Opinion
Criminal Action No. 03-20093-01-KHV.
July 9, 2004
MEMORANDUM AND ORDER
On July 23, 2003, a grand jury returned a two-count indictment which charged Kelly J. Thompson with knowingly possessing a firearm after having been convicted of a felony and knowingly possessing a firearm with an obliterated serial number. Police discovered the contraband during a search of defendant's residence on June 17, 2003. This matter is before the Court on defendant's Motion To Suppress Evidence (Doc. #18) filed April 26, 2004. On May 24, 2004, the Court held an evidentiary hearing. For reasons set forth below, defendant's motion is sustained.
Factual Background
Based on the testimony and exhibits at the hearing on defendant's motion, the Court finds the following facts:
On June 17, 2003, Vernon Valentine of the Sheriff's Office in Anderson County, Kansas was conducting an investigation into a stolen wallet which belonged to Wayne Berry. That same day, officers arrested Carl Damron, Jr., the boyfriend of Berry's daughter, on unrelated charges. Damron was booked into the Detention Center in Douglas County, Kansas. When officers went through Damron's wallet, they found a Discover credit card and Sprint phone card in the name of Wayne Berry. Berry had told Valentine that he last remembered having his wallet in his car, which his daughter used.
Valentine was familiar with Damron and knew that in the past he had provided reliable and credible information about other criminal activity. Valentine also knew that on one occasion during a recent investigation into a car wreck which totaled one of Berry's cars, Damron had lied about who was driving the car. Berry had specifically told his daughter that Damron could not drive the car and because Damron was driving at the time of the wreck, he lied to Valentine that Berry's daughter was driving the car. Damron quickly recanted this story, however, and admitted during the same interview with Valentine that he was driving the car at the time of the wreck.
On June 17, 2003, Valentine interviewed Damron about the wallet. Damron stated that somebody named "Kelly" had bought alcohol for him and Berry's daughter on several occasions. On one of these occasions, Damron and Kelly were in the back seat of the car while Berry's daughter drove them to a liquor store. Later that evening, when they returned to Kelly's trailer, Kelly showed Berry's wallet to Damron and gave Damron the Discover and Sprint cards. Damron told Valentine that he had last seen the wallet some six days earlier, on June 11, 2003, on Kelly's bedroom night stand
Based on this information, Valentine applied for and received a warrant to search the trailer which Kelly occupied with Renee Ashburn. Valentine's affidavit stated that it was based on the following facts:
Mr. Berry thought he had lost his wallet. Last place he remembered was having it in his car that his daughter drives. Carl Damron Jr. was booked into Douglas Co. Detention. When they went through Damron Jr. wallet[,] they found credit card[s] with the name Wayne Berry on it. When I questioned Damron this morning, he said he knew the cards were stolen, Kelley went to the liquor store with them in [Wayne Berry's] car and when they got back to Kelley house on South Walnut[,] he said look what I just got out of the car. Damron said I took the cards Kelley gave me out of the wallet. Damron ad[vised] wallet still at Kelley as of 06-11-2003 in Kelley bedroom located at 1010 S. Walnut #5 Garnett, KS 66032.
Valentine was familiar with this address because had been there a few days earlier to talk with Damron about Berry's daughter.
Affidavit And Application For Search Warrant, attached to defendant's Motion To Suppress (Doc. #18) (erroneous spelling of defendant's name in original). Valentine's only goal in obtaining the warrant was to get Berry's wallet back because it contained irreplaceable pictures.
At the hearing on defendant's motion to suppress, Valentine testified that he told the magistrate judge that he had a written statement from Damron. Valentine could not recall, however, whether he ever showed the statement to the magistrate. Valentine testified that around the same time, he presented a written statement in support of his affidavit and the magistrate judge simply attached it to the warrant. In this case, however, the affidavit and warrant do not contain an attached statement. Based on Valentine's testimony and the fact that Damron's written statement was not attached to the affidavit or warrant, the Court finds that Valentine did not present Damron's written statement to the magistrate judge.
