Opinion
Cause No. IP 01-108-CR-1 H/F
April 11, 2002
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
A grand jury indicted defendant Ikeitz Garey on two charges of unlawful possession of unregistered destructive devices (firebombs) and two charges of being a convicted felon in unlawful possession of firearms. The evidence supporting the charges stems from a search of Garey's residence on November 3, 1998 pursuant to a search warrant issued by a state court. The search warrant was issued in the course of an investigation of a firebombing of a residence at 2161 East 34th Street in Indianapolis.
Defendant Garey has moved to suppress the evidence obtained in the search. After receiving evidence and hearing argument on the motion, the court denies the motion to suppress. Pursuant to Fed.R.Crim.P. 12(e), the court now states its findings of fact and conclusions of law.
Facts
On November 2, 1998, Judge Gary Miller of the Marion Superior Court signed a search warrant authorizing the search of a residence at 1615 North Carrollton Street in Indianapolis. The search warrant authorized a search for:
Any materials that may have been used to make Molotov cocktails, specifically gasoline and "Big Bear" Brand, 40 ounce beer bottles as alleged by the confidential source as the type that were utilized in a recent arson/firebombing. In addition, articles of clothing that were described by a confidential source as worn by two subjects, to include black sweat shirts, black jeans, black hats and black or dark colored tennis shoes. Further, several firearms that were utilized by the subjects during the commission of this arson/firebombing, to include an AK-47 type assault rifle, and blue steel and chrome-plated semi-automatic handguns are believed to be within this residence.
The return on the search warrant indicates it was executed at 5:00 a.m. on November 3, 1998, and that law enforcement officers found and seized an assault rifle, a 9 mm pistol, a .380 pistol, a Molotov cocktail, men's clothing, "misc. drugs," and miscellaneous paperwork and photographs and "paraphernalia."
Through the course of an abortive state court prosecution of Garey and this federal prosecution, no one has been able to locate a signed and sworn copy of an affidavit to support the search warrant. Defendant Garey argues that there never was a signed affidavit, but the court disagrees. The weight of the evidence shows that Indianapolis Police Department detective M.L. Mack prepared an affidavit, presented it with the draft search warrant to Judge Miller, and swore to and signed the affidavit in the presence of Judge Miller. The court finds that the content of the affidavit was identical to Gov. Ex. 2, which is an unsigned copy of the affidavit.
Garey was also prosecuted in federal court for arson based on the firebombing of the residence at 2161 East 34th Street. Garey pled guilty and was sentenced to five years in prison, but his plea was later set aside based on the Supreme Court's decision in Jones v. United States, 529 U.S. 848 (2000), holding that 18 U.S.C. § 844(i) did not apply to arson of an owner-occupied residence not used for any commercial purpose. The criminal prosecution was Cause No. IP 00-22-CR-1, and the habeas corpus proceeding was Cause No. IP 01-146-C, which were both before Chief Judge McKinney.
The evidence stems from the record of the state court prosecution, which was submitted without objection to this court as evidence on the motion to suppress. Detective Mack testified before the state court that he had prepared the affidavit and the draft search warrant and had taken both to Judge Miller at about 4:15 p.m. on November 2, 1998. Detective Mack also testified that Judge Miller administered the oath and that Mack then signed the affidavit. Judge Miller examined the application and signed the search warrant. Detective Mack left the signed affidavit with court personnel. It has not been located since then.
Judge Miller does not specifically recall the signed affidavit described in Detective Mack's testimony, but this court believes it is highly unlikely that Judge Miller would have signed the search warrant without also having been presented a sworn affidavit to support the search warrant. Further, the unsigned copy of the affidavit is so problematic, as discussed below, that it is unlikely to have been a later fabrication to conceal the absence of a proper and contemporaneous affidavit.
