Inferring probable cause: Obtaining a search warrant for a suspect's home without direct information that evidence is inside. (Legal Digest).

This article addresses the issue of when sufficient evidence exists to establish probable cause to search the residence of a person who has been arrested for, or is involved in, criminal activity.

To search a residence for evidence of a crime, an officer must have probable cause to believe that the evidence is inside the home.

What is Probable Cause?

Probable cause is a somewhat nebulous standard, yet officers are called on to apply that standard with some exactness each day. Many have tried to apply "a one size fits all" standard of probable cause to every situation, because they believe that probable cause is one consistent standard of proof that occupies a fixed point. In fact, probable cause offers a range of proofs that occupies a zone. (1) This zone allows for a flexible standard for probable cause, which depends on the circumstances. (2) Generally, the more serious the crime, the more latitude the police are allowed when deciding whether probable cause exists. (3)

No exposition of probable cause would he complete without a discussion of Illinois v. Gates. (4) In Gates, the Bloomingdale Police Department received an anonymous handwritten letter through the mail on May 3, 1978. The letter alleged that Sue and Lance Gates were involved in drug trafficking. The letter gave a general description of the condominium complex where the Gateses lived and stated that the Gateses presently had over $100,000 worth of drugs in their basement. The anonymous tipster stated that Sue Gates ordinarily drove her car to Florida, where she would leave it to be loaded with drugs. Lance would fly down later and drive the car back to Illinois, and Sue would fly back to Illinois. The letter indicated that they planned to make a trip to pick up over $100,000 worth of drugs on May 3.

A police detective assigned to the case determined that Lance Gates made a reservation on a flight to West Palm Beach, Florida, scheduled to depart from Chicago on May 5 at 4:15 p.m. The detective made arrangements with agents from DEA for surveillance of the May 5 flight. The DEA agents observed Lance Gates boarding the flight, and other agents in Florida observed Gates arriving in West Palm Beach. The Florida agents observed Gates take a taxi to a nearby motel and go to a room registered to Susan Gates. Early the next morning, the agents observed Gates and an unidentified woman, apparently Susan Gates, leave the motel in an automobile bearing Illinois license plates registered to another vehicle owned by Gates. Gates drove northbound on an interstate highway frequently used to travel to the Chicago area.

Based on what the detective learned from the anonymous tip and the DEA surveillance, he obtained a search warrant for the Gateses' residence and automobile. Thirty-six hours after Lance Gates flew out of Chicago, Lance and his wife returned to their home in the suburban Chicago area. When the Gateses arrived at their home, the police were waiting for them. The police executed the search warrant and found 350 pounds of marijuana in the car and more marijuana, weapons, and other contraband in the home.

The trial court ordered that the evidence be suppressed because the affidavit failed to establish probable cause that the car and home contained the contraband in question. The decision of the trial court was affirmed by both the state appellate court and the Illinois Supreme Court. The Illinois Supreme Court applied the Aguilar-Spinelli two-prong test, (5) and stated that the affidavit did not establish probable cause because there was no indication of the informant's basis of knowledge, and there was no way for the officer to verify the credibility of the anonymous tipster. The court stated that while the officer was able to corroborate some of the details of the tipster's facts, they were only innocent details and, therefore, insufficient corroboration. The court further stated that the letter gave no indication of the basis of the writer's knowledge of the drug activities of the Gateses. The court felt that the detail in the letter was insufficient to infer that the tipster had personal knowledge of the Gateses' activity.

The U.S. Supreme Court reversed the Illinois Supreme Court. It ruled that probable cause is a practical, nontechnical concept, and that it should not be weighed in terms of library analysis by scholars using tests, such as the Aguilar-Spinelli two-prong test. Rather, the Court stated that the test for probable cause under the Fourth Amendment should be a totality of the circumstances test. The Court reasoned that probable cause is a fluid concept that turns on the assessment of probabilities, in particular factual contexts by those versed in the field of law enforcement.

