NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 06-1152

U N I T E D STATES OF AMERICA

v. D A R N E L L GASKINS,

Appellant

O n Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . No. 05-cr-00149-1)

D istric t Judge: Honorable Stewart Dalzell

S u b m itte d Under Third Circuit LAR 34.1(a)

O c to b e r 22, 2007

B e f o re : FISHER, ALDISERT and GREENBERG, Circuit Judges.

(F ile d : October 25, 2007)

O P IN I O N OF THE COURT

F IS H E R , Circuit Judge. In September 2005, a jury convicted Darnell Gaskins of five counts of drug-related c h a r g e s . Gaskins now appeals the District Court's denial of his motion to suppress e v id e n c e recovered during a search with a warrant of his residence. For the reasons set f o rth below, we will affirm the judgment of the District Court.

I.

B e c au s e we write exclusively for the parties who are familiar with the factual c o n te x t and legal history of this case, we will set forth only those facts necessary to our a n a lys is . In February 2004, police commenced an investigation into a narcotics operation in Philadelphia, Pennsylvania. Police conducted surveillance of multiple individuals s u s p e c te d of drug trafficking, and had a confidential informant engage in controlled p u rc h a se s of narcotics from some of the suspects. On several occasions, police observed G a sk in s interacting with suspected drug dealers and participating indirectly in what a p p e a re d to be drug transactions. Based on these events, the police sought a warrant to s e a rc h 3122 North Bancroft Street, Gaskins' residence. After a magistrate issued a w a rra n t based on an officer's affidavit, police searched the residence and seized cocaine, tw o handguns, drug-related paraphernalia, and cash.

G a sk in s was subsequently charged with five counts of drug trafficking and w e a p o n s possession charges in March 2005. These include one count of conspiracy to d is trib u te 50 grams or more of cocaine base, in violation of 21U.S.C. §§ 841(b)(1)(A) a n d 846; two counts of distribution and possession with intent to distribute cocaine base, in violation of 21U.S.C. § 841(a)(1) and (b)(1)(B); and one count of use of a firearm in fu rth era n ce of a drug trafficking offense, in violation of 18U.S.C. § 924(c).

B e f o re trial, Gaskins moved to suppress the evidence seized from 3122 North B a n c ro f t Street, arguing that the affidavit in support of the search warrant was insufficient to establish probable cause. The District Court denied that motion, and a jury convicted G a sk in s of all counts.1 He now files this timely appeal.

II.

T h e District Court exercised jurisdiction over this proceeding pursuant to 18 U .S .C . § 3231. We have jurisdiction over this appeal pursuant to 28U.S.C. § 1291. We re v ie w both the District Court's and the magistrate judge's determination that the a f f id a v it was sufficient to establish probable cause in support of the search warrant.

United States v. Whitner, 219 F.3d 289, 295-96 (3d Cir. 2000). We exercise plenary r e v ie w over a District Court's review of a magistrate's determination of probable cause w h e re that determination is based only on the facts contained in the affidavit. Id. at 296 (c itin g United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993)). In contrast, we p e rf o rm a deferential review of a magistrate judge's initial determination of probable c a u s e in issuing a search warrant. Conley, 4 F.3d at 1205. The magistrate may find p ro b a b le cause to search when, based on the totality of the circumstances, "`there is a fair p ro b a b ility that contraband or evidence of a crime will be found in a particular place.'" Id . (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Thus, "a reviewing court is to u p h o ld a warrant as long as there is a substantial basis for a fair probability that evidence w ill be found" at the location identified in the affidavit. Id. Doubtful or marginal cases s h o u ld be resolved in accordance with the Fourth Amendment preference for search w a rr a n ts . United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) (citing United S ta te s v. Ventresca, 380 U.S. 102, 109 (1965)).

I I I.

G a sk in s argues that based upon the affidavit, there was not a fair probability that h e was involved in drug trafficking and maintained evidence of drug trafficking at his re sid e n c e . However, we find that the facts set forth in the affidavit were sufficient to e sta b lis h probable cause to search Gaskins' residence.

W e have held that "direct evidence linking the residence to criminal activity is not re q u ire d to establish probable cause." United States v. Burton, 288 F.3d 91, 103 (3d Cir. 2 0 0 2 ). Instead, "an accumulation of circumstantial evidence" can be sufficient to d e m o n s tra te a fair probability that evidence of criminal activity is present at an in d iv id u a l's residence. Id. Factors to be considered in evaluating the circumstantial ev iden ce include: "the type of crime, the nature of the items sought, the suspect's o p p o rtu n ity for concealment and normal inferences about where a criminal might hide [ e v id e n c e of criminal activity]." Id. (internal quotations and citation omitted).

A d d itio n ally, we have determined that it is reasonable to infer that drug dealers s to re evidence of drug-related criminal activity in their homes. Id. at 104. "[A]pplication o f this inference is based on evidence supporting three preliminary premises: (1) that the p e rs o n suspected of drug dealing is actually a drug dealer; (2) that the place to be s e a rc h e d is possessed by, or the domicile of, the dealer; and (3) that the home contains c o n tra b a n d linking it to the dealer's drug activities." Id.

F irs t, Gaskins argues that the affidavit lacks evidence of his involvement in any d ru g transactions. However, the affidavit provides information on Gaskins' numerous in te ra c tio n s with suspected drug dealers and indirect participation in drug deals. Police o f f ice rs observed the following: (1) on April 15, 2004, Gaskins drove another suspect, E ric Harris, to a drug transaction; (2) on April 19, 2004, Gaskins left 3122 North Bancroft S tre e t, delivered a small object to Harris, and then received cash from Harris a few m in u te s later; (3) also on April 19, 2004, Gaskins talked with a confidential informant a n d another suspect, Michael Jones, moments before Jones sold crack to the informant; (4 ) on April 20, 2004, Gaskins conferred with Jones after Jones deposited small objects in a vehicle and before Jones retrieved a black plastic bag from the same vehicle moments la te r; and (5) on April 26, 2004, Gaskins left 3122 North Bancroft Street, retrieved a s m a ll object from Jones (shortly after Jones engaged in a drug deal), then picked up and d ro p p e d off Harris immediately before Harris sold crack to an informant. The a c cu m u la tio n of the circumstantial evidence of Gaskins' indirect involvement in drug d e a ls provided a substantial basis for the magistrate's determination that he was a drug d ea ler.

S e c o n d , Gaskins argues that the affidavit lacks direct evidence linking him to the se a rc h e d location, 3122 North Bancroft Street. However, police regularly observed him e n ter in g and departing that location. Additionally, police repeatedly observed him d riv in g a vehicle registered in his name at that address. Therefore, the magistrate had su f f icie n t information to conclude that Gaskins resided at 3122 North Bancroft Street.

T h ird , Gaskins argues that the affidavit lacks direct evidence linking any drug deal to his residence. Here, the affidavit references Gaskins' involvement in drug transactions, a n d in particular, it states that he left his residence and gave an item to a person im m e d ia te ly before that person sold drugs to a confidential informant. This accumulated c irc u m s ta n tia l evidence is sufficient to demonstrate a fair probability that Gaskins kept e v id e n c e of his drug-related activities in his home. Therefore, the magistrate judge p ro p e rly determined that probable cause existed to search Gaskins' home.2 IV .

F o r the reasons set forth above, we will affirm the District Court's decision to deny G a sk in s ' motion to suppress evidence and subsequent judgment of conviction.

1 For the drug offenses, Gaskins was sentenced to 121 months imprisonment, f o llo w e d by five years of supervised release, a $2,500 fine, and a special assessment of $ 5 0 0 . For the gun offense, Gaskins was sentenced to 60 months imprisonment to run c o n se c u tiv e ly to the first sentence.

2 Because we find that the affidavit provided a substantial basis for the magistrate to find a fair probability that a search of Gaskins' home would reveal evidence of drug tra f f ic k in g , we need not address the issue of the police officers' good faith reliance on a s e a rc h warrant pursuant to United States v. Leon, 468 U.S. 897 (1984).