Opinion
No. CR98-4033-MWB.
February 23, 1999.
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS AND ORDER
This matter comes before the court pursuant to Defendant's Motion to Suppress Evidence (Doc. No. 18), filed on February 16, 1999. The motion is identical to a motion to suppress filed in an earlier case in which the defendant was charged with offenses similar to those that have been charged in the present case. That case, which arose out of the same facts as the present case, was dismissed without prejudice under the Speedy Trial Act.
The charges in the earlier case, CR 97-4015, were conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 846; possessing with intent to distribute more than 2,963.47 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A); and possessing with intent to distribute 9.23 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). The current indictment charges possessing with intent to distribute approximately 2,724.2 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A); and possessing with intent to distribute approximately 210.3 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
On February 18, 1999, the court held a hearing on the procedure for dealing with the motion to suppress in the present case. Assistant U.S. Attorney Michael Hobart appeared on behalf of the government. Attorney Robert L. Sikma appeared on behalf of defendant Raul Sanchez ("Sanchez"). Both parties agreed that the present motion to suppress should be decided on the record made in connection with the proceedings on the first motion to suppress. Specifically, the parties agreed that the present motion should be decided based on the evidentiary record made in the earlier case, and that that record should be made a part of the record this case. The parties stipulated that the record would be comprised of the transcripts of the hearings on the earlier motion to suppress and the exhibits admitted into evidence at that hearing.
IT IS SO ORDERED.
Based on that record, the court recommends that the Honorable Mark W. Bennett deny the motion to suppress for the same reasons he denied the motion to suppress filed in the earlier case (Order entered in CR 97-4015 on August 28, 1998, Doc. No. 113). The court now restates its ruling on the earlier motion to suppress, with changes and additions mandated by Judge Bennett's August 28, 1998, order.
I. INTRODUCTION
On December 16, 1998, a two-count indictment was returned against defendant Raul Sanchez, charging him with possessing with intent to distribute approximately 2,724.2 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), and possessing with intent to distribute approximately 212.3 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). The methamphetamine which forms the basis for these charges was discovered as the result of the search of a package on April 4, 1997.
On February 16, 1999, defendant Sanchez filed a motion to suppress evidence discovered as a result the search. The motion was identical to the motion to suppress filed in CR 97-4015 on July 30, 1997 (Doc. No. 32). The court held three hearings on the earlier motion. The first hearing was held on August 27, 1997. Tristate Drug Task Force Officers Marti Reilly and Patrick Cheshier testified on behalf of the United States. Efrain Caro testified on behalf of the defendant; the defendant also testified in his own behalf. A second hearing, at which no witnesses were called, was held on October 8, 1997. A Franks hearing and a supplemental hearing on the motion to suppress were held on January 29, 1998. Sioux City Police Officers James Ruhland and Sgt. Anthony Sunclades testified on behalf of the United States, as did Donald Slavik, an officer and dog trainer-handler with the St. Paul (Minnesota) Police Department. Bobby Mutter, an officer and dog trainer-handler with the Titusville (Florida) Police Department, testified on behalf of the defendant.
The court now deems the motion to suppress to be fully submitted. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court makes the following findings of fact and conclusions of law.
II. STATEMENT OF FACTS
The following facts were developed at the hearing held on August 27, 1997. On April 3, 1997, California State Patrol Officer Joe Morrison contacted Officer David Drew, a Sioux City police detective and member of the Tri-State Drug Task Force. Officer Morrison advised Drew that his office had conducted a "dog sniff" of packages at a Federal Express office in California, and that the dog had alerted on a twelve-pound package addressed to "David Castillo" of 1617 Jones Street, Sioux City, Iowa 51105. The label on the package indicated that it was being shipped from Classic Chevys and Fords, 4045 Alondra Boulevard, Unit A, Paramount, California 90723. Drew contacted the Federal Express office in Sioux City and advised them to expect the package.
On April 4, 1997, Mike Knight of Federal Express contacted Task Force Officer ("TFO") Marti Reilly in Sioux City and informed him that the package had arrived in Sioux City. Knight brought the package to the Sioux City Police Department, where a trained police dog named "Busy," handled by Officer James Ruhland, gave a positive indication that the package contained controlled substances. Based on this information, later that same day, Judge William Adams of the Third Judicial District, Woodbury County, Iowa, issued a search warrant to search the package.
