Opinion
No. CR00-3021-MWB
December 27, 2000
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS I. INTRODUCTION
The defendant Steven John Stoltenberg ("Stoltenberg") was indicted on June 14, 2000, for possession with intent to distribute and conspiracy to distribute methamphetamine and cocaine. ( See Doc. 1) On October 30, 2000, Stoltenberg filed a Motion to Suppress (Doc. No. 19). The plaintiff (the "Government") filed its resistance on November 13, 2000 (Doc. No. 26). Under the trial scheduling and management order entered June 22, 2000 (Doe. No. 6), motions to suppress in this case were assigned to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B), for the filing of a report and recommended disposition. Accordingly, on November 27, 2000, the court held a hearing on the suppression motion. Assistant U.S. Attorney C.J. Williams appeared at the hearing for the Government. Stoltenberg appeared in person and with his attorney, Steve VandenBerg.
A superseding indictment was filed on November 27, 2000 (Doc. No. 29), adding money laundering and criminal forfeiture counts.
The Government called Agent Lori Lewis to testify at the hearing. Stoltenberg testified on his own behalf. The Government offered six exhibits. Government Exhibits 1 through 4 were attached to the Government's resistance to the motion (Doc. No. 26), as follows: Exhibit 1 is a copy of the initial search warrant application, with the incorrect address; Exhibit 2 is a copy of the amended search warrant application, with the corrected address; Exhibit 3 is a copy of the application for a warrant to search a black briefcase at Steve's Amoco; and Exhibit 4 is a copy of an intelligence report containing information from anonymous calls concerning Stoltenberg. Government Exhibit 5 is a copy of Stoltenberg's criminal history report, and Government Exhibit 6 is a drawing made by Agent Lewis during the hearing that shows the floor plan of Steve's Amoco Station in Rockwell, Iowa. Exhibits 1, 2, 3, and 5 were admitted without objection. Exhibit 4 was admitted over the Defendant's objection as to hearsay. Exhibit 6 was admitted over the Defendant's objection as to the drawing's accuracy. Although not formally admitted as an exhibit, the court also considers as part of the record a fourth search warrant application which is attached to Stoltenberg's motion, seeking to search Steve's Amoco station and a truck.
The court has reviewed the parties' briefs and carefully considered the evidence, and now considers the motion ready for decision.
II. FINDINGS OF FACT
In his motion, Stoltenberg seeks to suppress all evidence arising from the execution of four search warrants obtained from a state court judge in Cerro Gordo County, Iowa, for the search of Stoltenberg's home, business, vehicles, and a black briefcase.
The first Application for Search Warrant (the "first application") was presented to the state magistrate on April 14, 1999. The first application listed the place, person, and vehicle to be searched as follows:
The residence located at 313 Jefferson, Rockwell, Iowa. The residence is a gold colored wood frame structure with an unattached shed located to the north of the residence. The residence is that of STEVEN JOHN STOLTENBERG, described as a white male, DOB: 02/24/58; SSN: 483-72-0316; DCI #: 00253674; FBI#: 198597V4. The person of STOLTENBERG as described and any and all persons present at the time of the search warrant execution. 1981 Lincoln TownCar registered to Ann VanBlaricom. [Underlined portion is hand-printed at the end of the paragraph.]
(Doc. No. 26, Gov't Ex. 1)
The first application was supported by the affidavit of Agent Lewis (the "first affidavit"). The affidavit indicates Stoltenberg's name was one of 43 names contained in an electronic notebook that was seized in January 1999, together with drugs, paraphernalia, currency, and firearms, during execution of a search warrant at the home of James Johnson ("Johnson") in Mason City, Iowa. The first affidavit describes two controlled drug buys from Johnson in February 1999, and one controlled buy from Peggy Hoover in April 1999. No information is provided that links Stoltenberg to any of those controlled buys.
The first affidavit states information was obtained from unidentified concerned citizens regarding Stoltenberg's alleged activities. of the eleven-paragraph affidavit, only the following three paragraphs directly address any alleged drug-related activities by Stoltenberg:
4. On March 26, 1999, a concerned citizen called and spoke with Special Agent Graham. The caller indicated STOLTENBERG stores methamphetamine and cash in a safe at his Rockwell residence. The caller indicated STOLTENBERG only deals with a few people but that he sells large quantities at a time. The calle[r] stated STOLTENBERG sometimes carries his methamphetamine, cash and scale in a duffel bag. The caller further indicated STOLTENBERG receives his methamphetamine from a source in Sioux City.
5. A concerned citizen has contacted the North Central Iowa Narcotics Task Force office on numerous occasions to provide information regarding JOHNSON and STOLTENBERG. Within the past month, the caller has made several contacts with the Task Force office to provide information concerning the drug association between STOLTENIBERG and JOHNSON. Much of the information the caller had provided had been verified through investigative means. STOLTENBERG is the owner of the Amoco station in Rockwell. STOLTENBERG is driving a tan 1981 Lincoln Town car registered to ANN VANBLARICOM. According to Cerro Gordo County Deputy Thompson, VANBLARICOM is STOLTENBERG's grandmother. The address on the registration is the same as STOLTENBERG's. The caller indicated the most activity occurs between 3 and 4 p.m. when STOLTENBERG has other employees at the station to free him to leave. During the week of 4/11/99 the concerned citizen contacted Officer Tyler of the Task Force and indicated STOLTENBERG had made a trip to the Sioux City area on Saturday, returning on Sunday.
