Opinion
Cause No. IP 99-106-CR H/F
May 31, 2000
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
The United States has charged defendant Robert T. Word with two counts of violating 18 U.S.C. § 922(g)(1) for possessing 26 firearms and a variety of ammunition as a person with a prior felony conviction. A third count charges a violation of 18 U.S.C. § 842(i)(1) for possessing dynamite as a person with a prior felony conviction. The firearms, ammunition, and dynamite were seized on May 14, 1999, when officers of the Howard County Sheriff's Department obtained and executed a search warrant for Word's residence.
Word has moved to suppress the evidence seized from his residence. He contends the search warrant was not supported by probable cause. He also contends the search warrant was so deficient that reasonable law enforcement officers could not rely upon it, so that the fruits of the search cannot be saved by the good faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897 (1984). The government concedes the supporting affidavit was "sloppy" but contends it was "barely good enough" to support probable cause. In the alternative, the government contends the officers executing the search could rely reasonably and in good faith on the issuing court's finding of probable cause.
The court held an evidentiary hearing on March 23, 2000, and both sides submitted supplemental briefs after the hearing. On its own initiative, the court scheduled a supplemental hearing held May 30, 2000, to give both sides an opportunity to present additional evidence relating to the scope of the search, the return of the search warrant, and grounds for seizure of firearms, ammunition, and explosives. As explained below, defendant Word's motion to suppress is denied. Pursuant to Fed.R.Crim.P. 12(e), the court now states its findings of fact and conclusions of law.
The Facts
I. The Affidavit and Search Warrant
Attached as an appendix to this Entry is the complete text of the search warrant, which incorporated the supporting affidavit by Detective Roger Smith and Detective Don England of the Howard County Sheriff's Department. The affidavit is the complete record upon which the search warrant was based.
Detectives England and Smith were investigating a burglary and theft from the Plevna Implement Company, a rural Howard County store selling a variety of farm equipment. The crime was reported on May 8, 1999. The affidavit identified as stolen property a 14- to 16-foot utility trailer, three power washers, four push lawnmowers, numerous toy tractors and toy semis, as well as other tools, chains, and wrenches.
In the affidavit, Detectives England and Smith stated that on May 14, 1999, they had recovered some of the stolen property at the residence of Donna Armfield and Randy Mix in Kokomo, Indiana. At the Armfield/Mix residence, they found numerous toy tractors and toy semis that had been stolen. In the last paragraph of the affidavit, Detectives England and Smith stated that Donna Armfield had told them "she was present when Randy Mix was told by Robert Word to go rob the Plevna store. She also personally observed the trailer and a portion of the contents that were stolen from the Plevna Equipment Company at the residence of Robert Word. During the latter part of this past weekend which would have been the dates of May 8 and May 9, 1999."
The affidavit also contains information concerning drugs and the possible presence of firearms and explosives that is presented in an extraordinary way:
Based on the information provided by Donna Armfield and Randy Mix, these investigators believe that within the last 72 hours, narcotics agents from the Howard County Drug Task Force have been to the residence of a Robert Word, located at 3154 South County Road 750 West in Russiaville, Howard County, Indiana and while at that residence a confidential informant for the Howard County Drug Task Force purchased marijuana and Valium. Also suggested by Robert Word to the confidential informant that he had also possessed Xanax. The confidential informant also advised that they had personally witnessed and had first hand knowledge that there are hand grenade cases, numerous handguns, numerous semiautomatic weapons, rifles within Robert Word's residence.
Thus, taken at face value, this paragraph told the judge that Armfield and Mix had told the detectives that narcotics agents from the county's drug task force had visited Word's residence, and that a confidential informant for the task force had purchased marijuana and Valium. The paragraph also stated that the unidentified confidential informant "also advised" — apparently Armfield and Mix, either directly or through the task force — that "they" had seen firearms and hand-grenade cases at Word's residence.
The search warrant authorized law enforcement officers to search Word's residence "for said goods and chattels, to-wit: In said Affidavit described. . . ." The affidavit contains no indication that the presence of firearms or hand-grenade "cases" in Word's residence would be illegal. This court therefore does not read the affidavit as authorizing a search specifically for weapons and explosives. The evidence in the supplemental hearing is consistent with that reading. The officers executing the search warrant understood it to authorize a search for stolen property and for drugs and related paraphernalia.
II. Evidence Offered at the Hearings
Over Word's objection, the government presented evidence at the original hearing in an effort to support application of the good faith exception to the exclusionary rule.
Some of the evidence dealt with the results of the search and other information developed after the search showing that information in the affidavit had turned out to be correct: in executing the search warrant, the SWAT team found property stolen from the Plevna store and found firearms. Also, Randy Mix was taken into custody later in the day of the search. Several hours after the search of Word's property, Mix corroborated Armfield's information about the burglary of the Plevna store — that Mix had carried out the burglary and theft and delivered some of the stolen property to Word at his residence.
Evidence from the supplemental hearing indicates that a quantity of marijuana and some unidentified paraphernalia were also seized. See Gov't Ex. 11 (return on search warrant). Those items are not at issue in this case.
