Opinion
CASE NO. 4:12CR370
10-31-2012
UNITED STATES OF AMERICA, Plaintiff, v. ISAAC GREEN, JR., Defendant.
JUDGE SARA LIOI
MEMORANDUM OPINION &
ORDER
Before the Court is the motion of defendant Isaac Green, Jr. ("defendant" or "Green") to suppress evidence, resulting from a search of Green's home conducted on June 21, 2012. (Doc. No. 17.) On October 2, 2012, the government filed a response in opposition to the motion to suppress. (Doc. No. 21.) On October 23, 2012, defendant filed a supplement to his motion to suppress, offering additional case law in support and requesting a Franks hearing. (Doc. No. 25.) The Court held an evidentiary hearing on defendant's motion on October 25, 2012. For the reasons set forth at the hearing, and as more fully explained below, the Court DENIES defendant's motion to suppress.
See List of Exhibits and Witnesses, Doc. No. 27.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2011, the Youngstown Police Department Vice Squad began investigating suspected drug activity at a house located at "130 Upland Avenue" in Youngstown, Ohio. (Doc. No. 27-1 at 192.) The investigation was prompted by information learned from an informant, who told officers that an unknown person was selling crack cocaine from the house and that the informant was able to buy crack cocaine from the residence. (Id.)Thereafter, officers began "random surveillance" of the house, during which officers saw numerous persons arrive at the house, stay for a short while, and then leave, "such activity being common in the illegal sales of narcotics." (Id.) Based upon the officers' experience and knowledge, they believed this activity was consistent with drug trafficking. (Id.) Additionally, during the month of December 2011, police received citizen complaints regarding drug trafficking activity at the house. (Id.)
During the week of December 12, 2011, officers met with an informant who agreed to make a "controlled buy" of crack cocaine from an unknown male at the Upland Avenue residence. (Id.) The officers controlled the purchase conditions by searching the informant before and after the purchase and by keeping the informant under constant surveillance both to and from the house. (Id.)The informant purchased crack cocaine from an anonymous man, known to the informant as "John Doe" and described as a black male in his 50's, standing 5'8" tall, weighing 150 pounds, with black hair and brown eyes. The substance purchased by the informant was field-tested with positive results. (Id. at 193.)
Thereafter, during the week of June 18, 2012, an informant again made two controlled crack cocaine purchases from the same man at the house on Upland Avenue. (Id. at 192.) The officers used the same procedures to control the drug buys as they previously used during the December controlled purchase. (Id.) Again, the substance purchased by the informant was field-tested with positive results. (Id. at 193.)
In addition to the officers' personal observations during the controlled purchases, the officers believed that the informant provided reliable information because they had used the informant before and the informant had provided reliable information in the past, which officers verified through independent investigation, and which resulted in the arrest of several persons for narcotics violations. (Id.)
On June 21, 2012, within 72 hours of the last controlled buy, Youngstown Police Department Officer Art Carter applied for and obtained a search warrant for the house at 130 Upland Avenue and all persons on the premises. (Doc. No. 27-1.) Officer Carter completed an affidavit, explaining his training and expertise as a narcotics investigator and indicating that drugs, related paraphernalia, records, and weapons are often readily accessible and are commonly kept "on the persons of traffickers," "in their residences or places of operation," or "in their vehicles." (Id. at 191-92.) The affidavit then forth the facts outlined above in support of probable cause to issue a search warrant to search the premises, including "the curtilage, outbuildings, vehicles, and appurtenances." (Id. at 190, 191-92.)
