                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4214


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JONATHAN LEIGH WIENKE,

                    Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia,
at Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cr-00026-GMG-RWT-1)


Argued: February 28, 2018                                        Decided: May 2, 2018


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant. Anna Zartler Krasinski,
OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Kristen M. Leddy, Research and Writing Specialist, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant.
Betsy Steinfeld Jividen, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

      Jonathan Wienke pleaded guilty to making a firearm in violation of the National

Firearms Act, I.R.C. §§ 5801–5872, upon the condition that he could appeal the district

court’s denial of his motion to suppress all evidence seized from his residence pursuant to

four search warrants. Because the affidavit accompanying the first warrant application

supported a finding of probable cause to search his residence, we affirm the district

court’s denial of Wienke’s motion and affirm his conviction.



                                            I.

       In June 2016, Wienke worked for the Department of Homeland Security (“DHS”)

as a Management and Program Analyst in the Office of Intelligence and Analysis at

DHS’s Nebraska Avenue Complex (“the NAC”) in Washington, D.C. Wienke had no law

enforcement powers or duties in his DHS employment or otherwise.

      At the time relevant to this case, Wienke resided in Martinsburg, West Virginia.

Each workday, he rode the early morning Maryland Area Regional Commuter train from

Martinsburg to Washington and then took the Metro to the NAC. Wienke was one of over

3,000 federal employees working at the NAC, which has stringent security requirements

akin to those of the Pentagon, the White House, and the Capitol. For example, before

employees enter their work buildings, they must leave any items not permitted in their

secure workspaces in storage lockers outside.

       On the morning of June 9, Wienke was selected for random security screening as

he entered the NAC. Security officers searched Wienke’s backpack and found a folding

                                            3
knife with a three-inch blade, two handheld radios, pepper spray, an infrared camera, a

pair of handcuffs, a breathalyzer, and a cell phone adapter with earbuds. They also

discovered a handcuff key on his person. After seizing the knife and pepper spray, the

security officers let Wienke proceed to his workplace within the NAC.

       Later that morning, Special Agent Eric Mann, the Chief Security Officer of DHS’s

Internal Security and Investigations Division, and another security officer approached

Wienke at his cubicle, which was adjacent to a room for a meeting of senior DHS

officials scheduled for that day. With Wienke’s consent, Mann searched the cubicle and

then asked if Wienke was armed. When Wienke replied that he was not, Mann obtained

consent for a pat-down and found a second handcuff key as well as a five-shot .22 caliber

revolver loaded with hollow-point bullets in Wienke’s pocket. Wienke audibly swore

when Mann discovered the gun.

       Soon afterward, Mann applied for a warrant to search Wienke’s home in

Martinsburg for evidence of various crimes, including the attempted killing or kidnapping

of a member of the executive branch, in violation of 18 U.S.C. § 351; the attempted

killing of a government employee engaged in official duties, in violation of 18 U.S.C.

§ 1114; conspiracy against the United States, in violation of 18 U.S.C. § 371;

impersonation of a federal officer, in violation of 18 U.S.C. § 912; and possession of a

firearm in a federal facility, in violation of 18 U.S.C. § 930. In an affidavit supporting the

warrant application, Mann stated that based on his training and nine years of experience




                                              4
as a DHS law enforcement officer, 1 people bringing concealed firearms onto federal

property pose a significant threat to federal officials and employees. According to Mann,

the combination of the two radios with the other items found in Wienke’s possession

established probable cause that he was involved in a conspiracy to commit workplace

violence. Mann further averred, based on his training and experience, that people

conspiring to commit violence against senior federal officials generally keep evidence

related to such a conspiracy in their homes. The warrant application provided a

description of Wienke’s Martinsburg house and a list of items to be seized, including any

weapons, firearms, computers, photographs of co-conspirators, and documents related to

the alleged acts.