Valentine and two other officers executed the warrant. When they knocked on the trailer door, Ashburn answered and allowed the officers to enter. Ashburn and David Nichols were the only individuals in the trailer at the time. When Valentine said that they were looking for Berry's wallet, Ashburn stated that she did not have anything to do with the wallet, that the wallet was not there any longer and that someone had picked it up a couple of days earlier.
The officers did a protective sweep of the residence. They found a hunting knife next to Nichols, who was sitting on a couch. In a back bedroom, they also found a rifle with a scope on it. The officers noticed that the rifle serial numbers had been ground off. Valentine found a grinder next to the rifle, as well as a silver marijuana pipe on top of a silver container. Valentine opened the container to see if it contained any contents of Berry's wallet, but he found marijuana. Valentine also opened a tin on the same table to see if it contained any contents of Berry's wallet, but he found .22 caliber ammunition. Valentine also found an illegal butterfly knife on the same table.
Defendant arrived during the search, and the officers arrested him for possession of marijuana and an illegal weapon. Defendant later told Valentine that Nichols had taken the wallet to another house and destroyed it in a barbeque grill. Valentine went to that house and removed what appeared to be burnt paper and plastic from a barbeque grill.
Analysis
I. Probable Cause For Warrant
Defendant first argues that the warrant for the trailer search was not based on probable cause. Because the search of defendant's trailer was pursuant to a warrant, defendant has the burden of proof to show that the officers did not establish probable cause for the warrant. See United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994).
The Fourth Amendment Warrant Clause provides that "no warrants shall issue but upon probable cause, supported by Oath or affirmation." Franks v. Delaware, 438 U.S. 154, 164 (1978). A warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. Id. at 165. In making a probable cause determination, the court "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], 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." Illinois v. Gates, 462 U.S. 213, 238 (1983). A reviewing court owes great deference to a court's finding of the existence of probable cause to issue a warrant.See United States v. Le, 173 F.3d 1258, 1265 (10th Cir. 1999). The Court need only ask whether, under the totality of the circumstances presented in the affidavit, the judge had a "substantial basis" for determining that probable cause existed.United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir.), cert. denied, 534 U.S. 886 (2001).
When judging information provided by an informant as the foundation supporting probable cause for a search warrant, the Court reviews a mix of factors such as the informant's veracity, reliability, and basis of knowledge under a flexible totality of the circumstances standard. United States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004); see Gates, 462 U.S. at 238-39. In addition, a law enforcement agent's opinion, based upon his professional expertise, that evidence of illegal activity will be found in the place to be searched, is entitled to consideration in the Court's determination whether probable cause existed at the time a warrant issued. Mathis, 357 F.3d at 1205. An affidavit need not state the reliability of an informant when the informant's information is corroborated by other independent information. See United States v. Jenkins, 313 F.3d 549, 554 (10th Cir. 2002); United States v. Avery, 295 F.3d 1158, 1167 (10th Cir.), cert. denied, 537 U.S. 1024 (2002); United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000); United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992). An affidavit also does not have to discuss the informant's criminal history when outlining why the informant is reliable. Avery, 295 F.3d at 1167-68; see United States v. Hager, 969 F.2d 883, 887 (10th Cir.), cert. denied, 506 U.S. 964 (1992),abrogated on other grounds by Bailey v. United States, 516 U.S. 137 (1995). An informant's allegations of criminal conduct may be corroborated by independent verification of facts not in themselves incriminatory, because such verification provides a "substantial basis for crediting" the incriminating allegation.Jenkins, 313 F.3d at 553-55 (quoting Gates, 462 U.S. at 245).