6. On Wednesday, February 17, 1999, Special Agent Lewis was telephonically contacted by Special Agent Northway of the Iowa Division of Narcotics Enforcement and advised that their office had received an anonymous call from a concerned citizen indicating RON LAW of Lawton was en route to the Rockwell area to make a delivery to a man named STOLTENBERO. Surveillance was not able to establish LAW's arrival in Rockwell. The Tri-State Task Force has observed STOLTENBERG's tan Lincoln at LAW's residence on several occasions.
(Doc. No. 26, Ex. 1, Affidavit A.)
Although paragraph 5, quoted above, states information from the caller "had been verified through investigative means," as Stoltenberg notes in his motion, much of this information is either available in the public record or widely known in the community ( i.e., Stoltenberg's ownership of the Amoco station, his relationship to VanBlaricom, and the fact that he drove her 1981 Lincoln Town Car). There is no further recitation of the "investigative means" utilized or the specific information that was verified. In addition, the statement that the Lincoln's registration address is the same as Stoltenbeng's address is false; the registration address was that of Stoltenberg's grandmother. Also, there is some question as to whether the "concerned citizen" in the three paragraphs is one individual or more than one, whether the individuals were known to police, and whether any of the individuals had provided reliable information in the past. At the hearing, the Government's attorney represented that the callers were three separate people, only one of whom is known to the Government, and none of the three is a cooperator with a long-term history
The erroneous statement also appeared in the subsequent warrant application, discussed infra.
This information was not provided to the magistrate who reviewed the four warrant applications.
Agent Lewis testified that at the time she presented the first application to the magistrate, she did not provide any substantive information beyond what was contained in the first application and supporting documents. The magistrate's handwritten Endorsement on Search Warrant Application summarizes the "[i]nformation received in addition to that set forth in the application and attachments thereto" as follows:
Controlled buys at residence 110 S. Monroe, which are connected to this residence and person and vehicle as described and explained in attachment. Recent information and purchase on this date. Recent travel and delivery activity on part of suspect and persons cooperating with him. Investigators have corroborated information from outside sources. See attachments to application.
(Doc. No. 26, Ex. 1, Endorsement) The magistrate also found, seemingly in a vacuum, that the informant had given reliable information on previous occasions. ( Id.)
A review of the first affidavit and all the attachments to the first application does not reveal evidence to support the magistrate's conclusions set forth on the Endorsement, except the indication that Stoltenbeng had "[r]ecent travel . . . activity." Although the information obtained from the anonymous sources seems to implicate Stoltenberg in methamphetamine trafficking, nothing in the first affidavit suggests the controlled buys at the 110 S. Monroe residence were "connected to" Stoltenberg, his residence, or his vehicle, as found by the magistrate. Indeed, the only connection between Stoltenberg and Johnson appearing in the supporting documents is the fact that Stoltenberg's name appeared in Johnson's electronic notebook along with 42 other names. There is nothing to support the conclusion that the "[r] ecent information and purchase on this date" applied in any way to Stoltenberg. Agent Lewis's affidavit indicates a controlled buy was made on that date from Johnson, but provides no information, or even a reasonable inference, indicating Stoltenberg was involved in the buy in any manner. Similarly, the affidavit attaches, as exhibits, photocopies of currency seized from the Johnson search, but does not allege the currency is related to Stoltenberg.
Indeed, Agent Lewis testified she later compared a list of serialized bills from controlled buys involving Johnson with the list of bills seized from Stoltenberg, and none of the numbers matched the bills from the controlled buys.
After the first warrant was issued, officers proceeded to 507 Washington, Rockwell, Iowa (notably, not the address on the warrant), to begin their search. At the same time, Agent Lewis proceeded to Steve's Amoco Station to serve the warrant on Stoltenberg. Agent Lewis read the warrant to Stoltenberg in his office at the gas station. Stoltenberg immediately advised Agent Lewis the address on the warrant was not his address.
Agent Lewis contacted the officers at the Washington residence and told them to stop their search. She testified the officers had not really begun to search the house prior to the time she told them to stop, but were in the process of taking initial photos and establishing a plan as to how to conduct the search.
Agent Lewis prepared a corrected warrant application (the "second application"), which also was presented to the state magistrate on April 14, 1999. It was identical in all respects to the first application, with the exception that the address was changed from 313 Jefferson to 507 Washington, Rockwell, Iowa. The same affidavit accompanied the second application. ( See Doc. No. 26, Gov't Ex. 2) At the hearing, Lewis testified the description of the house in the first application was correct ( i.e., it actually was a "gold colored wood frame structure with an unattached shed located to the north of the residence"), but the address was for a house belonging to Stoltenberg's grandmother. Lewis had directed officers to the house they were to search based on a set of directions provided by a confidential informant rather than directing them to a specific address, and thus, the officers were searching the correct house.
