United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3883

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Gina Morrison, *

*

Appellant. *

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Submitted: September 25, 2009

Filed: January 29, 2010

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Before BYE, ARNOLD, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Gina Morrison was charged with possessing pseudoephedrine knowing it would

be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2).

Morrison filed a motion to suppress evidence, alleging that a search warrant executed

at 27091 Roelker Road in Wright City, Missouri, on October 14, 2007, was not

supported by probable cause. After an evidentiary hearing, the magistrate judge issued

a report and recommendation finding that the search warrant was supported by
1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

2

Although Morrison's codefendant initiated the Batson challenge, the record

reflects that Morrison's counsel argued in support of the objection and the government

admits that the objection is imputed to Morrison for purposes of this appeal. 

3

"Ricky" refers to Richard Rodriguez. 

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probable cause and recommending that the district court1

 deny Morrison's motion to

suppress. The district court adopted the magistrate judge's report and recommendation.

The matter proceeded to trial. At the conclusion of voir dire, the government

exercised peremptory challenges to strike Jurors 5 and 14, both African Americans.

Morrison's codefendant objected to the government's use of these two peremptory

challenges based upon Batson v. Kentucky, 476 U.S. 79 (1986). Morrison joined in

this objection.2

 The district court overruled the objection, concluding that the

government had articulated race-neutral reasons for exercising its peremptory

challenges as to both jurors. Morrison appeals the suppression motion denial and the

Batson challenge ruling. We affirm. 

I. Background

A. Seizure of Evidence 

Warren County Sheriff's Office Detective Chad Fitzgerald received information

about drug activities at 27091 Roelker Road. Detective Fitzgerald prepared a written

affidavit for a search warrant. The affidavit defined the location as the residence of

Richard Rodriguez and Gina Morrison. The affidavit further stated that on October 10,

2007, Detective Deric Dull informed Detective Fitzgerald that Detective Dull had

received information from an arrestee claiming to have made purchases for Morrison

in exchange for methamphetamine. Detective Dull also attested that he overheard a

telephone conversation between his informant and Morrison in which Morrison told

the woman to bring the materials to "Ricky's3

 house," the home of Morrison's
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boyfriend, and that Morrison would have something for her. Detective Dull drove the

informant to a location that she identified as Ricky's residence and the informant said

that she had previously delivered methamphetamine precursors in exchange for

methamphetamine to the location. 

In the affidavit, Detective Fitzgerald also recited that he investigated and

confirmed the location of Rodriguez's residence at 27091 Roelker Road. The affidavit

also stated that officers had driven by this location twice, and on each occasion the

officers smelled a chemical odor that, from their experience, indicated likely

methamphetamine manufacturing. Finally, the affidavit alleged that on two occasions

on October 11, 2007, officers saw a green pickup truck previously associated with

Morrison on the premises of 27091 Roelker Road.

Upon this sworn affidavit, the judge issued a search warrant. The warrant

authorized the search of the subject residence, outbuildings, vehicles, and the persons

of Rodriguez and Morrison. The search warrant authorized the "seizure of illegal

narcotics, currency obtained as a result of illegal activity, firearms, and any other

evidence of criminal activity that would be furthered by illegal narcotics activity." 

The officers executed the search warrant for 27091 Roelker Road at

approximately 2:15 a.m. on October 14, 2007. When the officers entered the

residence, they detained Morrison, Rodriguez, and three other individuals. After orally

reading the occupants their Miranda rights, Detective Fitzgerald asked the occupants

for their identification. Morrison said that her identification was in her purse in her

bedroom. Detective Fitzgerald retrieved the purse and seized drug paraphernalia from

it. The officers found and seized two digital scales, a glass pipe, and a bag of blue pills

and white powder from other parts of the residence. From the outbuilding shed, the

officers seized methamphetamine chemical precursors and marijuana. Morrison said

that the green pickup truck belonged to her mother, but she drove it. The officers
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seized cans of Coleman fuel from the truck because the fuel was known to be a

methamphetamine precursor chemical.

