Opinion
Case No. 8:02CR10.
April 18, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 17) issued by Magistrate Judge Thomas D. Thalken recommending denial of the Motion to Suppress and request for Franks hearing (Filing No. 11) filed by the Defendant, Clayton Bullard. Bullard filed a Statement of Objections to the Report and Recommendation (Filing No. 18) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Bullard is charged in Count I of a two-count Indictment with: possession with intent to distribute 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine ("PCP"), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1) (Count I); and possession with intent to distribute cocaine, in violation of §§ 841(a)(1) and 841(b)(1) (Count II). Bullard seeks a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) and an order suppressing all evidence obtained as a result of the search of his person, vehicle, and residence at 3442 Corby Street, Omaha, Nebraska.
Following an evidentiary hearing, Magistrate Judge Thalken issued a Report and Recommendation in which he determined, with regard to the Franks issue: the information that Bullard argued was omitted from the search warrant affidavit was not required in the affidavit; and, with regard to the alleged omission, Bullard failed to demonstrate any misrepresentation or reckless disregard for the truth. With regard to the probable cause issue, the search warrant affidavit contained sufficient information to support a finding of probable cause to believe illegal narcotics were present at 3442 Corby Street. On the basis of these determinations, Magistrate Judge Thalken recommended that Bullard's Motion to Suppress be denied.
Bullard filed Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 18.) The Objections are supported by a brief.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Bullard has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
NELR 72.4 provides: "The statement of objection shall specify those portions of the recommendation to which objection is made and the basis of the objection." Bullard's objections consist only of two broad objections. The Court considered the Brief in Support of the Objections in discerning the bases for the objections.
STATEMENT OF FACTS
The Magistrate Judge set out in his "findings of fact" the portion of the search warrant affidavit that supported the determination that probable cause existed. (Filing No. 17.)
Briefly, law enforcement officers obtained information from a confidential informant which officers incorporated into their affidavit and application for a search warrant. Douglas County Court Judge Joseph Caniglia signed the search warrant. The search warrant, authorizing the search of Bullard's person and the premises at 3442 Corby Street, was executed on December 18, 2001. Incriminating evidence was found that led to the filing of the Indictment. (Exhibit 1.)
At the evidentiary hearing, Bullard offered evidence previously filed with the Court. (Filing No. 12; TR 3:4-14.) Bullard's evidence included an Affidavit of Clayton Bullard stating that he knew the informant was Corey Dailey, who was at Bullard's residence on December 17, 2001. Bullard stated that Dailey was under the influence of "some kind" of controlled substance at the time. Bullard also included an Affidavit of Ralph Dorsey who stated that he knew Dailey well, and that he was aware that Dailey was under the influence of various named and unnamed controlled substances on December 14, 15, 16, and possibly December 17, 2001. Dorsey also testified in his Affidavit that Dailey told him he needed to "`get somebody'" because of his pending felony charges. Finally, Bullard submitted an Affidavit of his attorney, Alan Stoler, who stated that he obtained and attached to his affidavit Dailey's criminal record. The attachment shows three pending drug charges, one drug conviction, and several convictions for false information. (Filing No. 12.)
The government stated that it does not concede the identity of the confidential informant. (TR 15:5-6.) For purposes of this Memorandum and Order, in referring to "the CI" the Court does not find that the CI is Corey Dailey.
Also, the Court has considered the transcript of the hearing conducted by the Magistrate Judge on February 27, 2002 (Filing No. 16). The Court also carefully viewed the evidence. Based on the Court's de novo review of the evidence, Judge Thalken's factual findings will be adopted.
OBJECTIONS
Bullard objects to the Magistrate Judge's Report and Recommendation with the following arguments regarding the Franks issue: the Magistrate Judge's findings are contrary to the facts and the law; crucial facts were omitted from the search warrant affidavit with the intent to make, or in reckless disregard as to whether they render, the affidavit misleading; and, if the omitted facts were included, probable cause could not be determined based on the affidavit. With regard to the probable cause issue, Bullard objects that the four corners of the search warrant affidavit did not include sufficient information to support a finding of probable cause.
