U.S. v. Pelham, 85-6065

Citation801 F.2d 875
Decision Date29 September 1986
Docket NumberNo. 85-6065,85-6065
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James PELHAM, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Leslie I. Ballin (argued), Memphis, Tenn., for defendant-appellant.

W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Timothy R. DiScenza (argued), for plaintiff-appellee.

Before KEITH, KRUPANSKY, and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Defendant, James Pelham, was charged in a two-count federal indictment with possession of approximately 30 pounds of marijuana, with intent to distribute. Pelham pled not guilty at his arraignment, and later moved to suppress evidence found in his home. The district court referred the matter to a magistrate who recommended granting Pelham's suppression motion. However, the district court subsequently denied the motion and permitted the government to present the evidence. Pelham reserved his right to appeal from the district court's denial, changed his plea to guilty, was convicted, and was sentenced to 18 months in prison. He now appeals from the district court's denial of his motion to suppress. For the reasons set forth below, we affirm the order of the district court.

I.

On January 8, 1985, at approximately 4:00 p.m., officers of the Metro Narcotics Unit of the Shelby County Sheriff's Department arrested Payton Brown in Memphis, Tennessee, after finding six pounds of marijuana in a truck driven by Brown. When one of the arresting officers, C.R. Swain, asked Brown where he had obtained the marijuana, Brown responded that he had obtained it from the defendant, James Pelham, at 1992 Court Avenue, in Memphis. (Jt.App.10). The officers handcuffed Brown, put him into the police car, and drove past 1992 Court Street, which Brown visually identified as the place from which he had obtained the marijuana. Ibid.

The officers then drove to the police station, where Officer Swain drafted an affidavit in support of a search warrant for 1992 Court Avenue. The affidavit described the premises to be searched, set forth the belief that Pelham was in possession of marijuana on the premises, and stated Swain's "reasons for such belief" as follows:

On January 8, 1985 the affiant [Swain] talked to Payton Brown who stated to the affiant that within the past twenty-four (24) hours he had been inside the above described residence of Jim Pelham and had seen Jim Pelham storing & selling Marijuana inside the aforementioned residence, the same being located in Memphis, Shelby County, Tennessee.

(Jt.App. iii). Swain had never drafted a warrant affidavit based upon the statements of a named individual and he therefore consulted with two, more experienced, officers. The other officers agreed that naming Brown in the affidavit as the source of the information would show sufficient reliability and probable cause on which to base the search warrant.

Swain then took the affidavit to an issuing magistrate, Judge Hackett of the civil division of the Tennessee General Sessions Court, and requested a search warrant. It also appears from the record that Officer Swain orally related to Judge Hackett additional information not contained in the affidavit, particularly that Brown had been arrested and that Brown had visually identified Pelham's house to Swain. (Jt.App. 29-30). Judge Hackett issued the search warrant, which was executed soon thereafter. The search uncovered approximately thirty pounds of marijuana in Pelham's house. Pelham was charged by a federal grand jury in a two-count indictment with possession of marijuana, with intent to distribute. 21 U.S.C. Sec. 841(a)(1), 18 U.S.C. Sec. 2. 1 (Jt.App. 5).

Following a suppression hearing, Magistrate Aaron Brown recommended granting Pelham's motion to suppress, concluding that the affidavit lacked probable cause and that Officer Swain's actions did not satisfy the good-faith exception rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 702 (1984). The district court judge agreed with Magistrate Brown that the affidavit did not show probable cause, but upheld the warrant, finding that Swain had acted in the good-faith belief that the warrant was valid. After changing his plea to guilty and reserving his right to appeal from the court's denial of his suppression motion, Pelham was convicted on Count I of the indictment. 2 Pelham now argues that the district court erred in denying his motion to suppress because the affidavit lacked probable cause and Officer Swain did not act with either objective or subjective good faith. The government contends that the warrant was based on probable cause and that, even if no probable cause existed, Swain's reasonable belief that the warrant was valid is sufficient under Leon.

II.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court rejected the rigid, two-prong probable cause test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The Aguilar-Spinelli test required that a search warrant affidavit based on an informant's tip contain (1) information regarding the "reliability" or "credibility" of the informant, and (2) information detailing "some of the underlying circumstances from which the informant" obtained the information. Aguilar, 378 U.S. at 114, 84 S.Ct. at 1513-14. The Gates court explained that while these elements "may usefully illuminate the commonsense, practical question of whether there is 'probable cause' to believe that contraband or evidence is located in a particular place," they should not be "rigidly exacted in every case...." Gates, 462 U.S. at 230, 103 S.Ct. at 2328. Instead, the Court adopted a "totality-of-the circumstances approach" to determine the existence of probable cause, noting that probable cause is a "practical, nontechnical conception" that deals with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. at 230-31, 103 S.Ct. at 2328, 29 (quoting Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) ). The Supreme Court has also recognized that affidavits "are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965), quoted in Gates, 462 U.S. at 235, 103 S.Ct. at 2330-31.

Furthermore, an issuing magistrate's probable cause determination "should be paid great deference by the reviewing courts," Spinelli, 393 U.S. at 419, 89 S.Ct. at 591-92, and "should not be set aside unless arbitrarily exercised." United States v. Swihart, 554 F.2d 264, 270 (6th Cir.1977). The courts should not undertake a de novo review of the sufficiency of an affidavit, Gates, 462 U.S. at 236, 103 S.Ct. at 2331 nor should they "invalidate [a] warrant by interpreting [an] affidavit in a hypertechnical, rather than a commonsense, manner." Ventresca, 380 U.S. at 109, 85 S.Ct. at 746. Reflecting a preference for the search warrant process over warrantless searches, "the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) ). See Ventresca, 380 U.S. at 102, 85 S.Ct....

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