The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30550
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANNIE WILLIAMS BROWN, also known as Annie Brown Williams
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CR-184-1-R)
December 15, 1998
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
Charged with conspiracy to possess with intent to distribute
cocaine base, possession of ammunition by a convicted felon, and
making a false statement to a government agency, Annie Williams
Brown entered a conditional guilty plea, reserving her right to
appeal the district court’s denial of her motion to suppress. She
now appeals both that denial and a sentence enhancement. We
affirm.
I
*
Pursuant to 5th Cir. R. 47.5 , the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R 47.5.4.
New Orleans Police Officer Randy Lewis began the investigation
culminating in conviction after the police received an anonymous
tip concerning drug activity at 500 St. Mary Street, Apartment C.
Lewis observed heavy pedestrian traffic into and out of the
apartment, and determined that Brown, who had a prior drug
conviction, was leasing it. A confidential informant was able to
purchase cocaine when Brown was in the apartment, but not when she
left in what Lewis said was a white 1996 Toyota Four-Runner, which
she drove in addition to a green Hyundai. Lewis also determined
that Brown did not live in the apartment, but returned at night to
her residence at 2723 Allen Street. He applied for search warrants
for both locations, they were issued, and contraband was found at
each.
The search at St. Mary’s Street should be uncontroversial.
Brown offered testimony in the district court seeking to undermine
Lewis’s story. For example, Brown’s friends testified that the
front door was broken, thus implying that Lewis could not have seen
people entering the apartment. In addition, they testified that
Brown had stopped using her Toyota long before. The district court
found all this testimony unworthy of credence, and this finding was
not clearly erroneous.
The search at Allen Street presents a closer call, but one
that is nevertheless clear. Mere participation in illegal activity
does not by itself create probable cause to search the
participant’s residence. See, e.g., United States v. Gramlich, 551
F.2d 1359, 1362 (5th Cir. 1977) (holding that smuggling contraband
2
50 miles from one’s residence does not produce probable cause to
search the residence); United States v. Lalor, 996 F.2d 1578, 1582-
83 (5th Cir. 1993) (declaring a warrant invalid where there was no
geographic relationship between the area where the drug sales
occurred and the residence); cf. Zurcher v. Stanford Daily, 436
U.S. 547, 556 & n.6 (1978) (noting that the relevant question is
whether it is reasonable to believe that the items to be seized
will be found in the place to be searched). Residential searches
are valid, however, “where some information links the criminal
activity to the defendant’s residence.” Lalor, 996 F.2d at 1583.
In this case, the officer’s observation of Brown traveling between
the locations, coupled with the determination that cocaine sales
could not be consummated when Brown was away, provided probable
cause to search the residence.
II
Brown’s appeal of the two-point enhancement she received under
§ 2D1.1 of the United States Sentencing Guidelines also lacks
merit. She received this enhancement because the search at her
Allen Street residence revealed an unloaded .38 caliber revolver
located in a dresser drawer also containing cocaine hydrochloride
and women’s clothing. There was no clear error in the district
court’s determination that it was not “clearly improbable that the
weapon was connected to the offense.” § 2D1.1 comment. (n.3). “The
government may satisfy its burden of proving a connection by
providing evidence that the weapon was found in the same location
where drugs or drug paraphernalia are stored . . . .” United States
3
v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994) (internal quotations
omitted).
Brown complains that the gun was unloaded and therefore could
not have been connected to a crime. We have rejected such
complaints before. “The mere presence of a handgun can escalate the
danger inherent in [commission of crimes]. Since it is difficult,
if not impossible to tell from sight whether a gun is loaded or
operational, an unloaded or broken gun may be of use in a criminal
act.” United States v. Paulk, 917 F.2d 879, 881 (5th Cir. 1991)
(discussing § 2D1.1); see also United States v. Griffith, 118 F.3d
318, 326-28 (5th Cir. 1997) (rejecting a similar challenge in a
case where the gun was unloaded, but compatible ammunition was
nearby). To be sure, we would rather have criminals running around
with unloaded guns than with loaded ones. Section 2D1.1, though,
does not distinguish between loaded and unloaded guns, and neither
does our case law.
AFFIRMED.
4