*1 America, STATES of UNITED
Plaintiff-Appellee, CHAAR,
Oussama Mohamed
Defendant-Appellant.
No. 96-2316. Appeals, Court of
Sixth Circuit.
Argued Dec. 1997.
Decided Feb.
Rehearing March Denied *2 $80,000 ciga- smuggling worth
Chaar was selling Michigan a into and them rettes week Chaar and gas stations. He said that to local bringing named would be an associate Jamil Kentucky shipment cigarettes from a pm, and time before that afternoon some truck a they take them in a would Road, I- storage facility on 23 Mile between Finally, he Road. described 94 and Gratiot old, glasses, years guy, fat as: “34 Chaar Aerostar, lives in an 1991 two tone drives near 1-94.” Chaar had apartment on Mile subject any previous investi- not been the gations. relayed tip to Bureau of
The FBI Tobacco, (ATF), Alcohol, Firearms which assigned Special Agent case Krappmann Krappmann. was infоrmed there investigating other storage Road and area at Mile another briefed), Peregord (argued and Jennifer J. facility (investigation of the at 23 Gratiot Detroit, MI, Attorney, for Office of U.S. fruitless), proved having apparently Mile Plaintiff-Appellee. facility revealed that cheek Ryntz (argued), L. Robert E. Forrest Amy two lockers there. The Chaar leased Southfield, (briefed), Raymond Prokop, & said agent rental indicated Chaar MI, Defendant-Appellant. for station, gas he for and that he worked using the lockers to store excess would be MOORE, Circuit Before: BOGGS cigarettes. DOWD,* Judge. District Judges; pm, Krappmann At about 4:30 called BOGGS, J., opinion Attorney’s stor- delivеred office DOWD, MOORE, J., court, joined. begin process getting in which age facility to 365-368), separate (pp. telephonic D.J. delivered He told Assis- search warrant. Attorney dissenting opinion. Cynthia Oberg tant United States exigent justi- circumstances that there were telephonic process, it fying because would OPINION easy smuggler illegal be for a transfer BOGGS, Judge. Circuit cases; used, tax-stamped cigarettes into be- appeals from Oussama Mohamed Chaar day it in the travel cause was too late back a motion to court’s denial of miles) (about get a warrant to Detroit evidence, to his conviction led means; it normal and because would smuggling cigarettes. for affirm the dis- maintain difficult to visual surveillance trict court. meantime. Judge Krappmann, Oberg, Magistrate call at 4:50. Lynn Hooe had a conference filed later pm, September According affidavit 12:52 At Krappmann, Ac- anony- the call was recorded. office the FBI received an Detroit cording boilerplate language of the tipster tip.1 The said that Oussama mous * Jr., Dowd, question. As will be discussed D. the events in The Honorable David Ohio, below, Judge problematic, District of District sitting Northern Chaar this is but by designation. contradict the as set offered evidence to primarily affida- facts are taken from an These forth here. аgent long investigating prepared vit form, available, Krappmann so, appropriately are argues, placed Magis- under oath. court has no basis to. review the warrant. out Judge Second, Hooe filled identical warrant claims proba- he that there was not Magistrate in an forms identical manner. Third, ble cause to the warrant. Judge prob- determined that Hooe there *3 argues that the Leon “good faith” ciga- able cause believe apply. contraband should not being storage rettes stored at were Chaar’s Mile, storage facility
lockers at on 21 and II exigent justified circumstances 5:05, telephonic seаrch warrant. At about 41(c)(2)(D) Fed.R.Crim.P. requires, with Magistrate Judge Hooe authorized the war- regard telephonic warrants, that: permission rant gave Krappmann sign and [T]he Federal shall rec- Krappmann’s copy Hooe’s name to ord ... all of the call after the caller form, pursuant to Fed.R.Crim.P. informs the Federal 41(c)(2)(C). the purpose request of the call is to magistrate Shortly judge after the autho- a stenographic Otherwise warrant. rized the Chaar and another man longhand verbatim record shall be made. arrived in a two-tone Aerostar. Chaar most- If a recording voice device is used or a ly physical description