The dog's full name is "Valhalla's Busy Lil Rascal."
TFO Reilly, the affiant for the search warrant signed by Judge Adams, set out the following material facts in support of the warrant:
On 4-3-97, Deputy Dave Drew was contacted by California State Officer Joe Morrison that he had conducted a dog sniff of packages at Federal Express in California. His dog did indicate on a PL Federal Express package with tracking #1403124004. The package is approximately 12 pounds. It is being sent to David Castillo, 1617 Jones Street, Sioux City, Iowa 51105. The package is being shipped from Classic Chevys Fords, 4045 Alondra Boulevard, Unit A, Paramount, California 90723.
On this date [April 4, 1997], Mike Knight from Federal Express contacted this affiant to inform us that the package was in his possession in Sioux City. Knight was notified on 4-3-97 of the tracking number and to be alert for the package. The package in question was brought by Knight to the Sioux City Police Department. Officer Ruhland using K9 Dog Busy did a sniff at the Sioux City Police Department at 0952 hours. The K9 did give a positive indication for the presence of a controlled substance. The K9 was used for three separate sniffs and did indicate a positive indication each time on this package on which this request for a search is being applied for.
It is this officer's training and experience that subjects use common carriers such as Federal Express to ship illegal drugs and/or monies. This package in question was shipped priority for next day delivery which is also consistent with subjects who ship illegal substances through common carriers. . . .
(Gov't's Ex. 1, Search Warrant — Federal Express Package.) Reilly testified that he inadvertently omitted from his affidavit in support of the search warrant the fact that Busy was a certified drug dog. He also testified that both he and the magistrate who signed the warrant knew Busy was certified as a drug dog, and that the magistrate regularly signed search warrants based on evidence provided by Busy.
During Officer Reilly's testimony the following colloquy occurred:
Q. So, Officer, you don't think that it was necessary or made any impact at all that you did not put in that this was a trained, certified dog.
A. I knew it and the judge knew it, and to me that's really — he needs to know what I know. I didn't write it down. Maybe it would have been clearer if he had amnesia, but he knows the dog. He signs warrants regularly. He knows the dog is certified.
(Tr. vol. I at 67.) Although Officer Reilly's testimony is somewhat vague on this point, the clear import of this portion of his testimony was that Judge Adams knew that Busy was a certified drug dog because he regularly signed search warrant applications which involved Busy.
Pursuant to this search warrant, law enforcement officers opened the package. Inside, they found nine pounds of methamphetamine. Later that day, the package was delivered to 1617 Jones Street by an officer posing as a Federal Express courier. Judge Mary Jane Sokolovske of the Third Judicial District for Woodbury County, Iowa, then issued a second search warrant authorizing the officers to search 1617 Jones Street. The officers entered the residence and arrested the defendant Sanchez.
Sanchez testified that he used the name David Castillo and that no one by that name lived in the residence. He also testified that he was expecting the package, and that he had arranged with the sender of the package in California to have the package sent to him. Before the package was due to arrive, he advised other people living in the house with him that the package would be arriving and that it belonged to him. Efrain Caro testified that he had rented the house at 1617 Jones Street to the defendant in early February 1997, and that the defendant paid the rent and was entitled to possession of the property.
The parties submitted additional evidence at the suppression hearing on January 29, 1998. This evidence all concerned the training and qualifications of the police K9 Busy. Officer Ruhland testified that he began handling drug dogs in 1994, and that Busy was the only drug dog he had ever handled. He first met Busy in June 1984, in Elkhart, Indiana, at Rudy Drexler's School for Dogs, Inc., where Busy received her initial training. Ruhland and Busy trained together in Elkhart for eighty hours over a two-week period, and on June 24, 1994, both Busy and Officer Ruhland were awarded certificates of graduation. ( See Ex. W-1 W-3.)
Sanchez offered evidence that Busy was not reliable when she first arrived in Iowa. Both her training session logs and her operational results suggested that Busy and her handler were experiencing problems distinguishing items that did not contain drugs from those that did. The defense called Bobby Mutter, the head of the canine unit of the Titusville (Florida) Police Department, as an expert witness. Mr. Mutter testified generally concerning problems with the handling and training of Busy at the beginning of her career, but gave no evidence to suggest Busy was unreliable on April 4, 1997, the day of the search conducted in the present case.
