NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 06-1286

U N I T E D STATES OF AMERICA

v. E R IC HARRIS,

Appellant

O n Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . No. 05-cr-00149-4)

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 Eric Harris of eight counts of drug-related c h a r g e s . Harris 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 only for the parties who are familiar with the factual context and p roc ed u ral history of the case, we set forth only those facts necessary to our analysis. In F e b ru a ry 2004, police commenced an investigation into a narcotics operation in P h ilad e lp h ia, 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 four controlled p u rc h a se s of crack cocaine from Harris.1 On at least two of these occasions, Harris im m e d ia te ly returned to 3039 North Stillman Street, his residence, following the tran sac tio n s. As a result, police obtained a warrant to search his residence. After a m a g is tra te issued a warrant based upon an investigating officer's affidavit, police s e a rc h e d the residence and seized 1,385 grams of cocaine powder, marijuana, a scale, and p a c k ag in g material. Harris was subsequently charged with eight counts of distributing sch ed u le two drugs, in violation of 21U.S.C. § 841(a) and (b).2 B ef o re trial, Harris moved to suppress the evidence seized from his residence. He a rg u e d that police lacked information to establish probable cause that drug-related e v id e n c e would be found at his home. The District Court denied the motion, and f o llo w in g a jury trial, Harris was convicted of all eight counts.3 He now files this timely a p p e a l .4 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 re v iew over a District Court's review of a magistrate judge's determination of probable c a u s e where that determination is based only on the facts contained in the affidavit. Id. at 2 9 6 (citing United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993)). In contrast, we 3 Because Harris had a predicate offense, the District Court was statutorily required to sentence him to a minimum imprisonment period of 240 months. Consequently, he w a s sentenced to 240 months imprisonment, followed by twelve years supervised release, a $2,500 fine, and a special assessment of $800.

4 A lth o u g h Harris argues that his conviction should be overturned as a result of the D istric t Court's denial of his motion to suppress evidence, the evidence seized from his re sid e n c e would not affect Counts 1, 2, 3, 8, and 10. Those counts pertained to the drug tra n sa c tio n s between Harris and the confidential informant that took place prior to the s e a rc h of Harris' residence. Thus, the only counts that were based upon evidence seized f ro m the residence (and thus would be affected by the motion to suppress) were Counts 1 6 , 17, and 19. 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.

H a rris argues that based upon the affidavit, there was not a fair probability that he m a in tain e d evidence of drug trafficking at his residence. However, we find that the facts in the affidavit were sufficient to establish probable cause to search Harris' 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.

H e r e , the affidavit provided more than enough circumstantial evidence to establish a fair probability that evidence of criminal activity would be present at Harris' home.

Evidence existed that Harris was a drug dealer based upon the four instances, detailed in th e affidavit, where Harris sold cocaine to a confidential informant. Evidence also d e m o n s tra te d that 3039 North Stillman Street was Harris' residence, because police (1 ) observed him leaving that location before he engaged in drug deals and returning th e re a fte r; and (2) determined that Harris' driver's license also listed his address as 3039 N o rth Stillman Street.

H a rris contests the existence of the third premise in the present case, arguing that th e re are insufficient facts in the affidavit to link his residence to any drug-related activity o r to indicate that drug-related evidence would be found inside. However, "we generally a c c e p t the common sense proposition that drug dealers often keep evidence of their tr a n s a c tio n s at home, [and] that inference is much stronger when the home is the first p la c e a drug dealer proceeds following such a transaction." Burton, 288 F.3d at 104.

Thus, upon determining that Harris was a drug dealer and resided at 3039 North Stillman S tre e t, it was reasonable for the magistrate to infer that Harris would maintain evidence of h is drug sales there. See id. Moreover, the inference here was particularly strong because o n at least two occasions, Harris returned to his residence immediately following the drug tra n sa c tio n . This evidence is sufficient to demonstrate a fair probability that Harris 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 Harris' residence.5 IV .

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

1 These incidents occurred in 2004 on the dates of February 23, March 3, April 15, a n d April 26.

2 H a rris ' brief contends that he was also charged and convicted of knowingly and in ten tio n a lly possessing a firearm in the furtherance of drug trafficking crimes, in v io la tio n of 21U.S.C. § 846. However, Harris was not charged or convicted of that o f f en se .

5 Because we find that the affidavit provided a substantial basis for the magistrate to find a fair probability that a search of Harris' 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 the s e a rc h warrant pursuant to United States v. Leon, 468 U.S. 897 (1984).