Morrison filed a motion to suppress, alleging that the search warrant executed

at 27091 Roelker Road was not supported by probable cause. The magistrate judge

found that the search warrant was supported by probable cause and recommended to

the district court that Morrison's motion to suppress be denied. The district court

adopted the magistrate judge's report and recommendation. 

B. Batson Challenge

The matter proceeded to trial. During voir dire, the jury was asked whether any

member of the panel had been charged with any state or federal offense punishable by

a year or more in prison, or had a close friend or family member so charged. In

response, Juror 5, an African American, initially responded that she had a grandchild

who had been charged with an unknown offense. Upon further questioning, she

informed the parties that she did not believe her grandchild's arrest would affect her

ability to be impartial. Several minutes later, after responses by two other jurors, Juror

5 informed the parties that she had recalled another grandchild who also had been

arrested. She believed that this grandchild had been convicted and incarcerated for a

drug offense. She also explained that her husband had a drinking problem.

In response to the same question, Juror 14, an African American, reported that

her husband had been convicted of theft in 1969. She indicated that she did not believe

her husband's prior conviction would affect her ability to be impartial. In addition,

according to the survey completed by the prospective jurors, Juror 14 had been

employed by the Department of Mental Health for 19 years.

The government proceeded to strike Jurors 5 and 14, and Morrison's

codefendant objected claiming that the government did not strike similarly-situated

white jurors. Morrison joined in the objections. The district court made no specific
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finding on the record as to whether the appellant and her codefendant had established

a prima facie case showing that the government had exercised these two peremptory

challenges on the basis of race. The district court nonetheless required the government

to state reasons for the strikes. The court then denied the Batson challenge, finding

that the government had articulated race-neutral reasons for the strikes. 

II. Discussion

A. Suppression of Evidence

On appeal, Morrison contends that her statements and the search evidence from

27091 Roelker Road should be suppressed because the search warrant was not

supported by probable cause. Morrison mounts three attacks against the warrant's

validity. First, she argues that the information contained in the search warrant was

stale by the time the police executed the warrant. Second, she argues that the untested

and uncorroborated informant could have had motive to lie about possible

methamphetamine manufacturing occurring at 27091 Roelker Road. Third, she

contends that the police made no effort to pinpoint the chemical odors emanating from

the residential area. Finally, Morrison argues that the government wrongly relied on

her alleged admissions made during the execution of the warrant. The government,

according to Morrison, had assured her that it would not use her admissions at trial.

"We review the district court's factual determinations in support of its denial of

a motion to suppress for clear error and its legal conclusions de novo." United States

v. Harper, 466 F.3d 634, 643 (8th Cir. 2006) (citation omitted). "We will reverse a

district court's denial of a motion to suppress only if the district court's decision 'is

unsupported by substantial evidence, based on an erroneous interpretation of

applicable law, or, based on the entire record, it is clear a mistake was made.'" Id.

(quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)). 

We hold that the affidavit established probable cause. First, standing alone, the

fact that the drive by the 27091 Roelker Road residence occurred three to four days
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prior to the execution of the warrant does not render the information in the warrant

stale. United States v. Jeanetta, 533 F.3d 651, 655 (8th Cir. 2008). "Probable cause

must exist when a warrant is issued, not merely at some earlier time, but there is no

bright-line test for determining when information is stale . . . ." Id. (internal quotation,

alteration, and citation omitted); see also United States v. Caswell, 436 F.3d 894, 898

(8th Cir. 2006) (holding that "[a] time lapse between the informant's disclosure and

the search warrant's execution does not necessarily make probable cause fatally stale")

(internal quotations and citation omitted). Furthermore, "[t]ime factors must be

examined in the context of a specific case and the nature of the crime under

investigation." Caswell, 436 F.3d at 898 (internal quotations and citation omitted).