The Court concluded that when viewing the facts through the clear lens of totality of the circumstances, rather than the fragmented prism of the Aguilar-Spinelli two-prong test, there was probable cause to search both the house and the car. The detective was able to establish, through independent investigation, that the Gateses were involved in drug trafficking. They were traveling to Florida, which is not only a vacation spot but also a well-known source state for illegal drugs. Lance Gates' flight to West Palm Beach and his immediate return to Chicago in the family vehicle that his wife had previously driven to Florida is not the sort of activity one would engage in if on vacation. Rather, such conduct is suggestive of a prearranged drug run. In addition, once some of the major details in the anonymous letter were corroborated, it was then reasonable to conclude that the tipster was accurate in his assertion that the Gateses were involved in drug trafficking. Finally, the court thought it was significant t hat the anonymous letter contained details regarding future actions of the Gateses; such unusual future conduct is not something that is easily predicted in the absence of personal knowledge. The accurate prediction regarding the future conduct of each of the Gateses likely was obtained directly from one of the Gateses or from someone they trusted who was familiar with their unusual travel plans.

Can a Court Infer Probable Cause?

In Gates, the police were able to search the Gateses' home because they had specific, credible information that the home contained over $100,000 worth of illegal drugs, and that they would be bringing drugs to the home. What if the police did not have that information and, instead, stopped the Gateses on the highway and found drugs in their car? Would the police have probable cause for a search warrant to search the Gateses home based solely on the fact that drugs were found in their car? Defendants arrested under such circumstances often will claim that there were insufficient facts to establish probable cause that drugs or drug records will be found in their residences. For example, in Williams v. United States, (6) the defendant was stopped for a traffic vio-lation. Based on suspected drug residue found in his car and information regarding prior drug offenses, officers had probable cause to believe he was a drug dealer. The U.S. Court of Appeals for the Fourth Circuit ruled that there was probable cause t o conclude drug records, documents, and paraphernalia used in the sale and distribution of drugs would be in his motel room. (7)

In United States v. Anderson, (8) the defendant attempted to sell a gun and silencer to three police informants. The defendant told the informants that the gun was used to commit a murder. The police investigating the murder obtained a search warrant to search the defendant's home where they found the gun and silencer. The defendant was convicted of murder, and he appealed. The U.S. Court of Appeals for the Fourth Circuit found that the warrant to search the defendant's residence was not facially defective, even though the affidavit contained no facts expressly stating that the gun and silencer were in the defendant's residence. (9)

In State v. Ward, (10) the police obtained a search warrant to search the home of Lance Ward. The affidavit stated that Darrell Vance had been arrested for possession of approximately 3 kilograms of marijuana and $11,000 in cash. Vance revealed that his supplier was Lance Ward, who lived on Royce Road. The police also had information that Ward was a drug dealer. During the search of Ward's residence, the police recovered 180.9 grams of cocaine, 2,578 grams of marijuana, and other drug paraphernalia. Ward filed a motion to suppress, alleging, among other things, a lack of probable cause to search his residence. The district court denied Ward's motion, and he appealed that decision to the court of appeals. The court of appeals reversed the decision of the district court, and the government appealed that decision to the Wisconsin Supreme Court. Ward contended that the affidavit was inadequate because the detective did not establish a link between the drug evidence and Ward's home. Ward stated that an inference drawn from the detective's training and experience that drug traffickers often keep drug evidence in their homes would have been legally adequate, but the detective did not even do that. Instead, the magistrate himself drew that inference, based upon his 8 years of personal experience in handling drug cases. The magistrate opined that there was a high probability that evidence of drug trafficking would be found in the residence of a drug dealer.

The Wisconsin Supreme Court stated that the subjective experiences of the magistrate should not be part of the probable cause determination. However, the court further stated that a magistrate may make the usual inferences that reasonable persons would draw from the facts presented. Having said that, the Supreme Court ruled that the facts recited in the affidavit were sufficient for a reasonable person to logically infer that evidence would be found at Ward's home, without having to resort to any special personal experience.

The court reasoned that Vance was a substantial drug dealer based on the fact that approximately 3 kilograms of marijuana and over $11,000 in cash were seized from his home. Because Ward was a supplier of drugs to Vance, he would be an even bigger fish, which would lead to the reasonable conclusion that there was substantial basis to find probable cause to believe that illegal drugs would be found at Ward's home. The Ward court did not believe that the totality of the circumstances test requires formalistic express statements that drug dealers often keep drugs in their homes. The court pointed out that the test is not whether the inference drawn is the only inference, but, rather, whether the inference drawn is a reasonable one. The inference that drugs would be found at Ward's home is not the only inference that could be drawn from the facts in the affidavit, but it is certainly a reasonable inference. In fact, the court pointed out that even if there were two or three possible locations, there would still be probable cause to search each of them, which suggests that probable cause is a standard with a probability of less than 50 percent.

