Opinion
Cause No. IP 02-178-01-CR-B/F
March 14, 2003
ENTRY DENYING DEFENDANT'S MOTION TO SUPPRESS
Defendant, Stanley Gilbert, moves to suppress evidence obtained during a search of his residence. Defendant argues that the search violated the Fourth Amendment of the United States Constitution because (1) the warrant directed officers to search 615 N. Gale Street instead of 615 N. Gray Street; (2) Paragraph 10 of the affidavit offered in support of the warrant contains a false statement by the affiant; and (3) if Paragraph 10 is stricken, the affidavit does not establish probable cause that the items sought in the warrant would be found inside his residence. For the following reasons, Defendant's Motion to Suppress is DENIED.
Factual Background
Unless otherwise noted, we derive the following facts from the search warrant and the affidavit sworn in support of the search warrant by Special Agent Susan Roehrig.
On November 20, 2002, Officer Rodney Bradburn ("Officer Bradburn") of the Indianapolis Police Department ("IPD") responded to a radio call reporting that gunshots were fired near 1015 N. Gale Street, the residence of Rodney Issac. At the scene, Issac told Officer Bradburn that Defendant, Stanley Gilbert, approached Issac in the alley behind Issac's residence and fired four shots into the air to threaten Issac because Defendant believed that Issac and Issac's brother, Jessie, had burglarized Defendant's home. Probable Cause Aff. ¶ 4. (A Sherese Gilbert reported a burglary of 615 N. Gray Street on November 19, 2002. Id. ¶ 6.) Officer Bradburn recovered four .45 caliber shell casings from the alley behind Issac's residence at 1015 N. Gale Street. Id. ¶ 4. On November 22, 2002, Jessie Issac told a law enforcement officer that he had recently seen Stanley Gilbert with a .45 caliber firearm that he believed to be a Hi-Point. Id. ¶ 5. Marion County Forensic Laboratory results show that the shell casings recovered from the scene were fired from a Hi-Point semi-automatic or a Haskall/Stallard firearm. Id. ¶ 7.
On November 22, 2002, Rodney Issac reported to IPD detective Ron Gray that Defendant was driving a four-door, blue Cadillac at the time he fired the shots. Id. ¶¶ 4-5. An Indiana Bureau of Motor Vehicles inquiry revealed that a blue Cadillac was registered to Stanley A. and Sherese S. Gilbert at 3505 Birchwood Avenue, Indianapolis, Indiana. Id. ¶ 8. Special Agent Roehrig has observed a blue Cadillac parked across the street from 615 N. Gray Street. Id. ¶ 8, 11. The utilities at the 615 N. Gray Street address are listed in the name of Sherese Gilbert. Id. ¶ 9.
On November 25, 2002, Special Agent Roehrig obtained a warrant to search Defendent's residence for firearms and other evidence of their possession. Due to a typographical error by Assistant United States Attorney Timothy M. Morrison, who assisted in the preparation of the warrant, Defendant's address was incorrectly described in the warrant as 615 N. Gale Street. Roehrig Aff. ¶ 5. The paragraph of the warrant describing the premises to be searched reads as follows:
[A] two-story, single-family dwelling, located at 615 N. Gale Street, Indianapolis, Marion County, Indiana, occupied by Stanley Gilbert. The front of the residence faces Gray Street, west, with the numerals 615 on the north porch column. The front porch has a brick wrap, the front door of the residence has an attached storm door. The dwelling is white siding with a gray-shingled roof. The residence is located on North Gray Street between North Street and East 10th Street, Indianapolis, Indiana, Marion County. A digital photo of the premises is attached hereto as "Exhibit A."
In addition to surveilling the premises prior to applying for the warrant, Special Agent Roehrig was present at the execution of the warrant. Probable Cause Aff. ¶ 8; Roehrig Aff. ¶ 3.
On January 15, 2003, Defendant filed a Motion to Suppress all evidence obtained from the November 26, 2002 search of his residence at 615 N. Gray Street, Indianapolis, Indiana. Because Defendant alleged that Paragraph 10 of the affidavit offered in support of the search warrant contains a material false statement made by the affiant intentionally or with reckless disregard for the truth, the Court held a Franks hearing on February 6, 2003. Paragraph 10 reads as follows:
On November 22, 2002, an inquiry to Ameritech SBC telephone directory assistance revealed that the telephone number for Stanley and Sherese Gilbert, 615 N. Gray Street, Indianapolis, Indiana 46201 is 317-423-1099.
At the hearing, the government stipulated that Paragraph 10 is false, and that the telephone service for 615 N. Gray Street is in the name of Sherese Gilbert only. The affiant, Special Agent Roehrig, was unable to attend the hearing, but Defendant stipulated that if she would have been able to attend, she would have testified that she called SBC Ameritech and asked for the telephone number of Stanley and Sherese Gilbert instead of asking, as she should have, who was listed at the given phone number and address. In addition, Defendant stipulated that Special Agent Roehrig would have testified, as evidence not of probable cause but of her state of mind in drafting Paragraph 10, that Officer Bradburn told her that when he visited the 615 N. Gray address looking for Stanley Gilbert as part of his response to the original shots fired call, Sherese Gilbert confirmed to him that Defendant lived with her at that address.
Legal Analysis A. Typographical Error in Search Warrant
Defendant first argues that a typographical error in the search warrant, which listed the house to be searched as 615 N. Gale Street instead of 615 N. Gray Street, violates the Fourth Amendment requirement to particularly describe the place to be searched. We note, however, that in the paragraph of the warrant describing the premises to be searched, "Gale" is transposed for "Gray" only once, in the first sentence. The rest of the description correctly refers to Gray Street, as follows:
The front of the residence faces Gray Street, west, with the numerals 615 on the north porch column. The front porch has a brick wrap, the front door of the residence has an attached storm door. The dwelling is white siding with a gray-shingled roof. The residence is located on North Gray Street between North Street and East 10th Street, Indianapolis, Indiana, Marion County. A digital photo of the premises is attached hereto as "Exhibit A."
We find that, notwithstanding the incorrect street address listed in the first sentence, the warrant contains ample supplementary descriptions of Defendant's residence to satisfy the particularity requirement of the Fourth Amendment. The operative paragraph describes the location of Defendant's home in relation to intersecting and adjoining streets, and it provides a detailed physical description, including a photograph, of the home. "An officer could have relied on the remaining guides, without the [street] address, and still found the correct house. `It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.'" U.S. v. Jones, 208 F.3d 603, 608 (7th Cir. 2000) citing Steele v. U.S., 267 U.S. 498, 503 (1925). Defendant attempts to distinguish Jones by the fact that in Jones the numeric address was correctly listed in the warrant, but incorrectly listed in the supporting affidavit, whereas here the warrant itself lists an incorrect address. However, because the executing officers relied on the remaining guides, without the street address, and still found the correct house, Defendant's argument must fail.
In addition, we note that Special Agent Susan Roehrig, the probable cause affiant and the search warrant applicant, had surveilled the premises prior to applying for a warrant, Probable Cause Aff. ¶ 8, and was present at the execution of the warrant, Roehrig Aff. ¶ 3. Where, as here, an agent who had surveilled the house accompanied the search team, an incorrect address does not invalidate the warrant because the risk of confusion or of mistakenly searching the wrong residence is minimal. U.S. v. Vega-Figueroa, 234 F.3d 744, 756 (1st Cir. 2000); U.S. v. Johnson, 26 F.3d 669, 694 (7th Cir. 1994) (finding an error not to be fatal where "the warrant accurately described the house to be searched and there was no risk that the officers executing the warrant would search some other house") citing U.S. v. Valentine, 984 F.2d 906, 909 (8th Cir. 1993) (upholding a search warrant which contained an incorrect address because "[t]he warrant describe[d] the target [building] in detail, and the search was confined to th[at] building. Mere technical errors in particularity are not enough to invalidate a search warrant."). Therefore, we conclude that, despite the typographical error, the search warrant is valid and in conformity with the particularity requirement of the Fourth Amendment.
B. False Statement Included in Paragraph 10 of Supporting Affidavit
Defendant next asserts that Special Agent Roehrig intentionally or with reckless disregard for the truth included false information in the supporting affidavit. In U.S. v. Whitley, 249 F.3d 614 (7th Cir. 2001), the Seventh Circuit stated that "[e]vidence seized pursuant to a search warrant may be suppressed if the defendant demonstrates by a preponderance of the evidence that (1) the warrant was based upon false information in the supporting affidavit, and (2) the affiant either knew the information was false or included it with reckless disregard for the truth." Id. at 616-17, citing Franks v. Delaware, 438 U.S. 154 (1978). Defendant argues specifically that Paragraph 10 of the search warrant contains a material, false statement-that an inquiry to Ameritech SBC telephone directory assistance could not have revealed the telephone number for Stanley and Sherese Gilbert because the telephone service is in Sherese's name only. The government has stipulated that Paragraph 10 is false and that the telephone service is in the name of Sherese Gilbert only. The government asserts, however, that Special Agent Roehrig did not act intentionally or with reckless disregard for the truth. Rather, the government contends that Special Agent Roehrig made a negligent mistake; she called SBC Ameritech and asked for the telephone number of Stanley and Sherese Gilbert instead of asking, as she should have, who was listed at the given phone number and address.
In order to prove reckless disregard for the truth, Defendant must prove that the affiant "in fact entertained serious doubts as to the truth of her allegations." Because states of mind must be proved circumstantially, a factfinder may infer reckless disregard from circumstances evincing "obvious reasons to doubt the veracity" of the allegations. Whitley, 249 F.3d at 620 citing U.S. v. Williams, 737 F.2d 594, 602 (7th Cir. 1984). The government contends that Special Agent Roehrig had no reason to doubt the veracity of Paragraph 10. The government maintains that Officer Bradburn, who had visited the 615 N. Gray address in response to the original shots-fired call, told Special Agent Roehrig that Sherese Gilbert confirmed to him that Defendant lived with Sherese Gilbert at that address, although Defendant was not home at the time of Officer Bradburn's visit. Therefore, unlike Whitley, the false information in Paragraph 10 did not constitute "an entirely new and independent basis for obtaining a search warrant." See id. at 622. Rather, Special Agent Roehrig was using it to corroborate what she already knew.
Because Defendant has failed, by a preponderance of the evidence, to rebut the government's contention or to show why Special Agent Roehrig should have questioned the truthfulness of information contained in Paragraph 10, the fruits of the search should not be suppressed. See Whitley, 249 F.3d at 620. However, we address below whether the affidavit, when stricken of its falsity, is nonetheless sufficient to establish probable cause.
C. Probable Cause
The Fourth Amendment provides that a warrant is valid only where it is based "upon probable cause, supported by Oath or affirmation, and particularly describ[es] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "The issuing judge must determine if probable cause exists by `making a practical, common-sense decision' whether given all the circumstances, there exists `a fair probability that contraband or evidence of a crime will be found in a particular place.'" U.S. v. Walker, 237 F.3d 845, 850 (2001) (citations omitted). A search warrant may issue "even in the absence of `[d]irect evidence linking criminal objects to a particular site.'" The magistrate to whom the warrant application is directed "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense," and the magistrate "need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." U.S. v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995) (citations omitted).
A search warrant that contains incorrect information is still valid "`if the other information in the application, standing alone, is sufficient to establish probable cause.' `Even deliberately inaccurate representations do not invalidate a warrant if the truthful statements establish probable cause.'" U.S. v. Clemens, 58 F.3d 318, 320 (7th Cir. 1995) (citations omitted). Defendant maintains that Paragraph 10 is the only factual statement in the affidavit that connects Defendant with 615 N. Gray Street, and that if Paragraph 10 is stricken, then the affidavit does not establish that Defendant resided at 615 N. Gray Street at the time the warrant issued or that evidence of Defendant's possession of a firearm would be found at that residence.
We find that probable cause existed, even without the inclusion of Paragraph 10, to believe that Defendant, Stanley Gilbert, lived at 615 N. Gray Street. An informant, Rodney Issac, stated that Defendant fired four shots into the air to threaten Issac because Defendant believed that Issac and Issac's brother burglarized Defendant's home. Probable Cause Aff. ¶ 4. Sherese Gilbert had reported a burglary of 615 N. Gray Street on November 19, 2002. Id. ¶ 6. Issac reported that Defendant was driving a four-door, blue Cadillac at the time Defendant fired the shots. Id. ¶¶ 4-5. On November 22, 2002, an Indiana Bureau of Motor Vehicles inquiry revealed that a blue Cadillac was registered to Stanley A. and Sherese S. Gilbert at 3505 Birchwood Avenue, Indianapolis, Indiana. Id. ¶ 8. Special Agent Roehrig has observed a blue Cadillac parked across the street from 615 N. Gray Street. Id. ¶ 8, 11. The utilities at the 615 N. Gray Street address are listed in the name of Sherese Gilbert. Id. ¶ 9. Mindful that "a magistrate's determination of probable cause should be paid great deference by reviewing courts," we conclude, from the "totality of the circumstances" just described, that the magistrate judge could have properly inferred that 615 N. Gray Street was, in fact, Defendant's residence. See Illinois v. Gates, 462 U.S. 213, 236, 238 (1983).
Defendant challenges as misleading the statement contained in Paragraph 4 of the probable cause affidavit, "Rodney Issac stated that Gilbert's residence was burglarized and Gilbert believed Rodney and Jessie Issac did the burglary." He maintains that "Gilbert's" may refer to the residence of either Stanley Gilbert or Sherese Gilbert or both. However, the only Gilbert referred to in Paragraph 4, and in the affidavit up to that point, is Stanley, the defendant. Therefore, we find that a common-sense reading of the affidavit would indicate that Isaac told police that Stanley Gilbert thought Isaac had burglarized Stanley Gilbert's residence.
Defendant also argues, more generally, that probable cause did not exist to search his home, wherever it may be located, because the only evidence connecting the contraband (firearms) sought by the government with Defendant's residence is a conclusory statement in the affidavit of Special Agent Roehrig, which states that ". . . individuals who possess firearms and ammunition usually keep these firearms and ammunition, along with evidence of their possession . . . within their residence and vehicles." Roehrig Aff. at ¶ 14. The judicial officer passing on probable cause, however, is "`entitled to take into account' the experiences of trained officers whose affidavits explain the significance of specific types of information." U.S. v. Lamon, 930 F.2d 1183, 1189 (7th Cir. 1991).
In addition, Special Agent Roehrig takes care to state that she and another police officer observed parked across the street from 615 N. Gray Street a blue Cadillac, which is registered to Defendant and which informant Isaac witnessed the Defendant driving at the time that Defendant fired shots into the air. See U.S. v. Dickerson, 975 F.2d 1245, 1249-50 (7th Cir. 1992) (finding that an affidavit did not state probable cause to search defendant's house where the only nexus between the car and the house was the license registration and the affidavit did not state that the car was at the residence). As well, the type of offense, a felon in possession of a firearm, is continuous offense. "The continuous nature of the crime make it reasonable to conclude that [defendant] preserved [the items sought to be seized] for future use, and that [defendant] might keep them in his residence." U.S. v. Hunter, 86 F.3d 679, 682 (7th Cir. 1996). Therefore, we conclude that the seizure of evidence from Defendant's home at 615 N. Gray Street was properly within the scope of probable cause.
In addition, the continuing nature of the crime renders the passage of time (five days) between the time that illegal activity was reported and a search warrant was obtained "less critical," especially if, as here, "other factors indicate that the information is reliable and that the object of the search will still be on the premises." U.S. v. Pless, 982 F.2d 1118, 1126 (7th Cir. 1992).
D. Suppression Is Inappropriate Remedy Because of Officers' Objectively Reasonable Reliance on Court's Probable Cause Determination
Even if we were to conclude that the search warrant violated the particularity requirement of the Fourth Amendment or that it did not demonstrate probable cause to search Defendant's residence, suppression of the evidence is not an appropriate remedy if the officers conducting the search acted in "objectively reasonable reliance" on the warrant's validity. U.S. v. Leon, 468 U.S. 897, 922 (1984). Ordinarily, an officer's decision to obtain a warrant is prima facie evidence that she was acting in good faith. U.S. v. Koerth, 312 F.3d 862, 868 (2002). However, the defendant may rebut this prima facie showing by presenting evidence to establish either that: (1) the magistrate "wholly abandoned his judicial role," or otherwise failed in his duty to "perform his `neutral and detached' function and not serve merely as a rubber stamp for the police;" or (2) the officer submitted an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. (citations omitted). Although Defendant does not allege that the magistrate wholly abandoned his judicial role, he does assert that Leon is inapplicable because the warrant is so facially deficient that the executing officers could not reasonably have presumed it to be valid.
Section A above describes why a reasonable, well-trained officer would not have had reason to doubt the validity of the search warrant in light of the Fourth Amendment's particularity requirement: the warrant correctly describes the location of Defendant's home in relation to intersecting and adjoining streets; the warrant includes an accurate physical description and photo of the residence; and Special Agent Roehrig, who was present for the search, had previously surveilled the residence. In addition, we take judicial notice of the fact that 615 N. Gale Street does not exist. Because no such address exists, there was no danger that a mistaken search would unnecessarily invade the property and privacy of an unknown, unsuspecting individual. See U.S. v. Stefanek, 179 F.3d 1030, 1032 (7th Cir. 1999). Therefore, as no harm could have come to an interest protected by the Fourth Amendment, exclusion of the evidence seized under the warrant would be a disproportionate sanction. Id. at 1035.
Section C above explains the basis for probable cause to search Defendant's residence, and by extension, why an executing officer would have no reason to suspect that the affidavit in support of the search warrant was "so plainly deficient" as to invalidate the search. Here, detailed facts provided by a known informant with firsthand knowledge of those facts were corroborated by third parties. See U.S. v. Koerth, 312 F.3d 862, 866, 871 (7th Cir. 2002). For example, Marion County Forensic Laboratory results show that shell casings recovered from the scene were fired from a Hi-Point weapon similar to the one Jessie Issac reported seeing the Defendant carry. In addition, Rodney Issac reported that the Defendant was driving a blue Cadillac similar to one that was registered to Stanley and Sherese Gilbert and that Special Agent Roehrig observed parked across the street from 615 N. Gray Street. As well, the executing officers claim that they knew additional information, which they may not have realized had not been passed on to the magistrate, namely, that Sherese Gilbert had confirmed to Officer Bradburn at the time that he responded to the original shots fired call that Defendant lived with her at 615 N. Gray Street. See Dickerson, 975 F.2d at 1250. The law enforcement officials searching Defendant's home, therefore, had reason to believe, in good faith, that the warrant was supported by probable cause.
Accordingly, we hold that the officers' reliance on the search warrant and the issuing court's probable cause determination was objectively reasonable, and therefore, that suppression is neither an appropriate remedy nor required. Defendant's Motion to Suppress is DENIED.
Conclusion
In Defendant Gilbert's Motion to Suppress, he alleges that the typographical error in the address listed on the search warrant violates the particularity requirement of the Fourth Amendment and that the affidavit, absent Paragraph 10, does not establish probable cause to believe that Defendant lived at 615 N. Gray Street or that evidence of his possession of a firearm would be found in that residence. For the reasons set forth above, we find that: (1) the transposition of "Gale" Street for "Gray" Street in first sentence of the search warrant does not violate the particularity requirement of the Fourth Amendment; (2) although Paragraph 10 of the affidavit in support of the warrant contains a false statement by the affiant, Defendant has not demonstrated by a preponderance of the evidence that she made the statement intentionally or with reckless disregard for the truth; (3) even if Paragraph 10 is stricken, the affidavit establishes probable cause to search Defendant's residence at 615 N. Gray Street; and (4) in any event, the officers conducting the search acted with "objective reasonable reliance" on the warrant issued by a properly functioning judicial officer who determined that there was probable cause.
Accordingly, we DENY Defendant's Motion to Suppress.