For example, a letter dated April 21, 1994, from Sergeant Anthony Sunclades to his superior, Captain Groetken, reports that during training sessions Busy was reaching an unacceptable level of "false hits." ( See Ex. RR.)
Officer Reilly considered Busy reliable when he applied for the search warrant for the parcel package. Training reports for Busy for testing conducted in 1995 and 1996 show that Busy received, with one exception, ratings of acceptable or superb. (Def. Exs. II-1, II-2, II-3, II-4, QQ-1, QQ-2, QQ-3.) Donald Slavik, head trainer for the St. Paul, Minnesota Police Department's canine unit, certified Busy in October of 1997. From his observations at that time, Slavik found Busy to be very reliable. (Tr. vol. II at 175.) Additionally, Slavik testified that from his review of the Sioux City Police Department's records regarding Busy, he did not see anything in the records which would indicate that Busy was not reliable in April of 1997. (Tr. vol. II at 177.)
III. LEGAL ANALYSIS
A. Standing A defendant's Fourth Amendment rights cannot be violated by a search unless he or she has a legitimate expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 132, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994); United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994). It is clear that Fourth Amendment rights are personal and may not be vicariously asserted. United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (noting "that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure."); see also United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980); Rakas, 439 U.S. at 148-49.
Furthermore, individuals do not surrender their expectations of privacy in packages when they send them by mail or common carrier. The Supreme Court has long recognized that "[l]etters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy." United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984). Both senders and addressees of packages or other closed containers can reasonably expect that the government will not open them. See United States v. Jacobsen, 683 F.2d 296, 298 n. 2 (8th Cir. 1982), rev'd on other grounds, 466 U.S. 109 (1984).
Here, the package that was searched was addressed to a "David Castillo" at 1617 Jones Street, Sioux City, Iowa. While the package was addressed to a David Castillo, defendant Sanchez testified that he used that name as an alias previously. (Tr. vol. I at 19.) Furthermore, defendant Sanchez presented testimony that he had rented 1617 Jones Street. (Tr. vol. I at 7, 16.) The government presented no contradictory evidence, and concedes that a defendant has standing to object to the search of a package addressed to him under a fictitious name or "alter ego." United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (holding that individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names).
Thus, Sanchez had a reasonable expectation of privacy in the residence and in any package addressed to him at that residence, including a package not addressed with his correct name. "[I]ndividuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names." Villareal, 963 F.2d at 774; accord United States v. Wood, 6 F. Supp.2d 1213, 1223 (D. Kan. 1998); see United States v. Livesay, 983 F.2d 135, 137 (8th Cir. 1993) (ignoring the issue of standing where defendant challenged search of package which he admitted shipping and on which he had written a fictitious name and return address); cf. United States v. DiMaggio, 744 F. Supp. 43, 47 (N.D.N.Y. 1990) (ruling that defendants had no reasonable expectation of privacy in packages and therefore no standing to challenge search of packages addressed to them under fictitious names and at locations other than their actual places of residence).
Since Sanchez had a reasonable expectation of privacy in the package and the residence, he therefore has standing to challenge the searches of the package and the residence. United States v. Perez, 700 F.2d 1232, 1236 (8th Cir. 1983) ("The touchstone of a standing requirement to assert a fourth amendment challenge is whether the individual had a legitimate expectation of privacy in the area searched.") (citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 91-92, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619 (1980)); see United States v. Hillison, 733 F.2d 692, 696 (9th Cir. 1984) ("the main Fourth Amendment interest in a mailed package attaches to the privacy of its contents") (citing United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S. Ct. 1029, 1032, 25 L. Ed. 2d 282 (1970)).
B. Issues Presented
Defendant Sanchez argues that Officer Reilly's failure to mention the poor qualifications of drug dog Busy in his affidavit in support of the search warrant constituted a Franks violation. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978) (holding that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request"). According to Sanchez, because the officers obtained a search warrant for his home based on the results of the search of the package, all evidence found in the search of the defendant's home is tainted fruit of an unlawful search. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441 (1963).
The government argues, on the other hand, that there was no Franks violation, and that there was sufficient probable cause to support the warrant for the search of the package. Moreover, the government contends that, even if the warrant was invalid, the Leon good faith exception to the probable cause requirement would apply to insulate the evidence seized from suppression. See United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d 677 (1984) (holding that the Fourth Amendment does not require suppression of evidence obtained by law enforcement officers who have reasonably relied in good faith on a search warrant subsequently found to be invalid for lack of probable cause).
Therefore, given the facts described supra in Part II, the court must address the following questions:
1. Did a Franks violation occur as a result of Officer Reilly's failure to advise Judge William Adams of the alleged unreliability of the drug dog Busy?
2. Was there probable cause for Judge Adams to issue the warrant to search the package?
3. Was the search pursuant to the warrant nevertheless valid under the Leon good faith exception?
1. Did TFO Reilly omit material negative information concerning the drug dog Busy from his search warrant application?
Sanchez claims that TFO Reilly failed to include in his search warrant affidavit information indicating that the drug dog Busy was unreliable, and that this constituted a Franks violation. See Franks, 438 at 155-56; accord United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997), cert. denied sub nom. Leisinger v. United States, ___ U.S. ___, 118 S. Ct. 1086, 140 L. Ed. 2d 142 (1998). In Franks, the Supreme Court held that a defendant is entitled to a hearing if he is able to make a "substantial preliminary showing" that: (1) the affiant included in the affidavit in support of a warrant a false statement necessary to a finding of probable cause and that (2) the affiant did so knowingly and intentionally or with reckless disregard for the truth. Franks, 438 U.S. at 155-56. Thus, "[a] Franks hearing permits a challenge to the veracity of a search warrant affidavit." Fairchild, 122 F.3d at 610 (citing Franks, 438 U.S. at 155-156). If the defendant prevails in carrying his burden of proof by a preponderance of the evidence, he has grounds for suppression of evidence against him discovered as a result of the faulty warrant. Franks, 438 U.S. at 155-56.The burden of proving Busy's unreliability, therefore, fell upon Sanchez. While Sanchez was able to demonstrate that Busy had a number of false hits in 1994, he did not demonstrate that such conduct, or other indicia of unreliability, was still occurring in April 1997, when the search warrant was obtained in this case. Nothing in the record suggests that Busy was unreliable in April 1997 when the challenged search was conducted. In fact, the evidence strongly supports a conclusion that Busy was well trained and reliable when she alerted to the package. At worst, the evidence suggests that Busy had some difficulties adjusting when she first came to Iowa from Indiana in 1994. The Franks decision did not require Reilly to include in his affidavit information concerning Busy's difficulties in 1994. Those problems, which apparently related to the fact that Busy was newly trained and had a novice handler, were resolved long before 1997, and did not need to be mentioned in the affidavit.
Bobby Mutter, the defendant's expert witness, testified as follows:
The Court: . . . You heard the description of how they had this dog look at this package one out of six. Now, to me as a layperson that was pretty impressive. They did it six different — three different times, and each time the dog picked out one of the six packages. Is there any reason that a police officer shouldn't rely on that kind of identification in the circumstances of this case?
[Mutter]: No, sir.
(Tr. vol. II at 168.)
The court finds that Officer Reilly deemed Busy to be reliable when he applied for the search warrant for the parcel package. Training reports for Busy for testing conducted in 1995 and 1996 show that Busy received, with one exception, ratings of acceptable or superb. (Def. Exs. II-1, II-2, II-3, II-4, QQ-1, QQ-2, QQ-3.) Donald Slavik, head trainer for the St. Paul, Minnesota Police Department's canine unit, testified that from his review of the Sioux City Police Department's records regarding Busy, he did not notice anything in the records which would indicate that Busy was unreliable in April of 1997. (Tr. vol. II at 177.)
Since the affidavit contained no false statements, Sanchez has failed to meet one of the two prongs a defendant must show before demanding a Franks hearing. Therefore, no Franks violation occurred in this case and the evidence should not be suppressed on these grounds.
2. Was there probable cause to support the issuance of the search warrant to search the package?
The Fourth Amendment requires that warrants may issue only upon a determination of probable cause by a "neutral and detached magistrate." Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981). The seminal case of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), provides the standard an issuing court must follow in determining whether probable cause supports a search warrant application and, consequently, the duty of the reviewing court when considering the propriety of that determination:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.Id. at 238.
The question presented on review of an issuing judicial officer's determination is not whether the reviewing court would have issued the warrant based on the affidavit as presented, but whether the court which did issue the warrant had a "`substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39 (citation omitted). Thus, a reviewing court does not conduct a de novo review of the issuing judge's determination, but must instead afford it great deference. See id. at 236; see also United States v. Macklin, 902 F.2d 1320, 1324 (8th Cir. 1990), cert. denied sub nom. Woods v. United States, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.2d 680 (1991). As the Court explained in Gates:
[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed.2d 637 (1969)]. "A grudging or negative attitude toward warrants," [ United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 745-46, 13 L. Ed.2d 684 (1965)], is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Id., at 109, 85 S. Ct. at 746.Gates, 462 U.S. at 236; see also United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995).
As the Eighth Circuit has observed: "Probable cause exists when `there are sufficient facts to justify the belief by a prudent person that contraband or evidence of a crime will be found in the place to be searched.'" Gladney, 48 F.3d at 312 (quoting United States v. Bieri, 21 F.3d 811, 815 (8th Cir. 1994). Equally on point is the observation of Justice (then Judge) Kennedy:
For probable cause to exist, a magistrate need not determine that the evidence sought is in fact on the premises to be searched, or that the evidence is more likely than not to be found where the search takes place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.Peacock v. United States, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985) (citations omitted).
The Eighth Circuit Court of Appeals has held that the facts upon which the issuing judge bases his or her probable cause determination must appear within the four corners of the warrant affidavit; the warrant cannot be supported by outside information. Gladney, 48 F.3d at 312 ("When the magistrate relied solely on the affidavit presented to him, "only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.'") (quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982), cert. denied, 459 U.S. 1201 (1983)); United States v. Hernandez, 80 F.3d 1253, 1259 (9th Cir. 1996) ("In reviewing the issuance of a search warrant, `we are limited to the information and circumstances contained within the four corners of the underlying affidavit.'") (quoting United States v. Bertrand, 926 F.2d 838, 841 (9th Cir. 1991)); United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir. 1978) ("In general, the legality of a search warrant will depend upon the sufficiency of what is found within the four corners of the underlying affidavit."); United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971) (noting that "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath"). Therefore, in reviewing the search warrant challenged in this case the court will limit its consideration to the four corners of the supporting affidavit.
In essence, the search warrant was based on the fact that two dogs, one in California and another in Sioux City, Iowa, alerted to the package. In the affidavit submitted to the magistrate in support of the warrant, the affiant recited that the California dog "did indicate on" the package, and that the Sioux City dog, Busy, "did give a positive indication for the presence of a controlled substance." (Gov't's Ex. 1, Search Warrant — Federal Express Package.) Nothing is recited in the affidavit concerning the training or experience of the California dog, except for the implication that the dog was owned by the California State Police. Similarly, nothing was stated in the affidavit concerning the qualifications or experience of Busy except for the statement that she was a "K9 Dog."
Defendant Sanchez challenges the supporting affidavit here because it contained no information regarding Busy's training, certification, or her past reliability in ferreting out drugs. Defendant Sanchez urges this court to follow the Sixth Circuit Court of Appeals' decisions in United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996) and United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994), which held that the training and reliability of a dog must be established when a dog sniff is used to establish probable cause to search.
Courts have generally held that an alert by a trained drug sniffing dog can, by itself, provide probable cause to support a search warrant. See United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994); United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993); United States v. De Los Santos Ferrer, 999 F.2d 7, 10 (1st Cir. 1993); United States v. Glover, 957 F.2d 1004, 1013 (2d Cir. 1992); see also Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983); United States v. Drinkard, 900 F.2d 140, 144 n. 6 (8th Cir. 1990); United States v. Knox, 839 F.2d 285, 294 n. 4 (6th Cir. 1988). But see United States v. Kennedy, 131 F.3d 1371, 1376-77 (10th Cir. 1997) ("[A] dog alert might not give probable cause if the particular dog had a poor accuracy record.") (quoting United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993)).