matchеd the infor- made, stenographic record the Federal given. Krappmann mant his and assis- magistrate judge shall have the record accomplice go tant observed Chaar and his transcribed, certify shall accuracy storage Chaar’s lockers and cases of unload transcription, copy shall file a cigarettes from the van. As the officers the original record and the van, approached they noted that with longhand the court. If a verbatim (inside viewable) easily eases van but made, record is the Federal Michigan stamps tax them. file signed copy shall with the When the officers identified themselves court. men, the mеn shut the van doors. The The require- admits that officers executed the warrant and seized clearly ments were violated in this case. Al- from the ciga- lockers cartons of how, the record does reveal Michigan rettes that lacked tax identification. (if tape recording transcript was lost and the possession Chaar was indicted for of con- one) there was lost well. first cigarettes, traband in violation of 18 U.S.C. question us is what effect this viola- 2342(a), § aiding abetting and for his co- tion of admissibility the rules has on the 2(a). conspirator, § 18 U.S.C. the evidence. He incriminating moved evi- rejected dence. The district court the mo- A tion, Chaar pleа agree- entered into a agreement ment government. with the Initially, we note that as a matter of conditional, allowing appeal Chaar to blame, placing poor this case is a candidate suppress. denial of his motion to for of the evidence. ex “[T]he pleaded guilty, and the district court sen- clusionary police designed rule is to deter probation tenced him to 36 months of and a punish rather misconduct than to the errors $2,500 timely fine. Chaar then filed this judges magistrates.” appeal. 897, 916, 104 S.Ct. objections appeal. Chaar raises three in his We do not exclude First, argues evidence, violations, the evidence obtained constitutional absent un pursuant to the warrant should have been less the exclusion furthers the suppressed rule, id. at exclusionary because the of the tele- phonic conference Magistrate Judge between and it was Hooe’s (and (not the magistrate judge transcript, error Officer misconduct made) one duplicates Krappmann) lost. deprived No us of both Therefore, intentional and deliberate evidence of transcript. on the facts provision in Rule. remedy.2 disregard of a inapt is an exclusion Stefanson, 648 F.2d disposition this Rule Cir.1981). of first im- violation is a matter rulings agree both of these circuit. Most Rule pression in this respect Rule following senses with 41(e)(2)(D) circuits, eases, other all, 41(c)(2)(D).4 although evalu First of requirement, which have dealt with the oath after ation of a warrant a violation here, not con- as Chaar does at issue skeptical searching and must be validity Krappmann’s oath.3 Out- test (the all, is, preserve designed context, two other circuits of the oath side courts), courts *4 failures of the have considered weigh any that well-equipped are evidence requirements Rule fact, can is after the and defendants available Richardson, 41(c)(2)(D). In States v. through cross-exami both contest evidence (5th Cir.1991), the Fifth 943 F.2d Fur their evidence. nation and submit own that in the absence of record- Circuit held thermore, suppression appropriate is an transcript, a not merit a ing or warrant does is remedy only the violation either when Nevertheless, regularity. presumption (i.e. be the search constitutional dimensions appropriate for a held that it was court unreasonable), constitutionally preju came to use extrinsic evidence to reviewing court dicial, is intentional. or surrounding the the circumstances examine of these three bases None the warrant. Ibid. issuance of First, as will be- apply here. be discussed Circuit has held Ninth that low, per not unconstitutional the search was unlеss clear constitutional violation oc- Second, no given se. Chaar has us basis curs, noncompliance with Rule violation, that, conclude absent where, only suppression of evidence or have been less abrasive search would Third, not occurred. Chaar “prejudice” in the sense would there evidence, that might alleged, let alone shown the search not have occurred that we Although if the the violation was intentional. or would not have been abrasive followed, imagine can in which a Rule rule or there is cases 2.Despite 3. We have held in the context of oaths for war- the fact that the Rule 41 violation involved, ‘‘[tjhe judicial general not the that Fourth the fault of the rants in Amendment ones, require it to us that that under executive seems curious does not statements made supposedly support tape-record- prosecutor about cause be know oath in placed deficiency dismiss was the record or made until Chaar’s motion to ed or otherwise Shields, part filed. of the affidavit." United States v. (6th Cir.1992). That case 978 F.2d 41(g) requires to file officers, however, not concern federal papers with all in connection the district court only specifically noted that it discuss- (including, presumably, warrant Amendment, ing purport and did not the Fourth testimony). transcript of the officer's sworn As- closely prescriptions of Rule "to examine suming tape transcript were lost 41.” Id. at 946 n. 5. indictment, at some time before the eve it case, prosecutor pointing apparent to a work- to the clear and should have been In another ing simple requirements on the case that there could be Rule oath Amendment, filing required problem. If the loss occurred after the Fourth we an officer court, prosecution obtaining telephonic have been warrant to take the oath should Shorter, testimony. giving fact. alert document that (6th Cir.1979). Although government prevails par- As men- above, however, (cоntrary we foresee does not contest ticular can tioned Chaar footnote) validity Krappmann’s pessimistic this oath. dissent’s fourth sloppiness by government agencies—ei- sort of both—continues, judicial 4. To the extent disclaimed ther or executive Stefanson requirement expressed stringent we oath there will be cases in which otherwise sound Shorter, we do not As men- will have to be overturned. We ad- convictions Stefanson. above, however, challenged steps Chaar has not to take to ensure tioned monish the sufficiency the oath. this does occur. criteria, question our we require Krappmann’s violation would meеt version of the events conjecture suppress evi- than mere surrounding more the search and arrest.5 Chaar dence. also attempt made no to show that he was 41(e) prejudiced by violation, the Rule acknowledge that neither we nor no suggest adduced evidence any way knowing Chaar have now Krappmann’s account was incorrect or that knew when issued transcript had been lost inten- original tip the warrant. Not even the sheet Therefore, tionally. will suppress we this part of the record—the evidence from merely on the basis of the Rule 41 sufficiency which we evaluate the can violation. underlying affidavit, Kraрpmann’s prepared which was
nineteen
months
the events it de-
B
epistemological problem,
scribed.
this
Given
41(e)(2)(D)
Even
the Rule
vio
are
than
affirming
we
less
enthusiastic about
require
lation does not itself
.suppression of
this search.
gives
us no
evidence, must,
this
we
review the consti
still
support a
evidence to
decision
it.
tutionality of this
search. The Fourth
of production
Chaar has the burdens
mandates
Amendment
that searches be rea
persuasion
seeking
suppression of
evi
*5
It
sonable.
also
supported
warrants
v. Blakeney,
dence. United States
942 F.2d
by probable cause, subject to a few circum
1001,
denied,
Cir.1991),
1015
cert.
502
exceptiоns.
though
scribed
tion,
Even
the viola
1085,
881,
112
U.S.
785
in this case does not
(1992);
Smith,
United
v.
783 F.2d
suppression,
mandate
the warrant does not
(6th Cir.1986).
such,
As
the' fact that
necessarily pass constitutional muster.
testimony
there was
no
to
refute
Evaluating this warrant
to deter
Krappmann’s testimony,
Magis
from either
supported
mine if its
Hooe,
by proba
issuance was
Judge
Oberg
anyone
or
else
given
ble cause is a
undertaking,
difficult
present in the courthouse when the warrant
that
issued,
real source of evidence we have
was
redounds to Chaar’s detriment.
