U.S. v. Finch

• Decision Date: 06 July 1993
• Docket Number: No. 92-5942,92-5942
• Citation: 998 F.2d 349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald FINCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 349

998 F.2d 349

UNITED STATES of America, Plaintiff-Appellee, v. Ronald FINCH, Defendant-Appellant.

No. 92-5942.

United States Court of Appeals, Sixth Circuit.

Argued March 2, 1993.

Decided July 6, 1993.

Daniel A. Clancy, U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty., Christopher E. Cotten, Asst. U.S. Atty. (argued and briefed), Memphis, TN, for plaintiff-appellee.

Gerald S. Green (briefed), Wayne Emmons (argued and briefed), Memphis, TN, for defendant-appellant.

Before: KEITH and BATCHELDER, Circuit Judges, and CHURCHILL, Senior District Judge. ^*

CHURCHILL, Senior District Judge.

On January 19, 1992, officers of the Memphis, Tennessee Police Department raided the residence of Ronald Finch under the authority of a search warrant to search for cocaine. The warrant was issued by a judge of the General Sessions Court. Finch, his mother and girlfriend were on the premises at the time of the entry. After entering the house but before searching it, they interrogated Finch. In response to the interrogation, Finch showed the police two locations on the premises where cocaine could be found. The cocaine was seized and Finch was arrested forthwith.

Memphis authorities sought a federal prosecution of Finch because federal sentences were potentially greater. A two-count indictment was returned in the Western District of Tennessee charging Finch with possession with intent to distribute 37 and 56 grams of cocaine, respectively. Following a testimonial hearing, Finch's motion to suppress the evidence seized during the raid was denied.

Finch entered a conditional plea of guilty to each count, reserving the right to appeal the denial of his motion to suppress pursuant to Rule 11(a)(2), Fed.R.Crim.P. On June 1, 1992, he was sentenced to a term of 63 months and this appeal ensued.

Finch's appeal raises the following issues:

(1) Whether the search warrant was invalid because it was issued by a General Sessions Court judge who was not a judge of a "court of record." This issue is raised for the first time on appeal.

(2) Whether the affidavit for the search warrant was insufficient to support a finding of probable cause.

(3) Whether the search warrant was invalid because of purposefully omitted facts which would have cast doubt on the existence of probable cause.

(4) Whether the evidence seized during the raid should be suppressed because the police did not announce their purpose when demanding entry.

(5) Whether statements and evidence must be suppressed because they were obtained from Finch by unlawful threats and intimidation.

The record on appeal also suggests that the police forced entry into a private residence without giving the occupants a reasonable opportunity to open the door.

I.

The search warrant was issued by William Hackett, Judge of Division 1, General Sessions, Shelby County, Tennessee. Rule 41(a) of the Tennessee Rules of Criminal Procedure provides that "magistrates" may issue search warrants. Section 40-5-102, Tennessee Code Annotated, provides that judges of the courts of general sessions are magistrates. Rule 41(a) of the Federal Rules of Criminal Procedure requires that search warrants issued upon the request of a federal law enforcement officer or an attorney for the government may be issued by state courts of record. The appellant asserts that Judge Hackett is not a judge of a court of record. He then argues that the Federal Rules of Criminal Procedure should be used to test the authority of Judge Hackett to issue the search warrant in this case because it was used in a federal prosecution. This issue was not raised in the trial court below.

We need not determine whether there was plain error because there was no error. The search was conducted by state police officers pursuant to a state search warrant. In order to have been validly issued it must pass constitutional muster. The constitutional test for issuance of a search warrant is that it be issued by a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). There is nothing in the record to suggest that Judge Hackett did not meet this standard. It is immaterial whether his division of the Court of General Sessions is a court of record. ¹

II.

The appellant contends that the search warrant affidavit was conclusory in nature and did not state probable cause for issuance of the warrant.

