Opinion

United States v. Brown

  • 166 F.3d 341
  • 1998 WL 912172
Court
Court of Appeals for the Fifth Circuit
Filed
Dec 16, 1998
Status
Unpublished
Cited by
0 cases

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this opinion should not be published and is not precedent except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.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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