It is well-established in Fourth Amendment jurisprudence that a search or seizure cannot be justified by the fruits of the search or other after-the-fact information showing with the benefit of hindsight that the officers' suspicions turned out to be correct. See, e.g., Whiteley v. Warden, 401 U.S. 560, 567 n. 11 (1971). Similarly, a person challenging a search in a civil action cannot show it was unjustified by showing that the search turned out to be fruitless. See Harden v. Peck, 686 F. Supp. 1254, 1259 (N.D.Ill. 1988), citing Olson v. Tyler, 771 F.2d 277, 280 (7th Cir. 1985). The court sustains Word's relevance objection to all evidence about post-search events and information that turned out to corroborate the suspicions that led to the search.
The government also offered evidence supplementing the contents of the probable cause affidavit by setting forth in greater detail and with greater clarity the information known to Detectives Smith and England when they applied for and executed the search warrant. Word objected on relevance grounds to evidence that was not presented to the judge who issued the search warrant. The government contends the additional information is relevant to the good faith exception to the exclusionary rule. As explained below, the court agrees with the government on this point and overrules Word's objections to evidence of additional information known to Detectives Smith and England at the time they executed the search warrant.
The evidence shows that Detective England had been assigned to investigate the burglary and theft at the Plevna store. The Howard County Sheriff's Department had circulated to other law enforcement agencies a list of the stolen property. Around noon on Friday, May 14, 1999, Kokomo Police Lieutenant Tom Kelly contacted Detective England and suggested he come to the Kokomo residence of Donna Armfield and Randy Mix. When Detective England arrived, Armfield and a number of law enforcement officers were present, including Lieutenant Kelly and Detective Smith. Armfield gave her consent to search the house. The search turned up some of the property that had been stolen from the Plevna store. Armfield told Detective England that Robert Word had given Randy Mix a list of items to steal from the store. She also told Detective England that she had gone with Mix to Word's residence on May 8th or 9th and had delivered some of the stolen property to Word.
In addition, Lieutenant Kelly told Detective England that Armfield had been acting as a police informant and that Mix had been attempting to do so. Lieutenant Kelly had been in frequent contact with Detective Smith about a variety of matters, and he had told Detective Smith that Armfield and Mix had worked with the Howard County Drug Task Force to make three controlled buys of controlled substances from Word at his residence — on March 26, May 10, and May 12, 1999. Under control and surveillance by Lieutenant Kelly, Armfield and Mix had purchased Valium and marijuana from Word. In the course of making the controlled buys on May 10 and May 12, police informants Mix and Armfield did not inform police of what they knew about the Plevna store burglary and theft.
At some point, Lieutenant Kelly also gave Detective Smith a sketch of a floor plan of Word's home that had been prepared by Mix. Detective Smith used the sketch to prepare a floor plan for the tactical team who executed the search warrant at Word's residence. It appears this sketch was available to law enforcement several weeks before the search of Word's residence. Lieutenant Kelly also told Detective Smith that he viewed Mix and Armfield as reliable informants based on his work with them in the controlled drug buys.
At the supplemental hearing, the government offered evidence concerning the actual search and the basis for seizing firearms, ammunition, and explosives discovered during the search. Before the search itself, the tactical team of the Howard County Sheriff's Department met for a briefing. The team was told in the briefing that they had information there were firearms and explosives at the Word residence. The evidence also shows that at least some members of the team, including Detective Steven Rogers, knew that defendant Word had a prior felony conviction, which is critical to the legal basis for seizing the firearms, ammunition, and explosives.
In conducting the search, the team first asked defendant Word and all persons inside the house to come outside. Word and others came outside voluntarily. Members of the search team then conducted a security sweep of the house to make sure no one else was inside. They then searched the house and a small storage building on the property.
Officers who entered the master bedroom saw a gun cabinet on the wall with about a dozen long guns behind a glass door. In the closet of that bedroom, they found a gun rack with several more long guns, as well as a handgun on the closet shelf. Officers also looked underneath the bed and removed and opened a case with an Uzi submachine gun.
In the attached garage, an officer opened a picnic cooler (large enough to carry about twelve beverage cans) and found a couple of dozen sticks of dynamite.
In a downstairs bedroom in the house, officers found an open footlocker that contained many small boxes containing a variety of ammunition. In the closet of that bedroom, there were several wooden boxes marked as ammunition crates. The officers opened those crates. Some contained ammunition different from the box labels. Others did not contain ammunition of any kind.
After the officers discovered the firearms, ammunition, and dynamite, they contacted the United States Bureau of Alcohol Tobacco and Firearms. Upon the advice of an unidentified ATF officer, the officers executing the search warrant decided to have all firearms fingerprinted on the spot, and then to seize the firearms and ammunition. The return of the search warrant reflects seizure of "Numerous Long guns (SKS, UZI, Shotgun etc. . .)," as well as three handguns and a "large quantity" of ammunition, plus explosives. Gov't Ex. 11.
Discussion
I. Probable Cause for Issuing the Search Warrant
The first issue is whether the search warrant was supported by probable cause to believe any evidence of a crime would be found at Word's residence. The general principles here are well established. First, under the Fourth Amendment courts have a "strong preference" for searches conducted pursuant to a warrant as distinct from attempts to rely on various exceptions to the warrant requirement. See Illinois v. Gates, 462 U.S. 213, 236 (1983). Second, in evaluating probable cause, the judge's task is 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. Third, where a neutral judge has found probable cause to support a search and has issued a search warrant, the warrant is presumed to be valid, see Franks v. Delaware, 438 U.S. 154, 171 (1978), and reviewing courts give "great deference" to that on-the-spot judgment. Illinois v. Gates, 462 U.S. at 236.
Further, mere conclusions from the affiant are not sufficient to support a judge's finding of probable cause. A sworn statement that the affiant "has cause to suspect and does believe" that items are in a particular place is not enough, nor is a statement that the affiant has "received reliable information from a credible person." See id. at 239, citing Nathanson v. United States, 290 U.S. 41 (1933), and Aguilar v. Texas, 378 U.S. 108 (1964). "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. at 239; accord, Whiteley v. Warden, 401 U.S. 560, 563 (1971) (sheriff's conclusory affidavit simply swearing that two named suspects had committed burglary and theft was not sufficient to support warrant).
In this case the only evidence presented to the issuing judge to support the search warrant was the affidavit from Detectives England and Smith.
With respect to drugs being present at Word's residence, the affidavit falls woefully short of establishing probable cause. In the key paragraph on that topic, Detectives England and Smith told the judge that Armfield and Mix had "provided" them unspecified information at some unspecified time and in an unspecified manner that led them to believe that agents of the Howard County Drug Task Force had carried out a controlled buy at Word's residence with an unidentified confidential informant. In other words, taking the affidavit at face value, two suspects in a theft somehow communicated information to the affiants that some other law enforcement officers had worked with some other unidentified informant to make a controlled buy from Word at his residence, and that the informant had also seen firearms and related items. This is the stated basis for finding probable cause that controlled substances and related items were at Word's residence.
Although affiants may rely on hearsay information in applying for a search warrant, they must give the issuing judge a reasonable basis for deciding whether the information is sufficiently reliable to support a finding of probable cause and thus to authorize the intrusion of a police search. On its face, this affidavit's basis is simply hopeless. From the face of the affidavit, the critical "information" on the topic of drugs came from the unidentified "confidential informant" who carried out the controlled buy. The issuing judge could not reasonably assess the reliability of that information. All the judge had to go on was the detectives' claim in the affidavit that they had received information from Armfield and Mix that some other officers had supervised a controlled buy with an unidentified informant. See United States v. McNeal, 82 F. Supp.2d 945, 952-55 (S.D.Ind. 2000) (Tinder, J.) (affidavit that provided no information to judge about reliability of confidential informant did not support finding of probable cause for search of residence for drugs).
The affidavit's information about firearms and possibly explosives being present is equally flawed. In addition, nothing in the search warrant affidavit suggests that it the presence of firearms or explosives at the Word residence would even be illegal. The possibility that firearms would be present was information of obvious interest to any law enforcement officers planning to execute a search warrant. However, the affidavit does not report, for example, that Word had a prior felony conviction that would make his possession of most firearms and ammunition illegal under 18 U.S.C. § 922(g).
The government does not seriously contend the affidavit is sufficient to establish probable cause on the presence of either drugs or illegal firearms. The government has more of a basis for argument on the presence of stolen property from the Plevna store at the Word residence. The face of the affidavit shows that the detectives knew some but not all of the stolen Plevna store property had been found at the Armfield/Mix residence. In addition, Armfield told them she had been present when Word told Mix "to go rob the Plevna store." Armfield stated she had "personally observed the trailer and a portion of the contents that were stolen from the Plevna Equipment Company at the residence of Robert Word."
Word argues the affidavit did not provide sufficient indicia of reliability to show probable cause to believe stolen property would be found at Word's residence. Although Armfield's statements were against her own penal interest and the interest of her housemate Mix (because stolen property had been found in the consensual search of their home), Armfield's statements are suspect because she was trying to shift responsibility from herself and Mix to Word. Word notes that such statements by suspects or co-defendants are "presumptively unreliable" and inherently suspect, at least for purposes of the Confrontation Clause of the Sixth Amendment and for determining whether they fall outside the definition of hearsay. See Lilly v. Virginia, 527 U.S. 116, 132 (1999) (plurality opinion) ("presumptively suspect"); Lee v. Illinois, 476 U.S. 530, 541 (1986) (plurality opinion) ("presumptively unreliable").
Even if such statements that tend to admit some wrongdoing while shifting blame to someone else would not be admissible at trial, however, they may be considered in deciding whether to issue a search warrant. See United States v. Harris, 403 U.S. 573, 583-84 (1971) (plurality opinion) (confidential informant's self-incriminating tip may support finding of probable cause even where informant receives payment or "break" for providing information, and even if statement would not be admissible at trial).
Word points out that the affidavit provided virtually no detail about Armfield's report on the burglary and theft. It did not tell the judge when or where or under what circumstances she heard Word tell Mix to rob the Plevna store, nor did the affidavit include additional details that might tend to add some weight to her account. Also, the affidavit did not reflect any significant amount of independent verification of her story by further police investigation.
As the government points out, however, the detectives knew the Plevna burglary and theft had occurred. They also knew they had found some of the stolen goods in the Armfield/Mix home. That fact obviously tended to corroborate Armfield's claim that she knew something about the burglary and the location of other stolen property. Also, she claimed to have been present when Word told Mix to rob the store. She also told the detectives that she had seen the stolen trailer and some of its contents at Word's residence a few days earlier.