       A magistrate judge issued the warrant on the evening of June 9. Less than an hour

later, Mann and other officers executed the warrant, seizing a number of electronic

storage devices and firearms from Wienke’s home. One of those firearms, a Walther P22,

had an attachment that appeared to be a silencer bearing no serial number or other

identifying mark. A Bureau of Alcohol, Tobacco, and Firearms agent participating in the

search suspected that the silencer may have been illegally constructed. The officers also

seized what appeared to be components for constructing another silencer.

       On June 13, Special Agent Patrick Kelley, another DHS officer, applied for and

obtained three additional warrants to search two sheds and a vehicle on Wienke’s


       1
         Mann also had ten years of experience as a Special Agent with the Naval Criminal
Investigative Service, giving him almost two decades’ involvement in conducting investigations
and applying for search warrants.

                                              5
Martinsburg property. In addition to seeking evidence of the crimes already under

investigation, these warrants also sought evidence of firearm 2 construction, which is

unlawful unless a special tax has been paid under I.R.C. § 5861. Officers executed these

three warrants later that day, but discovered no further evidence relevant to the initial

charges. Ultimately, as the Government concedes, no evidence seized pursuant to the four

search warrants indicated that Wienke was actually plotting to kill or kidnap any high-

ranking government official. 3

       A grand jury in the Northern District of West Virginia indicted Wienke on seven

counts of violating the National Firearms Act. Before the district court, Wienke moved to

suppress all physical evidence in the case, arguing that the first warrant (executed on June

9) was not supported by probable cause and lacked a nexus between the crimes for which

he was under investigation and his residence. The three additional warrants, he argued,

were invalid because “they were based upon evidence and information gleaned from the

first defective search warrant and are thus the ‘fruit of the poisonous tree.’” 4 Opening Br.

8. Wienke further argued that the Leon good-faith exception should not apply to any of

the warrants. See generally United States v. Leon, 468 U.S. 897 (1984). The Government

responded that Mann’s affidavit set forth sufficient facts supporting probable cause and

       2
         The relevant statutory definition includes silencers in the definition of “firearm.” I.R.C.
§ 5845(a).
       3
         In explanation for the items discovered at the NAC, Wienke asserts that he is a
“prepper” and that he carried the items in case of an emergency while riding the Metro to work.
He has a West Virginia concealed carry permit and no prior criminal history.
       4
           We note that the “fruit of the poisonous tree” doctrine requires the suppression of
evidence discovered pursuant to an illegal search. See Utah v. Strieff, 136 S. Ct. 2056, 2061
(2016). The “fruit” that would need to be suppressed, therefore, is not the three warrants, but any
evidence seized pursuant to them.

                                                 6
that his training and experience, coupled with the inherent reasonableness that the items

sought would be found at Wienke’s home, established a sufficient nexus between his

residence and the items the warrants sought. In the alternative, the Government argued

that the Leon good-faith exception applied to each warrant.

       After a hearing, the district court denied Wienke’s motion to suppress and found

that probable cause supported all four warrants. 5 The court found Mann to be a reliable

affiant and that his affidavit in support of the first warrant properly set forth the place to

be searched, the items to be seized, and the evidence substantiating the allegations of

criminal conduct under investigation. Further, it observed that the affidavit listed the

items in Wienke’s possession when he entered the NAC and noted that he possessed a

concealed and loaded firearm near where senior DHS officials were to meet. The court

concluded that, taken together, this evidence established both probable cause and the

requisite nexus between the place to be searched and the items to be seized. The court

applied this ruling to all four search warrants.

       Wienke conditionally pleaded guilty to making a firearm in violation of the

National Firearms Act, I.R.C. §§ 5822, 5861(f), 5871, and 18 U.S.C. § 921(a)(24), and

reserved the right to appeal the district court’s denial of his motion to suppress. The

Government dismissed the remaining charges. The district court accepted the plea and

sentenced Wienke to eighteen months of imprisonment, followed by two years of

supervised release. Consistent with the terms of his conditional guilty plea, Wienke

       5
        The court also denied Wienke’s motion for a Franks hearing. See Franks v. Delaware,
438 U.S. 154 (1978). Wienke did not appeal that ruling.

                                              7
appeals the denial of his motion to suppress. We have jurisdiction over this appeal under

28 U.S.C. § 1291.



                                           II.

       On appeal, Wienke argues, as he did below, that the first search warrant was not

supported by probable cause because the warrant application was insufficient and failed

to establish a sufficient nexus between the alleged criminal conduct and his residence. He

further argues that the Leon good-faith exception would not salvage the Government’s

case if the warrant lacked probable cause. The Government responds that the first warrant

was supported by both probable cause and a sufficient nexus between the items to be

seized and Wienke’s residence, but, in the alternative, the Leon good-faith exception

applies.

       “We review a district court’s factual findings in deciding a motion to suppress for

clear error, and the court’s legal conclusions de novo.” United States v. Gardner, 823

F.3d 793, 799 (4th Cir. 2016). In undertaking this review, we “give due weight to

inferences drawn from [the] facts by resident judges and local law enforcement officers.”

Ornelas v. United States, 517 U.S. 690, 699 (1996). We view the facts in favor of the

Government, the prevailing party below. See Gardner, 823 F.3d at 799.

       Because we agree with the district court that Mann’s affidavit supplied probable

cause by establishing that the evidence sought by the warrants was properly subject to

seizure and that there was a sufficient nexus between evidence of Wienke’s alleged

criminal conduct and his residence, we need not address the Leon good-faith exception.

                                            8
In addition, because Wienke agrees that the validity of the latter three warrants depends

on the validity of the first, our holding as to the first warrant completes our inquiry.

                                              A.

       The Fourth Amendment provides that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const. amend. IV. This

constitutional protection is realized through the requirement that a “neutral and detached

magistrate” find probable cause to support a warrant. Illinois v. Gates, 462 U.S. 213, 240

(1983) (internal quotation marks omitted).

       The evaluation of whether a search warrant is supported by probable cause turns

first on whether the items to be seized are evidence of criminal activity, see Zurcher v.

Stanford Daily, 436 U.S. 547, 556 & n.6 (1978), and second, on “whether it is reasonable

to believe that the items to be seized will be found in the place to be searched,” United

States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). See United States v. Church, 823

F.3d 351, 355 (6th Cir. 2017). This analysis utilizes a totality-of-the-circumstances

approach grounded in the commonsense recognition that “affidavits are normally drafted

by nonlawyers in the midst and haste of a criminal investigation” and officers in the field

rely upon their training and experience to draw reasonable inferences from the evidence.

Gates, 462 U.S. at 235 (internal quotation marks omitted); United States v. Johnson, 599

F.3d 339, 346 (4th Cir. 2010) (noting an officer can draw on his experience to make

inferences and determine whether probable cause exists). A magistrate must consequently

“make a practical, common-sense decision whether, given all the circumstances set forth

                                              9
in the affidavit before him, . . . there is a fair probability that contraband or evidence of a

crime will be found in a particular place.” Gates, 462 U.S. at 238.

       To satisfy the second prong of the probable cause inquiry, an affiant must show a

sufficient “nexus between the place to be searched and the items to be seized.” United

States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). Whether such a nexus exists turns

on “the nature of the item and the normal inferences of where one would likely keep such

evidence.” Id. (emphasis added). Again, officers may draw conclusions from their

experience, judgment, and observations when identifying the place to be searched. See

United States v. Lyons, 740 F.3d 702, 723–24 (1st Cir. 2014) (holding that an officer’s

training-and-experience statement, coupled with other observations, sufficiently

established a nexus between money and illegal betting records and the defendant’s

residence); United States v. Vanderweele, 545 F. App’x. 465, 469 (6th Cir. 2013)

(holding that an officer’s training-and-experience statement that firearms and “‘related

items are commonly stored’” in the owner’s residence established a sufficient nexus).

The magistrate may draw a reasonable inference from the facts stated if the affiant does

not assert facts “directly linking the items sought to the defendant’s residence.” United

States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (internal quotation marks omitted).

