998 F.2d 1359 (6th Cir. 1993), 92-6070, United States v. Leake

Docket Nº:92-6070.
Citation:998 F.2d 1359
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Charles V. LEAKE, Defendant-Appellee.
Case Date:July 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1359

998 F.2d 1359 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant,

v.

Charles V. LEAKE, Defendant-Appellee.

No. 92-6070.

United States Court of Appeals, Sixth Circuit

July 12, 1993

Argued March 25, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

28, 1993.

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Joseph M. Whittle, U.S. Atty., Steven B. Pence, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, KY, and Sean Connelly (argued and briefed), U.S. Dept. of Justice, Crim. Div., Washington, DC, for plaintiff-appellant.

Theodore H. Lavit (argued and briefed), Lavit & Abell, Lebanon, KY, for defendant-appellee.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and PECK, Senior Circuit Judge.

RYAN, Circuit Judge.

The government appeals from the district court's order suppressing evidence in this drug trafficking prosecution. The government raises two issues:

(1) Whether the district court erred in finding the state magistrate was not shown that there was probable cause to justify issuance of the search warrant; and

2) Whether, if the warrant was issued without probable cause, the executing officers nevertheless reasonably relied on the warrant in good faith.

Finding no error in the district court's disposition of these issues, we shall affirm.

I.

Charles V. Leake was indicted on a multi-count, multi-defendant indictment. He and his codefendants were charged with possessing marijuana, with intent to distribute it, and with manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). During a warrant-authorized search of Leake's home, over 300 pounds of marijuana were seized and Leake was placed under arrest. The events leading to the search and arrest are as follows:

Detective Thomas Murphy, a member of the Louisville Police Department Narcotics Division, received a telephone call from a citizen who told Murphy that he had observed a large stash of marijuana in the basement of a home where he had been engaged to work as a tradesman. The caller,

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who would not give his name, told Murphy that the residence was located at 4825 Westport Road, Jefferson County, Kentucky.

The caller said he both smelled the distinctive odor of marijuana and saw what appeared to be bales of marijuana in the basement. He said he recognized the smell of marijuana because he had smoked marijuana when younger, but that he was now strongly "anti-drug," and that the people at the Westport Road residence appeared to be dealing, rather than possessing the drug for private use.

Murphy decided that the information provided by the caller would need to be corroborated before a search warrant could be obtained. He personally surveilled the Westport Road house for two hours on two successive evenings. The surveillance revealed nothing unusual. Detective Murphy confirmed the address of the house, observed that it matched the description given by the anonymous caller, and noted that the house had a basement as the caller had said. Murphy recorded the license numbers of the cars in the driveway and later determined that the automobiles were registered to Leake and Robin Grimes.

The following day, Murphy presented an affidavit for a search warrant to a Jefferson County Circuit Court judge. Detective Murphy's affidavit stated:

On the 12th day of April, 1988, at approximately 6:00 p.m., affiant received information from an anonymous person who phoned the narcotics office and stated that he was a tradesman who had been hired to do some work at 4825 Westport Rd. This person stated that it was necessary for him to enter the basement of 4825 Westport Rd., and upon entry smelled the very distinctive odor of marijuana, and observed what appeared to be marijuana stacked in the basement.

When questioned about his knowledge of the smell and appearance of marijuana this person stated that in his "younger days" he had been a user of marijuana, but now that he was older with children he is very anti-drug, and that he further felt that the people at 4825 Westport Rd. are involved with the dealing of marijuana as opposed to someone who might have a small amount of marijuana for their own use, which this person seemed to find unacceptable. The above happened in Jefferson County, Ky.

Surveillance was initiated at the above address on the evenings of 04-13-88 and 04-14-88. No undue amount of traffic was observed going to this address. Two vehicles were found to be registered at 4825 Westport Rd., the first, a 1977 Pontiac, 2 dr., Ky. registration number XST-569, registered to Charles Vinson Leake, the second, a 1986 Toyota 3 dr., Ky. registration XST-568, registered to Robin McCoy Grimes.

The judge issued the warrant. Detective Murphy and other officers executed the warrant in the early morning hours of the next day. They recovered over 300 pounds of marijuana and other evidence, and arrested Leake and a number of other persons.

In the district court, Leake moved to suppress evidence of the marijuana, contending that it was seized under a warrant obtained without probable cause. The suppression motion was referred to a magistrate judge who conducted a hearing.

At the hearing, Leake argued that the warrant's supporting affidavit was insufficient to establish probable cause, but called no witnesses. Detective Murphy, testifying for the government, stated that he could not recall the exact details of his discussions with the state court judge that had occurred nearly four years earlier. Murphy testified that to the best of his recollection, the judge asked him several questions pertaining to the affidavit. Detective Murphy also testified that he remembered being struck by the tipster's sincerity, and that while the Narcotics Division frequently received anonymous calls from tipsters apparently motivated by spite or a grudge, this particular caller did not seem to have such motivations. This information was not set out in Murphy's supporting affidavit, however.

The state court judge who issued the warrant was out of the country at the time of the suppression hearing, so the government introduced an affidavit signed by him. In his

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affidavit, the judge stated that he likewise could not recall the specific events surrounding his issuance of the Westport Road warrant, but that:

In accordance with my normal procedures, I would have reviewed the Affidavit and questioned Detective Murphy to determine whether probable cause existed to issue the warrant. In this particular case involving an anonymous tip, I would have questioned Detective Murphy regarding the existence of any corroborating details to the information given in the anonymous tip. Although I do not recall this particular Search Warrant, in that I have reviewed hundreds of Search Warrants, many of which I refused to sign, I would have followed the above procedures.

I therefore conclude that, after questioning Detective Murphy and reviewing the Application for the Search Warrant, I believed at the time that probable cause existed to issue the Search Warrant.

I have no special relationship with Detective Murphy...

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