U.S. v. Mykytiuk

• Decision Date: 01 April 2005
• Docket Number: No. 04-1196.,04-1196.
• Citation: 402 F.3d 773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert MYKYTIUK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.3d 773

UNITED STATES of America, Plaintiff-Appellee, v. Robert MYKYTIUK, Defendant-Appellant.

No. 04-1196.

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2004.

Decided April 1, 2005.

Robert A. Anderson (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

David A. Geier (argued), Larowe, Gerlach & Roy, Madison, WI, for Defendant-Appellant.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After executing a state search warrant for Robert Mykytiuk's residence and truck, Wisconsin law enforcement officers found a handgun and equipment, materials, and chemicals used to manufacture methamphetamine. Later, federal prosecutors took over the case, and Mykytiuk moved to quash the search warrant and suppress the evidence. The district court denied the motion. Mykytiuk then entered a conditional guilty plea to one count of possessing pseudoephedrine with intent to manufacture methamphetamine, see 21 U.S.C. § 841(c)(2), and one count of possessing a firearm in furtherance of drug trafficking, see 21 U.S.C. § 924(c)(1)(A), reserving in his plea agreement the right to challenge the denial of his motion to suppress. The district court sentenced him to 90 months' imprisonment on Count One and 60 months' imprisonment on Count Two, to run consecutively. On appeal, Mykytiuk challenges the denial of his motion to suppress, arguing that the warrant was too broad and that the court erred in applying the good-faith doctrine. We conclude that the evidence was admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and we therefore affirm the judgment of conviction. Mykytiuk's challenge to his sentence, however, cannot be resolved until after a limited remand for further proceedings in the district court.

I

On May 2, 2003, Jason Hagen, a detective for the Barron County Sheriff's Department served a search warrant at Tim Soltau's residence and found chemicals and materials, including anhydrous ammonia, that led Hagen to believe that Soltau was manufacturing methamphetamine. After questioning, Soltau told two officers that he and Mykytiuk had stolen the anhydrous ammonia and stored it at Mykytiuk's residence until three days earlier, when Soltau stole it for himself. Soltau also told the officers that Mykytiuk manufactured methamphetamine and ordinarily kept the necessary materials in two five-gallon buckets in vehicles parked at his residence. Soltau informed the officers that Mykytiuk ordinarily carries a loaded firearm in his vehicle, and that while at Mykytiuk's residence, Soltau had fired fully automatic weapons belonging to Mykytiuk.

That day Hagen applied for a no-knock search warrant allowing officers to search Mykytiuk's residence, vehicles, and outbuildings on the property. Hagen's supporting affidavit detailed Soltau's statements. In the affidavit, Hagen also represented that, "based on his experience and training," he believed that a "person manufacturing methamphetamine would ordinarily possess methamphetamine and drug paraphernalia within his/her residence." Based on the affidavit, Barron County Circuit Judge James C. Babler issued a no-knock warrant to search "vehicles parked on the property of 2117 6 1/4 street, Cumberland, Wisconsin and a yellow two story house and outbuildings at that location... [for] two five gallon buckets containing muriatic acid, paint thinner, pseudofed, lithium batteries, Coleman fuel, and/or coffee filters." Upon executing the warrant, the officers found components of a methamphetamine lab in a storage building as well as additional materials used to manufacture methamphetamine and a Colt .45 semi-automatic handgun (found in Mykytiuk's truck).

At that point, the investigation was referred to federal authorities. Mykytiuk was indicted for possessing pseudoephedrine, possessing a firearm in furtherance of drug trafficking, possessing chemicals and equipment to manufacture a controlled substance, and attempting to manufacture methamphetamine. He moved to quash the search warrant and suppress the evidence on the grounds that the warrant was not supported by probable cause, that the warrant's scope was too broad, and that no reasonable officer could have relied on the warrant in good faith. Magistrate Judge Stephen L. Crocker issued a report recommending that the motion be denied. Magistrate Judge Crocker reasoned that, although the warrant was not supported by probable cause, it was not overly broad and the officers had relied on it in good faith. Mykytiuk objected, but the district court adopted the report and recommendation and denied the motion to suppress.