'"[W]here continuing criminal activity is suspected, the passage of time is less

significant.'" Jeanetta, 533 F.3d at 655 (quoting United States v. Formaro, 152 F.3d

768, 771 (8th Cir. 1998)). "In investigations of ongoing narcotics operations, intervals

of weeks or months between the last described act and the application for a warrant

does not necessarily make the information stale." Id. (internal quotations, alterations,

and citations omitted); see also United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.

1993) (finding that "'[w]ith respect to drug trafficking, probable cause may continue

for several weeks, if not months, of the last reported instance of suspect activity.'")

(quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)).

We conclude that the three to four day period between the police drive-by and

the execution of the warrant did not render the information obtained via the drive-by

presumptively stale. Instead, considering the totality of the circumstances, the

information supported a belief that Morrison was engaged in an ongoing criminal

enterprise and that evidence of her illegal activities would be found at the residence.

Second, Morrison's argument that the search warrant was not supported by

probable cause because the informant could have had a motive to lie is similarly

unpersuasive. The government concedes that the search warrant affidavit does not

explicitly establish the informant's reliability. However, "[w]hen an informant's
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information is at least partly corroborated attacks upon credibility and reliability are

not crucial to the finding of probable cause." Caswell, 436 F.3d at 898 (internal

quotations, alteration, and citations omitted). Furthermore, "[w]hen an informant has

provided reliable information in the past or where his tip was independently

corroborated, a court may deem the informant's tip sufficiently reliable to support a

probable cause determination." Id. (citing United States v. Leppert, 408 F.3d 1039,

1041 (8th Cir. 2005)).

In the instant case, the informant's information was corroborated in a number

of ways. First, Detective Dull corroborated the informant's claims via the telephone

conversation between the informant and Morrison. Second, Detective Fitzgerald was

able to confirm that the residence identified by the informant as "Ricky's house" at

27091 Roelker Road belonged to Richard Rodriguez. Third, Detective Fitzgerald

learned that Morrison had a previous arrest for possession of pseudoephedrine with

the intent to manufacture methamphetamine—a charge implicating the same conduct

that the informant alleged. Based on the record before us, we conclude that the

information the informant provided was sufficiently corroborated. 

Third, Morrison argues that the police made no effort to pinpoint the source of

the chemical odors. While the government did not cite specific efforts that it made to

locate the source of the odors, the record reflects that such efforts were unnecessary.

Based on the information obtained from the police drive-by, the government

informant, and other investigative efforts, the police had sufficient cause to believe

that the odors emanated from the 27091 Roelker Road residence.

Finally, Morrison's argument that the government introduced statements and

evidence that it assured her would not be used at trial lacks merit for two reasons.

First, while Morrison offers the conclusory assertion that the police made this

assurance, she offers no evidence to support this claim. Second, and more importantly,
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Morrison has failed to demonstrate how she was harmed by the introduction of the

statements and evidence. 

Based on the record before us, we conclude that the totality of the

circumstances support a finding of probable cause. See Jeanetta, 533 F.3d at 654

(holding that when reviewing the sufficiency of an affidavit to support a finding of

probable cause, we consider the totality of the circumstances). The unobjectionable

evidence, obtained via the search of 27091 Roelker Road and presented at trial, was

sufficient to support the conviction. 

B. Batson Challenge

Morrison next argues that the district court clearly erred when it denied her

Batson challenge because the government did not remove similarly-situated white

jurors. We affirm the district court's ruling on the issue of discriminatory intent unless

it is clearly erroneous. United States v. Samuels, 543 F.3d 1013, 1017 (8th Cir. 2008).

Batson outlines a three-step process for a trial court's analysis addressing

whether a peremptory challenge was race based.

First, a defendant must make a prima facie showing that a peremptory

challenge has been exercised on the basis of race. Second, if that

showing has been made, the prosecution must offer a race-neutral basis

for striking the juror in question. Third, in light of the parties'

submissions, the trial court must determine whether the defendant has

shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003) (internal citations omitted). 
4

For the sake of this appeal, we assume that Morrison made a prima facie

showing that the government exercised the peremptory challenges on the basis of race

because the district court did not make a finding regarding this issue.

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In the instant case, Morrison, via her codefendant, objected to the government's

use of peremptory strikes to exclude Jurors 5 and 14, both African Americans.4

 The

district court required the government to state reasons for the strikes. The court then

denied the Batson challenge finding that the government stated race-neutral reasons

for the strikes.

1. Juror 5

Here, the government's asserted race-neutral basis for striking Juror 5 was its

reservations about her ability to be forthcoming about her family situation. The

government also noted that Juror 5's husband had a drinking problem. 

Morrison asserts that these reasons are pretextual because similarly-situated

white jurors were not removed. First, she claims that like Juror 5, Juror 1 had a

relative who had been convicted for drug activity and that Juror 1 similarly believed

that her relative was treated fairly. Second, Morrison argues that Juror 13 was

similarly situated to Juror 5 because he had two relatives who had been convicted of

drug offenses. She further states that Juror 13 also added information to an answer that

he previously gave, so the government's concern about Juror 5 not being forthcoming

on this basis is disingenuous. Finally, Morrison contends that Juror 9 is also similarly

situated to Juror 5 because he had a son who was convicted of a DWI offense four

times. According to Morrison, if the government was actually concerned about jurors

with convicted family members or family members with drinking problems, Juror 9

certainly should have been removed. Morrison makes substantially the same

arguments regarding Juror 27.

Morrison is correct in her assertion that "'similarly situated' for purposes of

justifying the use of peremptory strikes does not require similarity in all respects."
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Smulls v. Roper, 535 F.3d 853, 865 (8th Cir. 2008). Nevertheless, we have upheld the

use of very fine distinctions between jurors. United States v. Davis, 154 F.3d 772, 781

(8th Cir. 1998) (finding that there is a sufficient difference between working as a drug

counselor and working as a drug prevention volunteer to fend off a Batson challenge).

In this case, the distinctions may be fine, but we cannot conclude that they are

meaningless. Nor can we say that they are irrelevant or unconnected to a legitimate

trial strategy. Morrison has not identified one juror who shared each of the qualities

that the government cited as a reason for dismissing Juror 5. We see no clear error in

the district court's ruling. 

2. Juror 14

The government represented that it dismissed Juror 14 because, due to her past

work history, she "quite likely" had contact with individuals who had drug addictions.

The government also noted that she may have had personal knowledge about drugs

or addicts. Finally, the government stated that "there wasn't a whole lot to know about

her other than the criminal history of her family." 

Morrison argues that these reasons are pretextual because the government did

not explore whether Juror 14 actually had personal knowledge of drugs or addicts.

Additionally, Morrison notes that Juror 14 spoke more during the voir dire process

than most other jurors, so the government's claim that it did not know much about her

is disingenuous. 

We are not persuaded by Morrison's arguments. Morrison has failed to identify

similarly-situated white jurors to Juror 14 who were not removed or to identify any

other indicia of pretext. Although our recent cases have moved away from the "silly

or superstitious" reasons are sufficient language that defined earlier Batson challenges,

see Elem v. Purkett, 64 F.3d 1195, 1198 (8th Cir. 1995), the standard that the

government must meet remains "extremely low." Moran v. Clarke, 443 F.3d 646, 652

(8th Cir. 2006) (citation omitted). Moreover, we have stated that the "findings
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underlying a district court's Batson analysis depend largely on credibility evaluations,"

and we give those findings great deference. United States v. Maxwell, 473 F.3d 868,

871 (8th Cir. 2007).

III. Conclusion

For the reasons stated, we affirm both judgments of the district court.

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