Summary
In Taylor, the Court accepted and adopted the Report and Recommendation of Magistrate Judge Charles E. Binder, finding that the "motion to suppress [is] granted because the affidavit failed to provide probable cause and because the good faith exception cannot save a `bare bones' affidavit such as the instant one."
Summary of this case from U.S. v. EvansOpinion
Case Number 05-20052-BC.
March 20, 2007
Presently before the Court is a report issued by Magistrate Judge Charles E. Binder on February 6, 2007 recommending that the defendant's motion to suppress be granted and evidence resulting from that search be suppressed. Thereafter, the parties filed timely objections to the report and recommendation. The defendant largely concurred in the magistrate judge's suggestion that the search warrant affidavit lacked probable cause on its face, but asserted that the evidence also could be suppressed under Franks v. Delaware. The government contended that probable cause was present under a totality of the circumstances because the basis for the information contained in the search warrant affidavit was supported by statements of a reliable citizen informant. The Court has conducted a de novo review of the record in light of the parties' submissions, the transcript of proceedings held before the magistrate judge, and heard oral argument on March 20, 2007.
At the conclusion of the hearing, the Court determined that magistrate judge reached the correct result. The Court found that information supporting the credibility of informant, Richie Spear, should have been included in the search warrant affidavit. Without such information, it was not possible for reviewing magistrate in this case to make a meaningful determination as to the presence of probable cause that the coins listed in the search warrant likely would be found in the defendant's residence. However, the Court disagreed that the alleged acts or omissions of law enforcement officers executing the warrant required suppression under Franks. After a review of the record, including a transcript of an evidentiary hearing conducted by Magistrate Judge Charles E. Binder, the Court was unable to discern instances that called the affiant's intent to mislead the reviewing magistrate into question or that the affiant recklessly provided such information in order obtain a warrant.
Accordingly, it is ORDERED that the government's objections to the report and recommendation [dkt # 21] are OVERRULED, the defendant's objections to the report and recommendation are OVERRULED, the magistrate judge's report and recommendation [dkt # 20] is ADOPTED, and the defendant's motion to suppress [dkt # 12] is GRANTED.
It is further ORDERED that evidence seized as the result of the deficient search warrant is SUPPRESSED.