ANALYSIS
Franks Hearing
Bullard objects to the denial of a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), arguing that the affidavit in support of the search warrant omitted information regarding the confidential informant ("CI") that should have been made available to the issuing judge. Bullard argues in his brief that the omitted details consist of the CI's criminal record and his drug use during the same time period he provided information about Bullard. Bullard argues that the omitted information would have led to a determination that the CI was not reliable, and therefore, the issuing judge would not have determined that probable existed for issuance of the search warrant.
To obtain a Franks hearing within the context of the alleged omission, Bullard must show: (1) facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) the affidavit, if supplemented by the omitted information, would not support a finding of probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001); United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995). This "substantial preliminary showing" is "not lightly met." United States v. Hively, 61 F.3d 1358, 1360 (8th Cir. 1995). Mere allegations of negligence or innocent mistake are insufficient to make this substantial preliminary showing, United States v. Najarian, 915 F. Supp. 1441, 1455 (D.Minn. 1995), but "recklessness may be inferred from the fact of omission of information from an affidavit . . . when the material omitted would have been `clearly critical' to the finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986 (citation omitted)). If the affidavit is sufficient to establish probable cause with the false material removed or with the omitted material included, no evidentiary hearing is required. United States v. Crook, 936 F.2d 1012, 1014 (8th Cir. 1991). Probable cause exists when the application for a search warrant "presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Riedesel, 987 F.2d 1388, 1390 (8th Cir. 1993).
Bullard challenges the CI's reliability, an important factor for a probable cause determination. United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996). Credibility is considered together with reliability under a totality-of-the-circumstances approach. Id.
It is not necessary to reveal a confidential informant's pending charges to a judge who determines whether probable supports issuance of a search warrant. United States v. Hall, 171 F.3d 1133, 1143 (8th Cir. 1999). The Eighth Circuit stated that it has concluded, "as a matter of law, that courts issuing search warrants are aware of the possibility that a confidential informant may be seeking leniency in his or her own situation." Id. (citing United States v. Gladney, 48 F.3d 309, 315 (8th Cir. 1995)). Regarding the informant's general criminal history, it is not required to inform an issuing judge of criminal history where the informant's tips have been at least partly corroborated. United States v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990); United States v. Parker, 836 F.2d 1080, 1083 (8th Cir. 1987). Regarding the CI's drug use as stated in the affidavits submitted by Bullard, there is no evidence that law enforcement officers knew of any such drug use at or near the time the CI provided information and, therefore, Bullard cannot meet the required showing that the information was allegedly omitted with an intent to make, or in reckless disregard of whether the omission makes, the affidavit misleading. Cf. Hall, 171 F.3d at 1143-44 (stating that despite evidence of an informant's drug use in unsworn statements, the only indication that the DEA agent might have known of such drug use fell "far short" as an offer of proof requiring an evidentiary hearing).
Therefore, the Court finds that Bullard has failed to make a "substantial preliminary showing" needed to receive a Franks hearing. The evidence presented does not amount to a substantial showing that the affidavit omitted information with the intent to make the affidavit misleading or in reckless disregard of the meaning of the affidavit. The decision of Judge Thalken regarding the denial of a Franks hearing will be upheld.
Probable Cause
"To be valid, a search warrant must be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is probable cause may be found in the place to be searched." Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998). "The standard of probable cause for the issuing judge is whether, given the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. "'"Probable cause" to issue a search warrant exists when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband will be found in a particular place.' . . . Courts should apply a common-sense approach and, considering all the relevant circumstances, determine whether probable cause exists." United States v. Buchanan, 167 F.3d 1207, 1211 (8th Cir. 1999). The probable cause determination may only be made based on the information contained in the face of the affidavit. See United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).
Probable cause exists "when the facts and circumstances within an officer's knowledge are sufficiently trustworthy to warrant a person of reasonable caution to believe that a crime has been committed and that seizable property from that crime may be located at a particular place or on a person to be searched." United States v. Gipp, 147 F.3d 680, 687 (8th Cir. 1998). Probable cause may be established by the observations of trained law enforcement officers or by circumstantial evidence. United States v. Searcy, 181 F.3d 975, 981 (8th Cir. 1999); United States v. Edmiston, 46 F.3d 786, 789 (8th Cir. 1995). Substantial deference is given to an issuing judge's determination of probable cause. That determination should be upheld "unless the issuing judge lacked a substantial basis for concluding that probable cause existed." Edmiston, 46 F.3d at 788. Bullard contends that, on its face, the search warrant affidavit sets forth insufficient facts to establish probable cause for the search of 3442 Corby Street. The Court disagrees. The affidavit recites information obtained from the CI, who stated that within 24 hours of December 17, 2001, he/she was inside the residence and witnessed Clayton Bullard, described as a black male in his 40s, about 6'2" to 6'3", about 180-190 pounds with short hair in possession of powder cocaine and PCP. The affidavit states: the CI saw liquid PCP and Bullard distributing cocaine in the residence; the CI knew that Bullard was distributing powder cocaine; and Bullard stated in the CI's presence that he wanted to distribute PCP. The affidavit also set out the CI's statement that he/she heard Bullard state that he had access to an AR15 military type rifle with two additional magazines, and that this weapon was for sale. Officers did not solely rely on the CI's statements alone. Rather, they checked MUD records and determined that "M.B. Bullard" subscribed to services for the residence. Using the Douglas County computer system, officers found a "Mercedes Bullard" listed with an address of 3442 Corby Street, and a "Clayton Bullard," described as a black male, d.o.b. 4/8/57, 6'3", 180 pounds, with a Denver, Colorado address.
The affidavit also stated that the CI: previously provided reliable and accurate information; was earlier used by the Omaha Police Narcotics Unit in cases resulting in two seizures of illegal narcotics and felony narcotics arrests; was familiar with how narcotics are packaged and sold; made controlled buys with narcotics officers yielding preliminary positive results in field tests; and was not on parole, probation or work release.
The statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant. United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (stating that an affidavit including the CI's physical description of the Defendant, the CI's knowledge of the location of the drugs within the residence, and statements regarding the CI's reliability, past work doing controlled buys for Omaha Police narcotics officers, and not being on parole or probation was sufficient); United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) (stating that, in the probable cause determination based on a CI's information, the core question of reliability may be established by either a showing of a track record of the CI providing reliable information in the past or corroboration of the information supplied by independent evidence). The Court finds that, under the totality of the circumstances, the affidavit provided sufficient indicia of criminal activity on its face to provide probable cause for the issuance of the search warrant. The information provided by the CI was corroborated to the extent possible. Officers obtained a description of Bullard that matched the one provided by the CI, and officers found that another person by the name of "Bullard" subscribed to the utilities at the address provided. Officers could not be expected to corroborate the rest of the information, i.e. the presence of illegal narcotics within the residence, as this was the very reason they were obtaining the search warrant. "Where there is essentially nothing remaining for the police to corroborate, we will not insist on a hypertechnical application of the probable cause standard or impose an impossible burden on investigators." LaMorie, 100 F.3d at 547 (stating that the reason a warrant was needed was to seize stolen items and therefore corroboration of their existence was unnecessary). The affidavit set forth numerous details supporting the reliability of the CI. In summary, the affidavit spelled out reliable information of recent criminal activity.
Therefore, the decision of Judge Thalken regarding the issue of probable cause will be upheld.
IT IS ORDERED:
1. The Objections to the Magistrate's Report and Recommendation (Filing No. 18) are denied;
2. The Magistrate Judge's Report and Recommendation (Filing No. 17) is adopted; and
3. The Motion to Suppress and Request for Franks Hearing filed by the Defendant, Clayton Bullard (Filing No. 11) is denied.