NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2108 _______________

UNITED STATES OF AMERICA

v. DAVID TORRES, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-20-cr-00181-001) District Judge: Honorable Robert D. Mariani _______________

Submitted Under Third Circuit L.A.R. 34.1(a): January 18, 2023 _______________

Before: AMBRO, PORTER, and FREEMAN, Circuit Judges.

(Filed: January 20, 2023)

______________

OPINION ______________

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

David Torres pleaded guilty to charges of possession with intent to distribute 40

grams or more of fentanyl, for which the court sentenced him to 164 months of

imprisonment. His guilty plea was conditional, reserving his right to appeal the denial of

his motion to suppress evidence and withdraw his guilty plea should he prevail. For the

reasons that follow, we will affirm the District Court.

I

An investigation conducted by the Pennsylvania State Police, Wilkes-Barre City

Police, and Luzerne County Drug Task Force identified Torres as a suspected drug

trafficker. Id. Law enforcement began monitoring 66 Church Street, where Torres stayed,

and developed at least one confidential informant (CI) who aided in their inquiries.

Through their use of the CI, police arranged two controlled buys of cocaine and

heroin/fentanyl within a span of six days in December 2019. In each instance, the CI

called Torres, requested the narcotics, and arranged a time and place to meet. In each

instance, Torres was observed by law enforcement leaving 66 Church Street and driving a

rented Nissan Altima to the meeting point. Both times, he drove directly from 66 Church

Street to the meeting point and didn’t make any stops along the way. Id. Law

enforcement ensured that the CI did not enter the meeting point with any contraband

hidden on his/her person, and after each meeting with Torres, the CI returned with

narcotics purchased from Torres.

2 Based on these interactions, the police obtained a search warrant for 66 Church

Street. A search was executed, yielding fentanyl, cocaine, marijuana, a handgun, a

bulletproof vest, a digital scale, drug-cutting agents, and drug-packaging materials.

Following his federal indictment, Torres moved to suppress the evidence obtained from

the residential search warrant. The District Court denied the motion, Torres pleaded

guilty (preserving his right to challenge the denial on appeal), he was sentenced, and this

timely appeal followed.

II

We review the District Court’s denial of a motion to suppress for clear error as to

the underlying factual findings, and we review of the District Court’s application of the

law to those facts de novo. United States v. Perez,

(3d Cir. 2002). When

considering the acts of a magistrate in issuing a search warrant, “our role is not to make

our own assessment as to whether probable cause existed” but “to determine only whether

the affidavit provides a sufficient basis for the decision the magistrate judge actually

made.” United States v. Jones,

(3d Cir. 1993).

III

Torres contends that the warrant to search the house at 66 Church Street was

unsupported by probable cause because the drug deals were not conducted at that

property. Therefore, he argues, “there was an insufficient nexus between the alleged

illegal activity and said property.” Appellant’s Br. 4.

Torres provides the correct rule. Probable cause exists when “there is a fair

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

3 United States v. Miknevich,

(3d Cir. 2011) (quoting Illinois v. Gates,

(1983)). A magistrate is to assess, within the totality of the

circumstances, whether an affidavit is supported by probable cause. Miknevich,

. In particular, there must be “a sufficient nexus between the contraband to be seized

and the place to be searched.” United States v. Golson,

(3d Cir. 2014). On

appeal, a reviewing court reads the affidavit “in its entirety and in a common sense,

nontechnical manner.” Miknevich, 648 F.3d at 182. If it determines that a substantial basis

exists to support the magistrate’s finding, the reviewing court must uphold that finding. Id.

Torres’ application of this rule to the facts of his case demands a much tighter

nexus than our case law requires. See United States v. Burton,

(3d Cir.

2002) (collecting cases). “Direct evidence linking the place to be searched to the crime is

not required for the issuance of a search warrant.” United States v. Hodge,

(3d Cir. 2001). As the government rightly notes, “[i]f there is probable cause to

believe that someone committed a crime, then the likelihood that the person’s residence

contains evidence of the crime increases.” Burton,

; see Appellee’s Br.

20. And “[i]n the case of drug dealers . . . evidence of involvement in the drug trade is

likely to be found where the dealers reside.” United States v. Whitner,

, 297–

298 (3d Cir. 2000)). Indeed, “evidence associated with drug dealing needs to be stored

somewhere, and . . . a dealer will have the opportunity to conceal it in his home.”

Whitner,

.

Contrary to Torres’ arguments, when an individual is suspected of dealing

narcotics, probable cause to search his home does not demand a showing that he deals

4 those narcotics at his home. The common-sense likelihood that drug dealers keep

evidence of their trade where they reside, combined with Torres’s twice-observed trek

from 66 Church Street directly to the meeting point with the CI, was sufficient to

establish probable cause.

Torres’ efforts to distinguish these cases are unavailing. His discussions of Burton

and Whitner suggest, without squarely asserting, that the fact that 66 Church Street was

not legally titled in his name destroys probable cause. Appellant’s Br. at 8, 9 (citing

Burton,

; Whitner,

). But not even the language that he

cites supports that conclusion. Burton’s required showings include merely “that the place

to be searched is possessed by, or the domicile of, the dealer.” Burton,

(emphasis added). Based on law enforcement’s surveillance, Torres appeared to be in

possession of the property, using it as a base for his drug operations at least over the

course of the week in question.

Even were he not in possession of the property, it is well established that when an

individual is otherwise suspected of trading in narcotics, his comings-and-goings from a

property further support a finding of probable cause to search that property. See, e.g.,

United States v. Stearn,

(3d Cir. 2000) (noting that a property

“appeared to be a focal point of [defendants’] movements,” supporting probable cause).

Here, Torres not only seemed to possess the property but left it immediately after each

call from the CI to make the controlled-buys orchestrated by police, making no stops

along the way. That surely created a “fair probability” that Torres brought the narcotics

from 66 Church Street and a “sufficient nexus” with the property to support probable

5 cause. Miknevich,

(“fair probability”); Golson,

(“sufficient

nexus”).

IV

Torres has failed to show that the magistrate lacked substantial basis for issuing

the search warrant for 66 Church Street. The District Court therefore did not err when it

denied his motion to suppress. Because we hold that the search was supported by

probable cause, we do not address whether law enforcement’s conduct was also covered

by the good faith exception. We will affirm the District Court.

6