Opinion
CASE NO. 8:02CR289
March 6, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation (Filing No. 40) issued by Magistrate Judge Thomas D. Thalken recommending denial of the motions to suppress searches at the following addresses filed by the Defendant, Charles F. Adkins: 1100 5th Avenue (Filing No. 22); 1901 Harry Langdon Blvd. (Filing No. 23); and 3006 Twin Cities Drive (Filing No. 24). The addresses are all in Council Bluffs, Iowa. Adkins filed a Statement of Objections to the Report and Recommendation (Filing No. 43) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Adkins is charged in an Indictment with conspiracy to distribute and possess with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. Adkins seeks an order suppressing all evidence obtained as a result of the searches.
Following an evidentiary hearing on the Motions, Magistrate Judge Thalken issued a Report and Recommendation in which he determined: 1) Adkins lacks standing to contest the searches at 1901 Harry Langdon Boulevard and 1100 5th Avenue; 2) probable cause existed for the issuance of the three search warrants; and 3) even assuming that probable cause was lacking, the good faith exception under United States v. Leon, 468 U.S. 897 (1984) would allow the admissibility of the evidence. On the basis of these determinations, Judge Thalken recommended that Adkins' motions to suppress be denied. Adkins filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 43.) The Statement of Objections is supported by a brief. (Filing No. 44.)
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
Judge Thalken provided a detailed account of the events leading up to the execution of the search warrants. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on December 13, 2002 (Filing No. 38). The Court also carefully viewed the evidence. (Filing No. 36.) No objections were made to Judge Thalken's factual findings. This Court adopts Judge Thalken's statement of facts in its entirety.
OBJECTIONS
Adkins objects to the following conclusions in the Report and Recommendation: 1) Adkins lacks standing to contest the searches at 1901 Harry Langdon Boulevard and 1100 5th Avenue; 2) probable cause existed for issuance of the search warrants; and 3) even assuming that probable cause did not exist for issuance of the warrants, that the evidence is admissible under Leon as none of the four exceptions to the good faith rule apply.
ANALYSIS
Standing
1901 Harry Langdon Boulevard
The Court agrees with the Magistrate Judge that Adkins lacks standing to contest the search at 1901 Harry Langdon Boulevard. The evidence shows that Adkins sublet the property and had slept there at some unspecified time. No evidence was shown that Adkins either lived in this residence or was a guest "at the time of the search." United States v. Erp, No. 96-1924, 108 F.3d 1382, at **1 (8th Cir. Mar. 10, 1997) (unpublished). Contra United States v. Perez, 700 F.2d 1232, (8th Cir. 1983) (finding that standing in a residence existed where an overnight guest had left personal property in the home at the time of the search).1100 5th Avenue
There is no evidence of any standing to this residence. The Court agrees with the Magistrate Judge that Adkins does not have standing to contest the search of 1100 5th Avenue. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994) (listing the factors relevant to the determination of a standing issue).
Probable Cause — Affidavit
"To be valid, a search warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is probable cause may be found in the place to be searched." Walden v. Carjack, 156 F.3d 861, 870 (8th Cir. 1998). "The standard of probable cause for the issuing judge is whether, given the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "`"Probable cause" to issue a search warrant exists when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband will be found in a particular place.' . . . Courts should apply a common-sense approach and, considering all the relevant circumstances, determine whether probable cause exists." United States v. Buchanan, 167 F.3d 1207, 1211 (8th Cir. 1999) (quoting United States v. Revoke, 793 F.2d 957, 959 (8th Cir. 1986)). The probable cause determination may only be made based on the information contained in the face of the affidavit. See United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).
Probable cause exists "when the facts and circumstances within an officer's knowledge are sufficiently trustworthy to warrant a person of reasonable caution to believe that a crime has been committed and that sizable property from that crime may be located at a particular place or on a person to be searched." United States v. Gimp, 147 F.3d 680, 687 (8th Cir. 1998). Probable cause may be established by the observations of trained law enforcement officers or by circumstantial evidence. United States v. Search, 181 F.3d 975, 981 (8th Cir. 1999); United States v. Edison, 46 F.3d 786, 789 (8th Cir. 1995). Substantial deference is given to an issuing judge's determination of probable cause. That determination should be upheld "unless the issuing judge lacked a substantial basis for concluding that probable cause existed." Edison, 46 F.3d at 788.
Applying these standards to Adkins' case, the Court finds that probable cause existed for issuance of the search warrants. Specifically, Adkins argues that no information is provided about the reliability of the confidential informant. The Court disagrees, noting that the affidavit for the three search warrants states that Agent White told the affiant that the informant had provided "credible" information in the past for other investigations. The affidavit also described how the affiant and Agent White verified certain details of the information provided. (Exhibits 1, 3, 5.)
Therefore, under the appropriate standards, the Court agrees with the Magistrate Judge that probable cause existed for issuance of the three search warrants.
Leon Good Faith Exception
Few specifics are provided in the brief in support of the objections in support of Adkins' Leon argument. Adkins reargues the reliability of the informant. Even if the Court were to find that probable cause did not exist, the Court finds that none of the four exceptions to the Leon apply and the evidence would be admissible under the Leon good faith rule. United States v. Leon, 468 U.S. 897, 922-23 (1984).
CONCLUSION
For the reasons discussed, the Defendant's objections to the Report and Report and Recommendation and the motions to suppress will be denied.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 40) is adopted in its entirety;
2. The Defendant's Motions to Suppress (Filing Nos. 22, 23, 24) are denied; and
3. The Defendant's Objections to the Report and Recommendation (Filing No. 43) are denied.