II

On appeal, Mykytiuk again urges that the search warrant was not supported by probable cause, that it was overly broad, and that the good-faith exception to the exclusionary rule should not be applied to excuse the officers' conduct in this case. The government concedes that the search warrant was not supported by probable cause. We nevertheless address this question briefly, both because the government's concession is not ultimately binding on this court, and because the question whether probable cause was lacking is relevant to whether the officers relied on the warrant in good faith.

When, as here, an affidavit is the only evidence presented to a judge to support a search warrant, "the validity of the warrant rests solely on the strength of the affidavit." United States v. Peck, 317 F.3d 754, 755-56 (7th Cir.2003). A search warrant affidavit establishes probable cause when, based on the totality of the circumstances, it "sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." Id. (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Where information from an informant is used to establish probable cause, courts should assess the informant's credibility by considering the following factors: (1) whether the informant personally observed the events, (2) the degree of detail shown in the informant's statements, (3) whether the police independently corroborated the information, (4) the interval of time between the events and application for a warrant, and (5) whether the informant appeared in person before the judicial officer who issued the warrant. United States v. Koerth, 312 F.3d 862, 866 (7th Cir.2002); United States v. Jones, 208 F.3d 603, 609 (7th Cir.2000).

In Koerth, we had to decide whether statements from an informant of unknown reliability were sufficient to establish probable cause. 312 F.3d at 867-69. The evidence submitted in support of the search warrant in Koerth is similar to the evidence in the present case, as seen from the probable cause portion of the Koerth affidavit:

On Wednesday, Aug. 30, 2000, a search warrant was executed at 806 Ruff Pl., Bloomer, Wis., which led to the seizure of marijuana, methamphetamine, and U.S. Currency. Investigation revealed that the marijuana and methamphetamine were purchased from a white male, known as Lonnie, who resides at 2344 195th Ave.

Abraham Savage, who is believed to be a reliable source, indicated that he was at Lonnie's on Thursday, Aug. 29, 2000, and witnessed a large amount of marijuana. Savage stated he believed there was approximately 150-200 pounds of marijuana at the residence, as well as approximately two pounds of methamphetamine, a large bag of cocaine, and $30,000 in U.S. currency.

Savage has purchased from Lonnie in the past and that [sic] is a member of the Iron Wings Motorcycle Club.

Id. at 867. The officer also requested a no-knock warrant because the informant had seen "numerous firearms" at Lonnie's residence. Id. We held in Koerth that despite the fact that the informant had first-hand knowledge of the allegedly illegal activity and gave "statements against his penal interest," the facts were presented in a "conclusory and essentially uncorroborated fashion." Id. at 870. The affidavit thus lacked a factual foundation, and was "based on the testimony of a previously unknown informant." Id. at 867. We also noted that the informant had not appeared in person before the state judge who issued the search warrant and that the police had not corroborated any of his statements. Id. at 868. In those circumstances, to uphold the state judge's probable cause determination "would be [impermissibly] to ratify the search of a home based on the use of essentially conclusory statements without corroboration." Id.

In the present case, Officer Hagan similarly failed to corroborate or provide foundation for Soltau's statements. Although Soltau provided first-hand information against his penal interest, there was no evidence that he was a reliable witness or that he had provided accurate information in the past, and he provided only one detail to support the accuracy of his statements regarding Mykytiuk's methamphetamine production — that Mykytiuk stored his materials in two five-gallon buckets. This was a thin reed on which to rest the probable cause determination, and we are disinclined to second-guess both the district court's and the government's assessment of this point.

Even on the assumption that the warrant was bad and the search invalid, however, suppression of evidence is not the inevitable consequence. See Leon, supra. A facially valid search warrant issued by a neutral, detached magistrate will be upheld if the police relied on the warrant in good faith. See 468 U.S. at 913, 104 S.Ct. 3405. An officer's decision to obtain a warrant is prima facie evidence that she was acting in good faith. See United States v. Merritt, 361 F.3d 1005, 1013 (7th Cir.2004). A defendant can rebut the presumption of good faith only by showing that the issuing judge abandoned his role as a neutral and detached arbiter, that the officers were dishonest or reckless in preparing the supporting affidavit, or that the affidavit was so lacking in probable...