This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
UNITED STATES V. CARSWELL, 2021 WL 1811542 (7th Cir. 2021)
Drug investigators suspected Adonnis Carswell of selling heroin. They wanted to conduct surveillance but had not been able to discover where Carswell lived and/or did business. Carswell decided to tell them – well, sort of.
An officer saw Carswell driving his Porsche at over 100 mph through a 45 mph zone. When the officer stopped him, Carswell was obliged to give up his home address. An investigator learned of Carswell’s arrest for the traffic violation and began surveillance for four days.
On the first evening of surveillance, the officer noted two trash bins at the end of Carswell’s driveway for pick-up. (You know where this is going, right?) The officer returned to Carswell’s street late at night and plucked several trash bags from the bins. Among the trash, the officer found three opened food-saver bags, two one-gallon Ziploc bags and two sandwich bags containing cocaine residue, two pairs of white latex gloves, and green plastic wrap packaging that resembled a kilogram wrapper for cocaine and also contained cocaine residue. The officer recognized the green plastic wrap packaging as matching photographs of drug packaging seized in a prior case involving Carswell. In the second trash bag, the officer found three grams of a pink crystal methamphetamine. Finally, the officer found receipts showing that Dereka Evans, Carswell’s girlfriend, had purchased a CZ Scorpion EVO 3 pistol and four boxes of ammunition.
Based on the treasure trove from the trash, statements about Carswell’s prior drug-related activity and bank robbery conviction, and a tip from a recently arrested drug dealer naming Carswell as his wholesale supplier, the officer obtained a search warrant for the house. The search revealed 64 grams of heroin, five cell phones, $25,000 in cash, firearms and ammunition, and drug packaging materials, including two digital scales with cocaine residue and a machete laced with marijuana residue.
Carswell was convicted of possession of heroin with intent to distribute and a firearms offense. He appealed, claiming the officer’s affidavit did not establish probable cause to search for evidence of drug trafficking and unlawful possession of a firearm. Carswell also complained the prosecutor’s closing arguments to the jury violated his constitutional rights.
Carswell first argued that two trash pulls would be better than one because someone else could have dumped all the drug-related trash into his bin at the end of his driveway. Okay, I agree. But the possibility does not defeat the probability that it was Carswell’s trash. The court rejected this argument, observing that probable cause “deals with, well, probability, not certainty.”
Carswell also claimed that the informant’s tip that he bought drugs from Carswell was unsupported by a showing of reliability. Again, I could be persuaded. The court’s response: “When we evaluate a probable cause finding, we do not view the individual facts in isolation. We consider the totality of the circumstances presented to the judge.” The tip was part of the totality.
Turning to his prior convictions, Carswell accurately argued that the armed robbery and marijuana distribution did not, standing alone, establish probable cause for a search. Again, I concur. He could have repented and changed his ways. Or not. Holding that the prior convictions “retained some corroborative value,” the court turned to the classic movie, Casablanca. Captain Renault, played by Claude Rains, utters the “iconic line at the end of Casablanca, ‘Round up the usual suspects…’” After all, the best predictor of future behavior is past behavior. The judge reviewing the affidavit for the search warrant properly considered Carswell’s past behavior documented in criminal convictions.
Thus, the judge who issued the search warrant had a reasonable basis for thinking evidence of drug and firearm crimes was likely to be found at Carswell’s home.
With the question of the search warrant answered, the court turned to the allegation about the prosecutor’s closing arguments. They concluded the closing arguments were not improper, did not make Carswell’s trial unfair and did not deny him due process. Thus, the court rejected Carswell’s complaints: “The key evidence against defendant Carswell was seized under a proper search warrant, and he was convicted in a fair trial.” And to think, if only Carswell hadn’t been speeding, the drug investigators might still be wondering where to find him. By the way, Carswell can be found in a federal prison for the next several years.