Officer Carter presented the warrant application and affidavit to Youngstown Municipal Court Judge Elizabeth Kobly, who reviewed, approved, and signed it on June 21, 2012. (Doc. No. 27-1 at 190, 193.) The officers subsequently executed the search warrant later the same day. During the search at 130 Upland Avenue, officers encountered Green in the living room of the home and recovered from the premises loose crack cocaine; a plate with cocaine residue; digital scales; cash; multiple computers; a computer printer; more than 30 printer ink cartridges; a jar containing an unknown solution and a dollar bill; counterfeit currency; three handguns and a sawed-off shotgun. (Doc. 27-1 at 194-95.) The sawed-off shotgun, two of the handguns, and some of the counterfeit currency were found in the home's detached garage. (Id.)As a result, Green was indicted for: (1) possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; (2) possession of a weapon by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) possession of counterfeit obligations in violation of 18 U.S.C. § 472. (Doc. No. 1.)
On September 28, 2012, Green moved for suppression of all of the evidence that the police removed from his home, arguing that the affidavit underlying the search warrant was "bare bones" and did not provide a substantial basis upon which to determine probable cause existed, thus rendering the search warrant unconstitutional. (Doc. No. 17.) Defendant's supplement to his motion argues that the affidavit was insufficient to support a finding of probable cause to search the detached garage because it failed to develop any nexus or link between the alleged criminal conduct and the garage. (Doc. No. 25 at 139.) Additionally, defendant requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to address purported material, false representations made by Officer Carter in his affidavit.
In support of his position, defendant argued that when applying for the warrant, Officer Carter did not indicate in his affidavit whether there was a garage located at 130 Upland Avenue, or if there was, whether it was attached or detached or whether the informant claimed drugs could be found therein. Nor did he disclose the name or criminal history, if any, of the informant. He also did not disclose whether the officers had acquired video or audio surveillance of the controlled buys. Furthermore, Officer Carter did not disclose whether officers had taken any steps to identify "John Doe" or to ascertain his relationship to 130 Upland Avenue via property records.
The government opposed the motion to suppress, arguing that the affidavit in support of the search warrant established the confidential informant's reliability and that probable cause existed to believe evidence would be found in Green's residence and, therefore, the warrant was properly issued. (Doc. No. 21.) Alternatively, the government asserted that even if the affidavit failed to establish probable cause, the Court should not exclude the items seized from Green's home because the officers acted in good faith in reasonably relying on the search warrant.
The Court held a hearing on the motion to suppress, concluded that the search warrant was supported by probable cause.
II. LAW AND ANALYSIS
A. The Search Warrant was Supported by Probable Cause
Defendant argues that the officer's affidavit is "bare bones" and is insufficient to support a finding of probable cause. In support, defendant's brief individually addresses each substantive paragraph within the affidavit, pointing out the purported deficiencies in each. Chief among these, he argues, are a lack of sufficient details as to crucial events, times or places, the officer's reliance on stale information, the unreliability of the officers' controlled drug buy procedures, and the officers' failure to investigate or corroborate the informant's story or reliability. Additionally, defendant asserts that the affidavit did not establish a sufficient nexus between the alleged criminal activity and the detached garage adjacent to the 130 Upland Avenue home.
The Fourth Amendment mandates that there must be probable cause for any search and seizure. U.S. Const. amend. IV. "Probable cause has been defined as 'reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.' " United States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). "Probable cause is based on the totality of the circumstances; it is a 'practical, non-technical conception that deals with the factual and practical considerations of everyday life.' " United States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006) (quoting United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)); see also, United States v. Lazar, 604 F.3d 230, 241-42 (6th Cir. 2010) (trial judge properly found probable cause in common-sense manner where affidavit was based on two-year involvement in case, personal visits to locations, review of bills, and extensive interviews).
The Court's review of the sufficiency of the evidence supporting probable cause is limited to the information presented in the four corners of the affidavit. Frazier, 423 F.3d at 531. "To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search." Id. at 531 (internal quotations and citation omitted); see also, United States v. Pusey, 189 F. App'x 475, 479 (6th Cir. 2006) ("An affidavit in support of a search warrant application is sufficient if it establishes probable cause to believe that evidence of narcotics trafficking would be present at the place to be searched at the time of the search.") (citing United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). "A 'magistrate's determination of probable cause is afforded great deference,' and it should be reversed only if it is 'arbitrarily made.'" Pusey, 189 F. App'x at 479 (citations omitted).