Defendant argues that Damron had a strong motive to shift blame for the theft and that his tip, which implicated defendant in the theft, was therefore insufficient to establish probable cause. The government maintains that Valentine confirmed Damron's reliability because Berry's report that his wallet had been stolen corroborated Damron's story that Kelly stole the wallet.Government's Response (Doc. #26) at 10. The Valentine affidavit states that Berry thought that he had lost his wallet. That fact corroborates Damron's statement that the wallet was stolen, but such corroboration is of little significance when Damron was found in possession of Berry's credit card and phone card. See United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997) (once individual believes police have sufficient evidence to convict him, his statement that another person was more involved gains little credibility from its inculpatory aspect); United States v. Jackson, 818 F.2d 345, 348 (5th Cir. 1987) (admitted perpetrator of crime has reason to shade information to exculpate himself or curry favor with officials); see also Williamson v. United States, 512 U.S. 594, 599-600 (1994) (statement that is self-inculpatory is more reliable, but fact that statement is collateral to self-inculpatory statement says nothing about collateral statement's reliability); Lilly v. Virginia, 527 U.S. 116, 131 (1999) (accomplice confession incriminating other individuals presumptively unreliable); Lee v. Illinois, 476 U.S. 530, 541 (1986) (same). If Damron had voluntarily come forward with the stolen cards, Berry's report of a lost wallet may have corroborated Damron's statement. Cf. United States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002) (informant statements against penal interest add to reliability); United States v. Sporleder, 635 F.2d 809, 812 (10th Cir. 1980) (same). Given that police officers caught Damron with the stolen cards, his admission of guilt provided little (if any) verification of his reliability.
The government maintains that Berry's daughter corroborated Damron's story when she told Valentine that both Damron and defendant had access to the car which contained her father's wallet. Government's Response (Doc. #26) at 10. Valentine's affidavit, however, does not include information from his interview with Berry's daughter. The issuing judge could not have assessed Damron's reliability based on an interview which Valentine did not disclose in the affidavit.
Based on the Valentine affidavit, the issuing judge could not sufficiently determine Damron's veracity or reliability. Although the Valentine affidavit includes some information as to Damron's basis of knowledge, it omits any independent corroboration of his allegations which would have provided some verification that they were credible. See Jenkins, 313 F.3d at 554; Danhauer, 229 F.3d at 1006. Under the totality of the circumstances presented in the affidavit, the issuing judge did not have a "substantial basis" for determining that Valentine had probable cause to believe that Berry's wallet would be in defendant's bedroom.Tuter, 240 F.3d at 1295; see Gates, 462 U.S. at 238-39,Mathis, 357 F.3d at 1205.
II. Leon Good Faith Exception
In the alternative, the government argues that the Court should uphold the search based on the good faith exception of United States v. Leon, 468 U.S. 897 (1984). "[W]hen police officers act in good faith and reasonable reliance on a search warrant, the evidence obtained during the search should not be suppressed even if the warrant was lacking in probable cause." United States v. Price, 265 F.3d 1097, 1102 (10th Cir. 2001), cert. denied, 535 U.S. 1099 (2002); see Leon, 468 U.S. at 913. The good faith inquiry is limited to the "objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization."Leon, 468 U.S. at 922 n. 23; see United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993); United States v. Cook, 854 F.2d 371, 372 (10th Cir. 1988). The government bears the burden of proving that its agents' reliance upon the warrant was objectively reasonable. United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990); Cook, 854 F.2d at 373. To determine whether an officer relied in good faith on a warrant, the Court must examine the text of the warrant and the affidavit to ascertain whether the agents might have reasonably presumed the warrant to be valid.McKneely, 6 F.3d at 1454; Corral-Corral, 899 F.2d at 932;see also Price, 265 F.3d at 1102 (issue whether affidavit and search warrant were sufficient to merit reasonable reliance by officers).
"The first notion to be remembered in considering the good faith principle is the presumption created in Leon that when an officer relies upon a warrant, the officer is acting in good faith." McKneely, 6 F.3d at 1454. "This presumption, though not absolute, must carry some weight." Id. In addition, the Court recognizes that the knowledge and understanding of law enforcement officers and their appreciation for constitutional intricacies are not to be judged by the standards applicable to lawyers. United States v. Bishop, 890 F.2d 212, 217 (10th Cir. 1989); United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985).