Agent Lewis testified that when she presented the second application to the magistrate, she did not provide any other substantive information to the magistrate beyond explaining the corrected address. The second application did not correct the representation that the address on the Lincoln's vehicle registration was the same as Stoltenberg's. The magistrate's Endorsement to the second application noted:
Controlled buys at residence 110 S. Monroe, which are connected to this residence person vehicle as described explained in attachment. Recent information and purchase on this date. Recent travel delivery activity on part of suspect and persons cooperating with him. Investigators have corroborated information from outside sources. See attachments to the application.
(Doc. No. 26, Gov't Ex. 2). The magistrate again noted the informant had "given reliable information on previous occasions," and that there was independent corroboration of the informant's information. ( Id.) Once the second warrant had been issued, Agent Lewis contacted officers at the house and told them to resume their search.
Agent Lewis testified that when she first approached Stoltenberg at the gas station to read him the first warrant, she could see, in the corner of the room, a gray metal desk with a raised ledge on the front where a customer could, for example, write out a check. Agent Lewis said she is about 5'4" tall, the desk is around four feet high, including the ledge, and she was standing about three feet from the desk. Stoltenberg was between Agent Lewis and the desk. Agent Lewis testified she saw a black briefcase sitting on top of the desk (not on top of the ledge, but on the regular desk surface). Agent Lewis agreed she would not have been able to see anything underneath the desk without going behind the desk.
Agent Lewis said she was accompanied by Officers Tyler, Johnson, an officer from the Cerro Gordo County Sheriffs Department, and possibly a state trooper. She testified Officer Tyler and one or two others walked into the station with her, but she "can't say what they were doing" while she was talking with Stoltenberg.
Stoltenberg testified that while Agent Lewis was asking him questions, two officers were walking around inside the gas station. Stoltenberg said his conversation with Agent Lewis occurred while he was sitting on a filing cabinet. He saw one officer go behind the desk and begin looking around. Stoltenberg said the briefcase was not visible from where he and Agent Lewis were talking because it was on a chair behind the desk, and the chair was partially slid underneath the desk. Stoltenberg said that as soon as Agent Lewis read him the address on the warrant, he said it was not his address. Two officers "grabbed" him and searched him while Agent Lewis was outside checking with her office about the wrong address. Stoltenberg asked Agent Lewis and the other officers to leave the Amoco station. He did not give them permission to search the station.
The third Application for Search Warrant (the "third application") was presented to the state magistrate the same day, April 14, 1999. It sought to search: "A black briefcase located behind the counter at the Amoco station located at 303 E. Main Street, Rockwell." (Doc. No. 26, Gov't Ex. 3) Agent Lewis's affidavit supporting the third application represented to the magistrate:
While reading the warrant to STOLTENBERG at the Amoco station, a black briefcase was observed by the officers present. The briefcase was behind the counter in the front room of the station. The briefcase is consistent with the information received concerning STOLTENBERG frequently carrying a briefcase or duffel bag. . . .
( Id.)
The magistrate's Endorsement to the third warrant indicated the following additional information was received, in addition to attachments to the third application: Investigator further advises that informant has advised investigators that suspect is often carrying a black briefcase during travels of suspicious nature and that it's believed drugs or money for transactions are transported in briefcase.
( Id.) The Endorsement again states the informant's information is reliable because, among other things, the "information [was] largely corroborated independently by investigators." ( Id.) Other than the conclusory statements quoted above, no evidence was presented to the magistrate to support the unattributed "belief' that "drugs or money for transactions are transported in the briefcase."
Agent Lewis and other officers returned to the service station with the warrant to retrieve the black briefcase. When they arrived, Agent Lewis said they saw Stoltenberg walk quickly to an area across the room. A deputy later went to that area and saw a clear film canister, with a lid on it, containing a ziplock bag holding a substance later identified as methamphetamine. The canister was in the back of the office, on the opposite side of the room from the black briefcase. The deputy seized the canister, relying on the "plain view" doctrine. Agent Lewis said the subsequent search of the black briefcase yielded financial documents, receipts, ledgers and the like, but no drug residue and nothing that appeared to be notes of drug transactions.
The fourth Application for Search Warrant (the "fourth application") was presented to a magistrate on June 19, 2000. The fourth application sought a warrant to search "Steve's Amoco, Gray and White cinder block building, gas station and service station," and a "Red 1977 Chevrolet truck License Number 500GBB, Steve's Amoco Sign on doors (used in business)." The fourth application was supported by a narrative statement of Officer David W. Tyler. Officer Tyler indicated Stoltenberg's federal indictment arose from evidence obtained at Stoltenberg's residence during execution of the April 14, 1999, warrants.
