UN PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17
- 4214

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. JONATHAN LEIGH WIENKE , Defendant

- A ppellant

.

Appeal from the United States District Court for the Northern District of West Virginia , at Martinsburg

. Gina M. Groh , Chief District Judge. ( 3:16

- cr - 00026

- GMG

- RWT

- 1)
Argued : February 28, 2018 Decided: May 2, 2018

Before DUNCAN, AGEE, and WYNN , Circuit Judges.

Affirmed by un published per curiam opinion

.

ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Anna Zartler Krasinski, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Kristen M. Ledd y, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Betsy Steinfeld Jividen, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.2 Unp ublished opinions are not binding precedent in this circuit.3 PER CURIAM: Jonathan Wienke ple a d ed guilty to making a firearm in violation of the National Firearms Act , I.R.C. §§ 5801

– 5872, upon the condition that he could appeal the district court’s denial of his motion to suppress all evidence seized from his residence pursuant to
four search warrants. Because the affidavit accompanying the first warrant application
suppor ted a finding of probable cause to search his residence , we affirm the district

court ’s denial of Wienke’s motion and affirm his conviction

.

I. In June 2016, Wienke worked for the Department of Homeland Security (“DHS”) as a Management and Program Analyst in the Office of Intelligence and Analysis at DHS’s Neb raska Avenue C omplex (“ the NAC ”) in Washington, D.C. Wienke had no law enforcement powers or duties in his DHS employment or otherwise. At the time relevant to this case , Wienke resided in Martinsburg, West Virginia. Each workday, he rode the early morni ng Maryland Area Regional Commuter train from Martinsburg to Washington and then took the Metro to the NAC

. Wienke was one of over 3,000 federal employees work ing at t he NAC, which has stringent security requirements akin to those of the Pentagon, the White House, and the Capitol. For example, before employees enter their work buildings, they must leave any items not permitted in their

secure workspaces in storage lockers outside. On the morning of June 9, Wienke was selected for random security screening as he entered the NAC

. Security officers searched Wienke’s backpack and found a folding4 knife with a three

- inch blade, two handheld radios, pepper spray, an infrared camera, a pair of handcuffs, a breathalyzer, and a cell phone ad apter with earbuds

. They a lso discovered a handcuff key on his person. After seizing the knife and pepper spray, the security officers let Wienke proceed to his workplace within the NAC

. Later that morning, Special Agent Eric Mann, the Chief Security Offi cer of DHS’s Internal Security and Investigations Division, and another security officer approached Wienke at his cubicle , which was adjacent to a room for a meeting of senior DHS officials scheduled for that day . With Wienke’s consent, Mann searched the c ubicle and then asked if Wienke was armed. When Wienke replied that he was not, Mann obtained

consent for a pat

- down and found a second handcuff key as well as a five

- shot .22 caliber revolver loaded with hollow

- point bullets in Wienke’s pocket

. Wienke audibly swore when Mann discovered the gun. Soon afterward , Mann applied for a warrant to search Wienke’s home in Martinsburg for evidence of various crimes, including the attempt ed kill ing or kidnap ping of a member of the executive branch , in violation of 18 U.S.C. § 351; the attempt ed
kill ing of a government employee engaged in official duties , in violation of 18 U.S.C. § 1114; conspiracy against the United States , in violation of 18 U.S.C. § 371; imp ersonation of a federal officer , in violation of 18 U .S.C. § 912 ; and possession of a firearm in a federal facility , in violation of 18 U.S.C. § 930. I n an affidavit supporting the warrant application , Mann stated that based on his training and nine years of experience5 as a DHS law enforcement officer, 1 peop le bringing concealed firearms onto federal property pose a significant threat to federal officials and employees. According to Mann, the combination of the two radios with the other items found in Wienke’s possession established probable cause that he was involved in a conspiracy to commit workplace violence. Mann further averred , based on his training and experience , that people conspiring to commit violence against senior federal officials generally keep evidence related to such a conspiracy in their hom es. The warrant application provided a description of Wienke’s Martinsburg house and a list of items to be seized, including any
weapons , firearms, computers, photographs of co

- conspirators , and documents related to the alleged acts

. A magistrate judge issued the w a rrant on the evening of June 9. Less than an hour
later , Mann and other officers executed the warrant, seizing a number of electronic storage devices and firearms from Wienke’s home. One of those firearms, a Walther P22, had an attachment that appeared to be a silencer bearing no serial number or other identifying mark

. A Bureau of Alcohol, Tobacco, and Firearms agent participating in the search suspected that the silencer may ha ve been illegally constructed. The officers als o seized what appeared to be components for construct ing another silencer. On June 13, Special Agent Patrick Kelley, another DHS officer, applied for and obtained three additional warrants to search two sheds and a vehicle on Wi e nke’s

1 Mann also had ten years of experience as a Special Agent with the Naval Criminal Investigative Service, giving him almost two decades’ involvement in conducting investigations and applying for search warrants.6 Martinsburg property. In addition to seeking evidence of the crimes already under investigation, these warrants also sought evidence of firearm 2 construction, which is unlawful unless a special tax has been paid under I.R.C. § 5861

. Officers executed the se three warrants later that day , but discovered no further evidence relevant to the initial charges

. Ultimately, as the G overnment concedes, no evidence seized pursuant to the four search warrants indicated that Wienke was actually plotting to kill or kidnap any high

ranking government official. 3 A grand jury in the Northern District of West Virginia indicted Wienke on seven counts of violat ing the National Firearms Act. Before the district court, Wienke moved to suppress all physical evidence in the case, arguing that the fir st warrant (executed on June 9) was not supported by probable cause and lacked a nexus between the crimes for which he was under investigation and his residence

. The three additional warrants, he argued, were invalid because “ they were based upon evidence and information gleaned from the first defective search warrant and are thus the ‘fruit of the poisonous tree.’” 4 Opening Br.
8. Wienke further argued that the Leon good

- faith exception should not apply to any of the warrants. See generally United States v . Leon , 468 U.S. 897 (1984). The G overnment responded that Mann’s affidavit set forth sufficient facts supporting probable cause and

2 The relevant statutory definition includes silencers in the definition of “firearm.” I.R.C. § 5845 (a)

. 3 In explanation for the items discovered at the NAC , Wienke asserts that he is a “prepper” and that he carried the items in case of an emergency while r iding the Metro to work. He has a West Virginia concealed carry permit and no prior criminal history. 4 We note that the “fruit of the poisonous tree” doctrine requires the suppression of evidence discovered pursuant to an illegal search. See Utah v. Stri eff , 136 S. Ct. 2056 , 2061 (2016). The “fruit” that would need to be s uppressed, therefore, is not the three warrant s , but any evidence seized pursuant to them

.7 that his training and experience, coupled with the inherent reasonableness that the items sought would be found at Wienke’s home, established a sufficient nexus between his residence and the items the warrants sought. In the alternative, the G overnment argued that the Leon good

- faith exception applied to each warrant

. After a hearing, the district court denied Wienke’s motion to suppress and found that probable cause supported all four warrants. 5 The court found Mann to be a reliable affiant and that h is affidavit in support of the first warrant properly set forth the place to be searched, the items to be seized, and the evidence substantiating the allegations of criminal conduct under investigation. Further, it observed that the affidavit listed the items in Wienke ’s possession when he entered the NAC and noted that he possessed a concealed and loaded firearm near where senior DHS officials were to meet. The court concluded that, t aken together, this evidence established both probable cause and the requisite nexus b etween the place to be searched and the items to be seized. The court applied this ruling to all four search warrants. Wienke conditional ly pleaded guilty to making a firearm in violation of the National Firearms Act, I.R.C. §§ 5822, 5861(f), 5871 , and 18 U.S.C. § 921(a)(24), and

reserv ed the right to appeal the district court’s den ial of his motion to suppress. The
G overnment dismissed the remaining charges. The district court accepted the plea and sentenced Wienke to eighteen months of imprisonment , followed by tw o years of supervised release. Consistent with the terms of his conditional guilty plea, Wienke

5 The court also denied Wienke’s motion for a Franks hearing. See Franks v. Delaware , 438 U.S. 154 (1978). Wienke did not appeal that ruling.8 appeals the denial of his motion to suppress. We have jurisdiction o ver this appeal under 28 U.S.C. § 1291.

II. On appeal, Wienke argues, as he di d below, that the first search warrant was not supported by probable cause because the warrant application was insufficient and failed to establish a sufficient nexus between the alleged criminal conduct and his residence. He further argues that the L eon good

- faith exception would not salvage the G overnment’s case if the warrant lack ed probable cause. The G overnment responds that the first warrant was supported by both probable cause and a sufficient nexus between the items to be seized and Wienke’s re sidence , but, in the alternative, the Leon good

- faith exception applies

. “We review a district court’s factual findings in deciding a motion to suppress for clear error, and the court’s legal conclusions de novo .” United States v. Gardner , 823 F.3d 793, 799 (4th Cir. 2016). In undertaking this review , we “give due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers.” Ornelas v. United States , 517 U.S. 690, 699 (1996). We view the facts in favor of th e Government, the prevailing party below. See Gardner , 823 F.3d at 799. Because we agree with the district court that Mann’s affidavit supplied probable cause by establishing that the evidence sought by the warrants was properly subject to seizure and tha t there was a sufficient nexus between evidence of Wienke’s alleged criminal conduct and his residence, we need not address the Leon good

- faith exception.9 In addition, because Wienke agrees that the validity of the latter three warrants depends on the vali dity of the first, our holding as to the first warrant completes our inquiry.
A. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This constitutional protection is realized through the requirement that a “neutral and detached magistrate” find probable cause to support a warrant. Illinois v. Gates , 462 U.S. 213, 240 (1983 ) (internal quotation marks omitted)

. The evaluation of whether a search warrant is supported by probable cause turns first on whether the items to be seized are evidence of criminal activity, see Zurcher v. Stanford Daily , 436 U.S. 547, 556 & n.6 (1978), and second , on “ whether it is reasonable to believe that the items to be seized will be found in the place to be searched , ” United States v. Lalor , 996 F.2d 1578 , 1582 (4th Cir. 1993)

. See United States v. Church , 823 F.3d 351 , 355 (6th Cir. 2017). This analysis utilizes a totality

- of

- the

- circumstances approach grounded in the commonsense recognition that “affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation” and officers in the field rely upon their training and experience to draw reasonable inferences from the evidence.
Gates , 462 U.S. at 235 ( internal quot ation marks omitted); United States v. Johnson , 599 F.3d 339, 346 (4th Cir. 2010) (noting an officer can draw on his experience to make inferences and determin e whether probable cause exists ). A m agistrate must consequently “make a practical, common

- sense decision whether, given all the circumstances set forth10 in the affidavit before him, .

. . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates , 462 U.S. at 238. To satisfy the second prong of the probable cause inquiry, a n affiant must show a sufficient “ nexus between the place to be searched and the items to be seized

. ” United
States v. Anderson , 851 F.2d 727, 729 (4 th Cir. 1988) . Whether such a nexus exists turns on “ the nature of the item and the normal inferences of where one would likely keep such evidence .” Id. (emphasis added). Again, officers may draw conclusions from their experience, judgment, and observations when identifying the place to be searched

. See
Unit ed States v. Lyons , 740 F.3d 702, 723

– 24 (1st Cir. 2014) ( holding that an officer’s training

- and

- experience statement, coupled with other observations, sufficiently established a nexus between money and illegal betting records and the defendant’s
residence ); United States v. Vanderweele , 545 F. App ’ x. 465, 469 (6th Cir. 2013) ( holding that an officer’s training

- and

- experience statement that firearms and “ ‘ related items are commonly stored ’ ” in the owner ’ s residence established a sufficient nexus). The magistrate may draw a reasonable inference from the facts stated if the affiant does not assert facts “directly linking the items sought to the defendant’s residence.” United
States v. Grossman , 40 0 F.3d 212, 217 (4th Cir. 2005) (internal quotation marks o mitted)

. The “normal inferences test” of the nexus analysis starts with the general rule that
“it is reasonable

. . . to assume that a person keeps his possessions where he resides.” Peffer v. Stephens , 880 F.3d 256 , 270 (6th Cir. 2018) . The applicability of this assumption depends on the nature of the evidence to be seized and the offense under investigation. See id. at 271

– 72; United States v. Singleton , 125 F.3d 1097 , 1102 (7th Cir.11 1997). For example , “the use of a gun in the commission of a crime is sufficient to establish a nexus between the suspected crim inal’s gun and his residence” because guns are generally kept in the home. Peffer , 880 F.3d at 272 ; Anderson , 851 F.2d at 729 (finding that it is reasonable “to believe that the defendant’s gun and the silencer w ould be found in his residence”)

. Similarly, if photographs are part of the alleged crime, the nature of photographs leads to the reasonable inference that they would be ke pt in the defendant’s residence. United States v. Doyle , 650 F.3d 460, 472 (4th Cir. 2011) ( holding the lower court properly conclu ded that “if [the defendant] actually possessed child pornography, it was reasonable to assume that [he] kept it at his house”). On the other hand, in the investigation of a drug distribution off ense, it is often unreasonable to suspect that drugs will be at the defendant’s residence because “when drugs are used in the commission of a distribution offense, the distributed drugs are no longer in the possession of the suspected distributor.” Peffer , 880 F.3d at 273 . These common

- sense considerations further demonstrate that whether probable cause supports a warrant is a highly fact

- specific inquiry.
B. With this foundation in mind, w e first address Wienke’s argument that the first warrant lacked pro bable cause because the warrant application did not include specific evidence of Wienke’s alleged criminal activity. He notes the absence of several types of evidence that could be used to establish probable cause , such as informant testimony or an anonymous tip. Wienke further argues that Mann’s affidavit contained insufficient evidence to support the assertions that Wienke was impersonating a law enforcement12 officer and that he knew the high

- level DHS officials wou ld be meeting near his cubicle. For these reasons, he asserts, the warrant was defective and the resulting search was invalid. Wienke’s argument lacks merit. To the extent that we look to the evidence of
criminal conduct w hen reviewing the validity of a se arch warrant, we do so to determine whether “ the items sought are in fact seizable by virtue of being connected with criminal activity .” Zurcher , 436 U.S. at 556 n.6. The warrant application contained ample evidence indicating a fair probability that the i tems the search warrant sought to seize were evidence o f criminal activity

. Mann’s affidavit described his firsthand observations and those of other DHS security officers on June 9 whe n they saw Wienke 1) with a knapsack filled with numerous suspicious ite ms, including two radio communication devices , pepper spray, and a knife ; 2) attempt to enter a highly secure DHS facility with those items; 3) carry a concealed firearm loaded with hollow point bullets into that secure facility; and 4) carry the concealed firearm in close proximity to a meeting place of high

level DHS officials. Such firsthand observations and personal knowledge may be used in establishing probable cause. See, e.g

. , United States v. Wylie , 705 F.2d 1388 , 1392 (4th Cir. 1983). Further, Mann’s training and experience informed his reasonable inference from these facts that there was a likelihood that Wienke was conspiring to harm the DHS officials or otherwise commit workplace violence. 6 Even without relying on Mann’s

6 Wienke primarily argues that the evidence did not adequately establish that he impersonated a law enforcement officer or that Mann actually knew that Wienke was aware of the meeting of DHS officials. Even i f we disregarded these portions of Mann’s affidavit, see (Continued)13 training and experien ce, a reasonable person could infer that someone who enters a highly secure government building without authority to possess therein a knife, radios,
pepper spray, an infrared camera, handcuffs , and a concealed, loaded firearm adjacent to

a high leve l DHS meeting may be plotting unlawful actions

. I ndeed, i t would be

un reasonable not to make that inference

. The warrant application sought “evidence regarding planning, preparation, and information on the identity of conspirators” from Wienke’s home. J.A. 49

. The warrant described in detail the evidence to be seized , which included items similar to those noted above as well as documents that would be used in planning an attack in a facility, including maps, blueprints, schedules, and notes; and evidence that co uld identify possible co

- conspirators, including photographs and address books. It was reasonable to
conclude t hese items could be evidence of the criminal activity alleged against Wienke

. Therefore, Mann’s affidavit sufficiently established that the search warrant properly sought seizable evidence of probable criminal activity.
C. Wienke also argues the search warrant lacked probable cause to search his home because it failed to establish a sufficient nexus between his alleged criminal conduct at the NAC and his West Virginia residence. We disagree . Whether probable cause supports a search warrant depends on “ wh ether it is reasonable to believe that the items to be

Wylie , 705 F.2d at 1390 (considering only the uncontested portions of the affidavit), Mann still cited ample evidence of a possible conspiracy to commit workplace violence sufficient to establish pro bable cause for the first search warrant.14 seized will be found in the place to be searched .” Lalor , 996 F.2d at 1582 (emphases added). Thus, our analysis focuses on whether the warrant application established a sufficient nexus between the ite ms Mann listed in the warrant application and Wienke’s residence. See Anderson , 851 F.2d at 729

. Am ong other types of evidence, Mann’s warrant application identified weapons, firearms, documents, photographs, and address books that could identify co - conspirators

as well as evidence that may be related to the crimes alleged

. It is reasonable to infer that these types of possessions would be kept in Wienke’s residence; this Court has already held as much. See id. ( holding it was reasonable to believe a gun and silencer would be kept in a residence); Doyle , 650 F.3d at 460 ( holding it was reasonable to believe that photographs of child pornography would be kept in a residence ) . Further, these items are not ordinarily expended when used in the commissio n of the type of crimes alleged here.
See Peffer , 880 F.3d at 273 (differentiating guns and computers , which are typically found at home , from drugs in a distribution offense). This rationale distinguishes Wienke’s case from the drug seizure cases he relie s upon in his brief. Because it is reasonable to infer that weapons, photographs, and other documents would be found in a person’s home, the allegations in the warrant application provided a sufficient nexus between the items to be seized and Wienke’s resi dence. The distance between Wienke’s residence a nd the NAC is of no consequence under the facts of this case . T he cases in Wienke’s brief that include geography in the nexus analysis are distinguishable for several reasons. In some of the cases, the it ems to be seized were not the type one would normally expect to find at the home. E.g. , United15 States v. Gramlich , 551 F.2d 1359 , 1361

– 62 (5 th Cir. 1977) ( holding no probable cause existed to search the residence of a defendant who was caught ferrying marijua na from a Columbian freighter to shore) ; United States v. Flanagan , 423 F.2d 745 , 746

– 47 (5 th Cir. 1970) ( holding no probable cause existed to search a defendant’s residence for the fruits of a home robbery). These cases are not instructive here because , a s already noted, the warrant sought the types of evidence which one would reasonably expect to find in a person’s residence. In United States v. Green , another case Wienke cites, the residence in question was too far removed from where the alleged criminal conduct occurred for the defendant to have conceal ed evidence of that conduct. 634 F.2d 222 , 225

– 26 (5 th Cir. Unit B Aug. 1981) ( holding that criminal activity in California did not justify a search of the defendant’s Florida hom e). Green stands in stark contrast with Wienke’s regular
routine of commuting each workday from his Martinsburg residence to the NAC

. Because he regularly commuted from West Virginia, his residence was readily available

to him for the concealment of eviden ce of any criminal activity that he could have been planning to perpetrate at the NAC

. Therefore, the warrant application established a sufficient nexus between the evidence to be seized and Wienke’s residence.
III. The facts alleged in the first warrant application were sufficient for the magistrate to make a finding of probable cause. In a smuch as Wienke agrees that the validity of the latter three warrants rises and falls on the validity of the first, all four search warrants16 were properly supported by probable cause. We therefore affirm the district court’s denial of Wienke’s motion to suppress and affirm his conviction

. AFFIRMED