The inference that drugs, scales, and packaging are in a drug offense arrestee's residence is particularly strong when the arrestee is found in possession of drugs that appear to be evenly weighed and packaged, and none of the packaging material or measuring devices are found on or near the suspect at the time of his arrest. Under those circumstances, it would be reasonable to infer that packaging materials, scales, and other evidence of drug trafficking would be found at the arrestee's residence. (11)

Inferring Probable Cause to Search a Third Party's Home

Under the right circumstances, officers may be able to obtain a search warrant for a residence of someone, such as a girlfriend, who is closely associated with the defendant. In United States v. Suarez, (12) the police obtained a search warrant based upon an affidavit indicating that Luis Suarez was a drug smuggler; that calls were made to the Suarez's pager, which led to the arrest of an associate and the seizure of a large quantity of marijuana; that neither Suarez nor his girlfriend, on whom he was spending large amounts of money, had any legitimate source of income; and that Suarez traveled to his girlfriend's residence upon his arrival in the city. Upon executing the search warrant at Suarez's girlfriend's residence, the police seized approximately $100,000 in cash and a small amount of marijuana. The defendant and his girlfriend were both indicted and convicted for conspiracy to possess with intent to distribute marijuana. They appealed the district court's refusal to suppress the evidence found in Sua rez's girlfriend's home. The U.S. Court of Appeals for the Fourth Circuit ruled that there were sufficient facts in the affidavit to establish probable cause to believe that the defendant's girlfriend's home would contain illegal drugs, cash, financial transaction records, and writings that would link the defendant and his girlfriend to the marijuana seized from the defendant's associate.

Inferences Based on Training and Experience

Simply because officers have probable cause to arrest a person does not necessarily mean that they will have probable cause for a subsequent search of the arrestee's home. (13) Courts require some factual connection between the charge for which the suspect could be arrested and his residence. (14) As evidenced by the Ward decision, the factual connection to the residence can be as simple as a reasonable inference by the magistrate that drug dealers often keep evidence and contraband at their residence. Not all courts, however, are so quick to draw that inference. For example, in United States v. Gramlich, (15) the defendant was arrested as he was off-loading 10,000 pounds of marijuana from two boats that, in turn, had been loaded from a Colombian freighter off the coast of Mississippi. No mention was made in the affidavit of any suspicious activity at the defendant's home, which had been under surveillance for more than 3 weeks prior to his arrest. The U.S. Court of Appeals for the Fifth Circuit ruled that t he defendant's arrest alone did not justify a search of his home, which was 50 miles from where he was arrested.

The Gramlich court expressly refused to state what additional evidence would have been sufficient to establish probable cause to search the defendant's home. (16) Law enforcement officers are not, however, without guidance on that point. In drug cases, most courts accept an affiant's explanation to the court that, based on his training and experience, drug dealers often keep drugs or drug records in their homes. (17)

For example, in United States v. Pace, (18) the court found that there was probable cause to search the defendant's residence after arresting the defendant and searching his barn. The Pace court pointed out that: "The DEA agent who applied for the warrant described what he saw at the barn and then indicated in his affidavit, among other things, that individuals who cultivate marijuana routinely conceal contraband, proceeds of drug sales, and records of drug transactions in their homes to prevent law enforcement officials from discovering them." (19)

Pace illustrates the importance of expressly explaining the connection between drug trafficking and the drug records that drug dealers often keep in their residences. Judges and magistrates should be told in the affidavit what is the common practice of drug dealers. (20) That information must be based upon the actual training and experience of the officer who is asking the court to rely on his expertise. A court reviewing an affidavit is not permitted to go beyond the four corners of the affidavit of the search warrant to determine if it contains probable cause. If a court, however, is frilly informed of the practices of drug traffickers in the affidavit, it will have less difficulty issuing a search warrant for drug records at the residence of a drug dealer, even in the absence of direct evidence.