       The “normal inferences test” of the nexus analysis starts with the general rule that

“it is reasonable . . . to assume that a person keeps his possessions where he resides.”

Peffer v. Stephens, 880 F.3d 256, 270 (6th Cir. 2018). The applicability of this

assumption depends on the nature of the evidence to be seized and the offense under

investigation. See id. at 271–72; United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir.

                                              10
1997). For example, “the use of a gun in the commission of a crime is sufficient to

establish a nexus between the suspected criminal’s gun and his residence” because guns

are generally kept in the home. Peffer, 880 F.3d at 272; Anderson, 851 F.2d at 729

(finding that it is reasonable “to believe that the defendant’s gun and the silencer would

be found in his residence”). Similarly, if photographs are part of the alleged crime, the

nature of photographs leads to the reasonable inference that they would be kept in the

defendant’s residence. United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011) (holding

the lower court properly concluded that “if [the defendant] actually possessed child

pornography, it was reasonable to assume that [he] kept it at his house”). On the other

hand, in the investigation of a drug distribution offense, it is often unreasonable to

suspect that drugs will be at the defendant’s residence because “when drugs are used in

the commission of a distribution offense, the distributed drugs are no longer in the

possession of the suspected distributor.” Peffer, 880 F.3d at 273. These common-sense

considerations further demonstrate that whether probable cause supports a warrant is a

highly fact-specific inquiry.

                                           B.

       With this foundation in mind, we first address Wienke’s argument that the first

warrant lacked probable cause because the warrant application did not include specific

evidence of Wienke’s alleged criminal activity. He notes the absence of several types of

evidence that could be used to establish probable cause, such as informant testimony or

an anonymous tip. Wienke further argues that Mann’s affidavit contained insufficient

evidence to support the assertions that Wienke was impersonating a law enforcement

                                           11
officer and that he knew the high-level DHS officials would be meeting near his cubicle.

For these reasons, he asserts, the warrant was defective and the resulting search was

invalid.

       Wienke’s argument lacks merit. To the extent that we look to the evidence of

criminal conduct when reviewing the validity of a search warrant, we do so to determine

whether “the items sought are in fact seizable by virtue of being connected with criminal

activity.” Zurcher, 436 U.S. at 556 n.6. The warrant application contained ample

evidence indicating a fair probability that the items the search warrant sought to seize

were evidence of criminal activity. Mann’s affidavit described his firsthand observations

and those of other DHS security officers on June 9 when they saw Wienke 1) with a

knapsack filled with numerous suspicious items, including two radio communication

devices, pepper spray, and a knife; 2) attempt to enter a highly secure DHS facility with

those items; 3) carry a concealed firearm loaded with hollow point bullets into that secure

facility; and 4) carry the concealed firearm in close proximity to a meeting place of high-

level DHS officials. Such firsthand observations and personal knowledge may be used in

establishing probable cause. See, e.g., United States v. Wylie, 705 F.2d 1388, 1392 (4th

Cir. 1983). Further, Mann’s training and experience informed his reasonable inference

from these facts that there was a likelihood that Wienke was conspiring to harm the DHS

officials or otherwise commit workplace violence. 6 Even without relying on Mann’s


       6
         Wienke primarily argues that the evidence did not adequately establish that he
impersonated a law enforcement officer or that Mann actually knew that Wienke was aware of
the meeting of DHS officials. Even if we disregarded these portions of Mann’s affidavit, see
(Continued)
                                            12
training and experience, a reasonable person could infer that someone who enters a

highly secure government building without authority to possess therein a knife, radios,

pepper spray, an infrared camera, handcuffs, and a concealed, loaded firearm adjacent to

a high level DHS meeting may be plotting unlawful actions. Indeed, it would be

unreasonable not to make that inference.

       The warrant application sought “evidence regarding planning, preparation, and

information on the identity of conspirators” from Wienke’s home. J.A. 49. The warrant

described in detail the evidence to be seized, which included items similar to those noted

above as well as documents that would be used in planning an attack in a facility,

including maps, blueprints, schedules, and notes; and evidence that could identify

possible co-conspirators, including photographs and address books. It was reasonable to

conclude these items could be evidence of the criminal activity alleged against Wienke.