Getting away from the two-pronged Aguilar and Spinelli test requiring separate and independent consideration of the informant's basis of knowledge and reliability that was rejected in Illinois v. Gates, see 462 U.S. at 238, and using instead the totality of the circumstances approach adopted in Gates, the government contends the affidavit supports a finding of probable cause to believe that stolen property would be found at the Word residence. See Massachusetts v. Upton, 466 U.S. 727, 733-34 (1984) (affirming probable cause on search warrant for stolen property where informant claimed to have seen stolen goods, described them accurately, knew of a related, very recent police raid on a motel room, and described her motive, a desire to "burn" her ex-boyfriend, who was the thief); United States v. LaMorie, 100 F.3d 547, 552-53 (8th Cir. 1996) (reversing suppression of evidence where informant described stolen property, gave its location, and admitted her own involvement in related crimes).
Applying the totality of the circumstances test adopted in Gates, the affidavit was sufficient to support a finding of probable cause to search Word's residence for property stolen from the Plevna store. The issuing judge knew that Armfield was connected to the Plevna burglary — some of the stolen goods had been found at her residence. He knew she was making statements against her own penal interest by telling the detectives about the conversation between Word and Mix. He also knew she was claiming first-hand knowledge of the presence of some of the stolen goods at Word's residence a few days earlier. Finally, he knew that the burglary had in fact occurred, and that Armfield's partial information about some of the stolen goods matched other information the police had about what was missing.
The case for probable cause on the stolen goods was not overwhelming. It was also shrouded by the confusing and unsupported claims regarding drugs and firearms. Nevertheless, giving appropriate deference to the on-the-spot judgment of the issuing judge, see Gates, 462 U.S. at 236, and recognizing that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation," see United States v. Ventresca, 380 U.S. 102, 108 (1965), the court finds there was probable cause to support a search for stolen goods at Word's residence.
II. The Seizure of Firearms, Ammunition, and Explosives
Word faces charges in this court for unlawful possession of firearms, ammunition, and explosives, not for receipt of the stolen property that formed the valid basis for the search warrant. The next question is whether the officers were authorized to seize the firearms, ammunition, and explosives that were found in the search for stolen property. The court finds that the scope of the search that turned up the firearms, ammunition, and explosives was within the scope of the valid search for the stolen property and the security sweep as part of that search. In addition, the "plain view" exception to the warrant requirement applied to the firearms, ammunition, and explosives because the officers had a lawful right to be where they were and to look where they looked (including in closed containers), and because the incriminating nature of the items was immediately apparent to officers who knew Word had a prior felony conviction.
Word challenges the scope of the search of the rooms in his house because many of the items mentioned specifically in the affidavit were too large for an officer to reasonably expect to find them anywhere other than the attached garage and/or the separate storage building. These items included the 14- to 16-foot utility trailer, four lawnmowers, and power washers, which one would not reasonably expect to find, for example, in a bedroom closet or under a bed. However, the affidavit also authorized the officers to search for tools and wrenches, as well as toy trucks and tractors and lengths of chain. The officers were entitled to look throughout the house for those items, including in closets, under beds, and in closed containers large enough to hold any of the stolen items. The officers acted within the valid scope of the warrant when they opened ammunition crates, as well as the case that contained the Uzi and the cooler that held the dynamite.
Government Exhibit 5 is a more detailed handwritten list of stolen property that was in the possession of the team executing the search warrant. However, that list had not been presented to the judge who issued the search warrant. In addition, the evidence shows that the officers executing the search warrant believed subjectively that they were authorized to search for drugs and related paraphernalia. In evaluating the valid, authorized scope of the search, the court has not relied on either the more detailed list of stolen property or the officers' subjective beliefs about searching for drugs and related items.
The government contends the officers were entitled to seize the firearms, ammunition, and explosives without a valid search warrant for those items under the "plain view" exception to the warrant requirement explained in detail in Coolidge v. New Hampshire, 403 U.S. 443, 464-66 (1971) (plurality opinion). The court agrees.
The plain view exception may apply when, among other situations, "the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character." Coolidge, 403 U.S. at 465. To take advantage of the plain view exception, the government must show: (1) that the officer was lawfully authorized to be present where she was and to be looking where she was; (2) an item not named in the warrant was then and there in plain view of the officer; and (3) the incriminating nature of the item was immediately apparent. See United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997), citing Coolidge, 403 U.S. at 466. The third element has been extended to items which the officer has probable cause to believe are linked to criminal activity. See United States v. Bruce, 109 F.3d at 328, citing Arizona v. Hicks, 480 U.S. 321, 326 (1987).
In this case, the officers were authorized by the search warrant to search Word's home for stolen property. The warrant gave them the right to search the bedrooms and the closets, where many of the firearms and boxes of ammunition were in plain view. See Gov't Exs. 3, 7, 8, 9, 10. The warrant also gave the officers the right to open closed containers that a reasonable officer would consider large enough to hold any of the stolen property, including the containers shown in Government Exhibits 1, 2, 4, and 6. Thus, the firearms, ammunition, and explosives in Word's home were all in the "plain view" of officers properly executing the valid search warrant for stolen property.
