U.S. v. Lalor
| Decision Date | 11 June 1993 |
| Docket Number | No. 92-5426,92-5426 |
| Citation | 996 F.2d 1578 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John LALOR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Denise Charlotte Barrett, Federal Public Defender's Office, Baltimore, MD, argued (Anthony R. Gallagher, Acting Federal Public Defender, Denise Benvenga, Asst. Federal Public Defender, on brief), for defendant-appellant.
Bonnie S. Greenberg, Asst. U.S. Atty., Baltimore, MD, argued (Richard D. Bennett, U.S. Atty., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.
John Lalor was arrested on January 30, 1990, following execution of a search warrant at his residence. He was charged with possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and use of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). On April 30, 1991, after a hearing, the district court denied his motion to suppress evidence obtained during the search. On May 6, 1991, Lalor did not appear for trial, and in a superseding indictment was charged with an additional count for failure to appear, 18 U.S.C. § 3146(a)(1). On March 9, 1992, he entered a guilty plea, conditioned upon preserving the right to appeal from denial of his motion to suppress. This appeal followed.
The search warrant was issued by a state magistrate on January 30, 1990, based on the affidavit of Baltimore City police officer, Gary McLhinney. The warrant authorizes a search of the premises at 1572 Waverly Way for "cocaine, narcotics, narcotic paraphernalia, U.S. currency, related objects and personal papers."
The affidavit contains information from two confidential informants. The first informant gave information to the police during the last week of November 1989. He said that a man named "Jamaican John" was selling cocaine in the area of Northern Parkway and Loch Raven Boulevard. Jamaican John's mode of operation was to use a personal pager, then meet the buyer on East Northern Parkway, where the sales occurred. The informant believed that Jamaican John lived on Waverly Way and drove a blue Dodge Daytona, with the Maryland tag, "Thumpur." The second informant gave information during the third week of December 1989. The informant confirmed that Jamaican John sold cocaine at Northern Parkway and Loch Raven Boulevard, and said he had purchased cocaine from him on numerous occasions. He said that John lived with his girlfriend in the Loch Raven Apartments, where Waverly Way is located. 1
Other information in the affidavit substantiated certain statements made by the informants. On December 1, 1989, McLhinney saw a blue Dodge Daytona with the tag "Thumpur" parked in the 1600 block of Waverly Way. 2 On January 6, 1990, a Baltimore City police officer informed McLhinney that one day earlier she had stopped a blue Dodge Daytona with a Maryland license plate, "Thumpur." The driver identified himself as John Lalor of 1572 Waverly Way. The police officer cited Lalor for several moving violations, seized the license plate, and towed the vehicle. 3 During the third week of January 1990, McLhinney saw the blue Dodge Daytona, with temporary Maryland tags, parked in the 1600 block of Waverly Way.
The affidavit also states that 1572 Waverly Way was rented to a woman, whose boyfriend, Jerry Jones, was listed as an apartment resident. Jones' date of birth was the same as Lalor's. McLhinney was informed by an officer in the drug enforcement section that John Lalor is also known as Jamaican John, and that the officer was familiar with Lalor from a previous investigation. On January 29, 1990, McLhinney learned that Lalor had been arrested five days earlier for possession of a handgun and possession with intent to distribute cocaine. When arrested, Lalor gave his address as 1509 Ramblewood Road. A review of Lalor's arrest record showed an additional arrest in 1989 for cocaine possession.
On January 30, 1990, Baltimore City police officers executed the search warrant at 1572 Waverly Way. The police did not attempt a peaceful entry, ostensibly because they feared for their safety and were concerned about destruction of evidence. Instead, the officers broke down the door with a battering ram, at the same time, shouting, "police, search warrant." As a result of the search, cocaine, a weapon, plastic sandwich bags and a significant amount of cash were seized.
After a hearing, the district judge denied the motion to suppress, finding that the warrant was based on probable cause, or, in the alternative, that an officer could rely in good faith on the warrant. The judge also held that the no-knock entry was reasonable under the Fourth Amendment.
A magistrate presented with a search warrant application must
make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). 4 Sufficient
information must be presented to the magistrate to allow for the exercise of independent judgment; the magistrate cannot simply ratify the conclusions of others. Id. at 239, 103 S.Ct. at 2333.
In reviewing a magistrate's probable cause determination, our task is to determine whether the magistrate had a substantial basis for the decision. Id. at 236, 103 S.Ct. at 2331. We accord the magistrate's decision "great deference," and will not invalidate a warrant "by interpreting [an] affidavi[t] in a hypertechnical, rather than a commonsense, manner." Id. at 236, 103 S.Ct. at 2331 (citations omitted).
Lalor argues that the affidavit did not state the basis of the informants' knowledge, and the magistrate had no means of assessing their reliability. An important factor in determining whether an informant's report establishes probable cause is the degree to which it is corroborated. Id. at 241, 103 S.Ct. at 2334; United States v. Miller, 925 F.2d 695, 698 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 111, 116 L.Ed.2d 80 (1991). Although the informant's veracity, reliability and basis of knowledge are relevant, they are no longer independent requirements. Gates, 462 U.S. at 230, 103 S.Ct. at 2328.
Here, one of the informants stated that she or he had purchased cocaine from Lalor on numerous occasions. Thus, the foundation for this individual's knowledge was known. In addition, both informants supplied fairly specific facts about Lalor's alias, address, and the area in which he operated. One informant described Lalor's car. Information from each informant was corroborated by information from the other, as well as by independent police investigation. McLhinney's observations, and reports from other officers, confirmed these details, and revealed a recent arrest for cocaine possession.
Lalor argues that police corroboration in this case was not meaningful because it concerned only innocent facts, and no attempt was made to verify allegations of criminal activity. In Gates, the Supreme Court rejected a similar argument. There, the Illinois Supreme Court held that police corroboration of innocent activity did not support a finding of probable cause. Gates, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13. The Supreme Court reversed, noting that:
probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.... [I]nnocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands.
Id.; see also United States v. McCraw, 920 F.2d 224, 228 (4th Cir.1990) (). Corroboration of apparently innocent details of an informant's report tends to indicate that other aspects of the report are also correct. Gates, 462 U.S. at 244, 103 S.Ct. at 2335 () (quoting Spinelli, 393 U.S. at 427, 89 S.Ct. at 594 (White, J., concurring)); see also Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2416-17, 110 L.Ed.2d 301 (1990) (same). In this case, confirmation of Lalor's address, vehicle and alias gives credence to the allegations of criminal activity. See White, 496 U.S. at 332, 110 S.Ct. at 2417. In any event, Lalor's arrest for cocaine possession, just five days before the warrant was issued, is verification of his involvement in drug activity, and in combination with police corroboration of other details in the informants' tips, provides a substantial basis for finding the informants reliable. 5
Lalor argues that the affidavit fails to establish present probable cause. Specifically he claims that the informants did not state the time during which Lalor was engaged in drug activity, nor was there evidence that Lalor resided at 1572 Waverly Way at the time the warrant was executed.
The informants' reports omit any reference to the time period during which the drug sales occurred. The affidavit is written in the present tense, suggesting that the activity is ongoing; nevertheless, a time frame should have been disclosed. This court has already cautioned the police about the need to specify time periods in warrant applications. See United States v. Anderson, 851 F.2d 727, 729-30 & n. 1 (4th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 841, 102 L.Ed.2d 973 (1989). In this case, however, where...
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