NOT PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

F O R THE THIRD CIRCUIT

NO. 05-2583

UNITED STATES OF AMERICA

v. BRIAN LAMAR PEARSON,

A p p e lla n t

On Appeal From the United States District Court

F o r the Eastern District of Pennsylvania

(D.C. Criminal Action No. 04-cr-0433)

D is tric t Judge: Hon. Timothy Savage

Submitted Pursuant to Third Circuit LAR 34.1(a)

M a rc h 8, 2006

B E F O R E : AMBRO and STAPLETON, Circuit Judges,

a n d STAGG,* District Judge

(O p in io n Filed May 15, 2006 OPINION OF THE COURT STAGG, District Judge: O n June 25, 2003, Detective Gregory P. Macey ("Detective Macey"), a member of th e Lancaster County Police Department, applied for a search warrant to search a vehicle o w n e d by the Appellant, Brian Pearson ("Pearson"). Detective Macey's search warrant a p p lic a tio n provided a description of Pearson's vehicle, a 2002 Chevrolet Impala, along w ith the license plate and vehicle identification numbers. The application proposed to s e a rc h for controlled substances, assets, paraphernalia or materials related to the use or sale of a controlled substance, and documentation evidencing ownership of the vehicle. In a p p lyin g for the search warrant, Detective Macey submitted an affidavit of probable cause w h ic h detailed his extensive training and experience and set forth information regarding P e a rs o n 's drug activities. The affidavit stated that during May of 2003, Detective Macey h a d spoken with a confidential informant ("C.I. #1"), whose prior tips in other cases had le d to two arrests for drug violations, as well as two seizures of controlled substances.

C.I. #1 asserted that Pearson sold cocaine out of his vehicle, which was described as a s ilv e r, four door, 2002 Chevrolet Impala. The informant's basis of knowledge stemmed f ro m his own involvement in a drug purchase, during which Pearson sold the informant d ru g s from the Impala.

The affidavit further explained that during that same month, Detective Macey s p o k e with a second confidential informant ("C.I. #2"), whose prior information to the p o lic e had resulted in at least three arrests and convictions, as well as three seizures of c o n tro lle d substances. C.I. #2, who accurately described Pearson's vehicle, confirmed th a t Pearson sold cocaine from his Impala. His basis of knowledge stemmed from his o w n purchase of drugs from Pearson.

T o confirm the informants' tips, Detective Macey located the Impala and verified th a t it was registered to Pearson. He then showed a photograph of Pearson to C.I. #1, w h o identified Pearson as the man from whom he had purchased drugs during May of 2003.

D e te c tiv e Macey then orchestrated a controlled purchase of cocaine from Pearson in which C.I. #1 bought cocaine from Pearson --which Pearson sold from his vehicle.

After that transaction, C.I. #1 relayed to Detective Macey a statement by Pearson "that a d d itio n a l quantities of cocaine were available for sale . . . ." Appellant's Appendix Vol.

II at 39a. Based upon all of this information, Magistrate Judge Richard H. Simms issued a search warrant for Pearson's vehicle.

T h e search of Pearson's vehicle was executed on June 27, 2003, wherein officers d is c o v e re d 129.9 grams of cocaine base, a digital pocket gram scale, drug packaging m a te ria l, and a loaded firearm. At the time of the search, Pearson's vehicle was located w ith in 1,000 feet of a middle school.

A grand jury returned a three count indictment against Pearson, charging him with p o s s e ss io n with intent to distribute 129.9 grams of cocaine base within 1,000 feet of a sc h o o l, in violation of 21U.S.C. § 860(a) (count one), possession with intent to distribute 1 2 9 .9 grams of cocaine base, in violation of 21U.S.C. § 841(a)(1) (count two), and p o s s e ss io n of a firearm in furtherance of a drug trafficking crime, in violation of 18 U .S .C . § 924(c)(1)(A) (count three). Prior to trial, Pearson moved to suppress the e v id e n c e obtained during the search of his car. Following a suppression hearing, the d is tric t court denied the motion. Pearson then entered a guilty plea to counts one and th r e e , but retained his right to appeal the district court's denial of his motion to suppress.

P e a rs o n was sentenced to 180 months imprisonment and a ten year term of su p e rv ise d release. He then filed this appeal.

A. S ta n d a r d Of Review.

T h e district court had subject matter jurisdiction under 18U.S.C. § 3231, and this c o u rt has appellate jurisdiction pursuant to 28U.S.C. § 1291. We review the denial of a m o t io n to suppress for clear error as to the underlying factual determinations and exercise p le n a ry review over the district court's application of the law to those facts. See United S ta te s v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). However, we must "exercise a d e f ere n tia l review of the magistrate's initial probable cause determination." United States v . Ritter, 416 F.3d 256, 261 (3d Cir. 2005).