The affidavit attempted to establish probable cause for the search of 1615 North Carrollton Avenue as part of the investigation of a firebombing in an occupied home and gunfight that had occurred early the morning of November 2nd. Police officers had investigated and had questioned a man named Patrick Henry. Henry had been identified by witnesses as running from the scene, and he and his clothes smelled of gasoline. Detective Mack's affidavit stated:
On Nov. 2, 1998 at 2161 E. 34th St. fire investigation units 1726 and 1727 were dispatched to the scene of a residence fire where gunshots had also been fired into and from that residence. Upon arrival fire investigator Michael Tromm conducted an examination of the fire scene and determined that all accidental causes for this fire could be ruled out. And this appeared to be an intentional act of arson.
After speaking with several residents inside the residence, I was told by Jimmy Williams, a B/M/35, who was asleep on the couch, that he heard a loud bang that woke him and at that time he discovered the inside of the house on fire. This was consistent with investigator Tromm's conclusion, that a firebomb or other similar device had been hurled into the residence. I also spoke with Officer Jeff Barris, A-123 who stated that a subject was seen running from the area and the witness, Mr. Timothy Jones, B/M/27, who lives at 1920 E. 34th St., saw a man running from the fire scene [whom] he later I.D.'d as Patrick Henry a B/M/43. Mr. Henry was [detained] by Officer Frank Hittle, A335, who told me that he noticed a very strong odor of gasoline on Mr. Henry's clothing and person. Mr. Henry was transported to North Dist. Roll Call where he signed a rights waiver and agreed to give a voluntary statement. In his statement Mr. Henry admitted that he had hurled two Molotov cocktails into the residence at 2161 E. 34th St. causing a fire inside the residence. Mr. Henry then stated that he was coerced into doing this at gunpoint by a BM/ by the name of "Keith" who also uses the street name of "Batch". Mr. Henry stated he had been living with "Batch" in a residence at 1615 N. Carrollton and as described in the attached search warrant.
Gov. Ex. 2.
The record also includes a transcript of an unsigned statement given by Patrick Henry to police arson investigators on the morning of November 2nd.
Gov. Ex. 4. Henry initially denied any knowledge of the firebombing. He tried to explain the smell of gasoline by claiming to have removed and repaired a gas tank from a car. (As the police asked skeptically: "So you were working on this `48 Plymouth at 3:00 in the morning in the front yard of this house?") After asking many questions about the details of this repair job, the investigators told Henry that he had been identified by witnesses to the firebombing. He continued to deny knowledge or involvement.
The investigators asked Henry about drug use. He admitted to using crack cocaine, most recently a day and a half earlier. Henry then said he had gotten to the area near the firebombing by riding with a friend from 17th and Carrollton, and he continued to string out that improbable story. The tape then was turned over, and the questioning resumed in a completely different tenor:
Q We know they made you do it Mr. Henry. Ok. But you got to tell us the real deal, if not you going to be in prison for a long time. Now here's another thing. We, we ain't so stupid that we going to run to tell them where we got information. We ain't dumb. If we did that, we might as well get out of the police business. You need to tell us exactly what happened.
A They going to kill me.
Q They not going to kill you Mr. Henry. They are not going to kill you. Cause too many people saw what happened. You need to come clean and take care of yourself, right [now].
A They going to kill me.
Q They not going to kill you Mr. Henry. You think we would jeopardize your life like that? This stuff is on tape. You think we would jam ourselves up like that? You tell us what happened Mr. Henry.
A If I say something, will I get prosecuted or what?
Q You want me to ask you if you have any idea what you are going to be charged with and what the penalties are for that. There was people in that house. That makes it a B felony, endangerment. And we could probably go for attempted murder. There was seven people in that house. You know how long you going to be in prison. Now I can't make you any promises and neither can she. But if you come clean with us and help us get to the big picture, we'll do all we can.
A I'm going to jail anyway.
Q I got to be honest with you, I can't promise you you're not. But I can promise you this, if you take the fall by yourself, you're going to be gone a long, long time. Like the det. said, too many people saw what happened.
A They going to kill me.
Q They who?
A I just take the fall.
Q Are you going to take it by yourself?
A I'm going to jail, I'm going to prison, so I'll just take the fall. By myself.
Q Now Mr. Henry, have you ever heard of a plea bargain, have you ever heard of helping out the police[?]
A I don't want to go to jail period. So if I got to go to jail I ain't talking.