In the search warrant affidavit in this case, the affiant averred as follows:

[A]ffiant has talked with a reliable informant of Memphis, Shelby County, Tennessee who has given the affiant other information in the past which has been found to be true and correct, and which has resulted in several narcotic arrests and drug seizures. This reliable informant stated that within the past five (5) days of January 19, 1991, this reliable informant has been inside the above described residence and has seen the above described person storing and selling Cocaine inside this residence.

The appellant first argues that this affidavit failed to state probable cause to search in that there was nothing to indicate to the issuing judge that the substance the informant had seen in the defendant's residence was cocaine.

Probable cause for the issuance of a search warrant is defined in terms of whether the affidavit sets out facts and circumstances which indicate "a fair probability that evidence of a crime will be located on the premises of the proposed search." United States v. Bowling, 900 F.2d 926, 930 (6th Cir.), cert. denied, 498 U.S. 837, 111 S.Ct. 109, 112 L.Ed.2d 79 (1990), quoting, United States v. Algie, 721 F.2d 1039, 1041 (6th Cir.1983). In reviewing whether such a probability existed, courts should examine the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A magistrate's probable cause determination should be made in "realistic and commonsense fashion," and reviewed in the same manner. Algie, 721 F.2d at 1041. Moreover, any review of that determination should be undertaken using a "deferential standard." Bowling, supra, 900 F.2d at 930. It should be reversed only if the issuing magistrate's discretion was arbitrarily exercised. United States v. Swihart, 554 F.2d 264, 267-68 (6th Cir.1977).

Applying this standard to the affidavit in this case, the fair probability required to validate the warrant has been established. The affidavit states that the informant had given information resulting in drug arrests and seizures in the past. A magistrate examining this information in the required commonsense fashion could readily conclude that the informant was familiar with the appearance of controlled substances such as cocaine, and could identify them by observation.

The appellant nonetheless argues that the affidavit was conclusory in nature. However, this Court has defined a conclusory affidavit as one which states "only the affiant's belief that probable cause existed." United States v. Ciammitti, 720 F.2d 927, 932 (6th Cir.1983), cert. denied, 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984). The affidavit in this case provides a statement of the affiants' reasons for their belief as to the existence of probable cause.

Because the totality of the circumstances in this case would indicate to a neutral and detached magistrate that cocaine was being stored in the appellant's residence, the affidavit stated probable cause to search.

III.

The appellant testified that on January 18, 1991, the day before the search warrant was issued, he was searched by police who were looking for drugs. He testified that one of the officers involved in the search looked like Officer Ballard, who was one of the persons who signed the affidavit for a search warrant, and that the information concerning the fruitless search should have been disclosed to the magistrate. Officer Ballard testified that he was not a participant in a search of Finch on January 18 and had no knowledge that such a search occurred. The District Court found that Finch failed to prove that Officer Ballard had knowledge of the January 18 incident, if it occurred, and there was no basis for invalidating the warrant.

We find no error in this conclusion.

IV. Entry Under the Search Warrant

Most reported federal search warrant cases involve warrants issued by federal judicial officers. Frequently, the focus of these cases is on compliance with 18 U.S.C. § 3109 which reads as follows:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

Section 3109 has been described as a codification of the common law. See, e.g., Sabbath v. United States, 391 U.S. 585, 589, 591 n. 8, 88 S.Ct. 1755, 1757, 1759 n. 8, 20 L.Ed.2d 828 (1968) and Rodriguez v. Jones, 473 F.2d 599, 607 (5th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). Actually, it is more than a codification of the common law. If one reads into it certain developing exceptions, it is a definition of the manner of search of a private residence that is reasonable under the Fourth Amendment. United States v. Francis, 646 F.2d 251 (6th Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981). In Francis, we noted:

Although the Supreme Court has not addressed the issue many federal courts have, including this Circuit. In some cases the discussion is dictum. In others, the opinion relies on Justice Brennan's dissent in Ker, [Ker v. California, 374 U.S. 23[, 83 S.Ct. 1623, 10 L.Ed.2d 726] (1963) ] which the Supreme Court itself has never adopted. Though each case by itself is less than compelling, their conclusion has been unanimous: the fourth amendment forbids the unannounced, forcible entry of a dwelling in the absence of exigent circumstances.

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