In United States v. Feliz, (21) a search warrant affidavit described drug transactions that took place approximately 3 months prior to the issuance of the search warrant. The affidavit stated that the informant had been purchasing drugs from the defendant for approximately 12 years. The DEA agent in Feliz did a good job of explaining to the magistrate the facts that supported his conclusion that there was probable cause to believe that drug records were in the defendant's residence.

From my experience, education, training and/or study, I know it to be quite common for those involved in the illegal trafficking/furnishing of scheduled drugs to possess, maintain and keep with them, near them, and/or in their residences business records and journals relating to the trafficking and/or furnishing of scheduled drugs.... In particular, I know that, where, as here, an individual is demonstrated to be trafficking in drugs, it is common for there to be evidence of their drug trafficking activities, such as drug records, telephone numbers of suppliers and customers, drug-trafficking paraphernalia, drug proceeds and/or evidence of transfer, expenditures or investment of drug proceeds kept at the trafficker's residence. (22)

The Feliz court summarized the remainder of the search warrant affidavit.

Finally, with regard to sums of money in the possession of drug traffickers, Agent Dumas stated that in his experience it was common for those involved in the illegal trafficking/furnishing of scheduled drugs to possess and keep with them, near them, and/or at their residences, sums of money...either as a result of scheduled drug sales or for the purpose of purchasing scheduled drugs or facilitating scheduled drug sales with others. Because such moneys are not usually safely disposed of legitimately (e.g., deposited in a bank or declared as taxable income), it is common for those who traffic or furnish illegal scheduled drugs to keep these sums on their person or near them, in a safe location, frequently in their residences, and/or at/near their residences, and/or near the same location where they keep their drugs or maintain drug operations. (23)

In Feliz, there was no direct evidence indicating that the suspect had drug records at his residence. Nonetheless, the court ruled that there was probable cause to believe drug records would be there.

It could reasonably be supposed that a regular trafficker like Feliz possessed documents showing the names and telephone numbers of customers and suppliers as well as accounts showing the moneys paid and collected. It was also reasonable to suppose that he kept the money he collected and used in his business in some safe yet accessible place. The affidavit indicated that Feliz resided in apartment #1006 at 401 Cumberland Avenue, Portland. No other residence or drug-dealing headquarters of his was identified in the affidavit. It followed that a likely place to seek to find incriminating items would be Feliz's residence. If he did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his apartment, where else would he keep them? (24)

It is important to note that the objects of the search in Feliz were drug records. When a search warrant is based on probable cause for the presence of drug records, the staleness of the information is not nearly as important as it would be if the search was for drugs. When the object of the search is drug records, the most recent drug trafficking or money laundering activities alleged in the search warrant could be several months prior to the issuance of the search warrant. That is because drug records are commonly maintained and preserved. The very nature of drug records suggests that they will be in existence long after the drugs themselves are gone. (25) For example, in United States v. Reyes, (26) the court ruled that information in a search warrant affidavit was not stale where, in an ongoing drug conspiracy, 5 months elapsed between the last illegal drug transaction and the authorization of the search warrant for drug records in the defendant's residence. (27) The Feliz and Reyes decisions involved lo ngstanding drug operations. The longer the illegal drug activity has been in progress and the broader its scope, the longer courts will allow between the last drug transaction and the search for drug records. (28)

In United States v. Terry, (29) an officer stopped Terry 40 miles from his home. Terry was arrested after the officer discovered that the car Terry was driving contained methamphetamine, P-2-P (a precursor chemical for the manufacture of methamphetamine), and $10,000 cash. Eight days after Terry's arrest, a federal agent obtained a search warrant to search Terry's home.The warrant was not executed until 5 days after it was issued. The court ruled that a magistrate's determination of probable cause should be accorded great deference and reversed only if it is clearly erroneous. In close cases, a reviewing court should uphold the probable cause finding of the magistrate. In Terry, the court ruled that the warrant was valid. The court stated that a magistrate is permitted to draw reasonable inferences based on the nature of the evidence and the type of offense. The court concluded that there were two bases for probable cause contained in the warrant. First, the items found in Terry's truck and, second, the agent's past experience that methamphetamine drug traffickers keep drugs, paraphernalia, records, and money in their homes or adjoining structures. The court concluded that evidence of drug dealing is likely to be found where drug dealers live. (30)

