U.S. v. Allen

• Decision Date: 02 March 1999
• Docket Number: No. 96-6313,96-6313
• Citation: 168 F.3d 293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 293

168 F.3d 293

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Eugene ALLEN, Defendant-Appellant.

No. 96-6313.

United States Court of Appeals Sixth Circuit.

Submitted June 18, 1998.

Decided March 2, 1999.

Paul W. Laymon, Jr., Asst. U.S. Attorney (briefed), Chattanooga, TN, for Plaintiff-Appellee.

Perry H. Piper, Deirdra J. Brown (briefed), Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, TN, for Defendant-Appellant.

Before: MOORE, CLAY, and GILMAN, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. GILMAN, J. (pp. 304-08), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Defendant, Kenneth Eugene Allen, appeals from the judgment entered by the district court following his conditional guilty plea to drug related crimes, wherein Defendant reserved his right under Fed.R.Crim.P. 11(a)(2) to appeal the district court's order denying his motion to suppress evidence on the basis that the search warrant was not supported by probable cause. For the reasons set forth below, we REVERSE the district court's order denying Defendant's motion to suppress the evidence and REMAND the case to the district court for further proceedings. ¹

BACKGROUND

Defendant was indicted on March 12, 1996, in a three-count indictment charging Defendant with alleged possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 in Count One; using and carrying a firearm during the drug trafficking offense set out in Count One in violation of 18 U.S.C. § 924(c) in Count Two; and as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) in Count Three. Defendant filed a motion to suppress the evidence seized from his residence by police detectives. The evidence seized during the search consisted of 9.3 grams of crack cocaine, a set of scales, and a loaded pistol. Defendant maintained that the evidence should have been suppressed as fruits of the poisonous tree inasmuch as the search warrant was issued without probable cause. The suppression motion was referred to a magistrate judge who later issued a report and recommendation denying the motion to suppress. Specifically, the magistrate found that because "the affidavit was based upon statements of an informant whose name was provided to the issuing magistrate, the informant's reliability was attested to by the officer seeking the warrant's issuance, and the basis of the informant's knowledge was also set forth[,]" probable cause was established sufficient to issue the warrant. On May 31, 1996, the district court affirmed the magistrate's recommendation.

Thereafter, pursuant to a plea agreement in which Defendant reserved his right to appeal the district court's denial of his motion to suppress, Defendant pleaded guilty to Counts One and Two. Defendant was sentenced on September 13, 1996, to 135 months imprisonment on Count One and to 60 months imprisonment on Count Two, to be served consecutively. Defendant filed this timely notice of appeal challenging the district court's order denying Defendant's motion to suppress the evidence seized by detectives during a search of Defendant's residence on the basis that the search warrant was not based upon probable cause. Defendant's appeal was submitted to this Court to be decided on the briefs.

Facts

Gary Lomenick, a detective with the Chattanooga Police Department Narcotics Division in Chattanooga, Tennessee, received a tip from a confidential informant--from whom Detective Lomenick had received reliable information in the past--concerning an individual known only as "Red Dog." The tip stated that three days earlier, the informant had seen Red Dog in possession of cocaine in an apartment located at 910 North Market Street. From his conversations with other detectives in the narcotics division, Detective Lomenick learned that Red Dog's identity was that of Defendant.

Acting solely on the basis of the informant's tip, Detective Lomenick had another detective in his division prepare an affidavit to submit to a magistrate in support of a search warrant for the apartment located at 910 North Market Street. In the affidavit, which was basically a form type affidavit consisting of boilerplate text that was kept on file in the police department's computer, Detective Lomenick stated as follows:

I, Gary Lomenick, a duly sworn Chattanooga Police Officer, hereby apply for a search warrant and make oath as follows:

1. I am a sworn Chattanooga Police Officer with the Narcotics Division, where I have been assigned for over 15 years, and a commissioned Special Deputy Sheriff for Hamilton County, Tennessee.

2. On the 11th day of October 1995 I Gary Lomenick received information from an informant, a responsible and credible citizen of the county and state, who I know to be a responsible and credible citizen because, I have known said informant for 5 years and said informant has given me information about individuals involved in criminal activity in the past that has proven to be reliable. Said informant's name whom I have this day disclosed to the Judge to whom this application is made, that John Doe (Alias) Red Dog who resides in or occupies and is in possession of the following described premises 910 North Market Street, apartment directly underneath carport located in Chattanooga, Hamilton County Tennessee, unlawfully has in his possession on said premises legend and/or narcotic drugs including Cocaine in violation of law made and provided in such cases.

3. On the 11th day of October 1995 said informant advised me that said informant was on the premises of the said John Doe (Alias) Red Dog located at 910 North Market Street, apartment directly underneath carport within seventy-two hours prior to our conversation on October 11th, 1995 and while there saw Cocaine in possession of the said John Doe (Alias) Red Dog[.]

WHEREFORE, as such officer acting in performance of my duty in the premises I pray that the Court issue a warrant authorizing the search of the said John Doe (Alias) Red Dog and the premises located at 910 North Market Street, apartment directly underneath the carport, for said legend and/or narcotic drugs including Cocaine and that such search be made either by day or by night.

The affidavit provided blank lines for Detective Lomenick to fill-in at the conclusion of the warrant hearing specifying his name, the name of the issuing magistrate, and the date. Detective Lomenick presented his affidavit to Special Judge Glenn McColpin, a local practicing attorney acting for the magistrate judge that oversaw warrant applications. Detective Lomenick disclosed during the warrant hearing the name of the confidential informant who provided him with the information contained in the affidavit. Based upon this oral representation and the information contained in the affidavit, Special Judge McColpin issued a search warrant for the apartment located at 910 North Market Street.

Upon receipt of the search warrant, Detective Lomenick led a team of police officers to 910 North Market Street to execute the warrant. The officers traveled to the apartment in a police van, and when they arrived they noticed that the entrance to the apartment was at the back of the building underneath a carport. Detective Lomenick drove the van up the driveway to the carport, and the officers quickly exited the van and approached the front door of the apartment. As they approached the building, the officers noticed that the front door to the apartment was open, thus allowing them an unobstructed view through a screen door and into the home.

From this vantage point, the officers could see two people, later identified as Defendant and Sharon Brewer, standing on the front porch. When Defendant saw the officers, he rushed into the apartment and the officers quickly followed him. During the pursuit, the officers saw Defendant throw an object into a closet in the hallway and heard a loud audible thump, as though something had hit the back wall of the closet. When the officers later searched the closet, they found a loaded pistol on the floor.

As Defendant was being pursued down the hallway of the apartment, he dropped several pieces of what was later found to be crack cocaine on the floor. The officers apprehended Defendant in the back bedroom of the apartment. When questioned by the officers, Defendant voluntarily turned over the crack cocaine he had remaining on his person. Laboratory analysis later determined that the combined weight of the crack cocaine retrieved from Defendant's person and the floor of the hallway totaled 9.3 grams.

ANALYSIS

This case asks us to decide whether the affidavit presented to Special Judge McColpin set forth sufficient particularized facts for the judge to find a substantial basis for probable cause to issue the search warrant, and if not, whether Detective Lomenick acted in good faith reliance on the warrant in executing the search. We answer both questions in the negative.

A. Sufficiency of the Affidavit

In reviewing a state magistrate's determination of probable cause in issuing a search warrant, this Court must determine whether, under a totality of the circumstances, "the magistrate had a substantial basis for concluding that 'a search would uncover evidence of wrongdoing.' " United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). This court pays " 'great deference' " to a magistrate's findings, which " 'should not be set aside unless arbitrarily exercised.' " United States v. Leake, 998 F.2d 1359, 1363 (6th Cir.1993) (quoting United States v. Pelham, 801 F.2d 875, 877 (6th Cir.1986)) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Yet, "the magistrate [must] perform his 'neutral and detached' function and not serve merely as a rubber stamp for police." ...