Opinion
Civil Action No. SA-04-CR-0081-(1)-XR.
June 2, 2005
ORDER
On this day, the Court considered Defendant's Motion to Reconsider the Order Denying Motion to Suppress (docket no. 36). Defendant's primary argument is that the affidavit in support of the search warrant was nothing more than a "bare bones" affidavit and cannot therefore justify use of the good faith exception to the exclusionary rule. In addition, Defendant argues that San Antonio Police Department Detective David Berrigan, intentionally or with reckless disregard for the truth, failed to give a complete version of the known facts to the magistrate, that there was no nexus between the residence to be searched and the information received, and that the information given to Berrigan by the confidential informant was stale. Much of Defendant's argument are a rehash of those developed and disposed of in the initial motion to suppress and need not be comprehensively addressed here. Defendant's strongest point, and the primary question that must be determined by this motion for reconsideration is: Does an uncorroborated tip from a credible and reliable confidential informant, standing alone, constitute more than a "bare bones" affidavit and therefore trigger the good faith exception to the exclusionary rule?
Background
The defendant is charged in a four-count indictment with the following offenses: (1) conspiracy to distribute and possess with intent to distribute cocaine, within 1,000 feet of a secondary school; (2) aiding and abetting the distribution of cocaine, within 1,000 feet of a secondary school; (3) possession with intent to distribute heroin, within 1,000 feet of a secondary school; and (4) using, carrying and possessing a firearm during, in relation to and in furtherance of a drug trafficking crime.
Berrigan testified at the suppression hearing that on January 9, 2004, he received information from a confidential informant ("CI") that an individual by the name of "Roland" was living at 817 S. Pinto, San Antonio, Texas and was "selling narcotics from outside of the residence in the yard." Detective Berrigan stated that he had known the CI for approximately six months and that the CI had provided accurate information to him on five previous occasions.
Berrigan thereafter did a computer search and determined that the Gallegos family lived at the South Pinto address. He also drove by the residence, copied vehicle license plate numbers and determined that the vehicles were registered to members of the Gallegos family. No evidence has been put forward as to the exact member or members of the Gallegos family who lived at the South Pinto address or as to which members of the family owned the vehicles parked outside, though it appears that Ariel and Inez Gallegos were listed as owners of the residence. These actions were the only steps taken by Berrigan to corroborate the CI's information.
Berrigan thereafter prepared an affidavit in support of a search warrant which stated, in part, as follows:
That [affiant] has good reason to believe and does believe that a certain place in Bexar County, Texas described as a one story wood framed house located at and numbered as 817 S. PINTO and any and all garages, outhouses, edifices, structures, openings and enclosures thereto attached in the City of San Antonio, Bexar County, Texas and being the premises under the control and in charge of AN UNKNOWN HISPANIC MALE KNOWN ONLY AS "ROLAND", WHO IS APPROXIMATELY 35 TO 40 YEARS OLD, 180 TO 200 POUNDS, 5' 08" to 5' 10", SHORT BROWN HAIR, CLEAN SHAVEN AND TATTOOS ON BOTH ARMS, is a place where controlled substances, to wit: COCAINE is unlawfully possessed. . . . Affiant did on this 10th day of January, 2004 receive information from a credible and reliable person who has on previous occasions given affiant information regarding the trafficking and possession of a controlled substance which has proven to be true and correct . . ., that the said credible and reliable person, did within the last FORTY-EIGHT HOURS see a controlled substance, to wit: COCAINE unlawfully possessed by the above described individual at 817 S. PINTO. . . .
Affiant asks that a warrant be issued to search the above-described premises for the above-described controlled substance, to wit: COCAINE and to arrest each of the above described persons and any other parties found on said premises or making their escape therefrom, where said parties are found to be in possession of the above described controlled substance or any other controlled substance. . . .
Based on the affidavit a City Magistrate issued a Search Warrant on January 10, 2004. Berrigan testified that he did not present to the Magistrate the information he had gathered as to the fact that the Gallegos family was connected to the South Pinto residence. The warrant was executed the following night. As the police officers were arriving at the residence they observed two males in the front yard. Berrigan testified that it appeared that the two males were in the middle of a drug transaction and he saw a hand-to-hand exchange of a bag. When the police officers exited their vehicles and approached the two men, Detective Robert Perez testified he saw one male (Albert Contreras) throw a bag into the air. Defendant Alex Gallegos fled and was apprehended when he ran to the rear of the house. "Real close" to where Defendant was apprehended, the police officers found a "baggie of cocaine and heroin packaged the same way as [they] found on the defendant when [they] first rolled up [to the house]."