The Supreme Court has noted that the good faith exception to the exclusionary rule does not apply in four situations: (1) where the magistrate 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) where a 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) where a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923. Defendant argues that the third situation is present in this case, i.e. the warrant was based on a "bare bones" affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. See United States v. Jackson, 818 F.2d 345, 350 (5th Cir. 1987) (Leon does not apply where warrant is based on "bare bones" affidavit); United States v. Owen, 1990 WL 126565 (D. Kan. 1990) (same); see also United States v. Leake, 998 F.2d 1359 (6th Cir. 1993) (Leon not applicable where no significant corroboration of informant's claim of drug trafficking).
Good faith is absent only when an officer's reliance was "wholly unwarranted," McKneely, 6 F.3d at 1454, or "entirely unreasonable." Leon, 468 U.S. at 923. In cases such as this one where defendant challenges the bare bones nature of the supporting affidavit, the dispositive question is whether the underlying affidavit is "devoid of factual support." Danhauer, 229 F.3d at 1006; McKneely, 6 F.3d at 1454; Cardall, 773 F.2d at 1133; see United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) ("bare bones affidavit" refers to one containing only conclusory statements and completely devoid of factual support). In addressing this question, the Court is limited to the four corners of the affidavit. See United States v. Koerth, 312 F.3d 862, 869, 871 (7th Cir. 2002); United States v. Martinez-Martinez, 25 Fed. Appx. 733, 737 (10th Cir. Oct. 17, 2001); United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1998); United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988); see also Danhauer, 229 F.3d at 1006 (court examines underlying documents); McKneely, 6 F.3d at 1454 (same);Cardall, 773 F.2d at 1133 (same).
Defendant argues that the Valentine affidavit was bare bones because it did not include any information as to Damron's veracity and reliability, or any corroboration that a "Kelley" lived at the specified address. The Valentine affidavit is difficult to follow because of its conclusory nature and several unidentified pronouns. It contains no information as to Damron's reliability or veracity. As to Damron's basis of knowledge, the affidavit states "Kelley went to the liquor store with them in Wayne's car and when they got back to Kelley house on South Walnut, he said look what I just got out of the car. Damron said I took the cards Kelley gave me out of the wallet." The affidavit explains that "Kelley" was in Berry's car and therefore had access to the wallet, but it does not explain Kelley's relationship to Berry or identify the individuals who were with Kelley when he went to the liquor store.
The Valentine affidavit also includes no corroboration of the information given by Damron. In Danhauer, the Tenth Circuit noted that "the absence of information establishing the informant's reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, particularly when the officer takes steps to investigate the informant's allegation." 229 F.3d at 1007 (emphasis added) (citation omitted). Likewise, in Bishop, the Tenth Circuit found that despite omission of information on the informant's veracity and reliability, the officers acted in good faith because they presented as much factual corroboration as a thorough investigation would allow. 890 F.2d at 217-18. Other courts also have emphasized the need for corroboration or some independent verification of an informant's statements. See United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.) (amount of detail and corroboration often are two critical factors), cert. denied, 513 U.S. 1009 (1994); see also United States v. Laury, 985 F.2d 1293, 1312 (affidavit may rely on hearsay such as informant's statement provided affidavit presents substantial basis for crediting the hearsay). In this case, Valentine did not present to the magistrate judge any factual corroboration of Damron's statement. Absent any statement as to Damron's reliability or veracity and absent any corroboration of Damron's statement, no reasonable officer would believe that the warrant was based on probable cause. See United States v. Johnson, 4 Fed. Appx. 169, 172 (4th Cir. 2001) ("bare bones" affidavit is one which recites conclusions of others — usually an informant — without corroboration or independent investigation);Leake, 998 F.2d at 1361 (Leon not applicable where tip not rich in detail and no significant corroboration of informant's claim); see also Aguilar v. Texas, 378 U.S. 108, 114 (1964) (magistrate must be informed of some of the underlying circumstances from which officer concluded that informant was "credible" or his information "reliable"); cf. Bishop, 890 F.2d at 216 (affidavit which contained corroboration distinguished from wholly conclusory "bare bones" affidavit);Sturmoski, 971 F.2d at 457 (no need for declaration of informant reliability when information is corroborated).
