Opinion
1:15-CR-28-TLS
06-22-2016
UNITED STATES OF AMERICA v. TYRONE M. WRIGHT
OPINION AND ORDER
This matter is before the Court on the Defendant's Motion to Suppress Evidence (Pursuant to Warrant) [ECF No. 19], filed on October 16, 2015. For the reasons set forth in this Opinion and Order, the Court denies the Defendant's Motion.
PROCEDURAL BACKGROUND
On October 28, 2015, the Government filed a single-count Superseding Indictment [ECF No. 26], charging the Defendant with knowingly possessing in and affecting commerce a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The Superseding Indictment is premised on the recovery of a firearm, among other items, from the Defendant's residence following the execution of a state search warrant on March 25, 2015.
Prior to the filing of the Superseding Indictment, the Defendant filed his Motion to Suppress Evidence (Pursuant to Warrant) [ECF No. 19], along with a Memorandum in Support [ECF No. 20] on October 16, 2015. The Government filed a Response [ECF No. 34] on November 30, 2015. The Defendant, after requesting an opportunity to file additional briefing, filed a Supplemental Brief [ECF No. 59] on May 13, 2016. The Government filed another Response [ECF No. 69] on June 10, 2016; and the Defendant filed a Reply on June 17, 2016. This matter is now fully briefed and ripe for ruling.
The Court notes that on December 9, 2015, the Defendant filed a Motion to Dismiss the Superseding Indictment [ECF No. 38], which was denied by this Court's Opinion and Order [ECF No. 50] on April 13, 2016. The Defendant has also filed a Motion to Suppress Statements [ECF No. 22], which prompted the Court to conduct an evidentiary hearing [ECF No. 67] on June 8, 2016. The Motion to Suppress Statements has not yet been fully briefed.
FACTUAL BACKGROUND
On March 24, 2015, a state court judge in the Allen County Superior Court signed a search warrant [ECF No. 69-2] authorizing the Fort Wayne Police Department (FWPD) to enter a residence at 6601 Barbara Jean Court to search for cocaine, heroin, and derivatives thereof; firearms; computers; cell phones; records of drug transactions and/or financial information related to drug trafficking; vehicles used in facilitating the transactions; and United States currency that had been used by the FWPD to purchase controlled substances. The only evidence presented to the issuing judge to support the warrant was Detective Cameron Norris's Search Warrant Affidavit [ECF No. 69-1]. The following information was provided in that Affidavit.
On February 2, 2015, a confidential information ("CI") advised law enforcement that he could purchase cocaine and heroin from the Defendant, who resided at 6601 Barbara Jean Court (hereinafter, "the Residence"). The CI further advised law enforcement that he "texts or calls [the Defendant] to order narcotics and then . . . travels to [the Residence] . . . and makes the purchase of narcotics." (Aff. 1.)
The Affidavit does not specify the gender of the CI, but for ease of reference the Court will use the masculine pronoun to refer to the CI.
That same day, Detective J. Hartup set up a controlled drug purchase. After a pre-buy search revealed that the CI did not possess U.S. currency or contraband, the CI was given $200 in pre-recorded money to purchase cocaine. The CI then traveled to the Residence, where law enforcement observed the CI as he entered and exited the Residence. The CI then met with Detective Hartup and presented 3.4 grams of a substance that, according to a field test, was cocaine. A post-buy search of the CI and his vehicle revealed that he had no U.S. currency or contraband.
The Affidavit includes a general description of a controlled drug purchase:
A "controlled buy" is a drug transaction involving confidential informants (CI) in which certain procedures are involved to ensure the reliability/credibility of the CI as well as providing the detective with first-hand knowledge. The procedures include searches of the CI's person (and vehicle if CI's vehicle is involved) before and after the drug transaction. These searches are to ensure that the CI has no contraband or other personal items on her/him during the course of the controlled buy. From the point that the CI is "pre-searched" until after the "post-search" the CI is kept under constant surveillance by narcotics detectives. Next, the CI is typically given pre-recorded buy money for the purpose of potentially matching the copy of the pre-recorded buy money to money located later in the investigation for evidentiary purposes. After the conclusion of each controlled buy, the CI immediately gives the narcotics that were purchased to a FWPD detective for processing (field-test and evidence continuity). Finally, when practicable, the CI is outfitted with a listening/recording device so detectives may gain further evidence of the drug transaction and ensure the safety of the CI . . . . Additionally, during the transaction, all exits/entrances are kept under constant surveillance by surveillance detectives.
On February 12, 2015, Detective Hartup set up a second controlled drug purchase. A pre-buy search of the CI revealed no U.S. currency or contraband, and he was given $260 in pre-recorded money to purchase cocaine and heroin. The CI traveled to the Residence, where law enforcement observed the CI enter and exit the Residence. The CI then met with Detective Hartup and presented 3.1 grams of a substance that, according to a field test, was cocaine; and .3 grams of a substance that, according to a field test, was heroin. A post-buy search of the CI and his vehicle revealed that he had no U.S. currency or contraband.
On February 24, 2015, Detective Hartup set up a third controlled drug purchase. A pre-buy search of the CI revealed no U.S. currency or contraband, and he was given $260 in pre-recorded money to purchase cocaine and heroin. The CI traveled to the Residence, where law enforcement observed the CI enter and exit the Residence. The CI then met with Detective Hartup and delivered 2.2 grams of a substance that, according to a field test, was cocaine; and .3 grams of a substance that, according to a field test, was heroin. A post-buy search of the CI and his vehicle revealed that he had no U.S. currency or contraband.
In his Affidavit, Detective Norris confirmed that Detective Hartup followed the procedures for a controlled drug purchase, as described in the Affidavit. He also stated that, as a result of the three controlled drug purchases, the CI "has proven to be credible and reliable to the FWPD" and "has provided accurate information about the [Defendant] that your Affiant has been able to corroborate." (Aff. 2.)
With regard to the link between the Defendant and the Residence, Detective Norris stated that, according to the Spillman database—i.e., a database which tracks contacts with law enforcement in the Fort Wayne area, see United States v. Govan, No. 1:08-CR-12-TS, 2008 WL 5101331, at *2 n.1 (N.D. Ind. Dec. 1, 2008) (describing the Spillman database)—the Defendant lives at the Residence. Relying on the Spillman database, Detective Norris indicated that on January 28, 2015, law enforcement served the Defendant with an Ex Parte Order for Protection at the address of the Residence. (Aff. 3 (noting that the Order for Protection is the result of an ongoing domestic battery investigation by the FWPD).)
After stating the above information, Detective Norris described the training and experience of Detective Hartup. He also described his own training and experience as a narcotics detective, and indicated what items, consistent with a drug trafficking operation, he expected to be present at the Residence.
Finally, because of evidence that the Defendant had been answering the door with a MAC-10 machine gun in hand for protection, Detective Norris requested a "no-knock" warrant. (Aff. 5 (noting further that the Defendant is listed in the Spillman database as having alerts for being a "Known Resist[e]r," "Substance Abuser," "Convicted Felon," and "Use Code X Extra Caution").)
The Affidavit is dated March 24, 2012, and is signed by Alison M. Yeager, a deputy prosecuting attorney, along with the issuing judge. On March 25, 2015, law enforcement executed the warrant and recovered, among other items, a firearm from the Residence.
ANALYSIS
When an affidavit is the only evidence presented to a judge to support a search warrant, as it is here, the validity of the warrant rests solely on the strength of the affidavit. United States v. Orozco, 576 F.3d 745, 748 (7th Cir. 2009). A search warrant affidavit establishes probable cause when, based on the totality of circumstances, it "'sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime.'" United States v. Mykytiuk, 402 F.3d 773, 776 (7th Cir. 2005) (quoting United States v. Peck, 317 F.3d 754, 755-56 (7th Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). "The task of the issuing [judge] is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Sims, 551 F.3d 640, 644 (7th Cir. 2008) (internal quotation marks, ellipsis, brackets, and citation omitted). "The judge, however, may not solely rely upon 'conclusory allegations' or a 'bare bones' affidavit when issuing a warrant." Id (quoting United States v. Koerth, 312 F.3d 862, 867 (7th Cir. 2002)). A reviewing court will "defer to the determination of the warrant-issuing judge that probable cause existed so long as 'there is substantial evidence in the record supporting the judge's decision.'" United States v. Farmer, 543 F.3d 363, 377 (7th Cir. 2008) (quoting Koerth, 312 F.3d at 865).
Here, the Defendant contends that the Affidavit does not contain sufficient facts to establish probable cause. He specifically argues that the Affidavit fails to include sufficient information reflecting on the credibility of the informant and connecting the Defendant to the Residence. In making these points, the Defendant essentially argues that probable cause was lacking because the information contained in the Affidavit came from an untested informant and lacked sufficient corroboration.