Officer Tyler supported the warrant application with, among other things, a description of the circumstances of Stoltenberg's arrest on June 19, 2000:
On June 19, 2000, I assisted DNE S.A. Lori Lewis serve a Federal Indictment on Steve Stoltenberg of Rockwell. Stoltenberg was working in his place of business, Steve's Amoco 303 Main Street Rockwell, when he was arrested. Lewis entered the business that was open to the public after observing Stoltenberg enter the front door. As Lewis entered the business Stoltenberg was in his office that has an open window to the front door where Lewis was standing.
Lewis identified herself as a DNE agent to Stoltenberg and met him at the doorway to the office. Stoltenberg came out of the office demanding to know what is going on and was advised of the Indictment and that he was under arrest. In checking the office area where Stoltenberg was at the time he was advised of the DNE agent a drug device was located. Investigator Logan Wernet found in a black back pack on the floor two meth "one hitters". These had a trace amount of powder in them that I performed a NIK field test on and it did test positive for Methamphetamine.
(Fourth Application, Attachment A)
Officer Tyler's description of events corroborates the testimony of both Agent Lewis and Stoltenberg at the hearing. Stoltenberg said he was sitting in his office when Agent Lewis arrived. He saw her coming, got up, and walked out of his office and met Agent Lewis, who told Stoltenberg he was under arrest. Another officer took Stoltenberg outside, handcuffed him, and put him in a police car. Officers allowed Stoltenberg to go back inside the building to give instructions to an employee, and to put his dog in a cage. The outside door to the station was left open during this time. Stoltenberg said he never went back into the office, just back into the station. There was a chair just inside the door, and when he went back inside the station, an officer pushed him down into the chair.
Agent Lewis said she did not enter the office area. She believed the door to the office was fully open, while Stoltenberg testified he closed the door when he came out. Stoltenberg also said it is impossible for the door to be fully open against the wall, as described by Agent Lewis, because of filing cabinets up against the wall behind the door. Agent Lewis met Stoltenberg just outside his office door. Officer Tyler, who was present, felt that because Stoltenberg had been in the office just prior to the arrest, the officers could enter the office area "to secure it" after Stoltenberg came out. When Tyler entered the office, he saw a black backpack on the floor. Officer Tyler previously had heard from an anonymous source that Stoltenberg carried drugs in a black backpack. He seized the backpack and searched it, discovering two one-hitters containing methamphetamine residue. Officer Tyler believed the search of the bag was incident to Stoltenberg's arrest and was proper. Officers prepared the fourth application to search the station and the vehicle based on their discovery of the onehitters in the bag.
Gov't Exhibit 6 is a drawing made by Agent Lewis during her testimony. Numbers on the drawing represent the following: #1 indicates Stoltenberg's location, inside the office, when Agent Lewis first saw him. #2 is the location where Agent Lewis was standing when she first entered the station, in front of the window that looks into Stoltenberg's office. The circled "X" indicates where Stoltenberg was placed in handcuffs. The large, circled "BB" is where she said the black bag was located. Stoltenberg added the "Z" to the drawing, indicating where he says he met Agent Lewis when she entered the station. "B2" indicates where Stoltenberg said the black bag was located, on the desk under the window.
Stoltenberg disagrees, testifying the black bag was on the desk, underneath the window that looks out into the station.
See Fourth Application, Officer Tyler's narrative statement.
These are the facts upon which the court must base its analysis of Stoltenberg's challenges to the four search warrants.
III. ANALYSIS
A. Standard of Review
The United States Supreme Court has set the standard for review of a search warrant application, as follows:
[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Spinelli [v. United States,] 309 U.S. [410,] 419, 89 S.Ct. [1509,] 590 [,21 L.Ed.2d 637 (1969)]. "A grudging or negative attitude by reviewing courts toward warrants," [United States v.] Ventresca, 380 U.S. [102,] 108, 85 S.Ct. [741,] 745, [ 13 L.Ed.2d 684 (1965)], is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant [and] "courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Id., [380 U.S.] at 109, 85 S.Ct. at 746.
Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Jones v. United States, 362 U.S. 257, 271, 80S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). See United States v. Harris, 403 U.S. 573, 577-583, 91 S.Ct. 2075, 2079-2082, 29 L.Ed.2d 723 (1971). [10]
[10] We also have said that "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants," Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746. This reflects both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.Illinois v. Gates, 462 U.S. 213, 236-37 n.l0, 103 S.Ct. 2317 n. 10, 2331, 76 L.Ed.2d 527 (1983).
Thus, the scope of this court's review of the search warrants in this case is limited to a determination of whether the magistrate had a "substantial basis" to issue the warrants. In conducting this review, the court is mindful that
affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law have no proper place in this area." Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 745 . . . [M]any warrants are — quite properly . . . issued on the basis of nontechnical, commonsense judgment of laymen applying a standard less demanding than those used in more formal legal proceedings.Gates, 462 U.S. at 235-36, 103 S.Ct. at 2331. As the Supreme Court further explained:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. Jones v. United States, 362 U.S. [257,] 271, 80 S.Ct. [725,] 736[, 4 L.Ed.2d 697 (1960)]. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does [the prior legal standard].Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332. See also United States v. Fulgham, 143 F.3d 399, 400-01 (8th Cir. 1998) ("When we review the sufficiency of an affidavit supporting a search warrant, great deference is accorded the issuing judicial officer. See United States v. Day, 949 F.2d 973, 977 (8th Cir. 1991).")