Although a tip from a citizen informant is presumptively reliable, see United States v. Neff, 300 F.3d 1217, 1221 (10th Cir. 2002) (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3, at 88-89 (3d ed. 1996)), statements from a suspect implicating a third party are generally unreliable unless the suspect incriminates himself beyond what the officers already know. See United States v. Patayan Soriano, 361 F.3d 494, 506 (9th Cir. 2004); see also Williamson, 512 U.S. at 599-600 (statement that is self-inculpatory is more reliable, but fact that statement is collateral to self-inculpatory statement says nothing about collateral statement's reliability); Lilly, 527 U.S. at 131 (accomplice confession incriminating other individuals presumptively unreliable); Lee, 476 U.S. at 541 (same); Hall, 113 F.3d at 159 (when suspect caught red handed, admission of what police already knew does not make overall statement more credible). In this case, Damron was caught red-handed with stolen credit cards and attempted to implicate someone else for the theft of the entire wallet without further implicating himself.
The government does not dispute that corroboration of an informant statement is necessary, but it maintains that Valentine corroborated several of Damron's statements. In particular, the government argues that (1) Valentine interviewed Berry, who confirmed that his wallet was missing; (2) Valentine interviewed Berry's daughter, who confirmed that she drove Damron and Kelly to the liquor store in her father's car and that Kelly therefore had access to the wallet; and (3) Valentine knew that Ashburn lived at the address supplied by Damron. Because Valentine did not include this information in his affidavit, the Court cannot rely on it. See Koerth, 312 F.3d at 869, 871;Martinez-Martinez, 25 Fed. Appx. at 737; Weaver, 99 F.3d at 1378; Hove, 848 F.2d at 139. Based solely on the information in the Valentine affidavit, no reasonable officer would have believed that it contained sufficient indicia of probable cause. The Court therefore finds that Leon does not apply in this case and that the evidence seized pursuant to the invalid warrant be suppressed.
The government also argues that Valentine had no reason to believe that the affidavit was constitutionally invalid or even questionable, see Government's Response to Defendant's Motion To Suppress Evidence (Doc. #26) filed May 10, 2004 at 13, but Valentine's own affidavit provided ample notice of its infirmity. The form affidavit instructed Valentine to "[s]et forth facts and circumstances specifically, with particularity, in detail and when and how information was acquired — by observation, surveillance, informant, etc., and if by informant, describe how reliability verified — previous proven reliability, corroboration by other physical observations, etc." Exhibit 2.
The government does not explain how Valentine's knowledge that Ashburn lived at the particular address corroborated any part of Damron's statement.
The Court finds that Leon does not apply for two additional reasons. First, Valentine omitted from his affidavit the following facts: (1) Berry and Damron had ongoing disputes, primarily because Damron and Berry's daughter continued to see each other, (2) a few days earlier, Damron had lied to Valentine about his involvement in a car accident involving Berry's car; and (3) Damron had pending criminal charges. Defendant maintains that these omissions show that Valentine did not act in good faith reliance on the warrant.
