Opinion
Criminal No. 04-38 (JRT/RLE)
April 12, 2004
Joseph T. Dixon, III, Minneapolis, MN, for Plaintiff
George E. Rapaich, St. Paul, MN, for Defendant Legrand
David George DeSmidt, RAPOPORT WYLDE DESMIDT, Minneapolis, MN, for Defendant Aguilar
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Defendants Kelley Joseph Legrand and Jose Benigno Aguilar are charged in a two-count indictment with conspiracy to distribute methamphetamine and possession of methamphetamine. Both defendants challenged a search warrant issued on November 21, 2003. United States Magistrate Judge Raymond L. Erickson, in a Report and Recommendation dated March 8, 2004 (RR), recommended that the motion to suppress evidence obtained by search and seizure be denied. Defendant Kelley Joseph Legrand ("Legrand") filed objections to the RR, arguing that the warrant, on its face and within its four corners, lacked sufficient probable cause, and that the warrant lacked the necessary requirements for establishing probable cause to justify a "no-knock" entry.
The Court has conducted a de novo review of the defendant's objection pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and denies defendants' motion to suppress.
The Court adopts the factual background set-out by the Magistrate Judge and proceeds directly to an analysis of defendant Legrand's objections.
The Court notes that defendant does not object to the Magistrate Judge's "Findings of Fact" as set out at pages 2-6 of the RR.
I. Probable Cause
"Probable cause exists when a practical, common-sense evaluation of the facts and circumstances shows a fair probability that contraband or other evidence will be found in the asserted location." United States v. Adams, 110 F.3d 31, 33 (8th Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The Court reviews the affidavits as a whole, and accords great deference to the decision of the issuing judicial officer. United States v. Winningham, 953 F. Supp. 1068, 1077 (D. Minn. 1996) (citation omitted); United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995).
Defendant Legrand suggests that the warrant, which was based on the affidavit of Officer James Steve, relied primarily upon information from a confidential reliable informant ("CRI") and "consists of simply one accusation; that the drugs Wade Gwynn sold were obtained from Kelley Legrand." (Defendant's Objections at 1-2.) Though defendant does not challenge the reliability of the CRI, defendant suggests that even if the information given is reliable, it is insufficient to meet the standard of probable cause for a warrant to issue.
Statements of a reliable informant can provide sufficient basis for issuing a warrant. United States v. Pressley, 978 F.2d 1026, 1027 (8th Cir. 1992). "When an affidavit contains information provided by a confidential informant, a key issue is whether that information is reliable." United States v. Fulgham, 143 F.3d 399, 400 (8th Cir. 1998) (citing United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995)). "Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information, or if it is corroborated by independent evidence." Id. (citations omitted).
In this case, the CRI informed the investigating officer that "Kelly Legrand" and "Jose" were supplying Wade Gwynn with methamphetamine. The CRI told the officer where Gwynn lived, and the officer confirmed that address. Law enforcement officials conducted a "controlled buy" from Gwynn. Gwynn advised officers that he was en route to pick up the drugs from his source, and officers observed him stop at a residence located at 14853 Fiesta Lane in Cold Spring, Minnesota. Officers observed him enter this residence, and then observed him leave a short time later. Gwynn then proceeded to the predetermined location for the controlled buy, and exchanged a quantity of a substance that field-tested positive as methamphetamine for a sum of pre-recorded currency.
The Magistrate Judge determined that the CRI was reliable because the information given by the CRI was sufficiently corroborated. This Court agrees, and adopts that determination. United States v. Carpenter, 341 F.3d 666, 669 (8th Cir. 2003). The Magistrate Judge also determined that the CRI's information that "Kelly Legrand" and "Jose" were Gwynn's source for methamphetamine was also sufficiently corroborated to establish probable cause to issue the warrant. Officers watched Gwynn stop at Legrand's residence as Gwynn made his way to the controlled buy. Gwynn told officers he was en route to his "source." In addition, the fact that Legrand lived at 14853 Fiesta Lane in Cold Springs was corroborated by Jeremy Lehto, the Stearns County Community Corrections Officer who was supervising Legrand's probation for being a felon in possession of a firearm. Legrand reported to Lehto that his address was 14853 Fiesta Lane in Cold Springs.
The warrant contained sufficient probable cause, on its face, to support the issuance of the warrant. The information provided by the CRI was reliable and corroborated. In addition, the independent investigation conducted by law enforcement officials also satisfied the requirements of probable cause. Therefore, the Court adopts the Magistrate Judge's recommendation that defendants' motion be denied in this respect.
II. No-Knock
Defendant Legrand also argues that the warrant lacks sufficient cause to justify a "no knock" entry. Legrand notes that a reasonable belief that firearms are present within the residence does not justify excusing the "knock and announce" requirement. He argues that there was no allegation or showing that Legrand or any other resident at 14853 Fiesta Lane was dangerous.
The Magistrate correctly noted that "the showing needed to justify a no-knock entry `is not high.'" United States v. Weeks, 160 F.3d 1210, 1213 (8th Cir. 1998 (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)). A "no-knock" entry is justified if law enforcement officials have "`a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or fufile, or that it would inhibit the effective investigation of the crime, for example, allowing the destruction of evidence.'" Id. (citing Weeks, 520 U.S. at 395) (additional citation omitted).
In this case, the issuance of a "no knock" warrant did not violate the Fourth Amendment. The warrant contained information from a concerned citizen that firearms had been seen in the house within three weeks of the issuance of the warrant. The officer applying for the warrant had information that defendant had recently been released from prison and remained on probation for the offense of being a felon in possession of a firearm. It was not the case that the warrant here contained only boilerplate recitations of facts in an attempt to justify a "no knock." Instead, the officer applying for the warrant supplied specific information to the issuing judicial officer; indeed, the issuing judicial officer questioned the officer further about the need for a "no knock" entry. In this case, the judicial officer satisfied "the duty . . . to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." Weeks, 160 F.3d at 1213.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant Legrand's objections [Docket No. 64] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket Nos. 61 and 62]. Accordingly, IT IS HEREBY ORDERED that defendants' motions to suppress [Docket Nos. 46 and 52] are DENIED.