As for the third element of the plain view exception, the incriminating nature of the firearms, ammunition, and explosives was immediately apparent to at least several of the officers executing the search. Detective Rogers, for example, knew that Word had a prior felony conviction that barred him from lawful possession of nearly all firearms, ammunition, and explosives. In light of that knowledge, the seized items fell within the plain view exception. See United States v. Bruce, 109 F.3d at 328-29; United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir. 1994) (detective executing search warrant properly seized empty ammunition box outside scope of warrant because the detective knew of subject's prior felony conviction; in addition, ammunition was tool of the drug trade that was the focus of search); see also United States v. Soussi, 29 F.3d 565, 571-72 (10th Cir. 1994) (plain view exception could apply to items named in invalid portion of search warrant if seizure of those items satisfied all elements of plain view exception); United States v. Reed, 726 F.2d 339, 343-44 (7th Cir. 1984) (plain view exception applied to seizure of items not mentioned in search warrant where officer had objectively reasonable belief that items were incriminating).
III. Application of the Good Faith Exception
Because the case for probable cause with respect to stolen property is less than overwhelming, the court will also address the government's alternative reliance on the good faith exception to the exclusionary rule, which was established in United States v. Leon, 468 U.S. 897 (1984). The Supreme Court held that when officers execute a search warrant with a good faith belief that the warrant is valid, the "marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." 468 U.S. at 922. The central question is whether a reasonable officer executing a search warrant would have known that the search was illegal despite the judge's authorization.
The Court identified four situations in which suppression of the fruits of a search authorized by a warrant is still an appropriate remedy: (1) if the issuing judge was misled by information in an affidavit that the affiant knew or should have known was false; (2) if the issuing judge wholly abandoned his or her judicial role; (3) if the affidavit was so lacking in indicia of probable cause that it rendered the executing officers' belief that probable cause existed unreasonable; or (4) if the warrant was facially deficient to the point that no reasonable officer could have relied on it. Id. at 923.
With respect to the search for stolen property, the officers executing the search were certainly entitled to the benefit of the good faith exception. Both the issuing court and this court found the affidavit sufficient to support a finding of probable cause to believe that stolen property would be found at Word's residence. Word has not offered any convincing basis for holding that the officers were not entitled to rely on the warrant to search for stolen property.
With respect to the warrant's authorization to search for drugs and related paraphernalia, this case presents an unusual situation. A number of courts have dealt with situations in which affiants withheld from an issuing magistrate information that would have detracted from a finding of probable cause. This case presents the opposite problem. Detectives Smith and England possessed information concerning Armfield's reliability that was not presented to the judge but that would have helped support a finding of probable cause for a search for drugs.
When Detectives Smith and England presented their affidavit, they in fact knew that Armfield herself was the "confidential informant" discussed in the garbled portion of the affidavit dealing with drugs. Armfield had served as an informant in controlled drug buys for Lieutenant Kelly of the Kokomo Police Department prior to May 14, 1999. Lieutenant Kelly advised Detectives Smith and England that Armfield was a reliable informant who had conducted controlled drug buys under his supervision at the Word residence on May 10 and 12, 1999. In addition, Armfield told Detective England that she not only had heard Word tell Mix to rob the Plevna store (which was included in the affidavit), but also that she had seen Mix deliver the stolen goods to Word's residence.
Although the detectives were aware of this important information when they applied for the search warrant, they failed to place it in their affidavit. If this information had been in the affidavit, it would have added substantial support for the finding of probable cause on drugs because it would have provided the judge with additional information concerning both Armfield's reliability and the basis of her knowledge. It would have shown that Armfield had in fact been inside the Word residence just days before the search was conducted, that she had seen the stolen property that Mix had delivered there, and that she had seen the firearms and related items there.
The good faith exception requires the court to consider whether a reasonable officer would have acted upon the search warrant. The question here is whether the court, in deciding whether execution of the search warrant was reasonable, may consider information known to the affiants and executing detectives that was presented in a garbled and confusing manner in the affidavit or the warrant. The court finds that it may look beyond the four corners of the affidavit and consider the additional information known to the detectives at the time they executed the warrant to clarify and correct the garbled information given to the issuing judge.
In United States v. Dickerson, 975 F.2d 1245 (7th Cir. 1992), the Seventh Circuit dealt with a similar situation regarding the good faith exception. Dickerson was accused of robbing a bank while disguised as a woman. A bank customer saw Dickerson leave the bank and drive away in a grey car that was parked along the side of a nearby interstate highway. A short time later, the same bank customer saw the same grey car on the highway. The customer reported the grey car's license plate number to the police and described for them the man that he saw dressed as a woman leaving the bank. The customer's description of the suspect was consistent with the description given by the bank tellers who witnessed the crime. The police ran the license plate number and learned that the car was registered to Dickerson. The police then took the bank customer and the tellers to Dickerson's house, where the customer identified the grey car parked in Dickerson's driveway. Before entering the house, the police felt the hood of Dickerson's car and found it was still warm, indicating that it had been driven recently. The police knocked at the door of the residence and Dickerson answered it. Dickerson allowed the officers to come inside. Once inside, the officers discovered clothing that the witnesses confirmed resembled that worn by the robber. Dickerson was then placed under arrest and taken outside where the witnesses identified him as the robber. The police radioed orders back to headquarters to prepare an affidavit for a search warrant to search Dickerson's house. The affidavit was prepared and a search warrant was issued. The house was then searched and more evidence linking Dickerson to the crime was discovered.
