USA v. Smith

• Citation: 182 F.3d 473
• Decision Date: 01 June 1999
• Docket Number: No. 98-1178,98-1178
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellant, v. Ronald William Smith, Defendant-Appellee. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

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182 F.3d 473 (6th Cir. 1999) United States of America, Plaintiff-Appellant,
v.
Ronald William Smith, Defendant-Appellee. No. 98-1178 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: June 1, 1999
Decided and Filed: June 30, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 97-80313--Horace W. Gilmore, District Judge.

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Copyrighted Material Omitted

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Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellant.

Rafael C. Villarruel, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellee.

Before: KEITH, CONTIE, and SUHRHEINRICH, Circuit Judges.

CONTIE, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. KEITH, J. (pp. 484-85), delivered a separate concurring opinion.

CONTIE, Circuit Judge.

Plaintiff-appellant, United States of America, appeals the district court's grant to Ronald Smith, defendant-appellee, of his motion to suppress the evidence seized and the statements made after the execution of a search warrant based on an affidavit indicating that illegal firearms would be found at his residence. For the following reasons, we reverse.

I.

On July 16, 1996, a special agent of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), Joseph Secrete, presented a sworn affidavit to a United States magistrate in order to obtain a search warrant for defendant's residence at 9672 Herkimer Street, Detroit, Michigan. The affidavit stated the following:

That your affiant is currently conducting an investigation on an individual identified as Ronald Smith. . . . Information has been developed that indicates Smith is involved in Federal firearms violations.

That your affiant conducted a check with the Recorder's Court of Detroit and learned that Smith has been convicted of several felony convictions. Most recently, he was convicted in 10/14/92 of Larceny in case number 92-731801.

That your affiant is being assisted in this investigation by a confidential informant identified as ATF-1. ATF-1 has on at least twenty-six (26) occasions provided information to ATF and the Detroit Police in reference to narcotics and/or firearms violations. In all instances the information provided by this source was investigated and found to be true. This information also led to several felony convictions based on the seizure of firearms and narcotics.

That on July 14, 1996, your affiant was advised by ATF-1 that within the past 48 hours he/she had been at 9672 Herkimer, Detroit, Michigan, and observed Ronald Smith in possession of a 9mm caliber pistol and a .45 caliber pistol.

That your affiant obtained a Detroit Police arrest photo 404655 of Smith. Officer Packard and your affiant conducted intermittent surveillance of 9672 Herkimer, Detroit, Michigan, during the past seven (7) days. It was during this surveillance that a subject matching Smith's description was entering and exiting this location.

That on July 11, 1996, your affiant spoke with Detroit Police Officers Adams and Wazinacick. These officers advised your affiant that on July 11, 1996, they interviewed Smith whereupon Smith stated he resided at 9672 Herkimer, Detroit, Michigan.

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That your affiant caused a check with the Michigan Secretary of the State's Office and learned that Smith listed his home address as being 9672 Herkimer.

That based upon the above information, the surveillance conducted by your affiant and the observations by the confidential informant, your affiant has probable cause to believe that Ronald Smith . . . is currently residing at 9672 Herkimer, Detroit, Michigan, and is using his location to store a .9mm caliber pistol and a .45 caliber pistol in violation of Title 18 Section 922(g).

The magistrate signed the search warrant, and it was executed two days later on July 18, 1996. The ATF agents seized approximately 14 grams of cocaine base and two firearms, a .22 caliber semi-automatic pistol, and a Winchester 12-gauge pump shotgun. Defendant was present at the execution of the search warrant, was given Miranda warnings, and signed a written confession admitting ownership of the guns and drugs.

On July 23, 1997, a grand jury in the Eastern District of Michigan returned an indictment against defendant Smith, charging him with possessing crack cocaine with intent to distribute (Count 1) and being a felon in possession of a firearm in violation of 18 U.S.C. 922(g) (Count 2).

On November 14, 1997, defendant filed a motion to suppress the evidence seized and the statements he made after the execution of the search warrant and for production of the confidential informant. He contended that the informant, "ATF-1," did not exist and had been fabricated by Agent Secrete for purposes of securing the warrant. He also argued that the alleged knowing falsehood rendered the good faith exception of Leon, 468 U.S. 897 (1984) unavailable. A week later, defendant filed an unsworn affidavit in which he stated that he had not possessed the two guns described in the affidavit between July 10 and July 14, 1996, and that "to the best of [his] knowledge and recollection [he] did not invite any person or persons into [his] home that in turn could be ATF-1 within 48 hours of July 14, 1996."

On December 2, 1997, defendant filed a supplemental motion to suppress. In the supplemental motion, he shifted his argument and no longer contended that ATF-1 did not exist, but argued instead that the warrant did not contain sufficient probable cause because the supporting affidavit "failed to provide an 'explicit and detailed description' of wrongdoing nor does the warrant state sufficient corroboration by Agent Secrete." The supplemental motion relied heavily on the decision of this court in United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996).

A hearing was held before the district court on December 18, 1997. On January 12, 1998, the district court accepted defendant's arguments and issued an order granting defendant's motion to suppress the evidence, concluding that the affidavit was insufficient to establish probable cause, and the good faith exception of Leon did not apply. The United States timely filed an appeal. The United States argues that a warrant affidavit which recites that recent criminal activity was personally observed by a highly reliable informant, aspects of which are corroborated by further police investigation, establishes probable cause. For the following reasons, we agree.

II.

When reviewing decisions on motions to suppress evidence, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993). The Fourth Amendment, which states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation," U.S. CONST. amend. IV, requires that probable cause be determined "by a neutral and detached magistrate

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instead of being judged by the officer engaged in the often competitive enterprise of ferreting out federal crime." Johnson v. United States, 333 U.S. 10, 14 (1948). In order for a magistrate to be able to perform his official function, the affidavit must contain adequate supporting facts about the underlying circumstances to show that probable cause exists for the issuance of the warrant. Whitley v. Warden, 401 U.S. 560, 564 (1971). Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). It requires "only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983). A warrant must be upheld as long as the magistrate had a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing . . . ." Id. at 236. See also United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993). The supporting facts in an affidavit need not be based on direct knowledge and observations of the affiant, but may come from hearsay information supplied by an informant. Jones v. United States, 362 U.S. 257, 269-70 (1960).

In the seminal case involving an anonymous tip, the United States Supreme Court established a "totality of the circumstances" test for determining whether the tip established probable cause. In Gates, the Supreme Court stated the following:

The task of the issuing magistrate is...