Applying these standards, the court turns to its analysis of the warrants in question.
B. Reliance on Anonymous or Confidential Informants
As a preliminary matter, the court will examine the law relative to the circumstances under which probable cause may be supported by information from anonymous or confidential sources. The Gates Court's analysis is both controlling and directly relevant to the present circumstances, and this court therefore will quote at length from the Gates opinion as it applies to the case at hand.
Gates involved an anonymous, handwritten letter that alleged drug trafficking activities by Sue and Lance Gates of Bloomingdale, Illinois. The writer said Sue Gates would drive the Gateses' car to Florida, where it would be loaded with drugs. Then Sue would fly back to Illinois, while Lance flew to Florida and then drove the drug-laden car back to Illinois. According to the writer, Sue was scheduled to fly to Florida on May 3. The writer also said the Gateses kept large amounts of cash and drugs in their basement, and they "brag about the fact they never have to work, and make their entire living on pushers." Id., 462 U.S. at 225, 103 S.Ct. at 2325.
The letter was sent to the Bloomingdale Police Department, and was referred to Detective Mader for investigation. Mader verified that Lance Gates had an Illinois driver's license, and Mader obtained a current address for the Gateses. He then learned an "L. Gates" had a reservation to fly to Florida on May 5. Mader set up surveillance with DEA agents, who followed Lance from the Florida airport to a motel. They confirmed Lance had gone to a room registered to Susan Gates. The next morning, Lance and an unidentified woman (later confirmed to be Susan Gates) left the motel driving a car with Illinois license plates registered to a vehicle owned by the Gateses; they drove north on a highway "frequently used by travelers to the Chicago area." Id., 462 U.S. at 226, 103 S.Ct. at 2326.
Mader prepared a warrant application and supporting affidavit that attached the anonymous letter and detailed his efforts to corroborate the information contained in the letter. Based on the application, a judge issued a search warrant for the Gateses' home and their automobile. The Supreme Court noted, "The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gates[es] had been substantially corroborated." Id. When the Gateses arrived home, they were met by Bloomingdale police, who searched the car's trunk and found approximately 350 pounds of marijuana. A search of the Gateses' residence yielded additional drugs, weapons, and other contraband.
The Illinois Circuit Court suppressed all the evidence, finding the warrant application "failed to support the necessary determination of probable cause to believe that the Gates[es]' automobile and home contained the contraband in question." Id., 462 U.S. at 227, 103 S.Ct. at 2326. The Illinois Appellate Court and the Illinois Supreme Court affirmed. Relying on prior United States Supreme Court precedents, the Illinois Supreme Court concluded the anonymous letter, standing alone, was not a sufficient basis upon which the magistrate could find probable cause existed to believe contraband would be found in the Gateses' home and car, and further, Mader's affidavit did not contain sufficient additional information to support a finding of probable cause.
The Illinois court applied a two-pronged test derived from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). That test, which the Supreme Court rejected in Gates, required Mader's affidavit "to adequately reveal the "basis of knowledge' of the letter writer — the particular means by which he came by the information given in the report, . . . [and] it had to provide facts sufficiently establishing either the "veracity' of the affiant's informant, or, alternatively, the "reliability' of the informant's report in this particular case." Gates, 462 U.S. at 228-29, 103 S.Ct. at 2327.
The United States Supreme Court reversed, abandoning the test applied by the Illinois courts, and adopting instead a "totality of the circumstances' approach:
See note 8, supra.
We agree with the Illinois Supreme Court that an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case, which the opinion of the Supreme Court of Illinois would imply. Rather, . . . they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.
This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., [338 U.S.] at 175, 69 S.Ct. at 1310. Our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding "particularized suspicion," is also applicable to the probable cause standard:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), "Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid.
Gates, 462 U.S. at 230-32, 103 S.Ct. at 2328-29 (footnotes omitted).
The Court surveyed its earlier cases discussing "the limits beyond which a magistrate may not venture in issuing a warrant." Gates, 462 U.S. at 239, 103 S.Ct. at 2332. The Court noted that conclusory statements do not provide an adequate basis to support issuance of a warrant. "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." Id., 103 S.Ct. at 2333. However, the Court explained its adoption of a "totality of the circumstances" approach "in [no] way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant[.]" Id., 462 U.S. at 240, 103 S.Ct. at 2333.
In particular, the Court held a magistrate may rely on hearsay, "`so long as a substantial basis for crediting the hearsay is presented.'" Id., 462 U.S. at 241-42, 103 S.Ct. at 2334 (quoting Jones, supra, 362 U.S. at 269, 80 S.Ct. at 735). The requisite support for hearsay information may be reasonable corroboration by law enforcement, including an officer's own observations, and efforts to corroborate an informant's report. Gates, 462 U.S. at 242, 103 S.Ct. at 2334.