The bag was later tested and found to contain cocaine.
Once a security sweep was conducted, the search warrant was read to Defendant, Contreras, and the defendant's sister (Amira Gallegos) who was inside the home. In addition, Defendant was read his "Miranda" rights. Detective Berrigan testified that Defendant acknowledged understanding his "Miranda" rights.
A search of the home found approximately $34,000 cash in several rooms. A search of a "shed" outside the house resulted in the discovery of 584 grams of cocaine, 274 grams of black tar heroin, and a "cutting agent." In addition, six weapons (two sawed off shotguns, a .45 caliber handgun, a Luger 9 mm, .22 rifle, and a Colt 25 revolver) were found. When police officers informed Defendant that they found narcotics in the shed and asked Defendant if he knew anything about them, he said he did not but asked the police officers to show him what had been found. Detective Perez testified that despite claiming no knowledge about the drugs, Defendant kept looking in the direction of where the cocaine was found.
Defendant told police officers that $14,000 found in one of the rooms belonged to him and were proceeds from racing.
Analysis
The law as to what constitutes a "bare bones" affidavit is less than clear. Defendant argues that the Court was incorrect in denying his previous motion to suppress because the good faith exception to the exclusionary rule does not apply when the affidavit accompanying the search warrant is nothing more than bare bones. This argument was not comprehensively raised in the previous motion to suppress, but has been fully considered by the Court in conjunction with this motion for reconsideration. Because the Court finds that the affidavit, even if inadequate to establish probable cause, was more than a "bare bones" affidavit, police were reasonable in acting in good faith reliance upon it. Defendant's other arguments lack merit.
A. Whether The Affidavit Was "Bare Bones"
Defendant challenges the fact that probable cause existed to justify the issuance of the search warrant at issue. It may be that Defendant is correct in this argument. The issue of probable cause is largely immaterial, however, if the Court determines that the good faith exception to the exclusionary rule applies to the warrant. Therefore, the Court will examine the issue of the applicability of the good faith exception, rather than the existence of probable cause to support the warrant.
The good faith exception to the exclusionary rule is available to police officers when they reasonably rely upon on an otherwise facially valid search warrant. United States v. Leon, 468 U.S. 897, 922-23 (1984). The Supreme Court noted in Leon four situations in which the good faith exception would not apply: (1) where the magistrate abandons his detached and neutral role and acts as a rubber stamp; (2) where the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (3) where an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where a warrant is so facially deficient, i.e, in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Id. at 923 (quotations and citations omitted). The third situation applies where an affidavit is "bare bones," and that is the situation urged by Defendant.
A magistrate's determination is entitled to great deference by reviewing courts. Illinois v. Gates, 462 U.S. 213, 236 n. 10 (1983). A magistrate need only have a substantial basis for concluding that a search would uncover evidence of wrongdoing. Jones v. United States, 362 U.S. 257, 271 (1960). A "bare bones" affidavit is insufficient to establish probable cause. A bare bones affidavit contains "wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause." United States v. Laury, 985 F.2d 1293, 1311 n. 23 (5th Cir. 1993). For example, an affidavit is bare bones when the affidavit merely alleges that a police officer "`has cause to suspect and does believe'" that contraband is located on the premises of the place to be searched. United States v. Brown, 941 F.2d 1300, 1303 n. 1 (5th Cir. 1991) (quoting Nathanson v. United States, 290 U.S. 41 (1933)). An affidavit is also bare bones when it merely alleges that police officers "`have received reliable information from a credible person and do believe' that heroin is stored in a home." Id. (quoting Aguilar v. Texas, 78 U.S. 108 (1964)). In a recent unpublished opinion, the Fifth Circuit indicated that an affidavit stating only "that the confidential informant told the affiant police officer that a man named Wayne was dealing drugs out of a home located at 1014 North Jackson Street, San Angelo, Texas" "would be conclusory and bare bones." United States v. Chambers, No. 04-10618, 2005 WL 1182531 (5th Cir. May 19, 2005). A quick glance at Detective Berrigan's affidavit to the Magistrate indicates little more substantive information than that provided in the Fifth Circuit's example.
A canvas of the relevant case law in the Fifth Circuit, as well as other Circuit Courts of Appeals, demonstrates the paucity of instances in which an affidavit containing this little information was actually presented before a magistrate in support of search warrant. The instances where such an affidavit was upheld are even fewer. There are such instances, however, and they prove instructional.
The Fifth Circuit has held affidavits that are materially similar to the one at issue to satisfy either the probable cause or good faith exception standards. In Christian v. McKaskle, the Fifth Circuit held that the following affidavit was sufficient to establish probable cause:
On this day an informant [who had on two separate occasions during the past year, given accurate reports about law violations], whose name is withheld for security reasons, told affiant that said suspected party is now keeping and possessing what the affiant believed to be methamphetamine in said suspected vehicle and stated to affiant as an underlying circumstance supporting that conclusion that with [sic] the past 24 hours, such informant saw controlled substance.
731 F.2d 1196, 1198, 1200 (5th Cir. 1984). Similarly, the Fifth Circuit in United States v. McKnight held the following affidavit met the good faith exception:
Affiant has received information from Raymond Cooke, . . . a licensed peace officer for the State of Texas who told the affiant he had received information from a Confidential Informant that he knows to be reliable and has furnished him information in the past that has proved to be reliable and true. The Confidential Informant advised that he has been in the residence of Gerald F. McKnight, . . . during the past 72 hours and that there had been a chemical process going on known as a "Cook" for the purpose of manufacturing a controlled substance know to the CI to be methamphetamine. The informant has given information on methamphetamine cooks and chemicals before and is familiar with the chemicals and processes used to manufacture methamphetamine.
The CI further stated that the substance had been thru the final stages of manufacturing and had been "powdered out" into crystal methamphetamine. The CI further stated that the substance known to him to be methamphetamine was now hidden in an out building on the property.953 F.2d 898, 904-05 (5th Cir. 1992). The Fifth Circuit held that this affidavit was not a "bare bones" affidavit, because the affidavit "at the very least most likely supplied" probable cause, and therefore was sufficient to fall within the good faith exception. Id. at 905. The affidavits in both Christian and McKnight lack any material differences from the affidavit at issue. Those affidavits and the one submitted by Berrigan establish only that (1) a confidential informant; (2) who had given credible and reliable information in the past; (3) had seen drugs in the possession; (4) of the person in control of the place to be searched; and (5) at the place to be searched. These cases support upholding the use of this affidavit.
Of course, there has been no consensus as to the effectiveness of affidavits similar to the one at issue. In United States v. Barrington, the Fifth Circuit held that an affidavit that "stated only that Captain Solomon `received information from a confidential informant' who is `known to Captain Phil Solomon and has provided information in the past that has led to arrest and convictions'" was a "bare bones" affidavit. 806 F.2d 529, 531 (5th Cir. 1986). The affidavit at issue includes more information than the affidavit provided in Barrington, but only just. In Chambers, the Fifth Circuit, in dicta, indicated that an affidavit stating only "that the confidential informant told the affiant police officer that a man named Wayne was dealing drugs out of a home located at 1014 North Jackson Street, San Angelo, Texas" "would be conclusory and bare bones." United States v. Chambers, No. 04-10618, 2005 WL 1182531 (5th Cir. May 19, 2005). The information that distinguishes the hypothetical affidavit in Chambers and the actual affidavit in this case is that here the affidavit stated that the person seen in possession of drugs was "in control" of the premises, that drugs had been seen at the premises, and that the confidential informant had given credible and reliable information in the past as to drug trafficking crimes.
Chambers cited United States v. Kolodziej, 712 F.2d 975, 977-78 (5th Cir. 1983) (finding an affidavit to be bare bones wherein informants merely stated that a crime occurred and stated where contraband could be found). As the Fifth Circuit noted in Kolodziej, boiled down, the affidavit before that court "provid[ed] nothing more than a conclusion that the defendant had engaged in, and was engaging criminal conduct. No basis of knowledge [was] set forth, no specific fact or circumstance which would indicate how [the informant] came to know where the money was kept, or that it was earned in illicit drug transactions." Id. at 977. Kolodziej has only limited applicability here, because the affidavit at issue in that case "[did] not contain an affirmative allegation that any of the three informants was known to be reliable." Id. at 978. Insofar as the Fifth Circuit at least partially relied on this fact, it is distinguishable from the present case. In addition, as the tips were "made to curry favor with the police," rather than as a tip from a longstanding confidential informant, that information alone carried little weight. Id.