B. D is c u s s io n Of Law.

T h e Fourth Amendment provides that no valid warrant may be issued absent p ro b a b le cause. See U.S. Const. amend. IV, A magistrate judge may determine that p ro b a b le cause exists "when, viewing the totality of the circumstances, `there is a fair p ro b a b ility that . . . evidence of a crime will be found in a particular place.'" United S ta te s v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars And Fifty-Seven C e n ts ($92,422.57), 307 F.3d 137, 146 (3d Cir. 2002) (quoting Illinois v. Gates, 462 U.S.

2 1 3 , 238, 103 S. Ct. 2317, 2332 (1983)). When an appellate court reviews a finding of p ro b a b le cause, it must uphold the issuance of the warrant if the issuing judge had a " su b s ta n tia l basis" for determining that probable cause existed. See Gates, 462 U.S. at 2 3 6 , 103 S. Ct. at 2331; see also United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1 9 9 3 ) . Essentially, an issuing judge, making a practical and common sense d e ter m in a tio n , need only decide whether it is "reasonable to seek the sought-after objects in the place designated in the affidavit; a court need not determine that the evidence is in f a ct on the premises." Ritter, 416 F.3d at 263. Furthermore, the "resolution of doubtful o r marginal cases in this area should be largely determined by the preference to be a c co rd e d to warrants." United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (qu o tin g Jones, 994 F.2d at 1057-58).

P e a r so n contends that the district court erroneously denied his motion to suppress b e c au s e the affidavit supporting the warrant "lacked probable cause and lacked evidence o f reliability of the two confidential informants." Appellant's Brief at 9. The government c o n te n d s that the warrant was supported by probable cause and that, in any event, the g o o d faith exception articulated by the Supreme Court in United States v. Leon, 468 U.S.

8 9 7 , 104 S. Ct. 3405 (1984), is applicable.

P e a rso n 's arguments lack a legal foundation. He first contends that "[n]owhere in th e affidavit is it set forth that the affiant, or any other law enforcement officer, ever o b s e rv e d Mr. Pearson actually selling cocaine" 1 and second, that the affidavit lacked e v id e n c e of the informants' reliability. Appellant's Brief at 11-12. However, direct e v id e n c e of a crime is not required for the issuance of a search warrant. See United S tates v. Burton, 288 F.3d 91, 103 (3d Cir. 2002). Indeed, as the Supreme Court e x p la in e d in Aguilar v. Texas, an affidavit "need not reflect the direct personal o b s e rv a tio n s of the affiant." Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514 (1 9 6 4 ). Probable cause is present so long as the "veracity" and "basis of knowledge" of p e rs o n s supplying hearsay information provide a fair probability, under the totality of the c irc u m s ta n c e s , that evidence of criminal activity will be discovered in a certain place.

See Gates, 462 U.S. at 238, 103 S. Ct. at 2332. Here, there was a substantial amount of 1 The government contends that although the affidavit does not explicitly state that Detective Macey personally observed the controlled purchase between Pearson and C.I.

# 1 , such a conclusion is necessarily implied because the entire purchase was orchestrated u n d e r Detective Macey's direction and control. A resolution of this factual dispute is not n e c e s s a r y. e v id e n c e from which Magistrate Judge Simms could conclude that drugs could be found inside Pearson's vehicle. Both confidential informants accurately described Pearson's v eh icle, from which he was selling drugs. Furthermore, both informants had very re c e n tly purchased drugs from Pearson out of his vehicle. In addition, C.I. #1 positively id e n tif ie d a picture of Pearson. These facts demonstrate that the informants had a s u f f ic ie n t basis of knowledge. More importantly, Detective Macey verified the in f o rm a n ts ' tips during the controlled drug transaction.

The veracity of the confidential informants was also sufficient. Indeed, the w a rra n t application explains that each informant had provided accurate tips in the past, w ith his information resulting in various arrests and convictions. Therefore, Magistrate J u d g e Simms was equipped with the requisite "substantial basis" for concluding that p rob ab le cause existed. As the district court correctly determined at Pearson's s u p p re ss io n hearing, the "information presented to the magistrate was reliable and had b e e n independently corroborated by the police." Appellant's Appendix Vol. I at 6a.

Because we determine that the warrant was supported by probable cause, we need not a d d re ss whether the search was valid pursuant to Leon's good faith exception.

A c c o rd in g ly, we agree with the district court's opinion below and will affirm the ju d g m e n t of the district court.

8

* Hon. Tom Stagg, United States District Judge for the Western District of Louisiana, s ittin g by designation.