an
affidavit
written nineteen
Chaar was free to call
or
months after
all
these
witnesses;
engage
the fact. We
peoрle
may
compli
as
he
need not
well have be
however,
speculative exercise,
cated
testimony
help
lieved that such
not
would
be
be
him,
ful to
simpler
and we will not strain
there is a
disagree.
relatively
non
Furthermore, despite having
speeulative
a full and fair
reason to conclude that
this
opportunity
Krappmann
to cross-examine
search
“good-faith
at
was constitutional: the
ex
suppression hearing,
ception”
Chaar did not
chal
468 U.S.
lenge
validity
Krappmann’s
(1984).6
oath or
104 S.Ct.
ther
particular place; and
location
able.
vicinity,
rented
Chaar for
lockers
Leake,
cigarettes.
tip-
storing
F.2d
States v.
*6
(6th Cir.1993)
ster,
anonymous
citations
(quotation marks and
while
and thus
untested
omitted)
fourth,
(third,
fifth
description
alterations
reliаbility, gave
personal
in original).
Chaar and indicated who his illicit customers
weakest,
Viewing
evidence at its
were.
the
Chaar offers no evidence
magistrate judge
good
the
reason
given no
lied to obtain the warrant. We are
believe,
Krappmann’s
based on
corrobora-
the
conclude
basis
tion,
two lockers
that Chaar stored
worth
knowing
Krappmann provided contained
or
rea-
cigarettes. The
could
falsity—if Krappmann’s
reckless
(more
deficient,
sonably
leap
poor
it
have made the inferential
was
it was because was of
intent,
search,
wrong.
cle).
cigarettes
though
the
but if this was its
it
even
the
in
stamрs,
apparently
"plain
even
requirements
had no tax
vehicle
for a
view”
pursuant
were seized
650 cartons of them
are well-settled:
warrant,
solely
the indictment
based
the
present
police
be
Four conditions must
cigarettes
storage lockers.
taken from the
on
may
plain
pursuant
the
view
seize an item
cigarettes
Only
is at
the
of the latter
view;
(1)
plain
item must be in
doctrine:
the
issue,
provides
the
search incident
arrest
(2)
incriminating
be
item's
nature must
the
storage
for a warrantless search
the
no basis
immediately apparent;
item
be
the
must
lockers.
lawfully
place
in
located
viewed
officer
.justifi-
Similarly,
"exigent
circumstances”
seen;
object can
which the
be
inapplicable.
time
Even if there was no
cation
be seized
an officer who has
item must
get
or their
a warrant
to search the defendants
object
right
of access
itself.
lawful
car,
easily
storage
could
locker
768,
Jenkins,
(6th
United States v.
124 F.3d
774
guarded
See
while a warrant
obtained.
Cir.1997).
requirement
prob-
The fourth
261,
Kelly,
States v.
913 F.2d
265
United
here,
right
because the officers had no
lem
Cir.1990) (holding that
suitcase
search
locked
access
lockers without warrant.
exigent
absent
circumstances
contraband,
"[Ejven
object
where the
consent).
repeatedly
Court
stated and enforced
"plain
Finally,
unavailing.
dis-
view” is
police may not enter and
basic rule that
trict court noted that
the officers observed
seizure." Horton
make a warrantless
"in
cigarettes
vehicle
contraband
in Chaar’s
Califor-
128,
7,
2301,
nia,
S.Ct.
2308
137 n.
plain
court
view.”
It is unclear
district
n.
L.Ed.2d 112
approving
meant this
an alternate basis
many
hop)
storing
like a
that someone
“technical”
41(c)(2)(D),
violation of Rule
cigarettes,
about whom a
had been re- which did not
suppression.
mandate
I find
ceived,
very
smuggling
majority’s
well
could
reliance on these'cases to be
cigarettes.7
points
misplaced
in
inaccuracies
for the reason that there exists a
significant
anonymous tip,
in
faсtual
and deficiencies
difference
in-
between the
efforts,
Krappmann’s
stant
case and the cases
majori-
corroborative
but
cited
ty.
In the
forgiving
does not
us
cases
convince
his
on
inadequate
based
conclusion
testified
suppression hearing
memory
“bare bones” evidence.
as to his
conversation, thus corroborating the testimo-
Finally,
on
foregoing,
con-
based
we
ny of the affiant
presenting
the review-
Krappmann’s
clude that
reliance on the war-
ing
complete
court with a more
record as to
good
objec-
rant
both was
faith and was
led
the initial determina-
tively
Accordingly,
reasonable.
thе Leon
probable cause;
tion of the
standards are met and the search was valid.
case, however,
Magistrate
instant
Judge
testify.
Hooe
Ill
In the first
case cited
majority,
reasons,
For
foregoing
we AFFIRM
Richardson,
States v.
the district court.
(5th Cir.1991),
the Fifth Circuit was
faced with the
telephonic
review a
search
DOWD,
Judge, dissenting.
District
application
in which
My
colleagues forgive
fellow
the violation
work,
equipment
and,
result,
as a
41(c)(2)(D)1
provisions
and magistrate
failed to make
record of the
deny
of suppression
the sanction
based
communication in
applied
which the affiant
teachings
468 for
subsequent
warrant. At
search
U.S.
suppression hearing, while the district court
0984).
respectfully
I
disagree and thus dis-
affidavit,
had no record of the oral
both the
sent.
magistrate and the affiant
testified as to
Initially,
memory
find the violation of Fed.
their
of the conversation.
Id. The
considerably
R.Grim.P.
to be
was therefore
able
corrobo-
more
than
serious
does the
majority.
rate the affiant’s
with that of the
*7
majority opinion
that the
magistrate judge,
concludes
ap-
and thus come to the
case,
in this
judicial
i.e. the
of
propriate
failure
the
determination as to wheth-
transcription
requirements
probable
of Rule
er
presented
cause
in fact
to
41(c)(2)(D),
suppression
magistrate
doеs not
of
judge
warrant
the
at the time the warrant
majority
holding
the evidence. The
bases its
appellate
was issued. The
court in
case
on cases
the
approval
Fifth and Ninth Circuits
noted with
the district court’s re-
which
same
magistrate’s
held this
violation to be a mere
view
testimony:
of the
“[s]inee
(d).
‘‘engag[ing]
speculation”
transcript
7. Far from
in sheer
as
The
sion
the sworn oral testi-
of
magistrate judge's
to
ruling,
the
of the
basis
mony setting
grounds
issuance
forth'the
of
Dissent at
we base our characterization of the
signed by
the warrant must be
affiant
facts before the
on the uncon-
magistrate
presence
the
with the
of
filed
testimony
Krappmann.
tested sworn
of Officer
court.
added).
(Emphasis
rulemaking process
1. The
to
led
the 1977 amend-
(c)(2), however,
An examination of subdivision
by
provisions
adding
ment to Rule 41
the
of Rule
underlying
fails to disclose the
material. Section
41(c)(2).
advisory
The
the
committee notes for
(2)(e)
provided
part
of Pub.L.
in
that the
amendment, presented
in
the
of
(in
Supreme
amendment
the
Court
its order
amendment,
passage of the
stated that for such a
26, 1976)
(c)
Apr.
issue,
to subdivision
of Rule 41 of
(c)(2)
require-
subdivision
warrant
four
to
(subdi-
the Federal Rules Criminal Procedure
requirement
ments must be met. The fourth
(c)
rule)
approved
problem
would have
the
of this
a modified
solved
in the instant
vision
in
case:
Presumably,
underlying
form.
the
material
in
referring
duplicate original
the
Return
committee notes
to item was
of the
warrant and
original
Congress.
the
warrant
to
the
must conform subdivi-
deleted
blank, sup-
to magistrate
from affiant
tape
court could
review
[district]
telephone
necessary due to the fact
pression
call between
was not
transcription of the
magistrate, it acted
both testi-
magistrate
and the
well
and the affiant
that the
[the affiant]
conversation).
basing
in
its decision
within its discretion
fied as to the contents
testimony of
thorough
reason,
[the
of the
review
of Rule
For
find the violation
this
Id-
magistrate.”
affiant]
in
to
more than a
this case
“technicаl” violation.
mere
majority,
case cited
Unit-
other
(9th
Stefanson, 648
ed
F.2d
require-
The obvious
behind
Cir.1981),
application fór a tele-
involved the
information
of a
of the
ments
magis-
in
which the
phonic search
provisions
provided by
the affiant under
only
portion of the
judge
trate
recorded
is to allow
problems
re-
telephone call due to
with the
application
if the
for the
to determine
courts
days
granting cording device. Two
probable
require-
warrant met
cause
warrant,
magistrate judge execut-
search
The fail-
ments of the Fourth Amendment.
call,
transcript
phone
using his
of the
ed
comply
provisions
ure
those
in this
memory
portion
of the
record-
appropriate judicial
prohibits the
deter-
case
at
At the
ing that existed.
Id.
subse-
to whether
cause was
mination as
hearing,
quent suppression
the district court
sup-
Hooe in
presented Magistrate Judge
judge
testimony
magistrate
from the
heard
More-
port of the issuance
the warrant.
events,
memory
and denied
his
over,
any testimony by
magis-
the lack
evidence.
motion
judge makes reliance on the above-cited
denial,
upheld
holding
Ninth Circuit
improper.
cases
of Rule 41 did
the mere “technical” violation
justify suppression due
the fact that
majority acknowledges the fact that
memory
to his
magistrate
testified
testify
thereby
corroborated
conversation
case,
only
concludes that this
worked
but
affiant’s
and satisfied the re-
statements
since,
defendant,
disadvantage
as the
had,
viewing courts that
seeking
party
suppression, he bore the bur
fact,
judge.
presented
persuasion2
production.3
See
dens of
at
Id.
Blakeney,
eases
sharp contrast
denied,
Cir.1991),
cert.
instant
116 L.Ed.2d
presented
to the district
conversation
my
It
that this
rationale fails
belief
circular
hearing
was the
shifting
recognize
burden
affiant,
affidavit of
executed nineteen
sup
production
occurs on a motion to
months after
issuance
put
press, and in this case
the burden on the
testimony detailing
subsequent
the affiant’s
produce
memory
provided
his
magistrate judge.
Hooe,
Magistrate Judge Lynn
unaided
*8
Initially,
production
of
the
the burden
is on
corroborating
conflicting
the either
testi-
prima
showing
to make a
facie
of
defendant
mony Magistrate Judge
The
of
of
Hooe.
lack
Fuente,
illegality. United States v. de la
any testimony
magistrate judge
by the
dis-
(5th Cir.1977).
528,
Following
F.2d
tinguishes
by
this case
the cases cited
showing,
production
burden of
shifts
such
the
majority
magistrate judges
the
in
the
which
Allen,
present
government
to the
to
rebuttal evi-
testify.
v.
See also United States
Richardson,
(N.D.I11.,
swpra,
1984)(holding
dence.
at 548-49.
F.Supp.
that
phone
I
that
met
though tapе recording
even
of
call
believe
the defendant
2251, 2256,
275,
parties
"[OJbligation
L.Ed.2d 221
rests on one of the
114 S.Ct.
which
(1994).
facts,
persuade
to
the
the
action
trier of
generally
proposition
juiy,
the
the
truth of
affirmatively
plead-
the
party's obligation
he has
asserted
with
which
come forward
"[A]
Director, OWCP,
ings.”
Department
Labor v.
its claim.” Greenwich Col
lieries,
272,
[Ondecko],
supra,
at 2255.