In addition, the district court in United States v. Fields, 182 F. Supp.2d 575 (E.D. Tex. 2002), held an affidavit similar to the one at issue to constitute a "bare bones" affidavit. In Fields, a preprinted affidavit was used with certain fields filled in with minimal information:
1. THERE IS IN HARRISON COUNTY, TEXAS, SUSPECTED PLACE AND PREMISES DESCRIBED AND LOCATED AS FOLLOWS: A white wood frame residence with red trim, located at 3404 W. Grand approx. 5/10 of a mile west of the intersection of Loop 390 and W. Grand. . . . Located in the front yard of said residence is a black and silver Chevrolet pickup.
2. THERE IS AT SAID SUSPECTED PLACE AND PREMISES CONCEALED AND KEPT IN VIOLATION OF THE LAWS OF TEXAS AND DESCRIBED AS FOLLOWS: Cocaine.
3. SAID SUSPECTED PLACE AND PREMISES ARE IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING PERSONS: Gerald Fields DOB: 01-11-62 B/M, 6'2" 240, bald.
4. IT IS THE BELIEF OF AFFIANT, AND HE HEREBY CHARGES AND ACCUSES, THAT: A quantity of cocaine kept in violation of the Texas Controlled Substances Act.
5. AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS: That affiant is employed by the Marshall Police Dept. for three years and is currently assigned to the narcotics division. The affiant was advised by a confidential informant of a usable amount of cocaine concealed in the suspected place described above.
The Confidential informant further advised that he/she had been to the suspected place within the past 72 hours of the time that this warrant was issued and had personally observed that suspected party in possession of cocaine in the above suspected place. That confidential informant has seen cocaine prior to this occasion and can recognized [sic] its general appearance.
That, affiant believes confidential informant to credible [sic] and reliable because said informant has furnished information on drug activity in the past and that information did prove true and correct. . . .182 F. Supp.2d at 577-78. The district court found that this affidavit did not meet any of the standards evidencing indicia of probable cause. Specifically, the court listed four factors for consideration. These include: (1) whether the informant's statements are made against his or her penal interest; (2) whether the information has been corroborated by independent investigation or contemporary observations of police; (3) the degree of detail of the information provided by the informant; and (4) whether the informant's reliability is corroborated by something other than unsupported conclusions of the affiant. Id. at 579 (citations omitted). The court found that the affidavit bore none of these indicia of probable cause. Id.; see also United States v. Thomas, 7 F. Supp.2d 836 (W.D. Tex. 1997). As to a comparison of the affidavit at issue, there are no material differences. The fact that the courts in McKnight and Fields essentially reached divergent decisions in examining similar affidavits shows the uncertainty caused by an affidavit so lacking in detail, as well as the uncertainty in this area of the law.
Other jurisdictions have likewise come to differing conclusions as to affidavits similar to the one at issue. In the case that appears to be most similar to the present one, the en banc Court of the Sixth Circuit upheld the denial of a suppression motion. In United States v. Allen, 211 F.3d 970 (6th Cir. 2000) ( en banc), the substantive section of the affidavit read:
2. On the 11th day of October 1995 I Gary Lomenick received information from an informant, a responsible and credible citizen of the county and state, who I know to be a responsible and credible citizen because, I have known said informant for 5 years and said informant has given me information about individuals involved in criminal activity in the past that has proven to be reliable. Said informant's name whom I have this day disclosed to the Judge to whom this application is made, that [sic] John Doe (Alias) Red Dog who resides in or occupies and is in possession of the following described premises 910 North Market Street, apartment directly underneath carport located in Chattanooga, Hamilton County, Tennessee, unlawfully has in his possession on said premises legend and/or narcotic drugs including Cocaine in violation of law made and provided in such cases.
3. On the 11th day of October 1995 said informant advised that said informant was on the premises of the said John Doe (Alias) Red Dog located at 910 North Market Street, apartment directly underneath carport within seventy-two hours prior to our conversation on October 11th, 1995 and while there saw Cocaine in possession of the said John Doe (Alias) Red Dog[.]Id. at 972 (alteration in original). Other than the fact that the police officer told the Magistrate the name of the informant in Allen, there is no difference between the information placed before the Magistrate in Allen and the information placed before the Magistrate by Berrigan. Both police affiants stated to the Magistrate that (1) they had received information from a reliable and credible informant, who had given correct information about criminal activity in the past; (2) as to an individual known only by a street name; (3) that the individual was in control of a premises; and (4) that the individual was in possession of cocaine at the premises. As in the instant case, such that Berrigan did not know the identity of "Roland," the police officer in Allen did not know the identity of "Red Dog." The district court denied the defendant's suppression motion. The panel of the Sixth Circuit that first reviewed the denial of the suppression motion reversed that decision, finding the affidavit to constitute nothing more than a "bare bones" affidavit "that `failed to provide sufficient factual information for a finding of probable cause.'" United States v. Allen, 168 F.3d 293, 301 (6th Cir. 1999) (quoting United States v. Weaver, 99 F.3d 1372, 1379-80 (6th Cir. 1996)). Upon review, the en banc Court upheld the denial of suppression. The en banc Court noted that, although a confidential informant's "information would gain significant weight when supported by (1) explicit and detailed description gleaned from first-hand observation, and (2) independent investigative corroboration," such addition information is not a necessity when examining an affidavit based on the informant's information. Allen, 211 F.3d at 975. "The affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added. It is the totality of the circumstances that persuade us that the affidavit in the instant case was, in fact, not merely `conclusory' or `bare bones' in nature but sufficient." Id. The en banc Court held that it was obvious on the face of the affidavit that the confidential informant had given information regarding narcotics in the past, that the informant had seen the suspect in possession of drugs at a particular residence, and that the informant's past experience was reflected in the circumstances of the case at issue. Id. As the Court succinctly stated, "The information alleged was of direct personal observation of criminal activity. Corroboration is not a necessity in such a case." Id. at 976 (emphasis added). The Court thus held that, not only did the affidavit fail under a bare bones analysis, but it was sufficient, standing alone, to provide probable cause to the magistrate in support of the issuance of the search warrant. Id.
Although, in Allen, "Red Dog" was familiar to other officers as Kenneth Allen, a known drug offender. United States v. Allen, 211 F.3d 970, 971 (6th Cir. 2000). This information was not known to the affiant police officer. Id.
"A requirement that information from such a CI should invariably have to be personally corroborated by further police investigation would aid lawbreakers, as detectives tried to conduct surveillance in crack-ridden neighborhoods without themselves being detected and their suspects alerted. Moreover, the additional time thus added to the process by mandating an independent police investigation following a CI's contact would provide a further advantage to drug dealers' already highly mobile, hit-and-run operations." Id. at 976.
In United States v. Peck, the Seventh Circuit held that an affidavit was insufficient to establish probable cause, but was sufficient to meet the good faith exception, where it was based on the allegations of drug possession by the defendant's ex-wife. 317 F.3d 754, 755 (7th Cir. 2003). In Peck, the police officer drafted an affidavit asserting that the defendant's ex-wife had recently been inside the defendant's house and had large amounts of substances that the defendant had said were crack cocaine and marijuana. Id. The ex-wife further claimed she knew what the substances were based on her own personal experiences. Id. Because the ex-wife had not previously been an informant, the police officer had her take an oath before the magistrate that her statements were true. Id. No further information was provided by the ex-wife. Id. at 757. The Seventh Circuit found that this combination of affidavit and sworn statement was not sufficiently detailed to establish probable cause. Id. at 756. "Doe failed to give specific details about the drugs in Peck's house such as where the drugs were hidden, the total amount of drugs Peck possessed, or the frequency with which Peck sold drugs. The only details Doe gave were that she had been in the house and was shown drugs." Id. Further "[c]ompounding the weaknesses of Doe's statement [was] the failure of the police to corroborate her allegations." Id. The Seventh Circuit went on to hold, however, that even though this affidavit did not support a finding of probable cause, it was sufficient under the good faith exception. The Court found that "[a]lthough minimal, Doe's statement did contain evidence that Peck possessed and planned on selling drugs," and was from a credible source. Id. at 757-58. The Court did refer to the affidavit as "bare bones," and while this is somewhat troubling, it appears that it was not meant to refer to the term "bare bones" as used by the Supreme Court in Leon to describe an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Leon, 468 U.S. at 923.
