Opinion
Criminal No. 02-103 ADM/SRN
August 28, 2002
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant Marc Anthony Hester's ("Defendant") Objections [Doc. No. 15] to the August 9, 2002, Report and Recommendation ("R R") of Magistrate Judge Susan Richard Nelson [Doc. No. 13]. The R R recommended that Defendant's Motion to Suppress Physical Evidence Seized [Doc. No. 7] be denied. For the reasons set forth below, the R R is adopted. The factual background for this matter is adequately set forth in the R R and is incorporated by reference for the purposes of Defendant's present objections.
II. DISCUSSION
A district court shall make an independent, de novo evaluation of those portions of the R R to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
The R R recommends denying Defendant's Motion to Suppress, finding that while "there was no probable cause on which to issue the warrant, . . . the evidence is still admissible under the Leon good-faith doctrine." R R at 15. "Probable cause means `a fair probability that contraband or evidence of a crime will be found in a particular place' given the circumstances set forth in the affidavit." United States v. Horn, 187 F.3d 781, 785 (8th Cir. 1999) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "The source and credibility of evidence in support of a warrant request is considered in the totality of the circumstances analysis, and a warrant is proper so long as the evidence as a whole creates a reasonable probability that the search will lead to the discovery of evidence." United States v. Humphrey, 140 F.3d 762, 764 (8th Cir. 1998) (citing Gates, 462 U.S. at 243-45).
The prosecution objects to the R R's finding that the warrant was not supported by probable cause, arguing that the facts in the affidavit of Officer Heather Weyker supporting the warrant application were sufficient under the totality of the circumstances test to establish probable cause. The supporting affidavit articulates that the cooperating defendant ("CD") stated the names of the three suspects, the address where they were located, that the C.D. had observed Defendant's brother manufacturing crack cocaine at that address, that the C.D. had purchased crack cocaine from the Defendant, and that the C.D. had observed Defendant's brother carrying a gun and striking another person with it. The C.D. also stated that Defendant's girlfriend was aware of the criminal activity, and allowed it to occur. The police corroborated the apartment at the given address as leased to Defendant's girlfriend, and that Defendant and his brother both had criminal histories, including Defendant's brother's prior felony conviction for gun and drug offenses involving cocaine. The C.D. also identified Defendant and his brother in a photo lineup.
"Great deference" is accorded the judicial officer issuing a warrant. United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995). However, the statement of a C.D. without a history of providing law enforcement officials with truthful information, such as the C.D. here, is like an anonymous tip, which is "insufficient in itself to support a finding of probable cause." United States v. Wells, 223 F.3d 835, 839 (8th Cir. 2000) (citing Florida v. J.L., 529 U.S. 266 (2000)). The warrant affidavit includes information corroborating the Defendant's girlfriend's address, the Defendant and his brother's identities, and their criminal histories. While case law supports the argument that corroboration of "innocent details" alone is not sufficient to establish probable cause, the accumulated facts here present a close case for probable cause analysis. Id. at 839-40. The evidence gathered by the police and recited in the search warrant application are right next to, if not over, the line required for the sufficiency of a search warrant. Regardless of whether or not the warrant was supported by probable cause, however, it is clear that the Leon good-faith exception applies and establishes the validity of the evidence seized.
Defendant objects to the finding that the Leon good-faith exception should be applied, arguing that all four exceptions to the Leon rule apply. Def. Objections at 1. In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied to evidence seized in good faith reliance on a judge's finding of probable cause, even if the search warrant is later determined to be invalid. Leon, 468 U.S. at 921-22. However, Leon's good-faith exception will not apply if "(1) the judge issuing the warrant was misled by statements that the affiant knew were false or would have known were false except for `his reckless disregard of the truth;' (2) `the issuing magistrate wholly abandoned his [or her] judicial role;' (3) the affidavit in support of the warrant is `so lacking in indicia or probable cause as to render official belief in its existence entirely unreasonable;' or (4) the warrant is `so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.'" United States v. Lindsey, 284 F.3d 874, 878 (8th Cir. 2002) (citing Leon, 468 U.S. at 923).
The police acted in objectively reasonable reliance on a warrant issued by a neutral judge. See United States v. Johnson, 78 F.3d 1258, 1260-64 (8th Cir. 1996); United States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991). The officers had knowledge that Defendant's brother had actual convictions for drug and weapons related offenses, that the C.D. had seen him in the apartment in question manufacturing crack cocaine and assaulting someone with a gun, and that Defendant had sold crack cocaine to the CD. These facts, all included in the affidavit, establish that the affidavit was not "so lacking in indicia or probable cause as to render official belief in its existence entirely unreasonable." See Lindsey, 284 F.3d at 878. Moreover, the verification of Defendant's girlfriend's lease and the criminal histories of Defendant and his brother lend credibility to the statements of the CD, making the officer's belief that probable cause existed reasonable. See Anderson v. Creighton, 483 U.S. 635, 641 (1987); United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987). Therefore, the resulting warrant is not "so facially deficient . . . that the executing officers [could not] reasonably presume it to be valid." Lindsey, 284 F.3d at 878. The fact that Weyker did not include in the affidavit that police had deemed unsubstantiated the concern about narcotics activity of the manager of the property in question six months earlier did not mislead the judge. There is no other evidence that Weyker intentionally misled the judge, or that the judge abandoned his role as a neutral and detached party. Judge Nelson correctly determined that the evidence is admissible under Leon's good-faith exception. Accordingly, Defendant's objection on that ground is denied.
Defendant further argues the predicate facts supporting a no-knock or nighttime warrant were not set forth in the search warrant and affidavit, and thus the exceptions to application of the Leon good-faith exception prevent admission of the evidence. To justify a no-knock entry, police must have "a reasonable suspicion that knocking and announcing their presence . . . would be dangerous . . . or . . . would inhibit the effective investigation . . . by . . . allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 395 (1997). The Leon good-faith exception also applies in the case of no-knock search warrants. United States v. Moore, 956 F.2d 843, 850-851 (8th Cir. 1992). The affidavit stated that the officers had information about guns being observed on Defendant's brother and inside the premises at issue, and that the cover of darkness would assist in securing the protection of the officers executing the warrant. The affidavit also stated that an unannounced entry was necessary to prevent the loss, destruction or removal of the objects of the search, both guns and drugs, in addition to the concern for the safety of the officers, given the evidence of firearms inside the house. These facts satisfy the reasonable suspicion of the officers to request and execute a no-knock nighttime warrant.
Defendant asserts that the police failed to make a threshold reappraisal of the need for a no-knock warrant execution. A threshold reappraisal of the circumstances requiring no-knock entry is not required under Minnesota law. State v. Wasson, 615 N.W.2d 316, 322 (Minn. 2000); State v. Botelho, 638 N.W.2d 770, 781 (Minn.App. 2002). Even so, Weyker performed a reappraisal by observing the third floor of the apartment building before the warrant was executed. She saw three individuals in the apartment, and nothing changed her belief that a weapon might be present. Defendant's remaining objections are denied.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Objections [Doc. No. 15] are DENIED,
2. The R R [Doc. No. 13] is ADOPTED, and
3. Defendant's Motion to Suppress Physical Evidence Seized [Doc. No. 7] is DENIED.