Q Mr. Henry, Mr. Henry listen. Let me tell you something. Let me explain how it works. Ok, cause you obviously don't understand. Listen. Look at me, look at me. Look at me and I'll explain to you how this works. Ok. We charge you with this arson, Ok. Now listen to me. You become very cooperative with the authorities, Ok. All of a sudden there is like a 98% possibility that you walk away with nothing. Ok.
A Man they made me do it, they said they going to shoot me if I tell you.
Q We know that. No [they're] not. Do you think we going to go tell them that you told us.
A [They're] going to shoot me. They lay their guns on me then, man, when it happen. I'm through. I'm not going to say no more.
Gov. Ex. 4.
Henry went on to say that "they" had given him a place to live and a job to do. Henry told the police that "they" had given him the Molotov cocktails made with "Big Bear" beer bottles. "They" had told him to light the Molotov cocktails and then throw them through the window of a house, and told him that if he did not, they would shoot him. He later said that "they" had an "AK7" and "a bunch of pistols." He said that one of the men who threatened him went by the names "Keith" and "Batch," and that the guns were his. Henry said that "Batch" was staying in a duplex and that Henry himself was living in the garage there. Henry had the wrong address — 1617 Carrollton instead of 1615 — but he described the building as boarded up on one side. Henry also said that "Batch" and a younger man helping him had been dressed in black and had fired guns while Henry threw the Molotov cocktails.
Discussion
I. The Existence of the Supporting Affidavit
Garey contends that the search warrant simply was not supported by an affidavit. The court finds otherwise, that the original signed and sworn affidavit existed but has been lost. The loss of the affidavit does not require suppression of the evidence found in the search. The court may consider other evidence to show that the search warrant was issued upon a showing of probable cause and to show the contents of the affidavit. See United States v. Towne, 997 F.2d 537, 542-44 (9th Cir. 1993) (district court erred by refusing to consider extrinsic evidence to counter the claim that the missing affidavit never existed); United States v. Lambert, 887 F.2d 1568, 1571-72 (11th Cir. 1989) (district court properly considered extrinsic evidence to establish contents of missing affidavit). The evidence in this case shows that the search warrant was supported by a signed and sworn affidavit.
II. Probable Cause for the Search and the Good Faith Exception
Garey argues that even if the affidavit existed, it failed for several reasons to establish probable cause for a search of 1615 North Carrollton. He asserts the affidavit did not establish a nexus between the location to be searched and the items sought; that the affidavit provided no basis for finding that any information Henry provided was credible; that the affidavit failed to specify the location to be searched; and that the affidavit failed to specify the particular items to be seized.
Judge Tinder set forth in detail the applicable legal standards in United States v. McNeal, 82 F. Supp.2d 945, 950-51 (S.D.Ind. 2000) (granting motion to suppress):
A magistrate's decision to issue a search warrant should be upheld so long as the magistrate had a "substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotation omitted, alteration in Gates); see also United States v. Spry, 190 F.3d 829, 835 (7th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 967, 145 L.Ed.2d 838 (2000); United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir. 1995), cert. denied, 517 U.S. 1250, 116 S.Ct. 2511, 135 L.Ed.2d 200 (1996); United States v. Malin, 908 F.2d 163, 165 (7th Cir. 1990). A magistrate's probable cause determination is entitled to deference:
[A] magistrate's determination of probable cause is to be `given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.'
Spry, 190 F.3d at 835 (quoting United States v. Pritchard, 745 F.2d 1112, 1120 (7th Cir. 1984) (quoting United States v. Rambis, 686 F.2d 620, 622 (7th Cir. 1982))). The reviewing court should consider all the facts presented to the magistrate rather than focusing on isolated aspects of the probable cause showing. See Lloyd, 71 F.3d at 1262-63. Because there is a strong preference for searches conducted pursuant to a warrant, Gates, 462 U.S. at 236, 103 S.Ct. 2317, "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common-sense, manner." Id. (quotation omitted, alterations in original). Doubtful cases are to be resolved in favor of upholding the search warrant. See United States v. Ventresca, 380 U.S. 102, 106, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Rambis, 686 F.2d at 622.