512 U.S.
114 S.Ct.
Greenwich Collieries
Here,
production concerning
proper.
burden of
the
Ms imtial
evidence of
tele-
illegality
by presenting
phomc
memory
warrant
affidavit
of the affiant
of the Rule
violation.
as to
provided
what information he
production
justify
then shifted to the
finding
Thе burden
illegality
Moreover,
showing
probable
tMs
memory
rebut
cause.
that
properly
that the warrant
with evidence
was
based on the áffiant’s recollection nineteen
by probable
TMs could
supported
cause.
months after
issuance of the
testimony
done
presenting
have been
with no corroboration from
magistrate
judge
who issued the war-
who
issued
warrant.
facts
These
However,
provide
simply
rant.
since no such
courts
do.
offered,
illegali-
I
showing
apply
believe that the
with
sufficient evidence
Rath-
Leon.
er,
ty
government,
being
was never rebutted
we are
asked to now
extend
“good
exception”
the motion to
havе
and thus
should
faith
to a
in
situation which
conjecture
granted.
we
been
must
as to what
presented
magistrate
affiant
judge,
my finding
In addition to
that the failure
facts,
on
whether based
those
magistrate
magis-
the conversation or have the
record
judge
have
probable
should
determined that
judge testify at the district court level
cause existed.
41(c)(2)(D),
violation
I
is a substantial
majority
engages
here
specu-
sheer
majority’s
disagree
decision
lation as to
facts the magistrate judge
this search was constitutional under
with,
presented
and concludes that Leon
exception”
faith
“good
of United States
apply:
does
104 S.Ct.
weakest,
proMbits
Viеwing
Leon
the sanc-
evidence at
its
judge
exclusion of
magistrate
good
tion of
the evidence seized
had
be-
reason to
lieve,
Rrappmann’s
the Fourth Amendment
based
corrobora-
tion,
magistrate’s
on the
reliance
determination
that Chaar stored two lockers worth
,
probable
executing
cigarettes.
magistrate
cause
could
objectively
reasonably
warrant
reasonable.
Id. at
leap
made the inferential
(more
hop)
storing
the inherent limitations Carl Leake, v. Petitioners-Appellants, See United Cir.l993)(holding that review anonymous on issued the basis INTERNAL COMMISSIONER OF “totality of the requires test of whether REVENUE, Respondent- supports conclusion circumstances”. Appellee. at a be found or contraband will Leake, рlace). we found Leon particular No. 97-1022. no there was
inapplicable, held Appeals, States Court of the issuance Sixth Circuit. information due to the “limited the warrant caller, coupled provided anonymous Argued 1998. Jan. by the with the brief limited surveillance Decided Feb. up nothing unusu- officer that turned affiant at 1367. al.” Id. similar exist
I find that insufficiencies presented to the district prevent application
in this Leake, Here, anony- as in it was an
Leon. investigation tip that led to initial
mous What more is that
of the defendant.
tipster’s information to the location of incorrect,
facility proved to be and there was activity tipster future described
no be corroborated
which could As a applying the search warrant.
result, tipster’s we know informa- of the suggest fails to a hint of sufficient
tion even tipster’s credibility. See as to
indicia
Leake, supra, at 1365.
Therefore, before the based the record court, the motion to should granted.4 I the con-
have been would vacate further and sentence remand for
viction I
proceedings. Thus dissent. enough acknowledge teachings Leon em- Rule to make use of that the rale, and, exclusionary application an assis- phasize rule assisted pun- Attorney, police would be conscious to deter rather than tant misconduct comply with judges magistrates. of and concerned the need ish errors and- 41(c)(2)(D). transcription provisions every police knows that the officer worth his salt muster, pass when proper includes the errors case execution of a search warrant If revealed, filing inventory a violation subsequent of those it is difficult to conceive of of an police provisions things Presumably sophisticated seized. officer, ATF, knowledgeable judicial concern. agent that would cause such an