*1 and the relation English” and understand ” school; learning “at abilities ship these proficiency in
thus, Secretary considers Id. factor.” “educational
English an 416.964(b)(5) 404.1564(b)(5), (emphasis
§§ unfortunately,
added). ignores, process This church, work, English at at learning of television, recreation, or watching during schooling. In this besides
other contexts hearing,
case, ALJ Garcia the time of the at years. country for eleven in this
had been why he has not explanation as to
There is “ability speak, adequate read an
obtained may English.” There be understand and/or require “an perform which
jobs he could speak English at
ability to understand Shalala, No. 92- Duran v.
‘marginal’ level.” (C.D.Ill. *4, *5 at 1994 WL 1994) Secretary’s finding (affirming
Apr. claimant, country lived in this who had jobs re years and who held four thirty
for ability speak English,
quiring some functionally Step Five disabled accepted the aid
“mere[ly] [because he] ... disability hearing”). interpreter English speaking limited person
A ability may compared to a func
reading be may person, who also be
tionally illiterate working not disabled under
capable of Security regulations. See
applicable Social Sullivan, 89-2270-V, 1990 WL v. No.
Jurado 1990). (D.Kan. *3 Mar. Blake, Nesi, Kathleen Moro
Patricia G. briefed), Atty. (reargued and Asst. U.S. Of- Detroit, MI, Atty., Janet fice America, STATES UNITED (briefed), Parker, Atty. L. Asst. U.S. Office Plaintiff-Appellee, MI, Atty., Bay City, plaintiff- of the U.S. appellee. CZUPRYNSKI, Edward M. (reargued F. Randall Karfonta Defendant-Appellant. Detroit, Cohen, briefed), Mogill, & Posner MI, defendant-appellant. and for No. 93-1079. Appeals, (briefed) United States Court pro M. se. Edward Sixth Circuit. MERRITT, Judge; and Chief Before: 15, 1994.
Reargued June
MARTIN, JONES,
KEITH, KENNEDY,
10, 1995.
Decided Feb.
GUY, NELSON, RYAN,
MILBURN,
NORRIS, SUHRHEINRICH,
BOGGS,
BATCHELDER,
SILER,
DAUGHTREY,
Judges.
Circuit
*2
KENNEDY, J.,
2254, 2265,
opinion
(1975)
delivered the
of
KENNEDY,
Judge.
Circuit
Czuprynski
Defendant Edward
appeals
M.
I.
possession
his conviction and sentence for
of
The instant case involves defendant’s al-
844(a).
marijuana,
§
21 U.S.C.
Defendant
leged possession
grams
of 1.6
marijuana.
of
1)
presents seven issues for review: whether
This small amount is the basis for defen-
denying
District Court erred in
defen-
dant’s
prosecution.
claim of selective
At this
suppress
dant’s motion to
evidence seized
time, however, we are concerned with how
2)
pursuant
warrant;
to a search
whether
marijuana
was recovered and not the
defendant is
to an evidentiary
entitled
hear-
significance of the amount recovered.
3)
ing
prosecution;
on his claim of selective
Defendant
an attorney
is
City,
the District
whether
Court erred in admit-
Michigan.
principal
ting testimony
The
affidavit in
relating
alleged
to defendant’s
4)
of the search warrant
prior
marijuana;
was that of
use
Judith
whether defendant
Sawicki,
attorney
is
to a
worked for
alleged
entitled
new trial because
defen-
5)
dant as an
misconduct;
prosecutorial
associate
his law firm. Defen-
whether
dant fired
February
Sawicki on
Judge
himself;
District
1992.
should have
recused
6)
the affidavit filed March
the District
whether
Court erred in
en-
described defendant’s habitual
hancing
justice”
for “obstruction of
use mari-
and de-
juana and the
upward
knowledge:
basis
parting
from defendant’s offense lev-
7)
Guidelines;
el
Sentencing
under the
I began working
Since
Czupryn-
for Mr.
improperly
the District
whether
levied
ski, I
marijuana
observed that he smoked
against
fines and costs
defendant.
nearly
day in
every
his law offices which
fully
are more
described in the Affidavit of
original panel’s disposition
first
Sgt. Greg
marijua-
Tait. He would smoke
issues
these
made consideration of the
per day, nearly
na 5 to 6
every day
times
remaining
unnecessary.
issues
and that
always
behavior would almost
concluded that
the search of defendant’s
morning
start
in the
end
eve-
home and office was unconstitutional as the
ning.
probable
lacked
cause that contra
marijuana
I know what
looks like and
band would be found at
the time of the
smoking
what it
like.
