U.S. v. Weaver

• Citation: 99 F.3d 1372
• Decision Date: 07 April 1998
• Docket Number: No. 94-6575,94-6575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lynn WEAVER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1372

99 F.3d 1372

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lynn WEAVER, Defendant-Appellant.

No. 94-6575.

United States Court of Appeals Sixth Circuit.

Argued Dec. 5, 1995.

Decided Nov. 8, 1996.

Rehearing Denied April 7, 1998.

William Cohen, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Nashville, TN, for U.S.

Bob Lynch, Jr. (argued and briefed), Nashville, TN, for Gary Weaver.

Before JONES, BATCHELDER, and MOORE, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Gary Lynn Weaver appeals his conviction for the unlawful possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). For the reasons that follow, we reverse.

I.

On February 23, 1994, a federal grand jury returned a two-count indictment against Gary L. Weaver in the District Court for the Middle District of Tennessee for the unlawful possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), respectively. On April 18, 1994, Weaver filed a motion to suppress the introduction and use of firearms and ammunition seized from his residence during the execution of a search warrant. On August 23, 1994, the district court denied the motion. Trial to a jury occurred on August 30 and 31, 1994. The jury convicted Weaver on both counts. On November 16, 1994, the judge sentenced him to 18 months imprisonment, 3 years supervised release, fines, and costs. This timely appeal followed.

The principal issues on appeal are (1) whether the affidavit presented for issuance of the search warrant contained sufficient particularized facts from which the issuing magistrate could find a substantial basis for probable cause; and, (2) if the affidavit was defective, whether the law enforcement officers acted in good faith reliance on the warrant when executing the search.

II.

A.

In 1986 Weaver pled guilty to the felony charge of illegally engaging in the interstate distribution of explosives without a license. As a condition of his probation, Weaver could not thereafter own or possess firearms or ammunition. After his conviction, Weaver disposed of all but two of the nine rifles he owned. In early May 1993, these two rifles, along with some live ammunition, bullet molds, and other items used in home-loading ammunition, were returned to the Weaver home at 3031 Hartford Drive in Murfreesboro, Tennessee, by a friend who could not afford to purchase them. As Weaver was not present at the time of return, his wife, aware of the probation conditions, instructed the friend to place all the returned items in a detached "outbuilding" located behind the residence, with the intent to dispose of the items herself without informing Weaver. She did not, however, dispose of the items and they remained in the outbuilding.

Later that month, on May 23, 1993, Detective Mickey McCullough of the Vice Division of the Murfreesboro Police Department received a tip from a known and previously reliable confidential informant, Philip Dinovo, regarding a possible marijuana sales operation occurring on or near Hartford Drive in Murfreesboro. Dinovo informed McCullough that he learned of the operation from a third person he knew only as "Charlie." Charlie was not an informant and was unaware of Dinovo's connection to the police. Dinovo said he would attempt to purchase some marijuana with Charlie at the Hartford Drive location. McCullough provided Dinovo with $100 for the purchase and instructed the informant to contact him with the drugs or to return the money. The police did not conduct surveillance of the drug transaction or believe that surveillance was necessary.

At midday on May 25, 1993, Dinovo and McCullough met again. The informant informed McCullough that, on the previous day, he and Charlie went "to the home of Mr. Gary Weaver on Hartford Drive" and jointly purchased one-half ounce of marijuana. J.A. at 136-37. The informant also told the detective that Charlie believed Weaver was growing marijuana at the house, although Dinovo personally observed no indications of a marijuana growing operation. McCullough then drove Dinovo to Hartford Drive, at which time the informant identified the Weaver house as the location of the marijuana purchase. By calling the Murfreesboro Electric Department, McCullough verified that Weaver held the utilities account for the property identified. Although aware of Weaver's prior conviction, McCullough had no prior knowledge connecting Weaver with illegal drugs or drug distribution. The detective took no additional steps to corroborate the informant's story.

