FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11244

Non-Argument Calendar

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D. C. Docket No. 07-00023-CR-1-SPM-AK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES EDWARD DEERING,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

_________________________

(October 20, 2008)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Charles Edward Deering appeals his conviction on one count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). After review, we affirm.

I. BACKGROUND

A. Application for Search Warrant

After receiving information from a confidential source (“CS”), special agent

Victor D. Washington started an investigation into the unlawful possession of

firearms by Deering, a convicted felon. As part of the investigation, Agent

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Washington spoke with the CS on “several occasions” between April 2, 2007, and

April 30, 2007.

The CS told Agent Washington she had observed firearms and ammunition

inside Deering’s residence on several occasions during the prior three months and

as late as February 15. The CS described one firearm as a rifle with a brown

wooden stock and a dark colored barrel. The CS stated that this rifle was kept

against a wall by the front door and that Deering described the rifle as a “‘.22

caliber rifle.’” The CS saw a second firearm on the couch in the living room,

which the CS described as a “‘stainless steel,’” bottom-loading firearm “‘with a

black handle.’” The CS stated that Deering described this firearm as a “‘Russian

.380 caliber pistol.’” The CS observed a third firearm in the bedroom that had a

The CS requested anonymity based on fear of reprisal or injury. The record contains Agent 1

Washington’s detailed affidavit of what occurred.

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brown wooden stock and a gray barrel that had been cut down to approximately

eight or ten inches in length. Deering described this firearm to the CS as a

“‘rifle.’” From a firearms manual procured by Agent Washington, the CS

subsequently identified two firearms as firearms similar to the ones the CS saw in

Deering’s residence.

The CS also observed several boxes containing various sizes of ammunition

inside Deering’s residence. The CS heard Deering target shooting at the residence

and saw shell casings in the front and back yards. The CS described the premises

as large enough to target shoot without disturbing, or being seen by, neighbors.

The CS provided Agent Washington with this information: (1) Deering’s

birthdate, Social Security number, physical description, address and telephone

number; (2) his wife’s name and description; and (3) a description of his residence,

his dog (including the dog’s name), and his vehicles. The CS told Agent

Washington that Deering: (1) had a prior conviction for aggravated battery; (2) had

been arrested for battery, kidnaping, and possession of marijuana; (3) had

physically abused his wife; (4) claimed he had served in the Army and been

employed as a deputy with the Levy County Sheriff’s office; and (5) had his

driver’s license revoked.

Another law enforcement officer informed Agent Washington that

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information matching Deering’s date of birth, general description, and address

indicated Deering had an expired driver’s license, as well as two vehicles and a

motorcycle registered in his name. In investigating the information provided by

the CS, Agent Washington learned Deering: (1) had been arrested for, inter alia,

battery, kidnaping, possession of marijuana, and battery domestic violence; (2) had

worked as a deputy with the Levy County Sheriff’s Office; (3) had domestic

problems with his wife, Patricia S. Deering; (4) had been arrested for domestic

violence, violation of a no-contact order, and violation of probation, and

adjudicated guilty of aggravated battery; (5) had been convicted of aggravated

battery with a deadly weapon; (6) worked for two years as a military police officer

in the army; (7) was wanted for failure to pay child support; (8) subscribed to the

same telephone number as the one provided by the CS; and (9) had not had his

right to possess firearms restored.

On April 17, 2007, Agent Washington met with the CS, and the CS

identified Deering from a print-out of his driver’s license. The CS directed Agent

Washington to Deering’s residence and identified Deering’s dog, “‘Tank.’” Taken

together, the information gathered confirmed much of what the CS provided to

Agent Washington. Consequently, Agent Washington concluded that there was

probable cause to believe Deering had firearms and ammunition in his residence.

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On May 10, 2007, Agent Washington prepared an application for a search

warrant to search Deering’s home and attached an affidavit detailing the

information gathered. In addition, Agent Washington averred that he had

participated in the execution of numerous search warrants for firearms violations

and that, in his experience, people who own firearms, including convicted felons,

commonly store firearms and ammunition in their residences. Based on this

information, a search warrant was issued and executed the same day. The search

resulted in the seizure of three firearms and multiple rounds of ammunition from

Deering’s residence.

B. Motion to Suppress

A federal grand jury indicted Deering on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Deering filed a motion to suppress the evidence seized from his home pursuant to

the search warrant. Deering’s motion alleged that: (1) the application contained no

information indicating that weapons would be located in his residence; (2) the

application contained no information as to the bias of the CS or any indication that

law enforcement had used the CS before or that the CS was trustworthy; and (3)

the CS’s information was stale because law enforcement last had contact with the

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CS twenty-one days before the search warrant was executed. Based on these

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allegations, Deering’s motion argued there was no nexus between the firearms and

the residence, and thus no probable cause existed to support the search warrant.

The district court denied Deering’s motion. The district court found a

sufficient nexus between the firearms and the residence because the CS observed

the firearms and ammunition at the residence and Agent Washington indicated that,

based on his experience and knowledge, most people store firearms in their home.

With regard to the veracity and reliability of the CS, the district court indicated

that, under the totality-of-the-circumstances analysis, the magistrate judge’s

finding of probable cause was entirely reasonable. As to the staleness issue, the

district court concluded that the information was not stale because the nature of

firearm possession is such that it is usually ongoing.

Deering filed a motion for reconsideration, contending that the district court

misinterpreted his suppression argument. Deering’s motion argued that the

staleness argument was not about the twenty-one days since last contact, but the

eighty-five-day time lapse between the date the firearms were seen last by the CS

in the residence and the date the warrant was executed. The court denied Deering’s

Deering’s motion to suppress alleged the “last contact” law enforcement had with the CS

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was on April 17, 2007, which was twenty-one days before the search warrant was executed. The

affidavit, however, indicates that Agent Washington “spoke” to the CS as late as April 30, 2007.

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motion for reconsideration. The district court acknowledged it had made an error

in its factual summary. However, the district court concluded the eighty-five-day

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time lapse did not render the information too stale to support a finding of probable

cause because of the “type of items that were being searched for, the corroboration

of the source’s information by law enforcement, and the number of firearms that

the source had seen in the residence.”

C. Guilty Plea and Sentencing

Deering pled guilty pursuant to a written plea agreement that reserved

Deering’s right to appeal any pretrial rulings. During the plea hearing it was

revealed the CS was Deering’s wife who had left Deering because they could not

get along anymore.

At sentencing, Deering’s counsel revealed that Deering’s marriage had been

legally dissolved after the presentence investigation report had been prepared and

Deering’s ex-wife had been awarded the land and mobile home. The court

sentenced Deering to sixty-five months’ imprisonment. Deering appealed.

II. DISCUSSION

A. Timeliness of Information in Warrant Application

The district court had stated in the order denying the motion to suppress that the defendant 3

“argues that the 21-day lapse in time between the last date on which the source saw firearms in the

Defendant’s house and the date that the warrant was executed rendered the information stale.”

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On appeal, Deering argues that the district court should have granted his

motion to suppress because the search warrant application was based on stale

information.

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To show probable cause, the government’s application for a search warrant

must be timely, that is it “must reveal facts that make it likely that the items being

sought are in that place when the warrant issues.” United States v. Harris, 20 F.3d

445, 450 (11th Cir. 1994) (quotation marks omitted). “Warrant applications based

upon stale information fail to create a probable cause that similar or other improper

conduct is continuing.” Id. To evaluate staleness claims, we look at the unique

facts of each case and may consider “the maturity of the information, nature of the

suspected crime (discrete crimes or ongoing conspiracy), habits of the accused,

character of the items sought, and nature and function of the premises to be

searched.” Id. “There is no particular rule or time limit for when information

becomes stale.” United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000).

Here, the information contained in Agent Washington’s affidavit was not too

stale to provide probable cause. First, the CS’s information indicated Deering’s

“In reviewing a district court’s ruling on a motion to suppress, we review findings of fact 4

for clear error and the application of the law to those facts de novo.” United States v. Martinelli,

454 F.3d 1300, 1306 (11th Cir. 2006). We “give due weight to inferences drawn from those facts

by resident judges and local law enforcement officers.” United States v. Jiminez, 224 F.3d 1243,

1248 (11th Cir. 2000) (quotation marks omitted).

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firearm possession was ongoing. Specifically, the affidavit stated that the CS had

observed firearms and ammunition at Deering’s residence “several times” within a

three-month period, that there were three different guns in different locations of the

house, and that the CS had heard Deering engage in target practice and seen shells

scattered in the front and back yards. These facts support a finding that Deering’s

firearm possession was for his personal use and was ongoing. See United States v.

Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (“[I]f an affidavit recites activity

indicating protracted or continuous conduct, time is of less significance.”)

(quotation marks omitted).

Second, the nature of the evidence sought made the eighty-five-day time

lapse less significant. Agent Washington averred in his affidavit that people who

own firearms and ammunition commonly store those items in their homes.

Furthermore, as the district court noted, common sense suggests that firearms,

unlike drugs, are generally not items that are dispersed quickly, particularly when

multiple firearms are possessed in the residence for personal use.

These circumstances, taken together, make it more likely than not that the

firearms sought were still in Deering’s residence. Accordingly, we conclude that

the district court did not err in finding that the eighty-five-day time lapse – from

the last date the CS witnessed the firearms in Deering’s residence to the date the

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warrant was issued – did not render the information too stale to support probable

cause.

B. Probable Cause for Search Warrant

Whether an affidavit is sufficient to establish probable cause is subject to a

“totality-of-the-circumstances analysis.” Illinois v. Gates, 462 U.S. 213, 238, 103

S. Ct. 2317, 2332 (1983). “The task of the issuing 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. The reviewing

court’s task is to ensure the magistrate judge had a “substantial basis” for finding

probable cause. Id. at 238-39, 103 S. Ct. at 2332. “A magistrate’s determination

of probable cause should be paid great deference by reviewing courts.” Id. at 236,

103 S. Ct. at 2331 (quotation marks omitted).

Here, a sufficient basis for finding probable cause existed. The CS showed a

detailed knowledge of the wrongdoing; described in detail the various firearms, the

ammunition, and its packaging; described the locations of the firearms and

ammunition; and indicated that she personally observed the firearms and

ammunition in the residence on several occasions.

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Deering argues the affidavit failed to provide a sufficient basis to find

probable cause because the affidavit provided no basis to measure the CS’s

veracity and reliability. Furthermore, he argues the affidavit only corroborated

innocent information provided by the CS. However, to have a substantial basis for

making a probable cause determination, the police do not need to corroborate the

criminal activity. A finding of probable cause “requires only a probability . . . of

criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 243

n.13, 103 S. Ct. at 2335 n.13. Moreover, the corroboration of innocent activity

may serve to bolster veracity under the totality-of-the-circumstances analysis

because when “an informant is right about some things, [she] is more probably

right about other facts.” Id. at 244, 103 S. Ct. at 2335 (quotation marks omitted).

This is especially true where, as here, the CS’s information is of a character likely

obtained only from the defendant or from someone intimately familiar with his

information. In such cases, “a magistrate could properly conclude that it was not

unlikely that [the CS] also had access to reliable information of the [defendant’s]

alleged illegal activities.” Id. at 245, 103 S. Ct. at 2336.

Thus, Agent Washington’s inability to corroborate criminal activity prior to

the application for the search warrant does not preclude a finding of probable

cause. In issuing the search warrant, the magistrate judge was called upon to make

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a practical, common-sense judgment regarding probable cause. Based on the

record, we conclude that a substantial basis existed for probable cause because the

CS demonstrated detailed knowledge and Agent Washington corroborated a

significant amount of innocent information, some of which could have been

obtained only by someone close to Deering. Therefore, the district court properly

determined the search warrant issued by the magistrate judge was supported by

probable cause.

C. Failure to Disclose CS’s Identity

Finally, Deering challenges the probable cause finding on the basis that law

enforcement should have disclosed that the CS was Deering’s estranged wife. “To

justify suppression of evidence seized under a warrant, the alleged deliberate or

reckless failure to include material information in the affidavit must conceal

information that would defeat probable cause.” United States v. Steiger, 318 F.3d

1039, 1046 (11th Cir. 2003); see also United States v. Jenkins, 901 F.2d 1075,

1080 (11th Cir. 1990) (noting that insignificant or immaterial omissions will not

invalidate a warrant).

Here, Deering has not shown that the inclusion of the CS’s identity would

have defeated the probable cause finding. Even if the CS’s identity had been

disclosed, the affidavit still would contain enough facts to allow the magistrate

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judge to conclude reasonably that Deering likely possessed firearms at his

residence. Furthermore, contrary to Deering’s argument, the disclosure of the CS’s

identity, if anything, would have strengthened the government’s application for the

search warrant because the magistrate judge was free to infer that a spouse has

intimate knowledge of the other spouse’s activities and would not lie about the

spouse’s illegal activities. See United States v. Martinelli, 454 F.3d 1300, 1307

(11th Cir. 2006) (“[C]ourts have traditionally viewed information drawn from an

ordinary witness or crime victim with considerably less skepticism than

information derived from anonymous sources.”). Finally, given the level of detail

in the information the CS provided, the issuing magistrate judge could have

inferred that the CS was someone with close ties to Deering but was not on good

terms with him. Therefore, there is nothing in the record that indicates the

disclosure of the CS’s identity would have altered the outcome of the probable

cause analysis. See Gates 462 U.S. at 234, 103 S. Ct. at 2330 (“[E]ven if we

entertain some doubt as to an informant’s motive, his explicit and detailed

description of alleged wrongdoing, along with a statement that the event was

observed first-hand, entitles [the informant’s] tip to greater weight than might

otherwise be the case.”).

AFFIRMED.

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