I
him
smells
saw
Czuprynski,
search. United States v.
8 F.3d
marijuana on numerous occasions and it
(6th
1113, 1117-18
Cir.1993),
reh’g
vacated
continuing pattern
was a
of conduct for
banc,
(6th Cir.1994).
en
official belief in its existence
Czuprynski
unrea
Mr.
has also delivered the
Czuprynski,
(quot
sonable.”
ed Czupryn- my experience with Mr. in violation press From seized evidence year and one approximate are reminded over the last Amendment. We ski Fourth continuing applied month, he is my exclusionary it belief that rule is is the Leon that every marijuana on an almost violation as “the to smoke to cure the constitutional possibly at his past office and unlawful search day basis his fruits of a use of that he travels Amendment I also know apartment. no new Fourth ‘work[s] seizure ” It in his car. is at places wrong.’ those two between Calandra, also that he would (quoting believe States reasonable to 613, 623, 338, 354, in his automobile L.Ed.2d carry or have regular- (1974)). much and device it so so it a remedial because he uses Rather is police misconduct. ly- to deter future serves an en- that where Court reasoned Id. The assertion her affidavit the Also included in good-faith be- acted with a forcement officer day the assaulted Sawicki on that defendant constitutionally execut- was lief that search the At the time she executed was fired. she in- ed, exclusionary should not be rule in- affidavit, were and defendant suppress the fruits of to voked the dis- separate dispute over in a volved only to deter application would serve since its charges filed assault charge in which Sawicki police objectively reasonable appropriate, against defendant. “sup- The Court concluded conduct. presence to in was sworn The affidavit pursuant to a pression of evidence obtained had the magistrate who thus of the state case-by- only on a be warrant should ordered credibility. In ad- opportunity to assess cases in only in those unusual case basis and dition, magistrate purposes of will further the which exclusion In affida- Greg Tait. state rule.” Id. magis- vit, issuing to also sworn before at 3418. Tait de- Officer trate on March case, the District Court marijuana-re- present In the scribed record defendant’s Tait, obtained the held Officer charges. In a search warrant lated Boes of the Magistrate from search warrant automobile was apartment and defendant’s Bay County, acted in 74th District Court De- marijuana was recovered. executed and Indeed, nowhere di- good faith. defendant acquitted of subsequently fendant was rectly conduct ob- impugns Officer Tait’s defen- charge. In resulting possession allege does marijua- the warrant. Defendant taining possession of charged dant was presented to application was marijua- that a warrant na; guilty to use pled defendant Judge Newcombe” be- District Scott charged with “37th na. defendant was Boes; to application presented pled fore the manufacturing marijuana; defendant application to person presenting the repre- guilty possession. Tait also to Officer al- record, Newcombe is not identified. Newcombe sented based to issue the warrant legedly declined experience substance with controlled animosity politi- familiar with the he con- investigations upon the information defendant that existed between affidavit, cal friction it reason- tained County Office. If Prosecutor’s engaging to that defendant was able conclude Judge present did someone possessing pattern in a continuing Neweombe, suppression the record of the rather that because the was not hearing clearly impartial, establishes that was not apply. Leon did not Tait. Officer The dissent states that Tait was aware (defendant’s Q. attorney)] feelings Prior hard [Street between defendant and the Bay County to those two affidavits [Tait’s Saw- Prosecutor’s Office. Tait testi- Boes, being presented Magistrate fied: icki’s] you present
did first them to District (defendant’s Q. attorney) [Street] In] Judge Newcomb[e]? your interaction prosecut- with the officials, ing were things words uttered or No, sir, I A. did not. [Tait] you said that led might believe there Q. you present Did [Street] them have been some sort of grudge a feud or Judge? other District *4 stake Mr. Czuprynski between and Mr.- A. [Tait] No sir. Mullison or other prosecu- members of the Q. you, [Street] Did someone direct in- tor’s office? you, you struct as to who it was were to A. I really [Tait] didn’t history know the
present signature? the affidavits to for between, problems behind the prosecu- tor’s office and Mr. Mullison —or Mr. Czu- Kelly [Bay County [Tait] A. I believe Tim prynski at that time. I was led to believe Phillip said that Prosecutor] Boes was from listening talking, questions him, available and I should take down to presented me, that were to that there him were let review it. two, some feelings hard between the al- only support The in the record for defen- though I any was never in involved of the allegation dant’s that a warrant conversations, direct any, if between the presented Judge was Neweombe is the two. attorney, affidavit of defendant’s William I didn’t know history the exact of what Judge Street. affidavit states that New- place, just taken if anything. I ascer- truly combe “felt he could not be neutral or listening tained from that there were some concerning request.” detached this The affi- feelings hard between Mr. Czuprynski and August davit was sworn to 1992. The prosecutor’s office. hearing suppress on the motion to was held I don’t even know if it’s fair to charac- August testimony 1992. No was offered terize them as feelings. Apparently hard by in support allegation defendant that disagreements. there was the affidavit for the search warrant was in presented Judge fact Appar- Q. Disagreements Neweombe. disputes? [Street] ently, counsel was satisfied with Tait’s an- Disputes A. probably [Tait] would be a swer and it was the evidence before the better for it. word District Court. After Officer Tait’s testimo- nothing testimony There is in that justify ny, attorney appears to have ac- reversing finding the District Court’s that knowledged good that Tait acted in faith. good Tait in acted faith. Honor, MR. STREET: Your I do not feel A determination that Officer Tait acted in there is testimony additional on those good faith inquiry. does not end our good acquisition [Tait’s issues faith in or Supreme recognized that under “some execution of the search warrant] because I circumstances the officer will have no reason- feel, testimony, based on his apparent it is grounds believing able for that the warrant deliberately he was selected Leon, properly issued.” at U.S. County Prosecutor’s Office because he did 922-23, (footnote at 3420-21 S.Ct. omit- have a clean slate on these issues. He was ted). 1) These circumstances arise where: functioning agent as their good faith supporting affidavit contains information apparently. the affiant knew or should have known is Indeed, 2) false; original his briefs filed with issuing magistrate lacked neu- panel, 3) argue detachment; defendant did not trality that Tait did the affidavit is rely faith, good warrant but devoid of .the information that would get a warrant of Sawicki to effort making be- earber cause determination files she search for office to completely defendant’s cause exists that lief hers. were 4) facially claimed unreasonable; the warrant De- at 3421. Id. at
deficient.
case fall
facts of
claims
fendant
B.
is,
three,
two
categories
under
Next,
good-faith
argues
defendant
nor detached
neutral
neither
magistrate was
apply
the war
exception should
upon Sawicki’s
rebanee
and Officer
lacking
“so
upon an affidavit
rant
based
objectively unreasonable.
affidavit
as to render
probable cause
indicia
entirely unrea
in its existence
official bebef
A.
923, 104
S.Ct.
468 U.S. at
sonable.”
apply
exception will not
610-11,
Brown, 422
(quoting
wholly aban-
issuing magistrate
“where
2265).
like us
Defendant would
con-
in the manner
judicial role
doned his
pobce
reasonably
web-trained
hold that
York,
Sales, Inc. v. New
demned
Lo-Ji
the informa
could have bebeved
60 L.Ed.2d
provided probable
tion in Sawicki’s
Sales,
(1979)[.]”
open-end-
Lo-Ji
Id.
be found
contraband would
cause to bebeve
general war-
of a
in the nature
ed
home,
decline to
or car. This we
in his
office
*5
issuing magistrate was
rant was issued.
do.
extent
investigation to the
involved
of
clearly
the basis
disclosed
The affidavit
an
itself as
in the search
participated
he
that
regular
knowledge of defendant’s
The facts
officer.”
“adjunct law enforcement
marijuana.
stated that
heavy
She
and
use of
close to
nowhere
case come
present
of the
marijuana
use
she
observed defendant
had
Sales;
is no
there
in Lo-Ji
the scenario
year,
daily
a
from
a
basis
over
on almost
entangled
Magistrate Boes
that
evidence
February
She further
1991 to
1992.
January
activities.
in law enforcement
marijuana para-
that she had seen
stated
Magistrate Boes
that
Defendant’s claim
as his
apartment
in his
as well
phernaba
a dis-
judicial role rests
abandoned his
her own use
also admitted
office. Sawicki
while
years earber
thirteen
pute the two had
then was con-
defendant. The affidavit
Bay County. Defen-
by
employed
both were
thus,
the
trary
penal
as
interest
auditor,
to have
dant,
attempted
county
then
noted, bears intrinsic
Supreme Court has
county pur-
position as
his
Boes fired from
credibihty.
of
United States
evidence
See
no evi-
chasing agent. Defendant offered
2075,
573, 583-84,
Harris,
403 U.S.
still
Magistrate Boes
dence to show
opin-
(1971)(plurabty
565 rejection good mation would -result in the lacking “so indicia of cause as to upon daily by deal of evidence relied courts render official belief in its entirely existence juries. If a police reasonable officer unreasonable,” United States v. evidence, rely juror cannot on such should 897, 923, permitted be to do so either. (1984), L.Ed.2d 677 we dissent. Moreover, prior convictions for by The issue court, decided the district marijuana discovery marijuana and the by majority Court, of this is whether a third occasion which did not in con result evidence during found the execution viction of a corroborated Sawicki’s statement that using defendant was peri over the should have been admitted employed, approximately od she was one good-faith under the exception to the exclu- year. States, In Jones v. United sionary rule articulated in Leon.1 We as- 257, 271, L.Ed.2d 697 sume that believes that there (1959), Court, upholding a search war was no warrant, cause for the narcotics, rant for petitioner noted “that therefore has focused on step, the next a known user of charges narcotics made the namely whether the exception ap- against subject him much less skepticism plies. As noted, this Court previously has than would charge against be such a one purpose one rule is “to also, history.” without such a See United Qf preserve integrity judicial process (1st Dauphinee, States v. 538 F.2d Cir. having judiciary, as one arm of the 1976). (“This record of violent crime is an government, condone wrongful conduct of which, conjunction other factor with the another arm of government.” Flaherty’s other indicia propensities (6th Rodriguez, States v. 596 F.2d associations, properly could have influenced Cir.1979). Because we believe the offi- magistrate’s decision that there was *6 cers here way acted “in a we should want to probable cause to issue the warrant [to prevent future,” in 174-75, id. at we do guns].”). search for not good-faith believe that the Leon excep-
III. tion applied should be to these facts. highly-detailed Sawieki’s provided affidavit Further, we note that important another a substantial magistrate’s prob- basis for the in issue this case seems to be by obscured able cause only determination. Its weakness the Fourth Amendment presented. concerns possible was its staleness. We hold that majority The has endorsed a search which Officer Tait’s upon reliance it was discovery resulted palm- of less than a entirely reasonable. The District Court did marijuana residue, ful of including upholding not err in seeds and the search. droppings. possessing For grams this 1.6 The remaining issues are referred to the marijuana, during found the execution of a original panel. office, search warrant at his law Edward MARTIN, Jr., BOYCE F. Judge, Czuprynski Circuit was sentenced to fourteen KEITH, JONES, with whom imprisonment. months’ con- DAUGHTREY, join, Judges, Circuit cerns itself with “how the was dissenting. significance recovered and not the Because we amount Majority believe that the search recovered.” Opinion war- rant in this case was based just an affidavit 561. We type cannot condone the 1. We note that the district court "properly upheld considered the district court the search in this question applied of whether Leon to be the Majority Opinion case under Leon." at 561. "threshold issue" on whether to admit the evi- problem provides here excep- is that Leon an dence. This is incorrect. The threshold issue is rule; find, exclusionary tion to the we must first not, i.e., whether the search was constitutional or however, that the search was unconstitutional in whether the was detached and neu- order to invoke the rule. The dis- tral, probable and whether there was cause to majority opinion trict court and the seem to turn majority today issue the warrant. The seems to head, analysis making Fourth Amendment on its approach, confining take the same itself to the exception swallow the rule. applicability concluding of Leon and office, that “hard feel- ty place Prosecutor’s that has taken overkill prosecutorial Despite this the two. ings” existed between expense of great here; out points to corroborate knowledge, Tait failed rehearing and resources time this Court’s by independent aspect insignificant involving an such a case en banc investigation. unneces- find it marijuana. We amount however, concern, because this sary reach submitted only other information submitted information
we believe
previ-
the two
application were
support the
did
application
warrant
support of the
These are
and returns.
warrants
ous search
cause
contraband
probable
provide
probable
provide
likewise insufficient
search,
be found
evidence would
or
Although submitted to
cause.
could conclude
no reasonable
and that
they
concern
application,
March
existed to secure
cause
De-
and 1983.
conducted
searches
warrant.
a search
execute
search uncovered
spite
fact that each
marijuana usage, Czuprynski was
evidence
February
began in
Czuprynski’s troubles
charges
jury
possession
acquitted
a
his law
an associate
he fired
1992 when
Finally, the warrant
after
1983 search.
assault
firm,
then filed
She
Sawicki.
Judith
search was
authorizing
March 1992
affidavits
him and submitted
against
charges
74th
Philip Boes of the
signed by Magistrate
office.
for his
warrants
support of search
Court,
Czupryn-
years
whom
earlier
District
Michigan state
trial in the
After this earlier
posi-
get
from his
attempted to
fired
ski had
the as-
acquitted of
court,
Bay County purchasing
time as
tion at the
stating
trial court
there
charges,
sault
agent.
“obviously a liar.” Unfor-
that Sawicki was
this
Czuprynski,
situation,
belief
tunately for
find either
we cannot
Given
18,1992,
County
widely
March
held.
issue a warrant
On
cause from which to
at-
earlier unsuccessful
on the
prosecutors,
objectively
after
reliance
reasonable
and executed warrant
tempts,
We
executing
obtained
officers.
part of the
and office. The
facially
Czuprynski’s home
deficient
that the warrant
believe
alleg-
on Sawicki’s affidavit
relied
for the
basis
it failed
establish
by Czuprynski,
marijuana use
ing regular
that Sawicki
magistrate to conclude either
marijuana in
him smoke
general
had seen
or that
that she
informant in
was a reliable
marijuana with
smoked
even
particular
office and
case were
allegations
in this
*7
affidavit
Sawicki’s
in this
wholly
him. Included
find that
the
We cannot
credible.
her on
Czuprynski assaulted
allegations
disgruntled
that
a
assertion
of
uncorroborated
But, the
did
recently
fired.
day
employee,
the
she
been
former
dates,
did it
any specific
nor
fired,
separate
not
in a
recount
who was involved
remotely
had seen
that
imply
discharge,
even
dispute
that
over
fired, February
had been
date she
cause.
probable
since the
support a determination of
1992,
prior
ease,
to her affida-
a month
almost
the
circumstances of
the
Under
constitutionally
vit.
issue a
magistrate could
by which to as-
information
warrant without
supported
the
warrant was also
Thus,
veracity.
the warrant
sess Sawicki’s
Tait, Michigan
Greg
Sergeant
a
affidavit of
proba-
facially lacking
indicia of
issued was
Bay City, and two
State Police Officer
ble cause.
and returns.
previous
warrants
appli-
problem
warrant
A
with the
further
affidavit, however,
to cor-
no evidence
offered
on stale informa-
it was based
cation is that
affidavit,
sup-
it
nor did
roborate Sawicki’s
Sawicki,
of
way.
from the affidavit
any
tion. Aside
credibility
port
reliability
her
given
credibility
questionable
warrant,
is
whose
Moreover,
Tait
seeking while
affidavit,
only other
make the
motive to
departments
understood
other
that
magistrate was
presented to the
information
with Saw-
had declined
involve themselves
nine and
of searches
conducted
results
complaint.
aware
icki’s
Tait was also
bright-line test
years earlier.
eighteen
No
a
Czuprynski,
“disputes”
there were
between
is
determining
information
when
exists for
attorney,
Coun-
criminal
defense
provided
stale. Whether the information
example
is an
of what the court was contem
of
support
application
a warrant
is
plating:
application
which contains
in
no
sufficiently timely
to establish
formation from
which a
could con
depends
particular
cause
circum-
clude that the informant’s information is ei
ease,
stances of
vitality
and the
ther rehable or credible.
application
This
quantified by
cause cannot be
lacks information
Saw-
simply counting
days
the number of
be-
truthfulness,
icki’s
but it
gives
also
rise to the
tween the occurrence of the
supplied
facts
probability that Sawicki made
allega
these
and the issuance
affidavit. Time
maliciously
tions
after Czuprynski fired her.
factors must be
examined
context
Despite knowledge
effect,
to this
Officer Tait
specific
a
case and the nature of the crime
failed
any
independent
conduct
investiga
investigation.
under
tion to
allegations.
corroborate the
Although
Koelling,
States v.
992 F.2d
822 prior efforts to obtain a
failed,
warrant had
(8th Cir.1993) (citation omitted). Determin
ultimately
Tait
took
mag
to a
ing the staleness of
requires
information
con
istrate who
past
had a
Czupryn-
conflict with
sideration of four factors:
the defendant’s
ski. Tait then
signed
executed the
conduct;
course of
the nature and duration
even though he had
made
effort to ensure
crime;
the nature of the relevant
credibility.
evidence;
corroboration of the older
and more recent information. United States
reasons that
the basis of
Cir.1988),
Henson,
(6th
848 F.2d
clear,
Sawicki’s knowledge was
and that her
denied,
rt.
ce
affidavit bears intrinsic evidence of her credi
(1989).
they could practice.
law dissent. therefore
We al., COUSIN, et B.
Maxine
Plaintiffs-Appellees, McWHERTER, Governor
Ned R. al.,
Tennessee, Defendants- et
Appellants. 94-5220.
No. Appeals, States Circuit.
Sixth 20, 1994.
Argued June 14, 1995. Feb.
Decided