That discrete paragraphs, each read in isolation (as defendant urges the Court to do), may not, alone, support a finding of probable cause is not dispositive. Rather, -when examining the affidavit, the Court is required to determine whether, under the totality of circumstances, there is probable cause to believe that a crime has been committed and that evidence of such crime will be discovered during a search of the premises in question. See United States v. Olson, 408 F.3d 366, 372 (7th Cir. 2005) (affirming denial of motion to suppress; individual details were not sufficient for probable cause but together supported issuance of search warrant); United States v. Maddox, No. 2:09-CR-045, 2010 WL 3155896, at *5 (E.D. Tenn. Aug. 10, 2010) ("Individual paragraphs should not be read 'in isolation from the remainder of the affidavit.'") (quoting United States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977)). Notably, the Sixth Circuit has reviewed circumstances nearly identical to those presented in this case and has held that, under the totality of the circumstances, a warrant was supported by probable cause.
As the court in Maddox further explained: "The notion that every paragraph of an affidavit must individually establish probable cause is simply not the law. Again, supporting affidavits 'must be judged on the totality of the circumstances and in a reasonable and common sense manner.' Affidavits should not be subjected to 'line-by-line scrutiny,' nor should they be interpreted 'in a hypertechnical, rather than a commonsense, manner.' " 2010 WL 3155896, at *5 (internal citations omitted).
In United States v. Pusey, supra, the Youngstown Police obtained a tip from an informant that drugs were being sold from a home in Youngstown, Ohio. Police corroborated this information by conducting surveillance at the home, during which they saw people frequently coming and going from the residence in a manner consistent with drug trafficking. Pusey, 189 F. App'x at 477. In addition, the police department had received complaints from concerned citizens in the neighborhood about drug activity at the house. Id. The officers then conducted two controlled drug buys from the house, using an informant that had provided reliable information in the past that was independently verified and which resulted in arrests. Id.
Based on the totality of these circumstances, the court held that the search warrant was supported by probable cause. Id. at 479. Further, although the affidavit did not indicate the name or criminal history of the informant, the Sixth Circuit concluded that there was sufficient information to indicate that the informant was reliable, including the officers' independent investigation, the information regarding the controlled buys, police surveillance, and neighbor's complaints. Id. at 480. The Court also found that although the affidavit did not indicate that officers used video or audio surveillance of the controlled buys, "[i]t was sufficient for the officers to describe the sequence of events and explain that the informant had been searched both before and after the controlled buys without finding any unauthorized money or contraband." Id.
Similarly, here, the evidence with respect to the residence included the informant's tip, the officers' observations of activity consistent with that of drug trafficking, citizen complaints, and three controlled purchases of crack cocaine. Likewise, as in Pusey, the issuing magistrate in this case was told that the informant had provided reliable information to officers in the past that had been verified by officers and had led to narcotics arrests, and that the officers corroborated the controlled purchases with their own observations. Nevertheless, despite the similarities between this affidavit and the one upheld in Pusey, defendant asserts that the affidavit in this case is flawed in several key respects and is insufficient to support probable cause.
"To be sure, details about the frequency, dates, and duration of the surveillance [or citizen complaints] would have bolstered the overall probable cause showing. But such detail is not a sine qua non: the issuing judge [and this Court] [are] to read the affidavit in its entirety before deciding whether probable cause does or does not exist." United States v. Ruffin, No. 3:12CR185, 2012 WL 3809124, at *2 (N.D. Ohio Aug. 16, 2012).