Inadvertent omissions do not overcome the presumption that an officer acted in good faith reliance on the warrant. See United States v. Tisdale, 248 F.3d 964, 974 (10th Cir. 2001),cert. denied, 534 U.S. 1153 (2002). On the other hand, if an officer intentionally or recklessly omits material information which would have negated probable cause, Leon does not apply.See United States v. Basham, 268 F.3d 1199, 1204 (10th Cir. 2001), cert. denied, 535 U.S. 945 (2002); see also Franks v. Delaware, 438 U.S. 154 (1978); United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988) (Leon exception does not apply to search warrants granted on basis of recklessly or intentionally false affidavit). Recklessness can be inferred where the omitted facts were "clearly critical" to a finding of probable cause. DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990), cert. denied, 502 U.S. 814 (1991). A few days earlier, Damron had lied to Valentine about a car accident involving Berry's car. This information was "clearly critical" to Damron's reliability and veracity. The government argues that the lie was immaterial because Damron was lying to get Berry's daughter out of trouble with her father. Damron may have had one such benevolent motive, but his lie was also calculated to keep himself out of even more trouble. Specifically, (1) the police could have believed that he was driving the car without the owner's permission at the time of the wreck and (2) he had an ongoing dispute with Berry, which could have escalated. Although Damron may have provided truthful information on some occasions, he lied about the one incident which involved Berry and his daughter. Because Damron had lied only a few days earlier and the lie involved the very individuals involved with the lost wallet, such information was "clearly critical" to a finding of probable cause. Leon therefore cannot save the validity of the search in this case. See United States v. Vigeant, 176 F.3d 565, 573 (1st Cir. 1999) (Leon does not apply where affiant recklessly omitted information on informant's unreliability); United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996) (Leon does not protect searches by officers who fail to disclose all potentially adverse information to issuing judge); see also United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001) (government faces "high hurdle" to show objective good faith where critical information known to officer is omitted from affidavit). Leon also does not apply because the affidavit was based on stale information. Probable cause to search cannot be based on stale information that no longer suggests that the item sought will be found at the place to be searched. United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986). Although the timeliness of information contained in an affidavit is an important variable, probable cause is not determined simply by counting the number of days between the facts relied on and the issuance of the warrant.Id. Whether information is too stale to establish probable cause depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.Id. Thus, where the property sought is likely to remain in one place for a long time, probable cause may be found even though there was a substantial delay between the occurrence of the event relied on and the issuance of the warrant. Id. By the same token, where the affidavit recites facts indicating ongoing, continuous criminal activity, the passage of time becomes less critical. Id.
In cases where the executing officer is different from the officer who applied for the warrant, Leon requires that both officers act in good faith. See 1 Wayne R. LaFave, Search Seizure: A Treatise On The Fourth Amendment, § 1.3(f) at 83-84. Because Valentine applied for and executed the warrant, the Court evaluates only whether his reliance on the warrant was objectively reasonable. In this case, defendant challenges only the sufficiency of the affidavit for a warrant, not its execution.
Defendant maintains that someone would be expected to hold a wallet for only a short time and that the fact that Damron may have seen the wallet six days earlier in defendant's bedroom does not establish probable cause to believe the wallet was still in defendant's residence. The government maintains that Berry reported his lost wallet six to eight weeks before Damron was arrested, and that it was therefore reasonable for Valentine to assume that defendant would still have the wallet. Again, the government has cited a fact which Valentine knew but did not include in his affidavit. As explained above, the Court is limited to the four corners of the affidavit. Standing alone, six days is a close call for the theft of a wallet. See 2 Wayne R. LaFave, Search Seizure: A Treatise On The Fourth Amendment, § 3.7(a) at 342 (3d ed. 1996) (absent additional facts, evidence of one-shot type of crime such as single instance of possession or sale of some form of contraband will support finding of probable cause for a few days at best). Combined with the lack of information on Damron's reliability and veracity, lack of corroboration of Damron's statement and the failure of the Valentine affidavit to disclose several critical facts, no reasonable officer would have believed that the six day gap was sufficient to establish probable cause that the wallet would still be in defendant's bedroom. Leon therefore cannot save the validity of the search in this case. IT IS THEREFORE ORDERED that defendant's Motion To Suppress Evidence (Doc. #18) filed April 26, 2004 be and hereby is SUSTAINED.
The Court does not question Valentine's subjective good faith. He testified that his only goal in obtaining the warrant was to get Berry's wallet back because it contained irreplaceable photographs. Perhaps in the rush to recover the wallet and because he thought that the magistrate judge was already familiar with Damron, Valentine did not give the requisite attention to the contents of his affidavit.
The government suggests that the Court should consider the fact that in a small county such as Anderson County (population 8,000), the magistrate judge most likely knew about the criminal charges against Damron and the fact that a few days earlier, he had lied about the car accident. Even if the magistrate knew such information, the inquiry under Leon is limited to whether the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Affidavits prepared in small towns before magistrate judges who know everybody are subject to the same constitutional standard which pertains in larger, more anonymous venues.