The decision in Yancey v. Arkansas (31) illustrates the importance of stating in the search warrant affidavit the inferences that the officer has drawn from his training and experience. In Yancey, the Arkansas Supreme Court disapproved of the search of the defendant's home based solely upon his involvement in criminal activity. In Yancey, an Arkansas game and fish officer observed a vehicle being driven down a road in a remote wooden area. Using night-vision equipment, the officer observed the occupants of the vehicle remove containers of water from their vehicle and water plants, later determined to be marijuana growing, in the area. He followed the vehicle for approximately 5 miles until it arrived at Lee Roy Cloud's residence. Upon his arrival at the residence, the officer asked the passengers, Lee Roy Cloud and Curtis Yancey, what they were doing down the road. They told the officer that they were "frogging." The officer knew that there were no frogs in the area in which he saw them, and he did not see an y frogging equipment in the vehicle. The officer determined that Cloud previously had been convicted several times for possession of controlled substances, and police intelligence indicated that Cloud and Yancey were involved in marijuana trafficking. Approximately 5 days later, the officer obtained search warrants to search Cloud's and Yancey's residences, and marijuana was found in each of the defendant's homes. The defendants were convicted for possession of a controlled substance with the intent to deliver.

The defendants appealed their convictions, alleging that the district court should have suppressed the evidence obtained at their homes pursuant to the search warrants. The defendants alleged that there was not a sufficient connection between their illegal marijuana growing and their homes to establish probable cause that evidence of criminal activity would be found inside. The Arkansas Supreme Court agreed with the defendants and ruled that there were insufficient facts provided in the affidavit from which to infer that there would be any evidence in the homes searched. The court stated that, standing alone, circumstantial evidence that the suspects may be drug dealers is not circumstantial evidence that evidence of drug dealing will be found in their homes.

A dissenting justice in Yancey wrote a separate opinion in which he voiced his disagreement with the majority of the court in its conclusion that there was no reasonable nexus between the cultivation of the marijuana and Cloud's residence. The dissenting justice noted that the officer personally observed Yancey and Cloud watering the marijuana plants. The officer then followed the vehicle to Cloud's home. Both men told the officer a story about frogging, which did not comport with what the officer had observed. Finally, Cloud previously had been convicted several times for possession of controlled substances. While the dissenting judge thought the link to Cloud's residence was clear, he agreed with the majority that there was not a sufficient factual link to Yancey's residence to establish probable cause.

The Yancey majority stated that the officer was unable to establish that any portion of any of the marijuana plants or anything connected with the propagation of the plants was likely to be found in the homes to be searched. To avoid having a court make a finding like that, an officer should specifically set forth in his affidavit those facts which in the officer's training and experience lead him to conclude that further evidence will be found in the suspect's home. During the suppression hearing in Yancey, another officer testified that marijuana plants typically are started in a house or shed in small containers and then transferred to the woods until harvesting. The officer testified that police usually find potting soil, grow lights, fertilizers, and other items used to grow marijuana in the sheds and houses. He testified that after the marijuana is harvested, dried leaves and buds usually are found in the residences or sheds because they are used for processing the marijuana. In the Yancey case, the pol ice were not aware of any place other than Yancey's and Cloud's homes where the marijuana could be processed. Unfortunately, this information was not contained in the affidavit. As a consequence, the court could not consider that information in determining whether there was a connection between Yancey's and Cloud's homes and the marijuana.

Requiring a Direct Link to the Home

Officers should not leave the deduction as to whether evidence could be found in a suspect's home up in the air for a judge to miss, no matter how obvious that deduction seems. Officers should put in the affidavit the types of evidence that, in the officers' training and experience, they reasonably believe will be found in the defendant's home and why they believe that evidence will be there. It should be noted, however, that not all courts are receptive to such inferential probable cause. Some courts do not accept inferences drawn from training and experience as being sufficient to establish probable cause, even though an officer, through such an inference, establishes a seemingly clear link between the evidence of the crime and the home. (32) For example, in State v. Thein, (33) the Supreme Court of the State of Washington decided that an officer's belief, based upon his training and, experience that persons who cultivate marijuana often keep records and material related to the cultivation in their homes, was not sufficient to establish probable cause to search a suspected drug cultivator's residence. (34)

