Opinion
Case No. 2:01CR180S.
May 7, 2003
MEMORANDUM DECISION
Before the court is defendant's motion to suppress evidence and/or dismiss indictment. The court has carefully reviewed counsels' memoranda and is prepared to render the following ruling.
In his motion challenging the validity of the search warrant, defendant makes two arguments: (1)the affidavit in support of search warrant was insufficient to support a finding of probable cause and therefore, evidence obtained as a result of the warrant must be suppressed; and (2) there were no reasonable grounds for believing the search warrant was properly issued, thus evidence obtained during the search is not exempted from the exclusionary rule by the good faith exception described inUnited States v. Leon, 468 U.S. 89 (1984), and United States v. Nolan, 199 F.3d 1180 (10th Cir. 1999).
I. STANDARD OF REVIEW
This court's review of the magistrate judge's grant of a search warrant will be deferential. "Our duty is to ensure that the magistrate judge had a substantial basis for concluding that the affidavit in support of the warrant established probable cause." United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (quotation omitted). "[T]he Supreme Court has instructed us to pay great deference to a magistrate judge's determination of probable cause. Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. The test is whether the facts presented in the affidavit would warrant a man of reasonable caution to believe that evidence of a crime will be found at the place to be searched." Id. at 1182-83 (citations omitted). While the decision to issue a warrant is entitled to great deference from the reviewing court, if the supporting affidavit does not provide a "substantial basis" for a finding of probable cause, no deference is afforded the magistrate's finding. United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998). A "reviewing court will not defer to a warrant based on an affidavit that does not `provide the magistrate with a substantial basis for determining the existence of probable cause.'"Leon, at 915, quoting Illinois v. Gates, 462 U.S. 213, at 239 (1983). Thus, it is the duty of the officer seeking a warrant to make every effort to supply the magistrate with the requisite factual information necessary to support a finding of probable cause.
II. PROBABLE CAUSE
The Fourth Amendment guarantees that "No Warrants shall issue, but upon probable cause, supported by Oath or Affirmation." U.S. Const. Amend. IV. Having been supplied with factual support from the affiant officer, "[t]he task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213 (1983). Thus, while holding that there is no checklist the elements of which must all be satisfied before a finding of probable cause may be made, nor is there any one criterion upon which a finding of probable cause hinges, the Court does list two criteria that will be useful in the determination. "In making the probable cause determination, the issuing magistrate may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). While the magistrate issuing the warrant is free to make reasonable inferences with the factual information supplied by an affiant officer and must make a common-sense decision about whether or not a finding of probable cause is warranted, the warrant must still be based on information obtained from an informant who is both credible and knowledgeable.
The threshold for probable cause remains relatively low. It requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Danhauer, 299 F.3d 1002 (10th Cir. 2000). "Doubtful cases should be largely resolved by the preference to be given warrants." United States v. Rahn, 511 F.2d 20, 292 (10th Cir. 1975);accord Massachusetts v. Upton, 466 U.S. 727, 734 (1984). However, probable cause "only exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband evidence of a crime." United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998). Thus, while it is largely a common-sense determination, a finding of probable cause must also be objectively reasonable.
In the case of Mr. Artez, the government concedes in its own pleadings that little was known about the reliability of the officer's informants. Govt's. Resp. Opp'n Def's. Supplemental Mem. Supp. Mot. Dismiss, at 5. Deficiencies in "veracity" and "basis of knowledge" may be overcome, however, and a finding of probable cause may be proper, where information supplied by an informant can be independently corroborated.
Two key Tenth Circuit cases provide highly relevant factual and analytical frameworks for the court's consideration of the Artez facts and circumstances. The first is United States v. Tuter, 240 F.3d 1292 (10th Cir. 2001). In Tuter, the Tenth Circuit analyzes the curative nature of independent corroboration. The court notes that "an informant's veracity, reliability, and basis of knowledge are all highly relevant in determining the basis of his report." Id. at 1295 (citations omitted). The court goes on to say that while an anonymous tip alone is insufficient for a finding of probable cause, the reliability of such a tip may be bolstered to an extent sufficient for a finding of probable cause if information regarding the suspect's activities can be corroborated by officer investigators. Id. The facts presented in the affidavit must still provide the magistrate with a substantial basis for concluding that a finding of probable cause is proper. However, if the facts to be corroborated are themselves insubstantial, an affidavit relying on information from an unreliable and or unknowledgeable informant will not support such a finding.
The following facts illustrate the problem of corroboration of insubstantial information. In Tuter, a telephone call was received from an anonymous caller purporting to have firsthand knowledge of illegal bomb manufacturing activities occurring at the defendant's residence. A national hotline service in the business of taking such calls received and relayed this information to the local law police department. Local police, in turn, notified the ATE, who obtained a copy of the notes made during the anonymous call. The notes read as follows:
SUSPECT MAKES PIPE BOMBS IN HIS GARAGE/ SUSPECT ALSO HAS 2-3 WEAPONS IN HIS HOME/ SUSPECT HAS ONE SON/IAN TUTER AGE 12 LIVING IN THE HOME/ ATTENDS UNION ELEMENTARY OR MIDDLE SCHOOL/ SON HAS BEEN KNOWN TO SHOW WEAPONS TO SCHOOL FRIENDS WHEN THEY COME OVER TO SUSPECT[']S HOME.United States v. Tuter, 240 F.3d 1292, 1294 (10th Cir. 2001). The caller also relayed the street address of Mr. Tuter's home, detailed the model and color of Mr. Tuter's vehicle, and described weapons Mr. Tuter allegedly owned.
The ATE agent overseeing the investigation of Mr. Tuter corroborated much of the information described by the anonymous caller including the location of Mr. Tuter's home, that Mr. Tuter and his son resided at that home, and that Mr. Tuter's wife owned a vehicle matching the description given. The agent also investigated Mr. Tuter's criminal history and found previous convictions for burglary, concealing stolen property, possession of marijuana, and possession of a firearm following a felony conviction. The agent also found that the Tuters had previously reported a vehicle stolen and listed two firearms as contents of the vehicle.
The officer swore out an affidavit detailing the results of his investigation including the corroboration of information received from the anonymous caller and the discovery of Mr. Tuter's criminal history. However, being supported by nothing more than an anonymous tip and corroboration of information that could be obtained by anyone, even in absence of special knowledge of any criminal wrongdoing, the court stated that "[t]he minimal corroboration of innocent, readily observable facts was insufficient to establish the veracity or reliability of the caller or to link Tuter with the allegation that he was making pipe bombs in his garage." Tuter, 240 F.3d at 1298. The court went on to hold that the officer's affidavit was insufficient to support a finding of probable cause. Id.
The second Tenth Circuit opinion which is helpful to the court's analysis is United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000). In Danhauer, an officer received information from a confidential informant to the effect that a suspect or suspects were manufacturing methamphetamine in a garage at the suspect's home. The informant described the physical characteristics of the home to the officer. During the course of investigation, the officer verified that the suspect's house matched the description given by the informant and watched as one of the suspects repeatedly walked between the garage and the living quarters on the property. As in Tuter, the investigating officer inDanhauer looked into the criminal histories of the suspects and found prior drug, assault, forgery, and criminal mischief convictions. The officer also found that one of the suspects was currently on probation and had recently tested positive for illegal drug use.
In attempting to bolster the credibility of his informant, the officer in Danhauer did nothing more than fill his affidavit with "repetitive statements regarding the physical description of the Danhauer residence and the identity of the occupants." By relying on and corroborating information that could have been supplied by anyone, even in absence of any special knowledge of criminal wrongdoing, the officer did nothing to "reveal . . . the informant's basis of knowledge or adequately verify the informant's most serious allegation, that the Danhauers were manufacturing methamphetamine." Danhauer, 229 F.3d at 1006. "An affidavit replete with repetitive and tenuous facts does not provide a magistrate with a sufficient basis for drawing a reasonable inference that a search would uncover evidence of criminal activity." Id.
The facts in Mr. Artez's case are quite similar to those in both Tuter and Danhauer. In the instant case, the Confidential Informant (hereinafter the "CI") supplied the affiant officer with essentially two pieces of information: 1) The informant identified Mr. Artez as a distributor of methamphetamine, and 2) pointed out the location of his residence. The officer used electronic databases to confirm that Mr. Artez owned the house identified by the informant and that two vehicles parked in front of the same residence were registered to Mr. Artez. Thus, the officer did corroborate some of the information supplied to him by the CI. As was the case in Tuter, however, the information that was corroborated could have been supplied by anyone, with or without special knowledge concerning any alleged criminal activities involving Mr. Artez. The mere fact that the affiant officer was able to corroborate the informant's assertion that Mr. Artez resided at the location described does nothing to bolster his credibility, nor does it do anything to demonstrate the CI's basis of knowledge.
Having provided no demonstration of the CI's credibility, or his basis of knowledge concerning any alleged criminal acts conducted by Mr. Artez, the court finds there is no reason to rely on the informant's main assertion that Mr. Artez sold methamphetamine at this location. Consequently, the affidavit fails to establish the CI's reliability. This much was conceded by the government in their own pleadings. Govt's. Resp. Opp'n Defs. Supplemental Mem. Supp. Mot. Dismiss, at 5.
The court will next consider the affiant officer's second attempt to corroborate the allegations of his CI. The affiant officer next set up two "controlled buys" between Mr. Artez and the CI. The CI, however, informed the officer, that he or she was unable to make a purchase from Mr. Artez and would have to do so through a third party. This second informant is identified as the Unwitting Informant (hereinafter, the "UI".)
Introducing yet another informant whose credibility is undetermined did nothing, in the court's view, to bolster the reliability or basis of knowledge of the initial CI.
Two controlled buys were conducted, each in the same manner: The CI drove to the residence of the UI and entered his or her residence. The UI, unaccompanied by the CI, then exited his or her residence and drove the CI's car to the residence of Mr. Artez. An unidentified person granted entry to the UI and, in a matter of minutes, the UI exited the Artez property and drove home. The CI upon the return of the UI, left the UI's home and drove to a predetermined location at which he or she turned over an amount of methamphetamine to the officer stating that it was purchased from Mr. Artez, through the UI.
The affiant officer's attempt, through the device of the controlled buys, to corroborate the CI's assertion that Mr. Artez sold methamphetamine from his residence was entirely non-corroborative. By introducing the UI, the affiant officer created a chain of informants — the reliability of each link being dependent on reliability of the next. Having failed to establish the reliability of the CI, the officer attempted to independently corroborate his or her allegations. Corroborating these allegations, however, depended on establishing the reliability of the UI. By failing to meet with or even speak to this informant, the UI became akin to the anonymous informants in Tuter andDanhauer. Although the officer followed the UI to the Artez property, he did not see who met the Informant at the door nor did he witness who, if anyone, he had contact with once inside. By failing to keep track of the UI during this phase of the controlled buy, the officer failed to corroborate the assertions of the CI in their entirety. Any connection between the sale of methamphetamine and the Artez property during these controlled buys is tenuous at best. "[N]ebulous connection[s]" between a residence and any alleged criminal activities "doll not give a magistrate a substantial basis for concluding that probable cause existed."Danhauer, 229 F.3d at 1006. "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990). Such a nexus was never established by the affiant officer.
Having failed to establish the reliability and the basis of the CI's knowledge concerning his or her allegations of criminal wrongdoing by Mr. Artez, and having failed to independently corroborate the CI's assertions, the information supplied by the officer in his affidavit failed to provide the issuing magistrate with a substantial basis for a finding of probable cause. Accordingly, the search warrant violated the defendant's Fourth Amendment protection from searches and seizures lacking probable cause and the results of the search must therefore be suppressed.
III. GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE
Having made the determination that the warrant to search the Artez property was not supported by probable cause, the court turns to a discussion of the good faith exception to the exclusionary rule. The Supreme Court in United States v. Leon, 468 U.S. 897, 922 (1984), held that evidence obtained during the execution of a warrant, which was found to be illegal for lack of probable cause, may nevertheless be admitted if "the officer's reliance on the magistrate's probable cause determination and on the technical sufficiency of the warrant he issues [is] objectively reasonable." "There is a presumption that when an officer acts upon a search warrant the officer is acting in good faith." United States v. McKneely, 6F33d 1447, 1454 (10th Cir. 1993); accord U.S. v. Price, 265 F.3d 1097, 1102 (10th Cir. 2001).
However, "[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate." Leon, 468 U.S. 897, 915 n. 13 (1984) (citations omitted). Instead, the exception relies on an objective standard of good faith.
[W]hen reviewing an officer's reliance upon a warrant, we must determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient. Our 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, we consider all of the circumstances, and assume the executing officers have a reasonable knowledge of what the law prohibits.United States v. Tisdale, 248 F.3d 964, 972 (2001) (citations omitted).
In making a determination as to whether the affiant acted in good faith, the court assumes that he was reasonably well informed regarding what information would need to be included in his affidavit to give the magistrate a substantial basis for making a probable cause determination. However, instead of including this required factual support, the affiant officer left much of it out. As was discussed at length in this court's analysis of the probable cause issue, the affiant officer failed to establish the reliability, veracity, or basis of knowledge of either of his two informants. Having failed to do this, the officer attempted to bolster the credibility of his two informants by corroborating the information passed to him from the CI. Furthermore, by failing to watch the controlled buy transaction closely, particularly the stages involving the UI, the officer failed to corroborate this information as well. The officer's affidavit lacked all indicia of reliability. Having prepared the affidavit himself, the affiant officer knew and/or had every reason to know that his affidavit was based on unreliable information. Thus neither he, nor any other officer involved in the execution of the warrant, being held to the standard of having a reasonable knowledge of what constitutes a warrant supported by probable cause, acted objectively reasonable. Accordingly, the fruits of the search will not be admitted under the good faith exception to the exclusionary rule.
IV. CONCLUSION
The court finds that the search warrant was issued in absence of probable cause and that evidence gathered as a result of the search under the warrant is not exempt from the exclusionary rule by reason of the good faith exception described in Leon and Nolan. Accordingly, the defendant's motion to suppress evidence and/or dismiss the indictment is GRANTED.
SO ORDERED.
BY THE COURT: