United States v. Marcus D. Williams

more, threat of a recurrence of the remote specula actions is so

disputed tangible prejudice to

tive that there is no parties. interests of the existing Cf. id.

III. affirm order of the district would and, thus, respectfully dissent. As

court above, I would hold

discussed diligently prosecuting an action

state was comparable to the

under a state law Clean Act, barring plaintiffs’ suit.

Water

light majority’s opinion, I would court, encourage the after

strongly district

obtaining additional to consid- § 1319(g)(6)precludes

er whether the suit

and whether the entire case has become

moot. America,

UNITED STATES

Plaintiff-Appellee, WILLIAMS,

Marcus D. Defendant-

Appellant.

No. 98-5058. of Appeals,

United States Court

Sixth Circuit.

Argued: Feb. Aug.

Decided and Filed:

trafficking occurring on the premises, Akers sent a confidential and previously reliable informant into the residence. The reported later informant that when he was Cole, at the residence he only observed person present, possession then in of mari- juana Later, crack and cocaine. Akers discovered that the residence was rented under Cole’s name and that the utilities in were also Cole’s name. Based on this information, Akers sought search war- rant for the residence. in support

The affidavit of the search warrant read as follows: Leigh (argued Richard Grinalds and Received information from a confidential informant, briefed), Attorney, and reliable Assistant United States who has Jackson, Tennessee, past information in the Appellee. for has lead to that, and arrests convictions he has [sic] Stephen (argued), Regina B. Shankman observed Keith Cole in possession of (briefed), Stephenson Office of Fed- C. marijuana crack in cocaine and the resi- Defender, Memphis, eral Tennes- Public dence at 4th in past 410[sic] N. Ave. see, Appellant. for Furthermore, 72 hours. it is this affi- Lloyd ant’s information that Deteril [sic] SILER, BATCHELDER, Before: and and Marcus Williams Patterson also [sic] COLE, Judges. Circuit live at this It also address. is known this affiant that these individuals also SILER, J., of the opinion delivered sell drugs from this residence. court, BATCHELDER, J., joined. in which COLE, 533-37), (pp. J. delivered took to a judge Akers the affidavit state separate dissenting opinion. amplified upon testimony and it with under judge

oath before the Akers’ knowl- about OPINION edge subject residence and the ac- tivity going testimony on there. The be- SILER, Judge. Circuit recorded, judge fore the state was not but Following guilty plea his conditional during Akers later testified the motion to possession with intent to distribute cocaine suppress judge that he told the state 841(a)(1), base, § in of 21 violation U.S.C. police department had the house under appeals Williams from defendant Marcus numer- they surveillance and that had had denying the order of the district court his phone ous calls residents suppress motion evidence. For the fol- about the traffic and out neighborhood reasons, lowing we affirm. of the residence. He also told the state Williams, judge that he had seen Cole I. Lloyd at the house on numerous occasions. judge The state the search warrant. issued Akers, Lieutenant Richard offi- right away. Williams was It was executed Humboldt, Tennessee, City cer for the inside the after 24.4 arrested residence began surveillance of a residence at 310 grams of cocaine cash base $1900.00 North Fourth Street in 1996. Humboldt were seized therein. months, During following two Akers Williams, suppress Keith Datril moved to the evi- observed Cole and Williams entering grounds on the Lloyd exiting the house on dence from search Believing drug supporting numerous occasions. the affidavit the search warrant bones” affidavit and the information was an insufficient “bare reliable. See United Ventresca, 102, 108, this court’s meaning decision States v. within (1965). 99 F.3d 1372 United States L.Ed.2d This (6th Cir.1996), and, thus, there was no also rule court is mindful of its that an of the war- issuing magistrate’s only cause for the issuance discretion should addition, argued arbitrarily rant. In Williams be reversed if it was exercised. Swihart, by the good- the warrant was not saved v. See United States 554 F.2d (6th Cir.1977). 264, in exception faith established United 267-68 In determining Leon, 897, v. 468 U.S. 104 S.Ct. there was insufficient cause fob States (1984). 3405, warrant, The 82 L.Ed.2d 677 district the issuance of the the district agreed upon court that the affidavit was similar court relied the recent Weaver deci in and concluded Obviously, affidavit Weaver sion. it did not have the advan have, issu- tage, relying upon that there was no for which we of Nevertheless, case, of the the v. ance warrant. even more recent United States (6th Cir.2000)(en Allen, in faith good court held that Akers acted F.3d 970 banc), reasonably upon validity and relied the explained which Weaver. Based Allen, in executing upon the warrant the search under the decision in find that we Therefore, it Leon. denied the motion there was cause for the issuance Thereafter, suppress evidence. Williams of the warrant. plea guilty entered conditional to the in Although long- the affidavit Allen was intent to charge possession with distrib- verbiage er in than the in the at one case

ute cocaine base and received a sentence hand, significant the most difference is imprisonment. 70 months Allen, that in the name of the informant judge was disclosed to the but not in the II. hand, case, affidavit. the in On other this presented by sole issue this The by the affidavit amplified testimony appeal is whether the district court erred judge. before the local This additional by denying suppress the motion to evi evidence buttressed the infor- informant’s reviewing dence. a district court’s de by police mation the showing had motion, suppression nial of a this court complaints neighbors received from the findings reviews the factual for clear error about the traffic around the residence and legal and the conclusions de novo. See Williams, that the had seen and Cole Weaver, 99 F.3d at 1376. Lloyd premises. in and out of the Even judicial short, In order for a officer to in though affidavit this case was warrant, issue a law enforcement officials than a is more “bare bones” affidavit. example, must evidence from which the For the informant in this affida- can judge appears conclude from the vit to be more reliable than the Allen, circumstances, totality “including one where the informant had ‘veracity’ knowledge and ‘basis’ of of been known the affiant for officer five persons hearsay supplying years and had him “information probability there is a fair that contraband about individuals involved criminal activ- ity of a in a past proven evidence crime will found that has to be reli- Gates, particular place.” Illinois v. 462 able.” Id. at 971. The in Allen affidavit 213, 238, 2317, say U.S. 76 L.Ed.2d S.Ct. did not that the information had led to (1983). convictions,” evidence need not reflect This “arrests as affidavit Likewise, personal the direct of a law in the at bar did. observations case enforcement official on a appears be based informant also at least as reliable Weaver, hearsay, long confidential informant’s one in so as as the where the informant “truthful, issuing judicial reasonably officer is was listed as reliable and credi- previous gave assured that the informant was ble” who on credible occasions we find that the warrant was law of the Because of violation of “information cause, we need not information issued state, thereafter was which good-faith exception decide whether accurate and reliable.” to have been found Leon, However, v. 468 U.S. there United States at 1375. 99 F.3d (1984), 905, 104 S.Ct. 82 L.Ed.2d 677 that the infor- was no mention Weaver However, because the dissent has applies. had information which provided mant had issue, inquiry from Leon is raised that convictions. to arrests or led reasonably “whether a well trained officer affi bones” example An of a “bare would have known the search was Gates, magistrate’s found illegal despite davit is authoriza- Court, pointing where at 922 n. tion.” Id. States, Here, judges from Nathanson that if are of the to one it seems two 11, 159 41, 78 L.Ed. 54 S.Ct. opinion 290 U.S. that the warrant was based said, (1933), cause, “A sworn of statement a well probable then trained officer suspect cause to thought affiant that ‘he has that the would have also search brought liquor illegally that’ does believe legal. warrant was located on certain into the United States is AFFIRMED. Another illustration premises will not do.” Texas, v. 378 U.S. Aguilar was taken from COLE, Judge, dissenting. Circuit (1964), 1509, 108, 12 L.Ed.2d 723 84 S.Ct. Amendment, man- The Fourth which statement that ‘affiants officer’s “[a]n issue, shall but dates that “no Warrant from a information have received reliable cause, by Oath or upon probable supported that heroin is person credible and believe’ affirmation,” from arbi- shields individuals home, inadequate.” in a is likewise stored trary by government agents. searches Gates, 239, at 103 S.Ct. 462 U.S. amend- Amend. XIV. The U.S. CONST. to, Thus, a “bare bones” affidavit is similar personal privacy of protection ment’s as, conclusory affidavit. if not the same a that a determination of property require ‘only states the affiant’s It is “one which only upon “the de- probable cause issue ” existed.’ cause belief a scrutiny magistrate, of neutral tached Finch, 349, 353 v. 998 F.2d States United safeguard against more reliable which is a Cir.1993) (6th v. (quoting States judg- than the hurried improper searches (6th Ciammitti, 927, 720 F.2d 932 Cir. ‘engaged ment of a law enforcement officer 1983)). enterprise of fer- competitive in the often ” v. crime.’ United States person, reting a known out Allen held “that where Chadwick, 1, 9, 2476, 53 97 S.Ct. magistrate, to whose reliabil- 433 U.S. named to the (1977) detail, (citing v. 538 Johnson attests some L.Ed.2d ity an officer with States, 10, 14, 68 S.Ct. 333 U.S. particular that he has seen a crime United states (1948)). Thus, evidence, order past, 92 L.Ed. 436 particular the recent warrant, a law judicial officer to issue magistrate may for a a neutral and detached must evi- will be officials that evidence of a crime enforcement believe Allen, con- magistrate which the can 211 at 976. As men- dence from found.” totality of the circum- here clude from the the informant previously, tioned stances, “including ‘veracity’ and ‘basis However, in- not identified. the additional persons supplying hear- knowledge’ surveillance and police formation about the probability there is a fair say cor- heavy traffic around the residence crime will or evidence of a suffi- that contraband the informer’s information roborates Therefore, place.” in a Illinois particular be found ciently to find cause. 213, 238, Gates, 103 S.Ct. judge probable cause before the state had (1983). need This evidence and the seized L.Ed.2d 527 him to issue the warrant personal reflect the direct observations not be not suppressed. evidence should I. may official and of a law enforcement a confidential informant’s hear based on one-page Akers’s affidavit contains two judicial say, issuing officer is long so as one, allegations wrongdoing. reasonably that the informant was assured “it ... known affiant states that is and the information reliable. See credible Lloyd] Williams and Datril [Marcus Ventresca, United States v. U.S. drugs from this residence.” sell This (1965). L.Ed.2d 684 clearly does not establish critical, however, that “from It is whatever to search the residence. An affidavit does source, presented must the information provide judicial not a sufficient basis for [judicial] official be sufficient to allow officer to believe that there was a fair determine independently probability drugs would be found cause; cannot be a mere ratifi ‘his action ” merely when it sets forth the officer’s sus- of others.’ cation bare conclusions picions adequate sup- and beliefs without Gates, (citing 99 F.3d at 1377 Allen, porting facts. See 211 F.3d at 975- 2317). 239, 103 U.S. 76; Weaver, Indeed, 99 F.3d at 1377. often-applied are two factors There Supreme very Court used a similar state- critical to our determination of whether a beyond ment to illustrate “the limits which affidavit based on a confi- officer’s issuing not venture (“Cl”) pro- dential informant’s statement Gates, warrant.” 462 U.S. at 103 finding a for a of vides substantial basis “An S.Ct. 2317. officer’s statement that 1) probable cause: whether the affidavit affiants have received reliable information descrip- contains an and detailed explicit person from a credible and do that believe alleged wrongdoing, along tion of with a home, heroin is in a ... stored is inade- that statement the event was observed quate. conclusory is a mere state- [T]his 2) firsthand; whether the and have gives magistrate virtually ment that the no tip corroborated the informant’s with in- at all for making judgment regard- basis dependent investigative work. See Unit- (internal ing probable cause.” Id. citations (6th Sonagere, F.3d ed States v. 30 53 omitted). Cir.1994) Gates, (citing 462 U.S. at 2317). However, The affidavit alleges neither of also that Akers had prongs requirements; these are definitive information from a confidential “[r]eceived rather, informant, totality the of the circumstances and in- given reliable who has Allen, controls. in past See United States formation the that has led to ar- (6th Cir.2000) (en banc). that, and [sic] rests convictions he has Indeed, Allen the proposition possession stands for observed Keith in crack Cole that marijuana the existence of cause must cocaine and in the residence totality cir- past determined the of the N. 4th Ave. in the 410[sic] hours.” case, Allen, specific to each such In provided cumstances we held that an affidavit that an provide affidavit must “sufficient cause for the issuance of a search facts from which the could warrant based the facts that: the independent draw an conclusion as to the affiant —who had been narcotics officer probability (certainty required) years personally is not of for fifteen known —had alleged years; provided what search would disclose.” the Cl for five the hadCl totality Id. A past; careful consideration of the reliable information in the and the in personally alleged factors this case indicates to me Cl observed the crimi- issuing judge activity. the could not make nal 211 F.3d at See We therefore, Weaver, and, prob- distinguished such a determination thus the case from able cause did not exist for the issuance in which we concluded that an affidavit did of a I respectfully provide probable search warrant. dis- not the because boilerplate language sent. affidavit’s “combined Okay, Judge Jerman read our search pro- information minimal handwritten and placed He then me under few, facts of warrant. oath any, particularized if vide and different began questions little more than to ask incriminating nature and my knowledge affiant’s about of the residence at conclusory belief statements activity going 310 North Fourth and the regarding cause existed time, explained there. At activity.” F.3d at 1379. Con- on criminal assertion, had Judge the affi- Jerman we had majority’s trary to surveillance, to the house under that we had case is closer davit phone the affida- numerous calls from resi- rather than had affidavit Here, neighborhood dents in the ... and that boilerplate affidavit vit in Allen. the informant that had me this contained little additional set information was a informant be- information that was reliable the additional brief, totally past, had him in the cause we used perfunctory, forth was they all to arrests and convic- details indicat- had led lacking detail. Without Cl, the rela- tions. identity either the ing affiant, and the

tionship between Cl There is no indication the record that .in which the Cl had kind of cases for what, Judge Akers informed Jerman of if past, in the the Cl’s information provided anything, Akers’s surveillance of the resi- identifying drugs, experience Furthermore, there is no dence revealed.1 observed, I con- cannot drugs amounts of in- indication in the record that Akers totality of the circum- clude that under the Judge specific formed Jerman details stances, the likeli- the affidavit established provided- that the informant have —- narcotics would be found on the hood that house, drugs allegedly the amount of with the Accordingly, agree premises. drugs the exact location of the within the failed to court that the affidavit district house, suspect- the amount of traffic from cause. finding probable a supported customers, drug drug- ed the existence of etc.—that could dealing paraphernalia, fact, conceded as government, The reliability air to given have an Akers’s There, argument. gov- at the much oral presume I not endeavor to affidavit. will however, that position, took the ernment testimony Akers’s before the contents of Akers, that considering the information Thus, only Judge am left with Jerman. oath, orally conveyed Judge to under while consider, and as I have Akers’s affidavit to in- independent Akers’s regarding Jerman already it did not sufficient stated conclude that vestigation, this court could for court to determine facts the district in this case. cause existed Oral cause existed. that may supplement a search war- testimony United States v. rant See affidavit. II. (6th Cir.1992). Shields, 943, that the affida- The district court found requires that the “The Fourth Amendment basis for the provide vit did not a sufficient for a search warrant basis cause warrant, it nonetheless de- issuance of the by ‘oath or affirmation’ be before evi- suppress to us, nied Williams’s motion The before judicial officer.” Id. record “good- that the it concluded however, virtually no of dence because provides indication articulated exception” At the faith Judge said to Jerman. what Akers Leon, 104 S.Ct. testified: States hearing, Akers suppression fact, subjects” is, "two other testified that the Akers’s inde- ter 1. unclear whether It any provide Lloyd. He did not anything. were Cole and pendent investigation- Ak- revealed investigation. by hearing revealed the suppression details at the other need not belabor ers stated indi- point the that evidence on North [310 had done surveillance "[w]e their cating enter and leave that residents We had Mr. Williams and St.]. Fourth seen to provide does not subjects going in and out of this own home two other la- search it. occasions.” Akers on numerous residence (1984), applied provided by in this tion an unnamed informant— L.Ed.2d 677 may may who or not have disagree. case. I been familiar an drugs unspecified with amount of —that Leon, Supreme In the Court held that days narcotics had been in the house three exclusionary rule “should be modified earlier, conclusory allegations drug nor so as not to bar the admission of evidence dealing supporting clarifying devoid of or reasonable, good-faith rebanee on seized in details, provide a reasonable basis for a subsequently a search warrant that is held belief that a search will uncover evidence. at to be defective.” Id. 104 S.Ct. testimony suppres- Akers’s Williams’s determination, an making what, hearing any, sion does not detail if subjective beliefs are irrelevant. officer’s additional relevant information oral- Akers inquiry This court’s “is confined ly relayed to Judge Jerman. Akers did objectively question ascertainable whether suppression hearing indicate at the that he reasonably well trained officer would Judge police depart- told Jerman that the illegal have known search ment had received numerous calls from