Conclusion

Some courts have concluded that it is so obvious that criminals keep the fruits and implements of their criminal activities in their homes that it is not necessary for affiants to even mention that fact in their affidavits when obtaining a search warrant for a criminal's residence. Other courts are not so ready to accept that evidence of criminal conduct will be found in a criminal's home without some factual link to the home. Many of those courts, however, will allow the link to be established by inferences drawn from the affiant's training and experience. A minority of courts have ruled that such inferences are insufficient to establish a link between the crime and the criminal's home. Because of the differing approaches taken by courts throughout the country, officers should consult with their local legal advisors and frame their affidavits to comply with the legal requirements of their local jurisdiction.

Endnotes

(1.) Llaguno v. Mingey, 763 F.2d 1560 (7th Cir. 1985) (en banc), abrogated in part on other grounds by County of Riverside v. McLaughlin, 500 U.S. 44 (1991). In Llaguno, the full bench of the U.S. Court of Appeals for the Seventh Circuit ruled that a police determination of probable cause in an emergency is dependent, to a great extent, on the seriousness of the crime committed. In Llaguno, two suspects committed two robberies, killed four people, and wounded three others, including one police officer. The police shot and captured one of the suspects after the getaway car crashed. The other suspect fled on foot. The officers decided to go to the address on the car registration. The court had to decide, among other things, whether the police had probable cause to believe the suspect was at the location to be searched. The Llaguno court stated that the seriousness of the offense is an important consideration when determining if there is probable cause. The court stated that probable cause is not a fixed point, but, rather, occupies a zone somewhere between bare suspicion and virtual certainty. The more serious the crime, the more latitude the police must be allowed when deciding probable cause. Even though the officers in Llaguno had only the address on the vehicle registration, that was considered sufficient because the crimes were serious and the killer posed a clear and present danger.

(2.) For example, if an officer sees a suspected armed robber reach into his coat in response to a command to raise his hands, the officer would have probable cause to believe that the subject is reaching for a gun. The officer would be justified, therefore, in shooting the suspect to defend his life from what the officer perceives to be an attempted deadly assault. Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991). [fit turned out that the subject was unarmed, that would not change the lawfulness of the officer's conduct nor the fact that he had probable cause. Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en bane). If, however, the issue is not whether the officer could shoot the suspect when he saw him reach into his coat, but, instead, whether the officer could arrest the suspect for assaulting the officer with a deadly weapon for reaching into his coat, the conclusion would be different. There would not be probable cause to arrest the suspect for assaulting the officer because the officer did not see a weapon. So, here is a scenario where there would be probable cause to shoot a suspect, but there would not be probable cause to arrest the subject. In both cases, the issue is whether there is probable cause to believe the suspect was reaching for a gun. In both cases, the suspect did not have a gun--in one case the officer had probable cause to shoot, but in the other case the officer does not have probable cause to arrest. Courts do not require an officer to see a gun before using deadly force to defend his life, however, they do require an officer to see a weapon if the officer is going to arrest the suspect for assault with a dangerous weapon. Probable cause for one course of action by an officer does not mean that there would be probable cause for every course of action.

(3.) Llaguno, 763 F.2d 1560.

(4.) 462 U.S. 213 (1983).

(5.) In Illinois v. Gates, the Supreme Court rejected the Aguilar/Spinelli two-prong test in favor of a totality of the circumstances test for determining the reliability of hearsay. Federal courts are still guided, but are not bound, by the Aguilar/Spinelli two-prong test. Some states still require compliance with the Aguilar/ Spinelli two-prong test as a matter of state constitutional law. The two-prong test is more stringent than the totality of the circumstances test. The first prong involves an assessment of the credibility of the source. Police officers are presumed credible. Good citizens/victims are presumed credible. Criminal informants are presumed incredible and their credibility must be established by any one of the following: track record, statement against interest, or corroboration. The second prong is a review of the basis of knowledge. Personal knowledge can be established if there is an express statement that the source has personal knowledge or sufficient detail from which to infer persona l knowledge. It is permissible to have reliable hearsay within hearsay. Each level of hearsay, however, must pass the two-prong test of reliability. A weakness in either prong may be buttressed by corroboration.

