UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, : : v. : Crim. Action No. 09-0276 (JR) : STEWART DAVID NOZETTE, : : Defendant. :

MEMORANDUM

Defendant Stewart David Nozette is charged with

attempted espionage. On October 19, 2009, the FBI conducted a

search of his home, his car, and his person pursuant to a

warrant. Nozette moved [Dkt #30] to suppress the fruits of that

search, arguing that the affidavit supporting the warrant had

failed to establish probable cause for the searches. I denied

the motion in open court on February 17, 2010, and said I would

issue a written statement of my reasons. This is that statement.

In reviewing a warrant application, “[t]he task of the

issuing magistrate is simply to make a practical, common-sense

determination” of whether probable cause exists. Illinois v.

Gates,

(1983). In turn, “the duty of the

reviewing court is simply to ensure that the magistrate had a

substantial basis for . . . concluding that probable cause

existed.”

.

Home Search

Probable cause to search a residence exists when “there

is a fair probability that contraband or evidence of a crime will be found in a particular place.”

. “[T]he nexus

between the objects to be seized and the premises searched can be

established from the particular circumstances involved and need

not rest on direct observation.” United States v. Lockett,

(11th Cir. 1982). “A magistrate may infer a nexus

between a suspect and [evidence in] his residence, depending upon

the type of crime being investigated, the nature of things to be

seized, the extent of an opportunity to conceal the evidence

elsewhere and the normal inferences that may be drawn as to

likely hiding places.” United States v. Williams,

(6th Cir. 2008).

The affidavit supporting the search gave substantial

details about the FBI’s “false flag” meetings with Nozette,

details that the government argued supplied probable cause to

believe that Nozette had committed crimes. See Aff. ¶¶ 42-63,

attached to Mem. in Opp. Nozette argued that whatever inference

these meetings may have permitted as to his guilt, they did not

establish probable cause to believe that he had stored classified

material in his home. He argued that, in the false flag

conversations, he specifically and repeatedly denied possessing

any classified documents (suggesting instead that any classified

material he could supply would be derived from his memory).

Proof of probable cause that a person committed a crime

can help support a search of that person’s home for crime-related

- 2 - items, if such items are typically stored by criminals in their

homes. See, e.g., United States v. Abboud,

(6th Cir. 2006) (“One does not need Supreme Court precedent to

support the simple fact that records of illegal business activity

are usually kept at either a business location or at the

defendant’s home); United States v. Laury,

(5th Cir. 1993); United States v. Jenkins,

(11th Cir. 1990). The mere inference that such items are

typically stored in homes is insufficient without more to supply

probable cause, see Jenkins,

, but additional

support, such as statements from experienced law enforcement

officials that the items to be found are typically stored in

homes, can add enough weight to create probable cause. See,

e.g.,

; Abboud,

; Laury,

.

Here, there was considerable additional support for the

search. First, in a prior search of Nozette’s home executed in

2007, agents had found computers containing restricted

technology. Second, during the “false flag” process, the agents

received from Nozette a “dead dropped” thumb drive containing

classified information as well as material containing typewritten

text. It was reasonable to expect that the computer and

typewriter equipment Nozette used would have been stored in his

home. Third, the affiant was a seven-year veteran of the FBI who

- 3 - had previously worked as a state court prosecutor in Ohio for

four years, so his experience supported the reasonableness of

relying on his belief that a search would turn up evidence and/or

classified information. See Aff. ¶ 1. Finally, the complex

nature of the scientific classified information at issue belied

Nozette’s assertion that he had memorized it all. Nozette

attacked each of these elements as inadequate in isolation, but

their combined force was sufficient for me to find that the

magistrate had a substantial basis for concluding that probable

cause existed.

Auto Search

Nozette objected to the search of his vehicle. See

Mot. 7. The search was supported by the affiant’s statement that

Nozette drove his car to the “dead drop” site four times. Resp.

9 n.9. Further, affiant stated that Nozette had used the car to

transport items he picked up from and dropped off to the agents,

including a thumb drive containing classified information.

The affidavit therefore established probable cause that evidence,

including material picked up from the dead drop site, might be

held in Nozette’s car.

Search of Nozette’s Person

Nozette mentioned the search of his person only in

passing. The search was done incident to his lawful arrest and

- 4 - was thus itself lawful. See Chimel v. California,

(1969).

JAMES ROBERTSON United States District Judge

- 5 -