Furthermore, courts have held that an affidavit in support of a search warrant that relies on dog sniff evidence does not have to recite the qualifications and experience of the dog. See United States v. Delaney, 52 F.3d 182, 188 (8th Cir.), cert. denied, 516 U.S. 878, 116 S. Ct. 109, 133 L. Ed. 2d 141 (1995); United States v. Maejia, 928 F.2d 810, 815 (8th Cir. 1991). It is enough for the affidavit to recite that the dog is a certified or trained drug sniffing dog. Kennedy, 131 F.3d at 1376-77 ("As a general rule, a search warrant based on a narcotics canine alert will be sufficient on its face if the affidavit states that the dog is trained and certified to detect narcotics."); see id. Kennedy. (citing United States v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977) ("affidavit in support of a search warrant need not describe the drug-detecting dog's educational background and general qualifications with specificity to establish probable cause"); Berry v. United States, 90 F.3d 148, 153 (6th Cir.) ("search warrant application need not describe the particulars of a dog's training, reference to dog as a `drug sniffing or drug detecting dog' sufficient to support probable cause"), cert. denied, ___ U.S. ___, 117 S. Ct. 497, 136 L. Ed. 2d 389 (1996); United States v. Daniel, 982 F.2d 146, 151 n. 7 (5th Cir. 1993) ("rejecting argument that an affidavit must show how reliable a drug-detecting dog has been in the past in order to establish probable cause"); United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980) ("statement that dog graduated from training class and has proven reliable in detecting drugs on prior occasions sufficient to support probable cause")).
The Eighth Circuit Court of Appeals has held that "there is no legal requirement that the affidavit [supporting a warrant application] specify the number of times the dog previously has sniffed out drugs." Maejia, 928 F.2d at 815. Rather, the search warrant applications have included some indicator of the dog's skill. See Delaney, 52 F.3d at 188 ("The dog . . . had alerted more than fifty times in situations where drugs were found."); Maejia, 928 F.2d at 815 ("The dog had been used in the past with successful results."); United States v. Moore, 911 F.2d 140, 145 (8th Cir. 1990) (noting "positive alert for narcotics given by the certified canine drug detection unit.").
On the other hand, although in the present case the court has found that the drug dog Busy was qualified and reliable at the time of the search, nowhere in the affidavit is there any representation that Busy, or for that matter the California drug dog, was certified to detect narcotics, or even trained to do so. While it would make logical sense for law enforcement authorities to use only certified, or at least trained, dogs to sniff for narcotics, there is nothing in the affidavit to support a conclusion that the officers did so in the present case. Similarly, the fact that two separate dogs alerted to the package does not help to satisfy the probable cause requirement. As far as the affidavit is concerned, both dogs could have been totally lacking in training and experience in the detection of drugs. Where the reliability of two informants is in doubt, the mere fact that they both independently provided the same information does nothing to ensure that the information is more reliable than if it had been provided by just one of them.
As there is no evidence in the search warrant application pertaining to Busy's general reliability or training, the court concludes that the information contained in the affidavit in this case was insufficient to establish Busy's training and reliability as a drug-detecting dog. Consequently, the court finds that on its face the affidavit in support of the search warrant did not supply probable cause for the issuance of the warrant.
3. Does the good faith exception in Leon validate the search of the package?
Even though probable cause was lacking to support the search warrant for the package, the search may nevertheless have been lawful under the good faith exception to the probable cause requirement announced in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L. Ed. 2d 677 (1984); accord United States v. Taylor, 119 F.3d 625, 630 (8th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 394, 139 L. Ed. 2d 308 (1997); United States v. Kiser, 948 F.2d 418, 421 (8th Cir. 1991), cert. denied, 503 U.S. 983, 112 S. Ct. 1666, 118 L. Ed. 2d 387 (1992); United States v. White, 890 F.2d 1413, 1414 (8th Cir. 1989), cert. denied, 498 U.S. 825, 111 S. Ct. 77, 112 L. Ed. 2d 50 (1990).
a. The Leon decision
The Eighth Circuit Court of Appeals has noted that "[t]he Fourth Amendment to the United States Constitution does not expressly preclude the use of evidence obtained in its violation . . ." Johnson v. United States, 78 F.3d 1258, 1261 (8th Cir.) (citing Leon, 468 U.S. at 906), cert. denied, ___, U.S. ___, 117 S. Ct. 227, 136 L.Ed.2d 159 (1996). Thus, "[t]he Court in Leon created the good-faith exception to the exclusionary rule." Id. In Leon, the United States Supreme Court held that evidence seized by police officers acting in objectively reasonable good-faith reliance on a search warrant issued by a neutral and detached magistrate, but ultimately found to be unsupported by probable cause, need not be suppressed. Leon, 468 U.S. at 922-25. The Supreme Court noted the division of authority between the judicial officer, whose duty includes "issu[ing] a warrant comporting in form with the requirements of the Fourth Amendment," and the police officer who, in the ordinary case, "cannot be expected to question the magistrate's . . . judgment that the form of the warrant is technically sufficient." Id. at 921. The Supreme Court explained that the exclusionary rule is a deterrent measure designed to ensure compliance with the Fourth Amendment. See id. at 906; accord Johnson, 78 F.3d at 1261 ("The purpose of the exclusionary rule is to deter police misconduct."); United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992) ("`[T]he purpose of the exclusionary rule is to deter unlawful police conduct,'" quoting United States v. Peltier, 422 U.S. 531, 542 (1975)). The Court believed that, where police obtain evidence in reliance on a search warrant that is subsequently found to be defective, "there is no police illegality and thus nothing to deter." Id. at 921. Hence, exclusion of seized evidence under those conditions serves no salutary purpose, because that sanction "cannot logically contribute to the deterrence of Fourth Amendment violations." Id. The Supreme Court concluded that "[p]enalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id.
Although Leon weakened the exclusionary rule, the Supreme Court acknowledged that suppression would continue to be appropriate in those situations where, notwithstanding the issuance of a warrant, "the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id. at 919. The Supreme Court identified four circumstances in which the exclusionary rule is still appropriate: (1) "if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;" (2) "where the issuing magistrate wholly abandoned his judicial role;" (3) if the "warrant [is] based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;'" and (4) if the "warrant [is] so facially deficient . . . that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923 (citations omitted); Johnson, 78 F.3d at 1261 (identifying these four circumstances from Leon). However, the ultimate question under Leon is whether officers "had an objectively reasonable basis to believe they were complying with [applicable law] and the Fourth Amendment." Moore, 956 F.2d at 848; see also United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996) (the "relevant inquiry" was whether the facts surrounding the case were "close enough to the line of validity" that the police officers were entitled to believe their conduct complied with the law). The government bears the burden of establishing that the good-faith exception to the federal exclusionary rule should apply in a particular case. Leon, 468 U.S. at 924.
b. Analysis of "good faith" here
Defendant Sanchez contends that Officer Reilly's affidavit was so devoid of facts that he could not, in good faith, have reasonably relied on it. The court disagrees. Evidence is only to be suppressed in "those unusual cases in which exclusion will further the purposes of the exclusionary rule." Leon, 468 U.S. at 918. Admittedly, the affidavit in the present case is lacking in one major respect: Busy's training and reliability as a drug-detecting dog. However, it is not so devoid of factual support as to render Reilly's reliance on it unreasonable. Although the affidavit was arguably insufficient to establish probable cause, it did contain some facts that were relevant and persuasive on the issue. Among those facts, the affidavit detailed that a dog employed by law enforcement officers in California alerted to the package there that was being sent through Federal Express from California to Iowa and that, upon the package's arrival in Iowa, Busy alerted to the package on three separate occasions. Furthermore, Reilly was aware that Judge Adams had been previously informed that Busy was trained to detect drugs. See Gov't Ex. 2 at p. 3 ("K9 Busy is trained for the detection of controlled substances."). The court concludes that Officer Reilly's failure to include the information on Busy's training was an oversight and not an example of intentional and willful police misconduct. The Tenth Circuit Court of Appeals has observed that "it must . . . be remembered that the knowledge and understanding of law enforcement officers and their appreciation for constitutional intricacies are not judged by standards applicable to lawyers." United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985). Therefore, the court cannot say that a reasonably well-trained law enforcement officer would have known that the warrant for the package in this case was illegal. Officer Reilly's reliance was objectively reasonable. Therefore, the Leon good faith exception applies.
IV. CONCLUSION
Based on the foregoing, the court concludes that officer Reilly did not omit material negative information concerning the drug dog Busy from his search warrant application, and therefore, there was no Franks violation. The affidavit in support of the search warrant application was deficient, but the Leon good faith exception to the probable cause requirement insulates from suppression the evidence discovered under that warrant and its fruit. Therefore, the searches conducted by the officers were legal and that the evidence discovered as a result of those searches is admissible against the defendant.
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's motion to suppress evidence be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).