 n.10 (Fourth Amendment policies- 37 -

“require a less rigorous standard than that which appears

to have been read into Aguilar and Spinelli ”). Needless

to say, if an average citizen is presumptively credible

under Aguilar a nd S pinelli

, that presumption should be

equally applicable, if not all t he more true, under

Gates ’ more flexible standard.

In Philli p s

, the defendant’s wife contacted the ATF

a nd gave a sworn statement regarding her husband’s

possession of a sawed-off shotgun. The defendant argued

that the warrant wa s not supported by probable cause

because the warrant affidavit contained no information

establishing the reliability of the informant. The

def endant asserted that the agent had never met Mrs.

Phillips before she gave her statement, knew nothing

about he r from any other source, and had made no effort

to corroborate her story.

Our court noted that, “[w]hen information is received

from an identified bystander or victim-eyewitness to a

crime, we have held that such a non-pro fessional

informant’s reliability need not be established in the

officer’s affidavit.” I d

. at 397 (internal quotation

marks and citation omitted).- 38 - The rationale for the victim or

bysta n der exception is that the

statements of such eyewitnesses will

presumably be based on their own

observations and thus are not likely to

refl e ct idle rumor or irresponsible

conjecture....

... When an average citizen tenders

information to the police, the police

should be permitted to assume that they

are dealing with a cred i ble person in

the absence of special circumstances

suggesting that such might n o t be the

case.

Id

. at 397 (inter nal quotation marks and citations

omitted). Although Mrs. Phillips’ trustworthiness was

diminished by her possible motives for vengeance (she had

recently quarreled with and left her husband), her

statement was in the form of an affidavit, which

subjected her to possible prosecution if she lied, and

her statement described in explic it detail where her

husband lived, hi s prior criminal record, and where the

gun could be found. Applying G ates

, our court concluded

that, under the totalit y of those circumstances, there

was a fair probability that Mrs. Phillips’ tip was true.

Id . at 399.

The info r mation provided by Cooksey to the Officers

contained les s detail than that provided by Mrs.- 39 -

Phillips, and, unlike Mrs. Phillips’ statement, Cooksey’s

statement was unsworn; but, on the other hand, numerous

other circumstances indicate its reliability. Cooksey

was a resident of the neighborhood, living only two

houses away from the tw o houses searched, and had just

been the victim of an attempted break-in by the suspect

for whom the police were searching. She had no apparent

motive to falsify information for the purpose of revenge

o r spite. And, her statement contains far more detail

than the majority acknowledges: she identified Thomas’

photograph as that of the person who ha d tried to break

into her home; described 2302 Bleker as the location

where the suspect would “end up”; and explained that the

suspect would g o there because he sold drugs at that

location with “Lamont with the Afro”.

Moreover, contrary to the majority’s assertion,

Cooksey’s statement about drug-dealing activity at 2302

Bleker was not the only fa ctual basis for the Officers’

theory that the occupants o f 2302 Bleker possessed

contraband. That theory was also supported by the

O fficers’ belief that the suspect who had fled 3717

Campbel l, in which the Officers found crack cocaine,- 40 -

cash, and a weapon, was hiding inside 2302 Bl eker, and

the Officers’ experience in gang-related narcotics

trafficking investigations in the area, including Officer

Weston’s knowledge that crack cocaine dealers frequently

utilize both a “smoke” house and a “stash” house from

which to conduct their business. Under the totality of

the circumstanc es, the Officers also had probable cause

to arrest the occupants of 2302 Bleker for possession of

contraband.

C.

Because there was probable cause to arrest Blount and

Johnson, both for harboring a fugitive and for possession

of contraband, the protective sweep of 230 2 Bleker,

incid ent to the arrests, did not violate the Fourth

Amendment. For the same reasons, Blount’s post-arrest

statement was not the product of an unl awful arrest.

Accordingly, the maj o rity also erroneously excised from

the warrant af fidavit for 2302 Bleker the information

about the Officers’ prot ective-sweep discovery of the

razor blade containing cocaine resi due, and Blount’s

statement.- 41 - III.

For the foregoing reasons, there was prob a ble cause

for the issuance of the search warrant for 230 2 Bleker;

therefore, the motions to suppress were correctly denied.

Acc o rdingly, I dissent respectfully from the majority’s

holding otherwise.