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United States v. Aljabari

November 17, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SAMER J. ALJABARI, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 07 CR 50070-Frederick J. Kapala, Judge.

The opinion of the court was delivered by: Hamilton, Circuit Judge

ARGUED SEPTEMBER 8, 2010

Before POSNER, MANION, and HAMILTON, Circuit Judges.

Appellant Samer Aljabari hired two of his friends to burn down a tobacco shop that competed with his father's business. A jury convicted Aljabari of arson and conspiracy to commit arson. On appeal, Aljabari argues that the district court should have suppressed evidence he contends was seized in a search of his apartment that went beyond the scope authorized by the search warrant, that the government failed to prove that the arson had a sufficient link to interstate commerce to support a federal prosecution, and that the district court committed several errors during sentencing. Finding no error, we affirm in all respects.

I. Background

In the early hours of October 4, 2007, the Oregon Smoke Shop, located in the small town of Oregon, Illinois, burned to the ground. There was no doubt that the blaze was intentionally set. The fire marshal discovered evidence of accelerant in the building's remains, and a surveillance video showed a masked man break into the shop, pour a flammable liquid on the floor, and set the building ablaze. As it turned out, the fire was set by Matt McMeekan and Christopher Taylor, whom Aljabari had hired to eliminate the primary competitor to his father's tobacco store in the same small town. Unfortunately for Aljabari, a friend of McMeekan and Taylor told a co-worker about their involvement in the Smoke Shop's destruction, and that co-worker contacted the police.

Following an investigation and a search of Aljabari's apartment, Aljabari was charged with arson and conspiracy to commit arson in violation of 18 U.S.C. § 844(i) and (n). At trial, Taylor and McMeekan both testified that they had burned the Smoke Shop at Aljabari's behest. The jury convicted Aljabari on both counts, and the district court sentenced him to 110 months in prison. He now appeals.

II. The Search Warrant

During the course of their investigation into the Smoke Shop's destruction, law enforcement officers obtained a warrant to search Aljabari's apartment. There they dis-covered, among other things, a can of gasoline and a can of kerosene that Taylor and McMeekan had used to start the fire at the Smoke Shop. Prior to trial, Aljabari moved to suppress all evidence seized during the search, arguing that the warrant suffered from several flaws. The district court granted the motion in part, suppressing the evidence it found had been seized beyond the permitted scope of the search, but the court did not suppress the gasoline and kerosene cans.

A. Probable Cause

On appeal, Aljabari first argues that the district court should have found the warrant wholly invalid because the affidavit submitted in support of the warrant application failed to establish probable cause to search the apartment at all. There clearly was probable cause to suspect Aljabari's involvement in the Smoke Shop's destruction, but he argues that there was no specific probable cause to believe that incriminating evidence related to the fire would likely be found in his apartment. The district court rejected this argument, as do we.

We review the affidavit's sufficiency de novo to the extent that it presents purely legal issues of Fourth Amendment doctrine. See United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005), quoting United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003). In applying those principles to a given case, however, we "afford great deference to the decision of the judge issuing the warrant," United States v. Bell, 585 F.3d 1045, 1049 (7th Cir. 2009), and we will uphold a finding of probable cause so long as the issuing judge had a substantial basis to conclude that the search was reasonably likely to uncover evidence of wrongdoing, United States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010).

Law enforcement officials have probable cause to search a particular place where "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696 (1996); see Illinois v. Gates, 462 U.S. 213, 238 (1983) (requiring a "fair probability that contraband or evidence of a crime will be found in a particular place"). This common-sense, non-technical determination is based not on individual facts in isolation but on the totality of the circumstances known at the time a warrant is requested. See United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999), citing Gates, 462 U.S. at 238. Those circumstances need only indicate a reasonable probability that evidence of crime will be found in a particular location; neither an absolute certainty nor even a preponderance of the evidence is necessary. See Gates, 462 U.S. at 235 ("Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the magistrate's decision.").

Drawing on these general principles, we have made clear that direct evidence linking a crime to a particular place, while certainly helpful, is not essential to establish probable cause to search that place. United States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (affirming denial of motion to suppress; issuing court could reasonably conclude recipient of child pornography was likely to store it in his home); United States v. Anderson, 450 F.3d 294, 303 (7th Cir. 2006) (affirming denial of motion to suppress; issuing court could reasonably infer that known drug dealer was likely, though not certain, to keep contraband in his home); United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991). The necessity of this rule is obvious; often, nothing will directly indicate that evidence of a crime will be found in a particular place. For that reason, an affidavit need only contain facts that, given the nature of the evidence sought and the crime ...


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