1. Staleness
Defendant argues that probable cause in this case had grown stale because the affidavit relied on information regarding citizen complaints, officer surveillance and a controlled buy, that occurred six months prior to the execution of the warrant in December 2011. The government argues in opposition that the issuing magistrate need not have relied on this information because the two additional controlled purchases that occurred within days of the issuance of the warrant in July 2012 alone were sufficient to establish probable cause to search 130 Upland Avenue. The Court agrees.
The Sixth Circuit has held that a single purchase of narcotics from a house within 3 days of a search warrant being issued is sufficient to establish probable cause to believe that drugs would still be found at the purchase location. Archibald, 685 F.3d at 558 (upholding warrant where controlled purchase from residence was three days earlier); United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (same). Here, two controlled buys occurred within 72 hours of the issuance of the warrant. Therefore, even assuming the evidence regarding the December 2010 events had grown stale, the remaining allegations alone would have been sufficient to establish a fair probability that contraband or other evidence would still be found in the premises. Id.; see also, Yates v. United States, No. 11-3833, 2012 WL 4748149, at *5 (6th Cir. 2012) (upholding warrant where reported sale of crack cocaine from residence occurred ten days prior to warrant application).
2. Reliability
Next, Green argues that the affidavit lacks sufficient factual details to demonstrate the reliability of the informant and the officers' controlled buy procedures. Specifically, defendant contends that Officer Carter's affidavit was deficient because he did not provide the informant's name, criminal history, or his/her familiarity with crack cocaine, whether there was video or audio surveillance of the controlled buys, whether marked money was used during the controlled purchases, the quantity of crack purchased, the informant's mode of travel to and from the house, how the 'John Doe' suspect was connected to the house, whether the informant entered the home, whether other persons were in the house, whether the informant observed other quantities of drugs, what officers searched the informant for, and what the crack field- tested positive for. These additional details, however, are irrelevant, so long as the information that is contained in the affidavit was sufficient to corroborate the information provided by the informant.
Defendant argued at the hearing that it is unclear whether the officers relied on one or more informants. Although it is initially ambiguous in paragraphs 4, 5, and 6 of the affidavit whether the same confidential informant conducted the controlled buys, paragraphs 7, 8, 10, and 11 make clear that a single informant supplied all the information relied on by the affiant. Paragraph 7 indicates that all three controlled buys "were made from a subject known to informant," and paragraph 8 indicates that exact dates of the purchases are not revealed to protect the "identity of the informant." (Doc. 17-1 at 107) (emphasis added). Similarly, the affiant alleges that 'the informant' has proven reliable in the past. (Id.)(emphasis added).
When information in an affidavit comes from a confidential source, "a court must consider the veracity, reliability, and the basis of knowledge for that information as part of the totality of the circumstances for evaluating the impact of that information . . . ." Frazier, 423 F.3d at 532 (quoting United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003)). "While independent corroboration of a confidential informant's story is not a sine qua non to a finding of probable cause . . . in the absence of any indicia of the informants' reliability, courts insist that the affidavit contain substantial independent police corroboration." Frazier, 423 F.3d at 532. (citations omitted). Ultimately, as "long as the issuing judge can conclude independently that the informant is reliable, an affidavit based on the informant's tip will support a finding of probable cause." United States v. McCraven, 401 F.3d 693, 697 (6th Cir. 2005); Pusey, 189 F. App'x at 479 ("an affidavit is sufficient to support a finding of probable cause as long as the magistrate is informed of some of the underlying circumstances . . . from which the officer concluded that the informant, whose identity need not be disclosed, was credible, or his information reliable").
While in some cases, the independent corroboration detailed in an affidavit has included audio recording of the controlled purchase, direct observation of the actual purchase, or use of marked currency, the affidavit is to be judged on the adequacy of the information it does contain, not on what it lacks. United States v. Pinson, 321 F.3d 558, 562 (6th Cir. 2003). The Sixth Circuit "has found that an affidavit that '[contains] the affiant's personal observation, his pat down of the informant before and after the purchase of the narcotics, and the fact that the drugs purchased by the confidential informant were later tested positive for contraband,' ". . . Pinson, 321 F.3d [at] 563 . . . , [states] sufficient facts from which a magistrate judge could determine that probable cause existed." United States v. Adkins, 429 F. App'x 471, 479 (6th Cir.) cert. denied, 132 S. Ct. 470 (2011). This is precisely the information contained in Officer Carter's affidavit.