       Therefore, Mann’s affidavit sufficiently established that the search warrant

properly sought seizable evidence of probable criminal activity.

                                              C.

       Wienke also argues the search warrant lacked probable cause to search his home

because it failed to establish a sufficient nexus between his alleged criminal conduct at

the NAC and his West Virginia residence. We disagree. Whether probable cause supports

a search warrant depends on “whether it is reasonable to believe that the items to be



Wylie, 705 F.2d at 1390 (considering only the uncontested portions of the affidavit), Mann still
cited ample evidence of a possible conspiracy to commit workplace violence sufficient to
establish probable cause for the first search warrant.

                                              13
seized will be found in the place to be searched.” Lalor, 996 F.2d at 1582 (emphases

added). Thus, our analysis focuses on whether the warrant application established a

sufficient nexus between the items Mann listed in the warrant application and Wienke’s

residence. See Anderson, 851 F.2d at 729.

       Among other types of evidence, Mann’s warrant application identified weapons,

firearms, documents, photographs, and address books that could identify co-conspirators

as well as evidence that may be related to the crimes alleged. It is reasonable to infer that

these types of possessions would be kept in Wienke’s residence; this Court has already

held as much. See id. (holding it was reasonable to believe a gun and silencer would be

kept in a residence); Doyle, 650 F.3d at 460 (holding it was reasonable to believe that

photographs of child pornography would be kept in a residence). Further, these items are

not ordinarily expended when used in the commission of the type of crimes alleged here.

See Peffer, 880 F.3d at 273 (differentiating guns and computers, which are typically

found at home, from drugs in a distribution offense). This rationale distinguishes

Wienke’s case from the drug seizure cases he relies upon in his brief. Because it is

reasonable to infer that weapons, photographs, and other documents would be found in a

person’s home, the allegations in the warrant application provided a sufficient nexus

between the items to be seized and Wienke’s residence.

       The distance between Wienke’s residence and the NAC is of no consequence

under the facts of this case. The cases in Wienke’s brief that include geography in the

nexus analysis are distinguishable for several reasons. In some of the cases, the items to

be seized were not the type one would normally expect to find at the home. E.g., United

                                             14
States v. Gramlich, 551 F.2d 1359, 1361–62 (5th Cir. 1977) (holding no probable cause

existed to search the residence of a defendant who was caught ferrying marijuana from a

Columbian freighter to shore); United States v. Flanagan, 423 F.2d 745, 746–47 (5th Cir.

1970) (holding no probable cause existed to search a defendant’s residence for the fruits

of a home robbery). These cases are not instructive here because, as already noted, the

warrant sought the types of evidence which one would reasonably expect to find in a

person’s residence. In United States v. Green, another case Wienke cites, the residence in

question was too far removed from where the alleged criminal conduct occurred for the

defendant to have concealed evidence of that conduct. 634 F.2d 222, 225–26 (5th Cir.

Unit B Aug. 1981) (holding that criminal activity in California did not justify a search of

the defendant’s Florida home). Green stands in stark contrast with Wienke’s regular

routine of commuting each workday from his Martinsburg residence to the NAC.

Because he regularly commuted from West Virginia, his residence was readily available

to him for the concealment of evidence of any criminal activity that he could have been

planning to perpetrate at the NAC.

       Therefore, the warrant application established a sufficient nexus between the

evidence to be seized and Wienke’s residence.

                                            III.

       The facts alleged in the first warrant application were sufficient for the magistrate

to make a finding of probable cause. Inasmuch as Wienke agrees that the validity of the

latter three warrants rises and falls on the validity of the first, all four search warrants



                                            15
were properly supported by probable cause. We therefore affirm the district court’s denial

of Wienke’s motion to suppress and affirm his conviction.

                                                                             AFFIRMED




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