(6.) 974 F.2d 480 (4th Cir. 1992).

(7.) See also United States v. McNeese, 901 F.2d 585, 596 (7th Cir. 1990) (it was reasonable to assume that drug distributors will keep drugs, implements of distribution, records, and proceeds at their residence).

(8.) 851 F.2d 727 (4th Cir. 1989).

(9.) The Anderson court stated: "The Fifth, Sixth, Eighth, and Ninth Circuits have held that the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence. United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983) (it was reasonable for the magistrate to conclude that articles of clothing would remain at the residence); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (people who own pistols generally keep them at home or on their persons); United States v. Rahn, 511 F.2d 290, 293 (10th Cir. 1975), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (it was reasonable to assume that individuals keep weapons in their homes); Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973) (a very likely place to find the pistols would either be on the persons of the assailants or about the premises where they lived)." Id. at 729.

(10.) 604 N.W.2d 517 (Wis. 2000).

(11.) See, e.g., State v. Gobersen, 493 N.W.2d 852, 855 (Iowa 1992) ("It is reasonable to assume that persons involved with drug trafficking would keep evidence--drugs, weighing and measuring devices, packaging materials and profits--at their residences.").

(12.) 906 F.2d 977 (4th Cir. 1990).

(13.) In United States v. Freeman, 685 F.2d 942 (5th Cir. 1982), the Court of Appeals for the Fifth Circuit stated: "[T]he fact that there is probable cause to believe that a person has committed a crime does not automatically give the police probable cause to search his house for evidence of that crime. 'If that were so, there would be no reason to distinguish search warrants from arrest warrants.'"

(14.) See United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993); United States v. Ramos, 923 F.2d 1346 (9th Cir. 1991). Some courts have held that there must be a "substantial basis" to conclude that the instrumentalities of the crime will be discovered on the searched premises. E.g., United States v. Lockett, 674 F.2d 843, 846 (11th Cir. 1982); United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979) (there was nothing in the affidavit from which a factual finding could have been made that the gun used in the shooting was located in the defendant's home).

(15.) 551 F.2d 1359 (5th Cir. 1977).

(16.) Id. at 1362.

(17.) See, e.g., United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (DEA agent stated in his affidavit that his 10 years experience taught him that major drug traffickers often keep large amounts of cash, drugs, books, ledgers, and other documentary evidence of drug trafficking at their homes.); United States v. Martin, 920 F.2d 393, 399 (6th Cir. 1990); United States v. Thomas, 989 F.2d 1252, 1254-55 (D.C. 1993) (nexus between drug dealer's residence and evidence of drug trafficking was established through an inference made by the officer based upon his training and experience that drug traffickers often keep drugs and drug records in their residences). See also Tesas v. Brown, 460 U.S. 730 (1983). In upholding a plain view seizure, which requires probable cause, the U.S. Supreme Court stated in Brown: "Officer Maples testified that he previously had made an arrest in a case where narcotics were carried in tied-off balloons similar to the one at issue here. Other officers had told him of such cases. Ev en if it were not generally known that a balloon is a common container for carrying illegal narcotics, we have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person." Id. at 746 (citing United States v. Cortez, 449 U.S. 411, 418 (1981)).

(18.) 955 F.2d 270 (5th Cir. 1992).

(19.) Id. at 277.

(20.) See e.g., United States v. Emmons, 24 F.3d 1210, 1215-16 (10th Cir. 1994).

(21.) 182 F.3d 82 (1st Cir. 1999).

(22.) Id. at 85.

(23.) Id.

(24.) Id. at 88 (footnote omitted, citation omitted). See also United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) ("[i]n the case of drug dealers, evidence is likely to be found where the dealers live"); United States v. Reyes, 798 F.2d 380 (10th Cir. 1986) ("It is reasonable to assume that certain types of evidence would be kept at a defendant's residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence.").

(25.) C.f. Andresen v. Maryland, 427 U.S. 463,478 (1976) (three months between the completion of the fraudulent misappropriation by a fiduciary and the ensuing records searches was not too long). "'[T]he vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.' United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). Rather, we must look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984).