Officer Carter stated that before each of the controlled buys, officers searched the informant with "negative results." Officer Carter then indicated that officers kept the informant under constant observation as he/she traveled to and from 130 Upland Avenue. Upon returning from the house, the informant provided officers with suspected crack cocaine and was searched a second time, again with negative results. Officer Carter averred that, in each instance, the crack cocaine was field tested with "positive results." Accordingly, based on the totality of the circumstances, the magistrate properly concluded that probable cause existed to issue a warrant to search 130 Upland Avenue. Pinson, 321 F.3d at 563; see also, United States v. Smith, 337 F. App'x 500 (6th Cir. 2009) (two controlled purchases were sufficient to corroborate confidential informant's reliability even though informant did not wear a wire during purchases and officers did not observe narcotics transaction); United States v. Hawkins, 278 F. App'x 629 (6th Cir.), cert denied, 129 S. Ct. 588 (2008) (same); United States v. Henry, 299 F. App'x 484 (6th Cir. 2008) (affidavit detailing one controlled purchase by confidential informant, whom officers searched before and after controlled purchase, but failing to mention that officers monitored informant's purchase with listening device, was sufficient independent police corroboration of informant's reliability and to provide probable cause to believe that illegal narcotics would be found at that location).
3. Nexus to Detached Garage
Finally, defendant contends that Officer Carter's averments did not establish a specific nexus between the alleged drug activity and the property's detached garage, and therefore, the Court should exclude the items found therein. The Government responds that while the affidavit did not specifically mention the detached garage, it did provide justification for believing that evidence of drug trafficking would be found anywhere within the property's "curtilage, outbuildings, vehicles and appurtenances."
"Generally, 'a warrant for the search of a specified residence or premises authorizes the search of auxiliary and outbuildings within the curtilage.'" United States v. Biles, 100 F. App'x 484, 491 (6th Cir. 2004) (shop behind house fell within the curtilage of defendant's home and was subject to warrant) (quoting United States v. Watkins, 179 F.3d 489, 505 (6th Cir. 1999) (Boggs, J., concurring) (collecting cases), citing United States v. Campbell, 256 F.3d 381, 390 (6th Cir. 2001) (holding that "since all of the buildings at 8670 Jennings Drive were within the curtilage of the property, there was no need to demonstrate probable cause to search each building on the property")); United States v. Alexander, 761 F.2d 1294, 1300-02 (9th Cir. 1985) (holding that a warrant commanding search of "all buildings, outbuildings, garages, yard areas, trash containers, storage areas and containers used in connection with or within the curtilage of said premises and buildings" could include every structure on a 40-acre ranch). Therefore, the issue for the Court is whether the detached garage falls within the curtilage of 130 Upland Avenue.
In determining whether a particular area falls within the curtilage to a home, the court considers four factors: "[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing." Daughenbaugh v. City of Tiffin, 150 F.3d 594, 598 (6th Cir. 1998) (quoting United States v. Dunn, 480 U.S. 294, 301(1987)) (internal quotation marks omitted). In United States v. Watkins, supra, the Sixth Circuit decided that:
recent cases in this circuit and elsewhere clearly hold that a warrant for the search of a specified residence or premises authorizes the search of auxiliary and outbuildings within the curtilage. This has included garages and other structures as far as 100 yards from the main residence, without any additional requirement of either probable cause as to the specific building, or specific identification of the building. See, e. g ., United States v. Bennett, 170 F.3d 632, 639 (6th Cir. 1999).179 F.3d at 505 (Boggs, J., concurring) (collecting cases) (citations omitted); see also, Bennett, 170 F.3d at 638 (holding that a search warrant authorized a search of an outbuilding which stood sixty to one hundred feet away from the house, because the warrant included the "'detached shop building, with overhead or sliding doors on both ends. Same color as the home'"). In Fine v. United States, 207 F.2d 324, 325 (6th Cir. 1953), the Sixth Circuit held that a warrant, which sought to search "'the premises known as the Harve Fine residence,'" and then specifically described the house, also covered the locked shed located twenty feet behind the house, because the warrant's description was broad enough to include the curtilage.