despite magistrate’s authorization.” neighbors regarding traffic and out of 3405; n. see also Id. at 922 However, the residence. Akers testified Savoca, 761 F.2d United States v. during his surveillance that he ob- (6th Cir.1985). The 295-96 Leon Court only occupants served the three paradigmatic noted four circumstances in out,” go “in and hardly residence a basis rely magis on which an officer not any suspicion activity for of criminal at the (1) trate’s issuance of a warrant: when the residence. Again, because the record is magistrate was misled informa issuing regarding barren of information con- tion the affidavit that the affiant knew tents of testimony Judge Akers’s before be have known to false false would Jerman, only we have the affidavit to con- disregard but for the affiant’s reckless for reasonably sider. We conclude that a pru- (2) truth; issuing magistrate when the dent officer should have known that a war- wholly abandoned his neutral and detached rant issued such an affidavit was judicial process role in the warrant that, therefore, resulting defective and (3) stamp police; became a rubber for the illegal despite search was Judge Jerman’s when the warrant was based on affida authorization. provide vit does not determining with a “substantial basis” for argument, At government oral at (4) cause; probable existence First, tempted develop two theses. facially when the warrant was deficient in emphasizing the “limited education ... particularize place failed to training” limited of the members of the searched or to be the items seized. See Humboldt, Tennessee, Department, Police 914-15, 923, 104 id. S.Ct. 3405. government apparently asked the applies The third circumstance court to consider the fact that Akers sub objec- case. An officer does not jectively probable “manifest believed that he had good noted, tive in relying faith on a warrant ‘so cause for the already search. As lacking inquiry objective indicia of cause as to our is an one. See Savo ca, (“Leon render official belief its existence entire- 761 F.2d at 295 indicated that ” ly unreasonable.’ Id. at evaluating courts officer’s conduct must (internal omitted). charge citations On officer with a certain minimum record, facts knowledge contained we conclude level of require law’s ments.”). Second, that a government well-trained officer should have asserts illegal despite pursuant known the search was that Leon saves searches to de Judge a showing Jerman’s authorization. Akers’s af- fective warrants absent of de plainly fidavit is insufficient for the rea- ceit the officer or collusion between the issuing judge sons detailed above. Neither the informa- officer and the and the offi- is in di- position government’s cer. The circuit’s Leon and this conflict with

rect See, e.g. precedent

well-established 1380; States v. F.3d at Cir.1993) (6th

Leake, inapplicable situation

(finding Leon reasonably well-trained officer

where did known that

would have investiga- independent

not exist because anony- tip to corroborate

tion failed informant). reasonably well- A

mous that Ak- officer would have known

trained was insufficient to establish

ers’s affidavit cause. The record does not con- orally that Akers informed

tain evidence of information that would

Judge Jerman Therefore, cause.

establish the district court

would conclude respect. in this

erred

III. reasons, respectfully foregoing

For

dissent. Realty RCW

Lori D. ATCHLEY d/b/a

Company, Plaintiff-Appellant, COMPANY, Krilich, R.

RK Robert Krilich, Defendants-

Donna J.

Appellees. 99-5486.

No. Appeals,

United States Court

Sixth Circuit.

Argued: March Aug. and Filed:

Decided

Case Details

Case Name: United States v. Marcus D. Williams

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 16, 2000

Citation: 224 F.3d 530

Docket Number: 98-5058

Court Abbreviation: 6th Cir.