In United States v. Reddrick, the Seventh Circuit upheld a denial of suppression of evidence gained on the basis of a confidential informant's tip. 90 F.3d 1276 (7th Cir. 1996). In Reddrick, the police officer, rather than submitting an affidavit in support of a search warrant, testified at a probable cause hearing. The officer testified that "the confidential informant, . . . who has been used and been reliable in the past, . . . said that they had seen about 13 kilos of cocaine inside of the [defendant's] residence." Id. at 1279. The officer also testified that the informant had made three controlled purchases of drugs from the defendant. Id. at 1279-80. The Court stated that the informant's information as to having seen cocaine inside the defendant's residence, standing alone, did not support the issuance of a search warrant. Id. at 1281. In large part, this was because the informant did not testify at the probable cause hearing or provide a sworn affidavit. Id. The Court found, however, that the police officer's testimony as to the three controlled purchases from the defendant "provided significant evidence that Reddrick was a drug dealer." Id. The Seventh Circuit thus held that, because "in the case of drug dealers evidence is likely to be found where the dealers live," the magistrate judge was reasonable in drawing an inference from the police officer's testimony that drugs would likely be found at the defendant's residence. Id. (quotation omitted). Reddrick seems to support the contention that the affidavit at issue in this case, standing alone, does not establish probable cause. Reddrick likely does not support the contention that the affidavit was so lacking in indicia of probable cause as to constitute a "bare bones" affidavit, however.
Without question, the majority of cases upholding affidavits as outside the category of "bare bones" included far more information than the one at issue. For example, in United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir. 1995), the affidavit included detailed descriptions of both the residence and the locations of the contraband to be found within the residence. In Reddrick, the police officer testified that the informant had made three controlled buys of illegal drugs from the defendant. 90 F.3d at 1281. In Chambers, the affidavit included information detailing surveillance of the residence in question based on the confidential informant's tip. 2005 WL 1182531, at *1. However, there remain a number of cases that have ruled in favor of, at the very least, the good faith exception to the exclusionary rule when confronted with such an affidavit as the present one. The Fifth Circuit in Christian and McKnight and the Seventh Circuit in Peck held that affidavits with no material differences from the instant affidavit held sufficient indicia of probable cause. Similarly, in Allen the Sixth Circuit en banc Court held a nearly identical affidavit to the one at issue to be sufficient to establish probable cause for a search warrant. While Fields appears to be to the contrary, there is no direct Fifth Circuit case law on point that holds that the instant affidavit lacks indicia of probable cause and is a mere "bare bones" affidavit.
It is likely that an anonymous tip that "Roland" was in control of the premises at 817 S. Pinto and was in possession of cocaine at the premises would not be sufficient to support a finding of probable cause, or of the good faith exception. See United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997). The fact that the CI in this case was known to Berrigan and had provided credible and reliable information as to drug trafficking in the past is an important factor in determining whether the affidavit contained indicia of probable cause so as to fall outside the "bare bones" category. Of course, this case raises the question as to whether something more than a credible and reliable CI must be presented in the affidavit. "There is no set requirement that all tips be corroborated by subsequent police investigation in order to be considered credible. Whether subsequent corroboration is necessary must be determined in the light of the totality of the circumstances presented by the particular set of facts." Id. There remains, however, "the value of corroboration of details of an informant's tip by independent police work." Gates, 462 U.S. at 241. Some level of corroboration would have made this warrant unquestionably valid.
In ruling on the sufficiency of this affidavit, the Court must bear in mind that though an affidavit may lack factual assertions indicating direct evidence of criminal activity, the magistrate is permitted to "draw common sense conclusions" from the facts alleged in making a probable cause determination. United States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990). An affidavit should be read in a "common sense and realistic manner." United States v. Freeman, 685 F.2d 942, 948 (5th Cir. 1982). In addition, the Court should afford "great deference" to the magistrate's decision in issuing the search warrant, Gates, 462 U.S. at 236, and "doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Phillips, 727 F.2d 392, 399 (5th Cir. 1994). Because there is no direct Fifth Circuit law to the contrary, and because there exists case law supporting application of the good faith exception to an affidavit with the level of detail and factual allegation as the one at issue, the Court DENIES the motion for reconsideration.
Having found that the good faith exception applied to the search of the house and surrounding buildings at 817 S. Pinto, the Court need not determine whether probable cause actually supported the issuance of the search warrant.
B. A Word Of Caution
Having found that the good faith exception applies to the affidavit in this case, a word of caution should be made to police officers for future situations. The affidavit at issue in this case is near the outer boundary of what is acceptable to evidence such indicia of probable cause that a reasonable police officer could be expected to rely upon it. In fact, a prudent police officer would likely strive to provide a magistrate with much more detail in support of a search warrant. In this instance, one way that likely would have ensured the search warrant's affidavit validity would simply have been to inform the magistrate, in writing, of what was known or easily ascertainable to Detective Berrigan. Berrigan knew that the Gallegos family lived at 817 S. Pinto and that vehicles registered to members of the Gallegos family were parked outside. There is no evidence in the record as to exactly which members of the Gallegos family actually resided at the residence, or of whose vehicles were parked outside, but had Berrigan run a background check on members of the Gallegos family, he would have discovered drug offense convictions on the part of Defendant. Had the fact that a known drug offender was either living at or associated with the subject residence been made known to the Magistrate, there is little doubt that this would have been sufficient to establish probable cause. In addition, had Detective Berrigan conducted some surveillance of the residence, it is possible that he could have corroborated the tip that drugs were being sold outside the house. In fact, a drug transaction was witnessed as the officers arrived to execute the search warrant. Affidavits in support of search warrants are routinely held to be sufficient to establish probable cause where they are supported by personal observations of the police officer, or where there has been some type of controlled infiltration of the suspected residence, such as controlled purchases of contraband from the suspect, or where information is provided by the informant as to the precise location of the contraband. Had any of these measures been conducted, there would be little question that the affidavit, containing this information, would have provided probable cause for the issuance of the search warrant.
As the Sixth Circuit stated in Allen,
Police should be aware that failure to corroborate all that can easily be corroborated incurs two dangers. The first is to risk that a warrant will not issue where it should. The second is to risk the loss, at trial or on appeal, of what has been gained with effort in the field. . . . [B]etter investigative work is preferable to merely adequate investigation. . . .211 F.3d at 976. Police officers should now be on notice that an affidavit such as the one at issue in this case runs a great risk of not being sufficient to constitute probable cause. Of course, once police officers are aware that such an affidavit does not support probable cause, it is likely to be unreasonable for an officer to rely in good faith upon such an affidavit. A prudent police officer would be well served to attempt to corroborate all that can be easily corroborated, and to inform the magistrate as to what has been done.
C. Defendant's Remaining Arguments
Defendant also argues that (1) the warrant is void for staleness; (2) there was no nexus between the residence listed in the affidavit and the actual information provided by the CI; and (3) Detective Berrigan acted with reckless disregard for the truth when providing the information regarding the CI's tip to the Magistrate. This first argument has already been disposed of in the Court's previous Order. A period of 48 hours between when a CI, who stated to police that he witnessed drug transactions occurring, gave his information to police and when police actually obtained a search warrant will not operate to make the warrant stale.
Defendant's second and third argument are based on the same premise, that Detective Berrigan did not truthfully relate the CI's information to the Magistrate. According to Detective Berrigan's testimony, he was told by the CI that drugs were being sold outside the house at 817 S. Pinto by an unknown Hispanic named Roland. It was reasonable and logical for Detective Berrigan to tell the Magistrate that Roland possessed drugs "at 817 S. Pinto" when he had been informed that drug trafficking had been observed on the front yard of the residence. An affidavit should be read in a "common sense and realistic manner," Freeman, 685 F.2d at 948, and not in a hypertechnical way. The affidavit was consistent with what had been told to Detective Berrigan by the CI, in that information as to drug trafficking on the front yard of a residence would necessarily implicate the residence itself as the place of drug storage. The information provided by Detective Berrigan to the Magistrate supported a nexus between the residence and the information actually received, and was not told with reckless disregard for the truth.
Conclusion
Defendant moves for reconsideration of the Court's Order denying the motion to suppress. Defendant argues that the affidavit supporting the search warrant in this case did not evidence indicia of probable cause and was therefore nothing more than a mere "bare bones" affidavit that cannot support the good faith exception to the exclusionary rule. While the affidavit is clearly lacking in detail, and was in no way corroborated by independent police work, the Court cannot say that it was so lacking in indicia of probable cause that it was a "bare bones" affidavit. The courts have not come to much of a consensus as to what would constitute a "bare bones" affidavit. There have been cases, however, in which affidavits materially similar to the one at issue in the case have been found to either support probable cause or to at least fall within the good faith exception. Because there is nothing directly to the contrary, the Court finds that this case should be resolved in favor of the affidavit, and the good faith, objectively reasonable reliance upon it by the police officers. Defendant's remaining arguments are without merit. Defendant's motion for reconsideration is DENIED (docket no. 68).