Probable cause to search exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found . . . ." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see also Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; United States v. Navarro, 90 F.3d 1245, 1251 (7th Cir. 1996). The Supreme Court in Gates announced a totality of the circumstances approach to determining whether probable cause to search exists. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The magistrate's task "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. "An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause . . . ." Id. at 239, 103 S.Ct. 2317.
In making this probable cause determination, "a magistrate is given license to draw reasonable inferences concerning where the evidence referred to in the affidavit is likely to be kept, taking into account the nature of the evidence and the offense." United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997), cert. denied sub nom. Cox v. United States, 522 U.S. 1098, 118 S.Ct. 898, 139 L.Ed.2d 883 (1998); United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996). In addition, a magistrate is "`entitled to take into account' the experiences of trained officers whose affidavits explain the significance of specific types of information." United States v. Lamon, 930 F.2d 1183, 1189 (7th Cir. 1991) (finding a substantial basis for probable cause determination based in part on a detective's experience that drug dealers often hide money, drugs, and other incriminating evidence at their permanent residences); see also United States v. Batchelder, 824 F.2d 563, 564 (7th Cir. 1987) (stating that magistrate was entitled to take into account agent's experience indicating that individuals who purchased silencers tended to keep them in their residences and for extended periods of time); United States v. Rambis, 686 F.2d 620, 624 (7th Cir. 1982) (stating that magistrate could reasonably rely on the facts in the affidavit of experienced FBI agent). The magistrate, however, cannot simply ratify the bare conclusions of another. See Gates, 462 U.S. at 239, 103 S.Ct. 2317; Aguilar v. Texas, 378 U.S. 108, 113-14, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
The government acknowledged at the hearing on Garey's motion that the affidavit in this case was "less than perfect." Even if the affidavit was insufficient to support the search warrant, however, the government contends that law enforcement officers were entitled to rely in good faith on the search warrant issued by Judge Miller.
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that when officers execute a search warrant with an objectively reasonable belief that the warrant is valid, evidence obtained through good faith execution of the search warrant shall not be excluded or suppressed simply because the warrant is later determined to have been defective. 468 U.S. at 922. The Leon Court identified four situations in which suppression of the fruits of a search authorized by a warrant is still an appropriate remedy: (1) if the issuing judge was misled by information in an affidavit that the affiant knew or should have known was false; (2) if the issuing judge wholly abandoned his or her judicial role; (3) if the affidavit was so lacking in indicia of probable cause that it rendered the executing officers' belief that probable cause existed unreasonable; or (4) if the warrant was facially deficient to the point that no reasonable officer could have relied on it. Id. at 923.
In this case, the decisive issue is whether police officers were entitled to rely on the search warrant under Leon. The court need not and does not decide whether the search warrant was actually supported by probable cause. See United States v. Fairchild, 940 F.2d 261, 264 (7th Cir. 1991) (assuming without deciding that affidavit failed to establish probable cause, but holding that good faith exception applied); United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992); accord, United States v. Leon, 468 U.S. at 924 (court may adapt decision-making process to needs of case). None of the defects asserted by defendant Garey were so serious as to undermine the right of the police officers to rely on the search warrant signed by Judge Miller.
The Nexus Between Crime and Residence: Garey contends that the affidavit failed to show a sufficient nexus between the firebombing on East 34th Street and the residence to be searched. See, e.g., United States v. Dickerson, 975 F.2d 1245, 1250 (7th Cir. 1992) (finding no probable cause for search warrant for bank robbery suspect's home, but finding that good faith exception applied). The affidavit asserts that Henry admitted to the firebombing, that he had been coerced into doing so at gunpoint by "Batch," and that he had been staying with "Batch" at the location to be searched. The affidavit does not indicate that Henry had told the police that any guns or Molotov cocktail components had been located at the residence.
Nevertheless, assuming that the absence of such an explicit statement would defeat a finding of probable cause, the police could rely in good faith on the search warrant issued by Judge Miller. The affidavit stated that Henry had admitted to throwing the Molotov cocktails only hours earlier. The affidavit stated that Henry claimed he had done so under threat, at gunpoint, by "Batch." The affidavit also showed that Henry told the police that he had been living at 1615 North Carrollton, and had been living there with "Batch."
A search warrant may issue even in the absence of direct evidence linking criminal objects to a particular site. United States v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995) (upholding search warrant for home of bank robbery suspect; under totality of circumstances, reasonable to expect to find evidence there), citing United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991) (upholding search warrant for drug dealer's home). Based on the facts linking Henry to the firebombing and to the home at 1615 North Carrollton, a reasonable police officer could conclude that a reasonable judge could "make a practical, common-sense" conclusion that there was "a fair probability that contraband or evidence of a crime will be found in a particular place." See Illinois v. Gates, 462 U.S. at 238.
Defendant Garey points out correctly that the affidavit does not provide any link to him personally. That absence does not matter, though, for the issue on the validity of the search warrant is whether there was probable cause to believe the evidence of a crime would be found at the location to be searched. E.g., Ornelas, 517 U.S. at 696 (issue is whether person of "reasonable prudence" could believe that contraband or evidence of a crime could be found at location); Sleet, 54 F.3d at 306 (magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit). Henry gave the police and Judge Miller a connection between the firebombing and the location to be searched by telling them that he and the man who, he said, had coerced him to throw the firebombs had been residing at the location. The search could be justified by the link to the location, without knowing the identity of the residents.
Henry's Credibility: Garey asserts next that the affidavit failed to establish probable cause because it gave the issuing judge no basis for finding that Patrick Henry was a credible source of information. The affidavit does not provide any explicit grounds for finding Henry's statement to have been credible. The best indication of credibility is simply Henry's admission that he had thrown the two Molotov cocktails, thus providing a statement against his penal interests. That statement was also corroborated, of course, by the facts that Henry and his clothes smelled of gasoline and that he had been identified by at least one witness as the firebomber.
The affidavit does not provide any information about Henry's earlier false denials of involvement, nor about his crack use, nor about the officers' assurances that if he cooperated there was a "98% possibility" that he would walk away without prison time. Those assurances were given immediately before Henry told the police that "they made me do it" and had threatened to shoot him if he told the police.
On the issue of credibility, the affidavit is at best marginal, but the court finds that the problems were not so serious as to bar good faith reliance on the warrant. The Seventh Circuit has explained that some of the factors that demonstrate that an informant's information is sufficiently reliable to support the magistrate's issuance of a warrant include: "(1) personal observation by the informant; (2) the degree of detail given; (3) independent police corroboration of the informant's information; and (4) the informant's testifying at the probable cause hearing." United States v. Singleton, 125 F.3d 1097, 1103-04 (7th Cir. 1997), citing United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996) and United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir. 1995).
In this case, the affidavit indicated that the informant, Patrick Henry, was providing information based on his own personal observations. The summary of his information in the affidavit provided some details about the crime, though not as many details as he provided in his interrogation. The police had corroborated the fact of the firebombing, and they had corroborated Henry's own involvement through the witness identification and the "very strong odor of gasoline" on Henry and his clothing. Henry did not testify at any hearing, but such testimony is only one factor, not an essential element to show an informant's credibility. See United States v. Lloyd, 71 F.3d at 1263 (informant's presence at hearing added to reliability of information).
Moreover, Henry was not merely an informant. He was admitting his own involvement in a serious crime. His statement was against his own penal interest. That fact weighs in favor at least of the police officers' ability to rely on the warrant signed by Judge Miller. See United States v. Harris, 403 U.S. 573, 583-84 (1971) (plurality opinion) (unidentified informant's self-incriminating tip may support finding of probable cause even where informant receives payment or "break" for providing information, and even if statement would not be admissible at trial); United States v. Barnes, 909 F.2d 1059, 1069 (7th Cir. 1990) (fact that informant's statement was against penal interest added to credibility); United States v. Mancillas, 580 F.2d 1301, 1304-05 (7th Cir. 1978) (same, in context of probable cause for arrest).
Garey contends that the affidavit's omissions of any reference to Henry's initial denials, to the assurances police officers gave him about the benefits of cooperation, and to Henry's admission to recent crack cocaine use (a day and a half earlier) should undermine the government's reliance on the good faith exception under Leon. The court disagrees.
The fact that the suspect did not immediately admit his involvement is hardly surprising. The fact that the affidavit did not detail Henry's initial and obviously incredible denials was not so material to the judge's determination that their absence impaired his ability to determine probable cause.
More troublesome is the lack of reference to the officers' statement to Henry that there was a "98 percent possibility" that he could "walk away with nothing" if he cooperated. However, the police officers also told Henry that "I can't make you any promises and neither can she," and that they could not promise he would not go to prison for the firebombing. There is still no indication that the officers crossed the line in their interrogation of Henry, and the court believes the details of the officers' persuasion would not have been critical to the issuing judge's evaluation of probable cause. Also, by the time those assurances were given, Henry had already acknowledged his own involvement, which provided a reasonable basis for looking for evidence of the firebombing at the place that he said was his residence.
Henry's recent crack cocaine use obviously did not mark him as a model citizen, but there is no indication that he was under the influence when he gave his statement to the police. This court doubts that the fact that a man who had just admitted throwing two burning Molotov cocktails into an occupied home had also recently smoked crack cocaine would have had a material impact on the issuing judge's evaluation of his credibility. The omission does not, in this court's view, undermine the ability of the police to rely on the search warrant here.
Specificity on Location to be Searched: Garey also contends that the affidavit was not sufficiently specific about the location to be searched. The warrant itself authorized a search of "the north half of a two story double family residence with white siding and a stone and brick front porch" directly south of the duplex to the north, which bore "the address of 1619 N. Carrollton." The description was needed because, at least as stated in the warrant itself, the street number on the residence was missing the second and fourth digits. The affidavit referred only to 1615 North Carrollton, without those additional details, but also "as described in the attached search warrant." At the very least, the discrepancy between the two descriptions does not preclude reliance on the good faith exception. There is no indication here that the police searched any residence other than the one specified in the affidavit — 1615 North Carrollton.
Particularity of the Warrant and Affidavit: Garey argues next that the affidavit did not describe with sufficient particularity the items to be seized. As with the address issue, the warrant itself was more specific than the affidavit. The warrant referred to any materials that could have been used to make Molotov cocktails, "specifically gasoline and `Big Bear' Brand, 40 ounce beer bottles," as well as black sweat shirts, black jeans, black hats and black or dark colored tennis shoes, and firearms, "to include an AK-47 type assault rifle, and blue steel and chrome-plated semi-automatic handguns." The affidavit referred to Henry's statement that he had thrown two Molotov cocktails and referred to the alleged coercion at gunpoint, but it did not include the specific references to the "Big Bear" brand of beer bottles or clothing or the types of firearms.
When evaluating the good faith of officers' reliance upon a search warrant, a court may consider information known to the officers that was not presented to the court. United States v. Dickerson, 975 F.2d 1245, 1250 (7th Cir. 1992) (finding good faith reliance where officers executing warrant knew of additional information supporting probable cause); accord, United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987) (when assessing good faith, courts can and must look to the totality of the circumstances, including what the executing officer knew but did not include in his affidavit); United States v. Word, 2000 WL 724041, at *12-13 n. 4 (S.D.Ind. 2000) (same, collecting cases), aff'd mem., 2001 WL 13133 (7th Cir. 2001).
In this case, the same officer who executed the search warrant had also prepared both the affidavit and the draft search warrant that Judge Miller ultimately signed. The same officer had also participated in the interrogation of Patrick Henry, so he knew the more detailed information that Henry had provided regarding the clothing, the beer bottles, and the firearms. In light of the more detailed information known to Detective Mack, he was entitled to rely in good faith on the validity of the search warrant despite the lack of detail in the affidavit on some categories of the items sought.
For the foregoing reasons, the court finds that the police officers who searched defendant Garey's residence were entitled to rely on the facially valid search warrant issued by Judge Miller, so that the evidence seized in the search should not be suppressed. Defendant Garey's motion to suppress that evidence is hereby denied.
So ordered.