Dickerson moved to have the items discovered during the search of his house suppressed because the warrant was not supported by probable cause. The affidavit presented to the issuing judge stated only that a witness had seen the robber get into a car that was registered to Dickerson. The affidavit did not disclose any of the other information the police had learned at the scene linking Dickerson to the robbery, or even that the car was parked at Dickerson's house. Dickerson argued the affidavit did not provide the issuing judge with any facts establishing that evidence of a crime was likely to be found in Dickerson's house.
The Seventh Circuit stated that while the affidavit did establish probable cause to search the car, it was "doubtful that it established probable cause to search Dickerson's house." Id. at 1250. The court did not suppress the evidence found in the house, however. The court applied the good faith exception established in Leon. In finding that the executing officers relied on the warrant in objective good faith, the court stated:
The officers at the scene had more than probable cause to search. They knew that Dickerson's car was parked at the house, had been identified by a witness and its engine was still hot; that the hat, coat and purse found in the house had been identified by the witnesses as like those worn by the robber; and that the tellers had identified Dickerson as the robber in a line-up. The officials did not know that all this information had not been passed on to the judge who issued the warrant; they did not see the probable cause affidavit. The law enforcement officials at Dickerson's home, therefore, had every reason to believe, in good faith, that the warrant was supported by probable cause.Id.
Dickerson differs from this case because the executing officers here knew what information had been presented to the judge. Nevertheless, the case is instructive here because the court looked beyond the four corners of the affidavit and warrant. In deciding that the executing officers acted in good faith in executing a facially deficient warrant, the court took into account information known to the executing officers that would have supported a finding of probable cause, where the officers believed the information had been presented to the issuing judge, even though it had not been.
The Eighth Circuit dealt with a situation similar to this case in United States v. Martin, 833 F.2d 752 (8th Cir. 1987), where an undercover officer presented an affidavit to a state court judge in support of a warrant application to search Martin's car. The state judge issued the search warrant. Guns were found in Martin's car during the subsequent search. In defending federal firearms charges, Martin moved to suppress the guns on the grounds that the affidavit did not establish probable cause to believe that his car contained the guns. The district court agreed and suppressed the evidence. On appeal, the Eighth Circuit affirmed the district court's finding that the affidavit did not establish probable cause to search Martin's car, but reversed the suppression of the guns by applying the good faith exception. The Eighth Circuit stated:
Although a police officer may not rely entirely on the magistrate's finding of probable cause, Malley v. Briggs, 475 U.S. 335 (1986), in cases where, as here, the courts cannot agree on whether the affidavit is sufficient, it would be unfair to characterize the conduct of the executing officers as bad faith, particularly where there has been no material false statements or misrepresentations in the affidavit and where the officer is acting in good faith. Although we may not look to facts outside of the affidavit to determine probable cause, Whiteley v. Warden, 401 U.S. 560, 565 n. 8 (1971), when assessing good faith we can and must look to the totality of the circumstances including what Officer Powers knew but did not include in his affidavit.Id. at 755-56 (emphasis added); accord, id. at 757 (Lay, C.J., concurring) (information known to executing officer established good faith exception even where reliance on warrant alone would have been unreasonable).
In looking at the totality of the circumstances in this case, even if the affidavit presented to the judge was facially insufficient, the executing detectives had additional information that was not presented (at least not presented clearly) to the judge that would have supported a finding of probable cause to search Word's residence. Just as the court may consider what an officer actually knew in order to determine if he acted in bad faith ( i.e., whether the officer was concealing material information or lying to the judge), the court may also consider what the officer knew in determining whether he acted reasonably in executing a search warrant issued by a judge with authority to do so.
Although the Supreme Court did not rule on the issue that is currently before this court in Leon, the Court's decision in Massachusetts v. Sheppard, 468 U.S. 981 (1984), decided the same day as Leon, also provides some guidance on this question. In Sheppard, an officer had presented a judge with a search warrant application that contained errors. The officer was aware of the errors and pointed them out to the judge. The judge told the officer that he would make the necessary corrections but then failed to do so. The officer who presented the application then directed the search. The Supreme Court held that, despite the facially obvious defects in the warrant, the officer acted in good faith in executing it. The same officer prepared the affidavit and executed the search warrant, and he was aware of the proper scope of the warrant even though, as the warrant was actually written, the scope was far too broad. Id. at 989 n. 6. Therefore, in deciding whether the officer's actions were objectively reasonable and thus in good faith, the Court took into account the knowledge of the executing officer beyond the contents of the warrant, at least where a judge had assured the officer the corrections would be made. See also United States v. Maxwell, 920 F.2d 1028, 1034 (D.C. Cir. 1990) ("Moreover, the same agent who prepared the affidavit and obtained the warrant also oversaw the execution of the warrant, a circumstance that was important to the Supreme Court's decision in Sheppard, where the Court held that it is appropriate to take account of the knowledge possessed by the officer or officers who execute the search warrant.").