The CI's statement that he could purchase cocaine and heroin from the Defendant were not made pursuant to a sworn affidavit or before the issuing judge at a hearing, and thus would most likely be insufficient on its own to establish probable cause. See United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996). There is no indication that the CI had been tested and proven reliable over the course of previous investigations. However, a tip from a confidential informant of unproven reliability may support a finding of probable cause as long as the affiant's investigation substantially corroborates the informant's credibility. See United States v. Rosario, 234 F.3d 347, 351 (7th Cir. 2000).
The Affidavit, as demonstrated above, contains more information than a simple tip provided by an informant—it contains details of three controlled drug purchases by the CI, which corroborated the CI's statement that he could buy a cocaine and heroin from the Defendant. See United States v. McKinney, 143 F.3d 325, 329 (7th Cir. 1998) ("Controlled buys add great weight to an informant's tip."). Specifically, the Affidavit stated that for each purchase, the CI was checked for U.S. currency and contraband before entering the Residence, given marked money, and observed as he entered and exited the Residence. Moreover, after each purchase, the CI met with Detective Hartup and presented cocaine and/or heroin that subsequently tested positive after field testing; and was also searched for U.S. currency and contraband. Although law enforcement did not witness the transactions inside the apartment, this does not render the Affidavit unreliable. Cf. id. (noting that although police could have done more to boost the informant's reliability during controlled drug purchases by conducting a full search and fitting him with surveillance equipment, probable cause only requires a reasonable probability that evidence of a crime can be found at a certain location); United States v. Hollingsworth, 495 F.3d 795, 805 (7th Cir. 2007) ("[W]e have repeatedly stated that a search warrant need not be based on first-hand observations. Reliability is the touchstone for determining whether an informant's statement is sufficient to establish probable cause.") (citing United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir. 1995), United States v. Chapman, 954 F.2d 1352, 1370 (7th Cir. 1992), and Koerth, 312 F.3d at 867-68).
Moreover, the Affidavit contained sufficient detail to allow the issuing judge to reasonably conclude that the Defendant lived at the Residence. As Detective Norris stated in his Affidavit, the Spillman database indicated that on January 28, 2015, the Defendant was served with an Ex Parte Order for Protection at the address of the Residence. (Aff. 3 (noting that the Order of Protection is the result of an ongoing domestic battery investigation by the FWPD).) Although the Defendant argues that "there is no information to suggest that [the Defendant] was residing at the [Residence] after January 28, 2015" (Def.'s Supp. Br. 2), this assertion is flatly contradicted by the CI's statement to law enforcement that he purchased cocaine and heroin from the Defendant at the Residence, along with the three controlled drug purchases that corroborated the CI's statement.
Under the totality of the circumstances, the Court finds that the CI's statements to law enforcement, the three controlled drug purchases, the accompanying surveillance conducted by law enforcement, and the information contained in the Spillman database, all provide acceptable evidence to support a finding of probable cause. The Defendant has not pointed to any defect in the probable cause affidavit that, when read as a whole in a realistic and common sense manner, would justify overruling the issuing judge's determination that it was reasonable to believe that evidence related to drug trafficking would be located at the Residence. See Orozco, 576 F.3d at 749 (finding that a judge is entitled to draw reasonable inferences concerning where the evidence referred to in the affidavit is likely to be kept, taking into account the nature of the evidence and the offense, and "in the case of drug dealers, evidence is likely to be found where the dealers live.") (internal quotation marks and brackets omitted).
But even if probable cause was lacking, the Court would not apply the exclusionary rule, the purpose of which is to deter future Fourth Amendment violations, Herring v. United States, 555 U.S. 135, 141 (2009) (citing United States v. Calandra, 414 U.S. 338, 347-55 (1974)), and is intended to be a court's "last resort" and not its "first impulse," id. at 140-41 (internal quotation marks omitted). The Defendant essentially asserts that the exclusionary rule applies to the products of an unlawful seizure, but he does not discuss the "good-faith exception" announced by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that the Fourth Amendment's exclusionary rule does not bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is later held to be defective. Id. at 905. An officer's decision to obtain a warrant creates a presumption that he was acting in good faith. United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005). The good-faith exception does not apply where the issuing judge abandons her detached and neutral role, where the officers seeking the warrant were dishonest or reckless in preparing the affidavit, or where those officers could not have had an objectively reasonable belief in the existence of probable cause. United States v. Dumes, 313 F.3d 372, 380-81 (7th Cir. 2002). None of those circumstances apply here, and the Defendant has failed to rebut the presumption of good faith.
CONCLUSION
For the foregoing reasons, the Defendant's Motion to Suppress Evidence (Pursuant to a Warrant) [ECF No. 19] is DENIED.
SO ORDERED on June 22, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
(Aff. 1-2.)