(26.) 798 F.2d 380 (10th Cir. 1986).

(27.) The search warrant affidavit in Reyes mentioned that it was the practice of some of the members of the drug conspiracy to maintain records of their associates, but there were no personal observations of specific facts that indicated the defendant's residence was used for the illegal drug trade or that the defendant kept drug records there. The court stated that such personal observation is not necessary and that it is reasonable to infer that drug dealers often keep such records in their homes. 798 F.2d at 392.

(28.) See, e.g., United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en bane) (two years between the most recent drug trafficking and money laundering activities committed during a 30-year conspiracy and the ensuing records searches was not too long).

(29.) 911 F.2d 272 (9th Cir. 1990).

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

(31.) _____ S.W.3d _____, 2001 WL 549513 (Ark. 2001).

(32.) See, e.g., State v. Silverstri, 618 A.2d 821 (N.H. 1992). In Sylvestri, the court rejected a link to the defendant's residence that was based on the affiant's experience that it was common to find illegal drug contraband and other evidence in the homes of drug traffickers. The court determined that "while the affidavit may have established probable cause to arrest the defendant for selling marijuana, it did not establish probable cause to search his residence." Id. at 823. Despite the inference drawn by the affiant from his experience, the court found that "[i]n the affidavit before us there was nothing to indicate that evidence of the crime was kept at, or picked up from, the defendants's residence other than the mere fact that the defendant was suspected of being a criminal." Id. at 824. The court further stated: "The State urges us to adopt a per se rule that if the magistrate determines that a person is a drug dealer, then a finding of probable cause to search that person's residence automatically follows. The State contends that the issuing magistrate can find that the fact that a person is an active drug dealer creates a fair probability that controlled drugs or other indicia of drug dealing could be found in the drug dealer's residence. We do not accept the State's invitation and note that we have consistently required some nexus between the defendant's residence and drug-dealing activities in order to establish probable cause to search the residence." Id. at 824. The New Hampshire Supreme Court decided Silvestri exclusively on state constitutional grounds. 618 A.2d at 822. See also United States v. Gomez, 652 F. Supp. 461, 463 (E.D.N.Y. 1987) (a court can consider an officer's expert opinion that drug traffickers often keep records in their residences, but that alone will not be enough to establish a nexus betwe en the illegal trafficking and the residence to establish probable cause for a search); United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) ("While officer 'training and experience' may be considered in establishing probable cause...it cannot substitute for a lack of evidentiary nexus.").

(33.) 977 P.2d 582 (Wash. 1999) (en banc).

(34.) In Thein, the police had information from two sources that the landlord, whose name was given as simply "Steve," was the supplier of marijuana to Laurence McKone. The police had earlier seized over a one-half pound of marijuana from McKone's residence; they also seized from the basement 5 pounds of marijuana "shake," which is material pruned from cultivated marijuana plants. One informant indicated that the basement was exclusively controlled by Mekone's landlord, "Steve." The police were ultimately able to identify "Steve" as Stephen Them. The police prepared an affidavit for a search warrant for Thein's residence. The affidavit contained generalized statements of belief regarding the common habits of drug dealers. The affidavit stated, in pertinent part, the following: "Based on my experience and training, as well as the corporate knowledge and experience of other law enforcement officers, I am aware that it is generally a common practice for drug traffickers to store at least a portion of the drug in ventory and drug related paraphernalia in their common residences. It is generally a common practice for drug traffickers to maintain in their residences records relating to drug trafficking activities including records maintained on personal computers." 977 P.2d at 584. The court ruled that probable cause only exists if the affidavit sets forth facts sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity, and the evidence of that criminal activity can be found in his home. The court stated that probable cause requires a nexus between the criminal activity and the items to be seized and, in addition, a nexus between the items to be seized and the place searched. The Thein court ruled that an officer's belief that persons who cultivate marijuana often keep drug records and material in their house is not a sufficient basis for probable cause to search the home of the drug cultivator. The court stated that for there to be an inference that the suspect is in po ssession of illegal drugs at his home there must be specific facts that point to his possession, such as observations of activity at the house that are indicative of criminal conduct. The court felt that generalized statements regarding the common habits of drug traffickers are insufficient to establish a link between the drug activity and a drug trafficker's home.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.