U.S. v. Craig

• Decision Date: 13 December 1988
• Docket Number: No. 88-4246,88-4246
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bruce L. CRAIG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 818

861 F.2d 818

UNITED STATES of America, Plaintiff-Appellant, v. Bruce L. CRAIG, Defendant-Appellee.

No. 88-4246.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1988.

John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, U.S. Atty., Shreveport, La., for plaintiff-appellant.

Thomas C. Damico, Ossie Brown, Baton Rouge, La., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before POLITZ, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Bruce L. Craig ("Craig") was indicted on 21 counts of unlawfully dispensing controlled dangerous substances in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Prior to trial, the district court granted Craig's motion to suppress evidence seized pursuant to state and federal search warrants on the ground that the two warrants were not supported by probable cause. 674 F.Supp. 561. On the government's motion for reconsideration, the court also ruled that the evidence was not admissible under the exclusionary rule's good-faith exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Because we find that the affidavit underlying the warrants was sufficient to support a good-faith belief that the warrants were valid, we reverse the district court's order suppressing the evidence seized pursuant to the two warrants.

I.

On October 9, 1986, Phillip Wagner ("Wagner"), an officer with the Louisiana State Police Criminal Investigation Bureau, executed an affidavit alleging a pattern of continuing criminal conduct on the part of Craig involving the illegal dispensation of controlled dangerous substances. ¹ Based upon the affidavit, a state district judge issued on the same day a warrant to search Craig's home for such substances.

The search of the defendant's home took place later that same day and resulted in the seizure of controlled dangerous substances. A federal search warrant to search Craig's office was issued shortly thereafter, and upon execution, officers seized an unknown quantity of patient records. In large part, the affidavit underlying the federal search warrant was based upon evidence seized pursuant to the state search warrant.

Craig was federally indicted on February 18, 1987, for twenty-one counts of unlawfully dispensing controlled dangerous substances in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Craig moved to suppress the evidence seized pursuant to the state and federal search warrants, alleging (1) that the Wagner affidavit supporting the state search warrant did not establish probable cause and (2) that the evidence seized pursuant to the federal search warrant was the fruit of the illegal state search.

The district court granted Craig's motion, ruling that the facts alleged in the affidavit were stale and did not establish probable cause at the time the warrant was issued. The government moved for reconsideration, arguing that the evidence was admissible under the exclusionary rule's good-faith exception established in United States v. Leon. The court denied the motion, concluding that the affidavit was so deficient that it was impossible for Wagner to have had an objectively reasonable good-faith belief in the validity of the warrant.

II.

Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter. See United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986); United States v. Gant, 759 F.2d 484, 486 (5th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985). The only instances in which this maxim should not be followed are those in which the resolution of a "novel question of law ... is necessary to guide future action by law enforcement officers and magistrates." Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 2346, 76 L.Ed.2d 527 (1983) (White, J., concurring in the judgment). See also Maggitt, 778 F.2d at 1033. This is simply another application of the sound judicial practice of refusing to decide or address issues whose resolution is not necessary to dispose of a case, unless there are compelling reasons to do otherwise.

This case does not raise any "novel question[s] of law," the fourth amendment issue being merely whether the facts alleged in the affidavit were so dated that they failed to establish probable cause at the time the warrant was issued. Because the issue is primarily factual in nature, its resolution will not give substantial guidance to lower courts and law enforcement officials. We therefore turn to the Leon issue first; and since we decide that the evidence is admissible under Leon, we do not reach, and express no view upon, the issue of whether the warrant was supported by probable cause.

III.

In Leon, the Court held that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution's case-in-chief, even though the affidavit on which the warrant was based was insufficient to establish probable cause. See 468 U.S. at 922-23, 104 S.Ct. at 3420-21. Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant. Id. at 922, 104 S.Ct. at 3420. Although the Court set forth four exceptions to this rule, only one--the so-called "bare bones" affidavit exception--is at issue in this case: An officer will not be able to claim objective good faith when the warrant is "based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " Id. at 923, 104 S.Ct. at 3421 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)).

Like the determination of probable cause, "the determination of good faith will ordinarily depend on an examination of the affidavit by the reviewing court." Gant, 759 F.2d at 487-88. Our first, step, therefore, is to examine the affidavit, looking to see what it did, and did not, establish regarding Craig's activities. Only then can we decide whether the affidavit was so deficient that no reasonable officer could have believed that it established probable cause.

Two principles should guide us in assessing whether the Wagner affidavit bore indicia of probable cause. First, "it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932). See also United States v. Minis, 666 F.2d 134, 140 (5th Cir.), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). Second, the affidavit should be construed "in a common sense and realistic manner," United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977), with conclusions based upon the " 'laminated total' " of available facts. United States v. Fooladi, 703 F.2d 180, 184 (5th Cir.1983) (quoting Smith v. United States, 358 F.2d 833, 837 (D.C.Cir.1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967)). ²

Before arriving at any conclusions based upon the "laminated total" of the facts averred in the affidavit, we initially consider each individual averment, because it is at first glance somewhat unclear what they do and do not establish. In order of chronology, they are:

A. Allegations of Georgia West (p 3)--(1) that at unspecified times during their ten-year marriage (extending through at least February 1983, at which time West indicates they were separated), she observed Craig "take drugs from patients and bring them home," and (2) that in February 1983 Craig delivered to her residence morphine obtained from an unknown location.

B. Allegations of Terri Craig (p 1)--(1) that "on a regular basis" during "the past three years," ³ Craig dispensed morphine and demerol to many different people who would come to "their home," citing one specific example occurring at an unspecified time, and (2) that she observed, again at unspecified times, Craig take drugs from patients and bring them home.

C. Allegations of Charles Mask (p 2)--that on October 1, 1986, eight days before the swearing of the affidavit and the issuance of the warrant, he observed "a large quantity of drugs in pill bottles bearing different names" in Craig's bathroom.

In sum, it appears from the affidavit that Craig, for a period of approximately thirteen years ending February 1986, was in the habit of storing unidentified drugs in his home, and during approximately the last three years of that period regularly dispensed controlled dangerous substances from his home. ⁴ Eight months later, and one week before the affidavit was issued, there is evidence that he continued to store unidentified drugs at his home. ⁵

Craig's argument is simply this: The facts alleged in the affidavit were so dated that no reasonable officer could have believed that the affidavit established probable cause to search his home. We disagree.

Two considerations have consistently appeared in this court's opinions on the issue of staleness. First, if "the information of the affidavit clearly shows a long-standing, ongoing pattern of criminal activity, even if fairly long periods of time have lapsed between the information and the issuance of the warrant, the information need not be regarded as stale." United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). See also United States v. Freeman, 685 F.2d 942, 951 (5th Cir.1982). Second, the nature of the evidence sought is also relevant. Courts are more...