At the suppression hearing, defendant proffered two witnesses, whom identified the residence at 130 Upland Avenue through photographic exhibits presented by defendant. (Doc. No. 27-1 at 196-99.) Those photographs show that the detached garage is made of the same red brick construction as the house and sits immediately behind and to the left of the house, mere steps away from the home's side entrance or the back porch, and unquestionably less than 20 feet away. After considering the evidence, the Court concludes that the detached garage falls well within the curtilage of 130 Upland Avenue. See Watkins, supra; Bennett, supra; Fine, supra. Accordingly, the language of the warrant, authorizing a search of the premises and its curtilage, was broad enough to cover the search of this detached garage without any additional showing of probable cause or specific identification. Watkins, 179 F.3d at 505.
In sum, the Court finds that the affidavit provided sufficient factual information for the neutral magistrate to conclude that there was probable cause to believe that drug trafficking was occurring at the Upland Avenue residence and that evidence of such activity was likely to be found in that home. Therefore, the Court finds no basis to invalidate the search of 130 Upland Avenue. Accordingly, the defendant's motion to suppress the fruit of this search is DENIED.
B. Defendant's Request for a Franks Hearing is Denied
Green also requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Defendant challenges the lawfulness of the search warrant on the basis that the nexus between the alleged drug activity and 130 Upland Avenue and the description of the person alleged to have been selling crack cocaine at that location are substantiated by false information. Further, defendant argued at the suppression hearing that the officer's apparent reliance on boilerplate or standardized language in his affidavit calls into question the veracity of his statements therein.
Franks stands for the proposition that, when a defendant makes a "substantial preliminary showing that a false statement" is (1) "knowingly and intentionally, or with reckless disregard for the truth, . . . included by the affiant in the warrant affidavit" and (2) "necessary to the finding of probable cause," the Fourth Amendment entitles the defendant to a hearing. Id. at 155-56. If, at the hearing, the defendant demonstrates by a preponderance of the evidence that the above are in fact true, "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 156. Defendant, however, has not made the requisite substantial preliminary showing necessary to demonstrate that he is entitled to a Franks hearing.
Defendant first contends that Officer Carter's affidavit contains material, false representations regarding his observations of, and citizen complaints about, the presence of drug activity at the 130 Upland Avenue house. In support, defendant proffered two residents of Upland Avenue as witnesses, who each testified on direct examination that they were unaware of any drug activity at 130 Upland Avenue. However, upon cross-examination by the government, both witnesses admitted to working outside their homes for several hours each day and that they did not spend any time actively watching the house at 130 Upland when they were home. More importantly, the fact that these two witnesses did not observe drug activity at 130 Upland Avenue and/or were unaware of any such concerns by others does not by itself mean that other citizens did see such activity or that Officer Carter himself did not observe such activity.
Regarding the "John Doe" description provided by the informant, defendant asserts that police department reports indicate that the officers actually received four differing descriptions of the suspected drug trafficker from the informant. The police reports indicate that the informant consistently described the suspect as a black male with black hair and brown eyes, but indicated that he was in his 40's, 50, or 50's, reported heights from 5'6" to 5'7" to 5'8" and weights from 130 to 140 to 150 pounds. (Doc. Nos. 25-2, 25-3, 25-4, 25-5.) Officer Carter's description of the suspect as "M/B, 50's, 5FT8IN, 150, Blk and Bro" is virtually identical to the ones provided by the informant following the two most recent controlled purchases in July 2012. (See Doc. Nos. 25-4, 25-5.) Moreover, the discrepancies between the informant's descriptions are not so significant that Officer Carter should have brought them to the magistrate's attention, nor do they suggest that Officer Carter's statement was false.
The only slight difference in the descriptions provided by the informant following the July controlled buys is that in one instance the informant described the suspect as in his 50's, while in the other instance, he indicated the suspect was 50 years of age. This minor distinction is of little consequence.
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Next, defendant argued at the suppression hearing that the affidavit in this case is identical to the one in Pusey, supra. He asserted that the uniformity of the two affidavits suggests that Youngstown police officers are submitting affidavits containing boilerplate language without actually supporting the statements therein. The mere fact that the officers follow standard procedures and take the same steps to corroborate information, however, does not, in and of itself, call their credibility in to question. Preprinted boilerplate language can support probable cause if, as here, there is sufficiently particularized factual information for a finding of probable cause. See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) ("As long as there is sufficient information to provide probable cause for the search, the fact that the affidavit is partially pre-printed is irrelevant.") (quoting United States v. Romo, 914 F.2d 889, 898 (7th Cir. 1990), cert. denied, 498 U.S. 1122 (1991). Accordingly, defendant has failed to demonstrate that Officer Carter knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit.
But even if the Court were to find that the challenged statements were knowingly and intentionally false and therefore should not be considered for purposes of determining whether probable cause existed, the remaining content would still have provided probable cause to issue a search warrant. As discussed above, even without the December citizen complaints and police surveillance, the two controlled drug buys from the residence were sufficient to establish probable cause for the search warrant. Jackson, 470 F.3d at 307. Further, the issue before the magistrate in this case was whether there was probable cause to believe that drugs were being sold from 130 Upland Avenue, and not whether there was probable cause to establish the identity of who was selling drugs from that home. Thus, the mere fact that the physical descriptions listed in the police reports varied has no bearing on the probable cause determination.
Accordingly, because defendant has not established that any of the statements made by the affiant at issue in this case were knowingly and intentionally false, let alone that such statements were crucial to a finding of probable cause, his request for a Franks hearing is DENIED.
C. Good Faith
Even if probable cause were lacking, the search in this case would still be upheld under the good faith exception articulated in United States v. Leon, 468 U.S. 897 (1984). Under this exception, the exclusionary rule will not apply to bar the admission of evidence seized in violation of the Fourth Amendment where the officers had a "good-faith reliance on a search warrant that is subsequently held to be defective." United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir. 1996). The "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances . . . may be considered." Leon, 468 U.S. at 923 n. 23.
The good-faith defense will not apply where: (1) the supporting affidavit contains information the affiant knew or should have known is false; (2) the issuing magistrate lacked neutrality and detachment; (3) the affidavit is devoid of information that would support a probable cause determination making any belief that probable cause exists completely unreasonable; or (4) the warrant is facially deficient. Leon, 468 U.S. at 923; United States v. Helton, 314 F.3d 812, 824 (6th Cir. 2003).
Here, there is no indication that the affidavit contained false information or that the issuing magistrate abandoned her neutrality. Further, as already discussed, the affidavit was not facially deficient or bare-bones so as to render reliance thereon completely unreasonable. In his affidavit, Officer Carter offered sufficiently detailed information about the suspected illegal activity to support a finding of probable cause. There was nothing so facially deficient as to render the warrant invalid. Thus, the court finds that the search of 130 Upland Avenue was constitutionally valid for the additional reason that the officers executed the search warrant in good faith.
III. CONCLUSION
For all the foregoing reasons, as well as for those set forth during the suppression hearing, defendant's motion to suppress is DENIED.
IT IS SO ORDERED.
________________________
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE