CA11: Inference of firearms nearly always with drugs less likely in small scale operations

While firearms are implicitly involved in drug transactions, the smaller the dealer, the less likely the inference. The search warrant here didn’t specify firearms, and, in drug distribution cases, it’s usually likely a gun will be found. Here, officers thought the firearms were for hunting. Nevertheless, defendant was a felon, and the seizure of the firearms is valid under plain view. United States v. Folk, 2014 U.S. App. LEXIS 10929 (11th Cir. June 12, 2014):

First, we consider Folk’s argument that the firearms fell outside the scope of the warrant. This circuit has routinely recognized that firearms can be so connected to the sale of narcotics that their seizure is implicitly authorized by a warrant to search for narcotics. See, e.g., United States v. Prather, 279 Fed. App’x 761, 766 (11th Cir. 2008) (unpublished) (“When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location.”); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990) (“The firearms were not improperly seized, though not named in the warrant. They are ‘tools of the drug trade.'”); United States v. Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990) (“It is uniformly recognized that weapons are often as much ‘tools of the trade’ as the most commonly recognized narcotics paraphernalia.”); United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986) (“Of course, numerous cases have recognized that guns are a tool of the drug trade. There is a frequent and overpowering connection between the use of firearms and narcotics traffic.”).

Despite this recognized connection between drugs and firearms, the facts in this case give us pause. Vitola admitted that he had no suspicion that Nicholas Brandow was armed while he engaged in his drug transactions or that he was storing firearms in his residence. When he saw the firearms, Vitola believed they were probably used for hunting rather than as tools of the drug trade. The small scale of Nicholas Brandow’s observed drug transactions further differentiates them from larger operations, where the ownership and use of firearms can be more readily inferred. See United States v. Perez, 648 F.2d 219, 224 (5th Cir. 1981) (“[E]xperience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent that they keep scales, glassine bags …, cutting equipment, and other narcotic equipment.”) (emphasis added) (citation omitted) (internal quotation marks omitted).

Ultimately, we need not address whether the search warrant implied authorization to seize the firearms because we hold that the seizure was valid under the plain view doctrine.