The Court then examined certain types of corroboration that have been deemed adequate to support an informant's tip. These include, among other things, an officer's personal verification of the information, whether the informant has previously given reliable information, the degree of detail supplied by an informant, whether the information was publically available, whether the activities described were seemingly innocent, and whether the informant was admitting to criminal activity himself in providing the information. See id., 462 U.S. at 239-46, 103 S.Ct. at 2332-36 (citing, inter alia, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as "the classic case on the value of corroborative efforts of police officials"). The Court found "the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Gates, 462 U.S. at 254, 103 S.Ct. at 2335-36. Thus, the Court reasoned, "[i]f the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gates[es]' alleged illegal activities." Id., 103 S.Ct. at 2336.
Citing the Gates "totality of the circumstances analysis," the Eighth Circuit examined reliance on information from confidential informants in United States v. Fuighani, 143 F.3d 399 (8th Cir. 1998). Fulgham challenged a search warrant on the basis it was not supported by probable cause. In the officer's affidavit supporting the warrant application, the officer provided information from a confidential informant that a black male was selling crack cocaine from a residence. The informant claimed to have been present and personally witnessed cocaine sales at the residence. The officer indicated the confidential informant was reliable for several reasons:
[H]e had known this confidential informant for one year, and . . . the informant was a mature individual, was a person of truthful reputation, had no motivation to falsify information, had not given false information in the past, had supplied information in the past more than ten times, and had helped supply information leading to two search warrants, five arrests, and the discovery and seizure of stolen property and drugs or other contraband.Id., 143 F.3d at 400.
In addition, the officer described two ways in which the informant's information had been corroborated: the officer's review of police records of other criminal activity at the residence, and information from a second confidential informant who also claimed to have witnessed cocaine sales at the residence. See id.
The Eighth Circuit explained:
When an affidavit contains information provided by a confidential informant, a key issue is whether that information is reliable. See United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995). "Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information, or if it is corroborated by independent evidence." United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L. Ed. 2d 327 (1959)). In the present case, the information was shown by [the officer] to be reliable in both ways. [The officer] represented in his affidavit that past information given by the first informant had proved to be reliable, resulting in several arrests and the recovery of stolen property and illegal substances. In so doing, [he] established that the first informant had a reliable track record.Fulgham, 143 F.3d at 401. On the issue of corroboration, the court noted the information given by the first informant was corroborated with specific, consistent details provided by the second informant. In fact, the two informants' tips were reciprocally corroborative, rendering their information [reliable] enough to support a finding of probable cause. See United States v. Jackson, 67 F.3d 1359, 1365 (8th Cir. 1995) (holding that information from an informant without a track record could be corroborated with information by an informant with a reliable track record, thereby establishing probable cause), cert. denied, 517 U.S. 1192, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996).
Id. The court concluded "the affidavit provided a substantial basis upon which the issuing magistrate could conclude that probable cause existed." Id.
In numerous other instances, the Eighth Circuit has affirmed the issuance of warrants and wiretaps on the basis of information provided by anonymous or confidential informants. However, in each case, either one of the informants was shown to be reliable, or the information was corroborated by independently-obtained information. In United States v. Fairchild, 189 F.3d 769 (8th Cir. 1999), a wiretap was issued based on information from six confidential informants, corroborated by investigative means that were detailed in the supporting affidavit. In United States v. Pitts, 173 F.3d 677 (8th Cir. 1999), a search warrant was issued based on information from a confidential informant about drug shipments to the defendant, bolstered by a controlled drug buy and officers' personal observations of the defendant's activities. In United States v. Buchanan, 167 F.3d 1207 (8th Cir. 1999), a confidential informant's information was corroborated by a known informant who made statements against his own penal interest.
In United States v. Goodson, 165 F.3d 610 (8th Cir. 1999), the court noted:
We have repeatedly held that "`[t]he statements of a reliable confidential informant are themselves sufficient to support probable cause for a search warrant'" and that "`[t]he reliability of a confidential informant can be established if the person has a history of providing law enforcement officials with truthful information.'" United States v. Formaro, 152 F.3d 768, 770 (8th Cir. 1998) (quoting United States v. Wright, 145 F.3d 972, 974-75 (8th Cir.), cert. denied, 525 U.S. 919, 119 S.Ct. 272, 142 L.Ed.2d 224 (1998)).Goodson, 165 F.3d at 614. Three confidential informants corroborated each other's information, and one of the informants had a track record of reliability. See id.
These are only a few of the many cases in which the Eighth Circuit has examined the issue of when a warrant may be issued based on information from a confidential or anonymous source. What seems clear from the case law is that an informant's reliability, although not dispositive, is a key factor in the analysis. While confidential informants may corroborate each other, either their information should contain some specific, consistent details allowing at least an inference of reliability, or at least one of the informants should have a track record of reliability. An informant's information also may be corroborated by law enforcement, but the warrant application should contain at least some reference to the way in which the information was corroborated, and what specific information was corroborated. See, e.g., Mueller v. Tinkham, 162 F.3d 999, 1003 (8th Cir. 1998) ("The information provided by an informant is sufficient to support a probable cause finding if the person has provided reliable information in the past or if the information has been independently corroborated[,]" citing Walden v. Carmack, 156 F.3d 861, 870 (8th Cir. 1998)); United States v. Wilson, 964 F.2d 807 (8th Cir. 1992) (informant's statements were against penal interest; information corroborated by agent's observations); United States v. Little, 735 F.2d 1049 (8th Cir. 1984) (affidavit did not attest to informant's reliability; no corroboration of significant details); see also Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (in context of investigatory stop of defendant's vehicle based on informant's tip, Court held absent sufficient corroboration by police, the tip lacked necessary indicia of reliability to determine informant's honesty, or reliability of information); United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000) (either the informant's information should be independently corroborated or the informant's veracity determined); United States v. Townsley, 843 F.2d 1070, 1078-79 (8th Cir. 1988) (probable cause to issue order for electronic surveillance may be based on double hearsay, when confidential sources have proved reliable in past and information is corroborated by independently-obtained information).
In summary, this court has located no case in which information provided by multiple confidential informants was deemed mutually corroborative without more; that is, without either some indication that at least one of the informants has proved reliable in the past, or details of suspected criminal activity provided by the informants have been corroborated by independent means.
C. Application of Law to the Present Case
1. The Warrants
In light of the case law discussed above, the search warrants at issue here are problematic. The first two warrants were supported by the same affidavit from Agent Lewis. The bulk of the statements in the affidavit relate to Johnson, not to Stoltenberg. All of the exhibits to the application relate to Johnson; the only mention of Stoltenberg in the exhibits is the appearance of his name in a long list in Johnson's electronic notebook.
Paragraph 4 of Agent Lewis's affidavit indicates that on March 26, 1999, an unidentified concerned citizen contacted Agent Graham and reported Stoltenberg was storing cash and methamphetamine in a safe at his residence; he sometimes carried his methamphetamine, cash and scale in a duffel bag; he sold large quantities of methamphetamine to a small number of people; and he received his methamphetamine from a source in Sioux City. The affidavit is completely silent as to the source of the informant's knowledge, whether the informant was considered reliable and on what basis, whether the information being given to the officer was rumor or based on the informant's personal observation, or whether any efforts were taken to corroborate the information and the outcome of such efforts. Nothing else in the entire affidavit discusses Stoltenberg's residence.
Paragraph 5 of the affidavit is only slightly more convincing. There, Agent Lewis states a concerned citizen had made numerous calls to provide information regarding both Johnson and Stoltenberg, and "the drug association between" them. No details are provided from which such a "drug association" between Stoltenberg and Johnson could be determined. Furthermore, as noted previously in this opinion, although the affidavit states "[m]uch of the information the caller had provided had been verified through investigative means," it fails to provide any further detail, such as the nature of the investigative means, or particular information that may have been corroborated beyond what is publically available or widely known.
As to whether these two confidential informants could be said to corroborate each other's information, the unidentified caller in paragraph 5 made no reference to Stoltenberg's residence, and otherwise failed to substantiate details provided by the first caller. Nothing indicates officers made any attempt to verify the caller's allegations, such as conducting surveillance of Stoltenberg to see if he actually left the Amoco station regularly between 3:00 and 4:00 p.m., or that his activities otherwise matched the informant's description.
Paragraph 6 is similarly vague, with no indication the anonymous caller's information was corroborated by any means. On the contrary, paragraph 6 indicates officers were unable to corroborate the information by independent means.
When the affidavit is viewed as a whole, it is clear Agent Lewis suspected Stoltenberg was connected with Johnson in drug trafficking activities; however, the affidavit presents no evidence of that fact. The court finds the affidavit does not give rise to a fair probability that contraband or evidence of a crime would be found either in Stoltenberg's residence or in the Amoco station, as required by Gates. See Gates, 42 U.S. at 238, 103 S.Ct. at 2332.
Moreover, the magistrate's endorsement refers to controlled buys related to Stoltenberg, his residence, and his car, and "recent travel and delivery activity" on the part of Stoltenberg and "persons cooperating with him." Nothing in Agent Lewis's affidavit supports these findings, and Agent Lewis testified that no additional information was provided to the magistrate beyond what is contained in the four corners of the warrant application and affidavit. The only evidence concerning controlled buys related solely to Johnson, not to Stoltenberg. Further, the magistrate's finding that the informant had "given reliable information on previous occasions" could only relate to paragraph 5, in which Agent Lewis states a concerned citizen had called several times to provide information. However, the affidavit contains nothing to indicate what the information was, or how the magistrate determined it was reliable.
The third warrant, to search the briefcase, arose directly from the first and second warrants. The informant's claim, noted in the magistrate's endorsement, that Stoltenberg often carried "a black briefcase during travels of a suspicious nature," and the informant's unsubstantiated belief that "drugs or money for transactions are transported in [the] briefcase" are wholly insufficient, standing alone, to support probable cause to search the briefcase. Thus, the third warrant stands on the shoulders of the first two warrants; if the former are invalidated, the latter must be as well.
The fourth warrant also arose directly from the first two. Officer Tyler's affidavit supporting the fourth application indicated Stoltenberg's federal indictment arose from evidence obtained during the search of his residence pursuant to the first two warrants. When officers went to arrest Stoltenberg in June 1999, pursuant to that indictment, they searched a black backpack and found drug paraphernalia, forming the basis for their application to search the entire Amoco station. Again, absent the first two warrants, no probable cause would exist to support issuance of the fourth warrant.
In addition, the court finds the officers' search of the backpack was not incident to Stoltenberg's arrest, the one-hitters were not in plain view, and the warrantless search of the bag violated the Fourth Amendment.
2. Leon Analysis
These findings, however, do not end the inquiry because in most circumstances, even if the first two warrants were invalid, if officers reasonably and in good faith relied on the search warrants, then evidence obtained from the searches should not be suppressed. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). "Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, . . . and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." Id., 468 U.S. at 922-23, 104 S.Ct. at 3420 (citations and footnote omitted). As the United States Supreme Court noted in Leon:
It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a "bare bones" affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. [Citations omitted.]
Id., 468 U.S. at 923 n. 24, 104 S.Ct. at 3420 n. 24.
Thus, if serious deficiencies exist either in the warrant application itself ( e.g., where "the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth," id., 468 U.S. at 923, 104 S.Ct. at 3421 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)), or in the magistrate's probable cause determination, then the Leon good faith exception may not apply. As the Leon Court explained:
Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Second, the courts must also insist that the magistrate purport to "perform his "neutral and detached' function and not serve merely as a rubber stamp for the police." A magistrate failing to manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search.
Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." "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." Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances, or because the form of the warrant was improper in some respect.Leon, 468 U.S. at 914-15, 104 S.Ct. at 3416 (internal citations omitted). The Court noted that good faith on law enforcement's part in executing a warrant "is not enough," because "[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,' only in the discretion of the police." Leon, 468 U.S. at 915 n. 13, 104 S.Ct. at 3417 n. 13 (citing Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964), and Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed. 23 134 (1959)).
In the present case, the court finds the warrants are "invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances." Leon, 468 U.S. at 914, 104 S.Ct. at 3416. Nevertheless, under Leon, the exclusionary rule should not be applied to exclude evidence as a means of punishing or deterring an errant or negligent magistrate. The Supreme Court found that penalizing officers who act in good faith on a warrant for a magistrate's error in issuing the warrant "cannot logically contribute to the deterrence of Fourth Amendment violations." Leon, 468 U.S. at 921, 104 S.Ct. at 3419. The relevant question is whether law enforcement actions were objectively reasonable; i.e., whether "the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment." Leon, 468 U.S. at 918, 104 S.Ct. at 3418. The Leon Court noted:
As we observed in Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed. 2d 182 (1974), and reiterated in United States v. Peltier, 422 U.S. at 539, 95 S.Ct. at 2318:
"The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force."
The Peltier Court continued, id. at 542, 95 S.Ct. at 2320:
"If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."Leon, 468 U.S. at 919, 104 S.Ct. at 3418-19.
In this case, the court finds the law enforcement officer had, or properly may be charged with, the requisite knowledge to warrant application of the exclusionary rule. The affidavit supporting the first two warrants was designed to mislead the magistrate into believing Stoltenberg was connected to the controlled buys from Johnson — and, from the magistrate's endorsements, it appears she was so misled. In addition, as discussed supra, the affidavit failed to include sufficient evidence to support a reasonable belief that contraband or evidence of criminal activity would be found at either Stoltenberg's residence or the Amoco station. The affidavit fails to show the confidential informants' allegations were corroborated by law enforcement. Agent Lewis and the officers assisting her "may properly be charged with knowledge" that their search, pursuant to the first two warrants, was unconstitutional.
Indeed, as noted previously, the first warrant was defective on its face, in that it contained a different address from the location police had begun to search.
In addition to the officers' misconduct, "the issuing magistrate wholly abandoned [her] judicial role" in making written findings of fact that were totally outside the evidence presented in the application and supporting documents, and in acting merely to ratify the conclusions of law enforcement officers. The magistrate failed to manifest the requisite neutrality and detachment, and "act[ed] instead as `an adjunct law enforcement officer.'" Leon, 468 U.S. at 914, 104 S.Ct. at 3416 (internal citation omitted).
Furthermore, the actions of the officers who accompanied Agent Lewis to serve the first two warrants were not objectively reasonable. Absent a search warrant or Stoltenberg's consent, the officers certainly knew they could not wander around the Amoco station, and then later apply for a warrant based on what they had seen.
The court finds no substantial basis existed for issuance of the first two warrants, and recommends application of the exclusionary rule as to all evidence arising from execution of those warrants. This, in turn, would include suppression of evidence arising from the third and fourth warrants, as fruits of the poisonous tree.
Accordingly, the court recommends the defendant's motion be granted, and that all evidence resulting from each of the four warrants be suppressed.
IV. CONCLUSION
IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that the defendants' motion to suppress evidence (Doc. No. 19) be granted, in accordance with the Court's recommendations set forth above.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.