Opinion
8:01CR256
February 8, 2002
MEMORANDUM AND ORDER
This matter is before me on defendant Jason Trisdale's ("Trisdale") objection, Filing No. 17, to the report and recommendation of Magistrate Judge Kathleen Jaudzemis, Filing No. 15. In her report and recommendation, Magistrate Judge Jaudzemis recommends that I deny the defendant's motion to suppress the search warrant, Filing No. 11.
Pursuant to 28 U.S.C. § 636(b)(1)(c), I have conducted an independent and de novo review of the record, including the transcript of the evidentiary hearing held on November 27, 2001, Filing No. 14. I conclude that the defendant's objections should be overruled and that the report and recommendation of the magistrate should be adopted in its entirety.
BACKGROUND
Because the report and recommendation presents an accurate summary of the facts adduced at the suppression hearing, a lengthy repetition of the factual background is not necessary in this order.
A state court judge in Lincoln County, Nebraska, issued two search warrants on October 10, 2001. The judge issued the first warrant (warrant No. 1) at 4:00 p.m. and the second (warrant No. 2) at 6:40 p.m. Warrant No. 1 allowed the officers to search for any firearms at the residence of Trisdale, a convicted felon, at 2300 East Philip, Lot 59A, North Platte, Lincoln County, Nebraska, and any outbuildings, vehicles, and any or all persons at those locations. Warrant No. 1 was supported by the affidavit of North Platte Police Department Investigator Darrin Oestmann. Warrant No. 2 was obtained after police initiated their first search and found evidence of illegal possession and sale of methamphetamine. Warrant No. 2 allowed officers to search the same locations for evidence of drug distribution activities. Warrant No. 2 was supported by the affidavit of North Plate Police Department Investigator Matt Phillips.
In his motion to suppress, Trisdale argues that the application and affidavit for the first search warrant did not contain a sufficient factual basis to establish probable cause. Specifically, Trisdale contends that the affidavit and application did not contain sufficient information that the confidential informant was reliable. Trisdale argues that the second application and warrant are invalid because they are based upon the sufficiency of the first warrant. The government contends that there are ample facts in the affidavit to support the state court judge's findings that there was probable cause to search the residence.
During the evidentiary hearing held before Magistrate Judge Jaudzemis, neither the government nor the defendant called any witnesses. The only evidence introduced at the hearing were copies of Warrant Nos. 1 and 2. Following the hearing, Magistrate Judge Jaudzemis found that there were sufficient facts in the affidavit to support a determination of probable cause. Alternatively, Judge Jaudzemis found that the officers' good faith reliance on the state court judge's issuance of the warrant was reasonable. I agree.
DISCUSSION
After considering the totality of the circumstances, I conclude that the issuing state court judge had a substantial basis for concluding that there was probable cause to search the residence. See United States v. Fulgham, 143 F.3d 399, 400 (8th Cir. 1998) (the issuing judge must have a substantial basis that there was probable cause). Probable cause exists if there is 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. Johnson, 219 F.3d 790, 791 (8th Cir. 2000).
In his application and affidavit for warrant No. 1, Investigator Oestmann relied in part on information secured from Billy Tomlinson to establish probable cause to search Trisdale's residence for stolen firearms. Law enforcement picked up Tomlinson because of his possible involvement in a burglary. While in custody, Investigator Oestmann contacted Tomlinson in relation to a firearms theft reported by Lloyd Enyeart. Enyeart reported over twelve firearms missing from his residence. He further reported that Tony Pitre and Tomlinson were living at his home when the firearms were stolen. Tomlinson informed Investigator Oestmann that he had taken the guns and traded some of them to Vern Duffield for one ounce of methamphetamine. According to Tomlinson, Duffield said he then traded the firearms to defendant Trisdale for methamphetamine. Subsequently, Trisdale gave three of the firearms to Pitre who in turn gave them back to the owner, Enyeart. Police confirmed the return of the firearms. However, Pitre told Enyeart the guns came from Tomlinson. According to Tomlinson's sources, Trisdale was holding the remaining firearms as collateral for Duffield's methamphetamine debt. Trisdale's unspecified familial ties to Enyeart provide the final touch to this soap opera.
In order for Tomlinson's information to support a finding of probable cause, the reliability of the information must be established. See United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993); see also United States v. Formaro, 152 F.3d 768, 770 (8th Cir. 1998). Where "a previously unknown informant provides information, the informant's lack of a track record requires `some independent verification' to establish the reliability of the information." United States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994). Here, law enforcement did not verify the facts provided by Tomlinson with an independent investigation. However, Tomlinson did provide evidence that he had knowledge of criminal activity conducted by Trisdale. See United States v. Wells, 223 F.3d 835, 839 (8th Cir. 2000) (an individual providing information must give an indication that he had "knowledge of concealed criminal activity."). Moreover, law enforcement had previous information from a confidential informant that Trisdale was selling methamphetamine and possessed at least one firearm at his residence. This confidential informant provided law enforcement with details about a September 12, 2001, purchase of methamphetamine from Trisdale that occurred at Trisdale's residence, Key Estates, 2300 E. Phillip, Lot 59A, North Platte. The informant reported that he/she witnessed Trisdale engage in several methamphetamine sales during the night of September 12, 2001. The informant included names of other persons present during the purchase, including Vern Duffield. The informant told officers that Trisdale had a firearm and that he threatened another individual in the room with the firearm. This information supports the information provided by Tomlinson that Vern Duffield is associated with Trisdale and that Trisdale, a convicted felon, had at least one firearm at his residence.
Law enforcement can use the informant's information to corroborate Tomlison's information but the reliability of the informant must be established. The reliability may be established if the informant had a history of providing reliable and truthful information. Formaro, 152 F.3d at 770 (informant provided information fifteen times that led to arrests for contraband). According to the affidavit, the confidential informant had made five controlled purchases of methamphetamine, introducing law enforcement to six different individuals during the purchases.
In his brief in support of his objection, Trisdale argues that because the affidavit did not include the dates of the five purchases by the confidential informant or the number of arrests, the affidavit is deficient. This argument is not persuasive. First, the affidavit describes the activities as "purchases of methamphetamine" and notes that the informant introduced officers to six individuals. This language supports a finding that the informant purchased drugs that later led law enforcement to individuals involved in criminal activity. As for the dates, an affidavit's lack of "specific dates or number of buys does not deprive a judge of essential information in determining probable cause." Id. The state court judge had sufficient evidence, without the dates of the specific buys, to support a finding that the informant provided reliable information.
Trisdale also argues that the information provided by the confidential informant was stale at the time the officers secured the warrant. I disagree. The informant provided law enforcement with the relevant information on September 26, 2001. The reported purchase of methamphetamine from Trisdale occurred on September 12, 2001. Tomlinson provided his corroborating information on October 10, 2001. The affidavit was submitted to the judge on October 10, 2001. Certainly, "probable cause must exist when the warrant is issued, not merely at some earlier time." Id. However, where the "continuing criminal activity is suspected, the passage of time is less significant." Id. In less than a month investigators had two sources of information concerning Trisdale's illegal possession of firearm(s). Officers promptly requested a warrant the same day Tomlinson gave his corroborating information. The one-month time lapse was not sufficient to render the warrant stale. See id. at 771 ("intervals of weeks or months between the last described act and the application for a warrant did not necessarily make the information stale").
Finally, Trisdale asserts that under Wong Sun v. United States, 371 U.S. 471 (1963), the second warrant was invalid because the first warrant was lacking in probable cause. Because I find that the first warrant was valid and the officers' discovery of evidence of methamphetamine distribution provided a sufficient basis for issuing the second warrant, I find the second warrant was also valid.
It should be additionally noted that the methamphetamine observed in plain view during the execution of the first warrant is admissible notwithstanding the second warrant. United States v. Reinholtz, 245 F.3d 765 (8th Cir. 2001). The officers' prudence in securing the second warrant for the continued drug search is commendable.
After considering the totality of the circumstances, I find that the state court judge had reason to believe that there was a probability that contraband or evidence of a crime would be found at Trisdale's residence based on the circumstances set forth in the affidavit. Accordingly, Trisdale's motion to suppress is denied.
Leon Exception
In the alternative, I find that the Leon good faith exception is applicable in the present case. See United States v. Leon, 468 U.S. 897, 922 (1984) (establishing a good faith exception when probable cause is found lacking). Under the good-faith exception
where probable cause is found lacking suppression will not be required if: (1) the executing officers relied in good faith on a search warrant signed by a neutral and detached magistrate, and (2) the officers' reliance on the warrant was objectively reasonable.Fulgham, 143 F.3d at 401. Here, for the reasons noted above, law enforcement had reason to believe that the facts established probable cause to search Trisdale's residence for both methamphetamine and stolen firearms. See United States v. Herron, 215 F.3d 812, 813 (8th Cir. 2000). Thus, the officers' reliance on the search warrant issued by a neutral state court judge was reasonable.
IT IS THEREFORE ORDERED:
1. The defendant's objections, Filing No. 17, to the magistrate's report and recommendation are overruled;
2. The magistrate's report and recommendation, Filing No. 15, is adopted in its entirety; and
3. The defendant's motion to suppress physical evidence, Filing No. 11, is denied.