The search warrant was needed to search for items linking a suspect to a murder. The search warrant application form used by the officer, however, was for a search for "controlled substances." Although the officer pointed out this problem, the issuing judge failed to delete the reference authorizing a search for controlled substances. The judge also failed to change the form in order to incorporate the officer's supporting affidavit into the warrant.
To the same effect, see generally United States v. Owens, 848 F.2d 462, 466 (4th Cir. 1988) (executing officers acted in good faith by relying on information known outside the four corners of warrant and affidavit to identify the place authorized to be searched); United States v. Gahagan, 865 F.2d 1490, 1498 (6th Cir. 1989) (officers reasonably relied upon defective warrant in part because of information known to the executing officers); United States v. Burke, 784 F.2d 1090, 1093 (11th Cir. 1986) (upholding search conducted with defective warrant because affiant was present during the search and pointed out error for executing officers); United States v. Turner, 770 F.2d 1508, 1511 (9th Cir. 1985) (upholding search where warrant contained inaccurate street number in part because the "warrant was executed by an officer who had participated in applying for the warrant and who personally knew which premises were intended to be searched"); United States v. Clement, 747 F.2d 460, 461 (8th Cir. 1984) (upholding search in which warrant contained incorrect apartment number in part because the executing officer knew, through his investigation, the number of the correct apartment). But see United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) (" Leon does not extend, however, to allow the consideration of facts known only to an officer and not presented to a magistrate").
In his post-hearing brief, Word argues that the detectives intentionally attempted to mislead the judge by suggesting that the information in the affidavit about drugs and weapons was provided by both Armfield and Mix. The evidence before this court establishes that the police did not talk with Mix on the day of the search until after the search warrant was issued and after Word's residence was searched. As shown above, the affidavit presented in this case is anything but a model of clarity. While the detectives' affidavit may have been sloppy, though, there is no evidence that they intentionally attempted to mislead the judge in this respect. The mistake was also immaterial, for the only reference to information from Mix was in the hopelessly confused paragraph about drugs and firearms that did not come close to establishing probable cause. The critical information before the issuing judge was the information that Armfield, and only Armfield, had given the detectives concerning the property stolen from the Plevna store. The evidence in this case shows that the affiants were negligent in this respect, but not intentionally deceptive. See United States v. Swanson, ___ F.3d ___, ___, 2000 WL 433576, *2 (7th Cir. April 24, 2000) (asserted negligence by police officer in seeking search warrant provided no basis for convening a Franks hearing).
Word also argues that the detectives intentionally attempted to mislead the judge by failing to disclose that Mix had delivered the stolen goods to Word's residence, that Mix was one of the confidential informants, and that Mix continued to commit crimes while he was serving as a confidential informant for the police. Again, while the information in the affidavit was not clearly presented, there is no evidence that the detectives intentionally withheld these facts from the judge in an attempt to mislead him. The detectives' failure to present clearly to the judge significant information tending to support probable cause helps to persuade this court that the problems in the affidavit were the result of haste and sloppiness, not intentional deception or concealment.
The affidavit certainly would have been much clearer if it had disclosed that Armfield and Mix were the confidential informants conducting controlled buys for the police. Disclosure of that information would have added to, not detracted from, the finding of probable cause. The fact that Mix continued to commit crimes, i.e., the burglary and theft at the Plevna store, while he was serving as an informant for the police, is not relevant in judging whether probable cause existed to search the Word residence for stolen goods. Mix did not provide the police with any information concerning the burglary and theft of the Plevna store until after the search of Word's residence had been conducted. His credibility was not at issue on whether stolen goods were located at Word's residence. The affidavit states that Armfield provided the police with the information linking Word to the stolen goods. It was her credibility, not Mix's, that was at issue.
Conclusion
The affidavit presented by Detectives England and Smith was insufficient to establish probable cause to search Word's residence for drugs and/or firearms, but it was sufficient to allow the issuing judge to find probable cause for a search for stolen property from the Plevna store burglary. The valid portion of the search warrant authorized a search sufficient to allow the officers to search the rooms and closets of the house where they found numerous firearms and ammunition, and to open closed containers where they found explosives and more ammunition and firearms. Because the incriminating nature of those items was immediately apparent to officers who knew of Word's prior felony conviction, the seizure of the firearms, ammunition, and explosives was constitutional under the plain view exception to the warrant requirement.
The search warrant's defects on searches for drugs were so apparent that a reasonable officer could not rely on the four corners of the document to search for drugs. However, the officers executing the warrant could reasonably rely on information known to them outside the four corners of the document to clarify the garbled portion of the affidavit, as well as on the issuing judge's determination, so that the good faith exception to the exclusionary rule applies to this search, including the search for drugs and related items.
Word has also asked the court to suppress unidentified statements he made to officers in the course of the search. Because the search was valid and because Word has identified no other basis for suppressing any such unidentified statements, none will be suppressed. Accordingly, defendant Word's motion to suppress is hereby DENIED.
So ordered.
APPENDIX SEARCH WARRANT
STATE OF INDIANA ) IN THE HOWARD SUPERIOR COURT II ) SS: COUNTY OF HOWARD ) IN THE 1999 TERMTo any constable, police officer, sheriff or conservator of the peace, greetings: Whereas, there has been filed with me an affidavit of which the following is a copy:
AFFIDAVIT FOR SEARCH WARRANT
STATE OF INDIANA ) ) SS: COUNTY OF HOWARD )
The undersigned affirms under the penalties for perjury that the following representations are true and says that the following items: Marijuana, Valium, Xanax, money, ledgers, records of drug transactions, computers, hard drives, floppy disks, storage devices associated with computers, telephone records, measuring devices, scales, and any and all substances used in the illicit distribution of controlled substances and stolen property are concealed in or about the following premises located at 3154 South County Road 750 West, Russiaville, Howard County, Indiana and described as a two story wood frame structure, yellow in color, with a gray roof and a multi-car garage facing south, and occupied by Robert T. Word, DOB 04/21/61, SSN 313-72-5304, white male , in Russiaville, Howard County, Indiana, and that said items are related to the offense of Possession of Stolen Property, a Class D Felony and Dealing in Controlled Substances, a Class B Felony in violation of Indiana Code.
On today's date, the Affiant, Detective Roger Smith and Detective Don England, both investigators with the Howard County Sheriff's Department. Detective Smith has 30 years of service with the Sheriff's Department and 18 years as an investigator and Detective England has six years of service with the Howard County Sheriff's Department and three years as an investigator. All received information during the morning hours from a residence located at 924 South Clark Street in Darrough Chapel in Kokomo, Howard County, Indiana the residence of Donna Armfield and Randy Mix that they had in their possession stolen property. Based on information provided by Detective Tonda Cockrell/255 regarding stolen property of another unrelated burglary, said stolen property recovered from that residence as listed in a Case Report to the Howard County Sheriff's Department as a burglary reported on May 8, 1999, at approximately 6:15 a.m. Once inside the residence, the Affiants received written consent to search the property at 924 South Clark Street.
Some of the items that were removed from the Plevna Implement Company and recovered from 924 South Clark Street were as follows:
1. Numerous toy tractors.
2. Numerous toy semis.
These items were found at the Mix residence and recovered. As a result of that, information was obtained from Donna Armfield. These toys are generally made of 1/64th scale and 1/24th scale sizes.
Also taken during the burglary were several tools, chains, wrenches, power washers and push mowers. The serial numbers on the Tidal Wave power washer was Model No. 5257CV2000A1, Serial No. 324757, Tidal Wave power washer Tag No. 5258, Model No. WP27001AI, Serial No. 345404, and Tidal Wave Power Washer Tag No. 5259, Model No. WP30030AH, Serial No. 344960. Also taken was one [1] 14 to 16 foot black 1996 Nomanco utility trailer with Indiana registration plate number 5710L, vehicle identification number 8012WE01453, four [4] push lawn mowers, manufactured name White, Model No. HW615, Serial No. 1B058K30183, Model No. HWT4, Serial No. 03Q59K30159, Model No. LC106, Serial No. 1K188B20667, Model No. LC215, Serial No. 1A219K30756.
Based on the information provided by Donna Armfield and Randy Mix, these investigators believe that within the last 72 hours, narcotics agents from the Howard County Drug Task Force have been to the residence of a Robert Word, located at 3154 South County Road 750 West in Russiaville, Howard County, Indiana and while at that residence a confidential informant for the Howard County Drug Task Force purchased marijuana and Valium. Also suggested by Robert Word to the confidential informant that he had also possessed Xanax. The confidential informant also advised that they had personally witnessed and had first hand knowledge that there are hand grenade cases, numerous handguns, numerous semiautomatic weapons, rifles within Robert Word's residence.
These investigators were made aware of a floor plan and prepared a floor plan based on the information provided by a confidential informant who had been inside the residence of Robert Word recently. These investigators are also interested in recovering the stolen trailer from the Plevna Equipment Company which may be located at or near the residence of Robert Word at the above given location. Also these investigators have information that a portion of the farm toys may be within the inside of that residence, power washers, seven hundred fifty feet [750'] of assorted sizes of chain, assorted hand tools, and the above listed Nomanco trailer which had been taken in the burglary of the Plevna Equipment Company May 8, 1999 located at 7960 East County Road 400 North, Kokomo, Howard County, Indiana, Howard County Sheriff's Department Case No. 99-9851.
Also information was provided by Donna Armfield that she was present when Randy Mix was told by Robert Word to go rob the Plevna store. She also personally observed the trailer and a portion of the contents that were stolen from the Plevna Equipment Company at the residence of Robert Word. During the latter part of this past weekend which would have been the dates of May 8 and May 9, 1999.
FURTHER AFFIANTS SAYETH NOT.
/s/ __________________________ Sgt. Robert Smith/34-07 Howard County Sheriff's Department Affiant
/s/ __________________________ Detective Don England/34-44 Howard County Sheriff's Department Affiant
You are therefore commanded in the name of the State of Indiana, with the necessary and proper assistance in the daytime or nighttime, to enter into or upon the premises described in said affidavit, said premises occupied by the above-named person or persons and there search diligently for said goods and chattels, to-wit: In said Affidavit described, and that you bring the same, or any part thereof, found on such search forthwith before me to be disposed of according to law.
Given my hand this 14th day of May, 1999.
/s/ _________________________ JUDGE STEPHEN JESSUP HOWARD SUPERIOR COURT II [2:49 p.m.]