Based on this information, McCullough immediately prepared a preprinted form affidavit to obtain a search warrant for the Weaver premises, with the intent "to make a case for the felonious possession of marijuana to keep the identity of the informant anonymous." J.A. at 131. ¹ McCullough's preprinted affidavit was composed of boilerplate text with a few open spaces for additional information:

Personally appeared before James W. Buckner, Judge of the Court of Gen. Session for Rutherford County, Tennessee the undersigned Mickey McCullough, a lawful officer of said County and State, who makes affidavit that there is probable cause to believe, and that affiant does believe, that Gary Weaver is now unlawfully keeping a quantity of marijuana for the purpose or with the intention of unlawful possession, sale or transportation thereof, and upon his, her or their person, or in his, her, or their possession, custody or control upon premises used, occupied, possessed or controlled by him, her, or them, and which premises are located and described as follows: A two story brick dwelling house having a city designated street address of 3031 Hartford Drive. Having a two car attached garage and a detached brick building behind the main house having a concrete driveway and a mailbox erected adjacent to said driveway with the numbers 3031 attached to it. Having a city designated street address of 3031 Hartford Drive, M'boro, Ruth. Co. TN.

Affiant further makes affidavit that on the 25 day of May, 1993, affiant received information from a reputable and reliable person, whose name and identity have been disclosed to the Judge to whom this application is made, that Affiant verily believes, and accordingly represents to the Court, that the said informer is truthful, reliable and credible, and that the information so given is accurate and reliable, because: (1) the said informer appears to have intelligence and unimpaired physical senses; (2) the said informer appears to affiant to have sufficient personal knowledge or familiarity or experience with the contraband substance herein mentioned to be able to identify the same by sight, smell and other senses, insofar as such identification can usually be made by the human physical senses unaided by laboratory analysis; (3) there has been a previous occasion, or occasions, on which the same informer has given information of violation of law of the state, which information thereafter was found to have been accurate and reliable; (4) that within the last 72 hours said informant was upon the above described premises and while thereon personally observed (Gary Weaver ) having personal possession and control over a quantity of (marijuana ) being held expressly for the purpose of unlawful distribution. Affiant knows of no reasons why said informer would falsify or fabricate any of the information given. Consequently, affiant believes that all or some portion of the said (marijuana ) still remains upon the above described premises.

J.A. at 39 (emphasis denotes handwritten information). At some point after 2:00 p.m. that afternoon McCullough presented the affidavit to the judge and may have orally supplemented the affidavit with additional information. The judge issued the warrant at that time.

At 8:25 p.m. that same evening, McCullough led a team of six officers in executing the warrant. Upon searching the residence and outbuilding, the authorities found a quarter-ounce of marijuana but uncovered no other evidence of possession, distribution, or growth of marijuana on the property. The search team also discovered the rifles, ammunition, and other ammunition-related items left in the outbuilding and arrested Weaver for having these articles in his possession. The authorities did not charge Weaver with any marijuana-related offenses. ²

Prior to trial, Weaver moved to suppress the evidence taken from his property due to lack of probable cause for the search. The district court denied his motion, finding without discussion that the averments of the affidavit were not false and the search warrant was not defective. J.A. at 72. Weaver contends that the district court erred in denying his motion because McCullough's boilerplate affidavit lacked sufficient particularized facts of criminal activity to justify a search of his residence. Moreover, the appellant argues that McCullough's search could not have been in good faith because the detective was executing a search warrant based on his own insufficient affidavit. Therefore, without either probable cause or a good faith exception to the exclusionary rule, Weaver asserts the evidence seized under the defective warrant should be suppressed.

The government responds that the affidavit included ample factual information to show probable cause, regardless of whether some of the facts were included in preprinted language. Moreover, even if the affidavit and warrant were defective, the government argues the authorities acted in good faith reliance on the judge's neutral and detached determination of probable cause. Therefore, the government contends that the evidence discovered in the search should be admitted.

B.

When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal...