U.S. v. Gladney

• Decision Date: 06 April 1995
• Docket Number: 94-2891,Nos. 94-2890,s. 94-2890
• Citation: 48 F.3d 309
• Parties: UNITED STATES of America, Appellee, v. Toney Anthony GLADNEY, Appellant. UNITED STATES of America, Appellee, v. Chester Earl SMITH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 309

48 F.3d 309

UNITED STATES of America, Appellee, v. Toney Anthony GLADNEY, Appellant.

UNITED STATES of America, Appellee, v. Chester Earl SMITH, Appellant.

Nos. 94-2890, 94-2891.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1994.

Decided Feb. 21, 1995.

Rehearing Denied April 6, 1995.

Robert Richman, Minneapolis, MN, argued, for appellant Gladney.

Corey J. Ayling, Minneapolis, MN, argued for appellant Smith.

Jeffrey S. Paulsen, Minneapolis, MN, argued for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FAGG, Circuit Judge, and WILSON, ¹ District Judge.

WILSON, District Judge.

On May 9, 1994, Toney Anthony Gladney entered a conditional plea of guilty to possession of 917 grams of cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1); Mr. Gladney expressly reserved his right to appeal the denial of his motion to suppress evidence. Chester Earl Smith made a similar conditional plea of guilty to a charge of maintaining a stash house for storing and distributing controlled substances in violation of 21 U.S.C. 856(a)(2). Gladney appeals the District Court's ² 60-month sentence, and Smith appeals his 15-month sentence. For the reasons discussed below, we affirm.

BACKGROUND

On January 24, 1994, Officer Darcy Klund of the Minneapolis Police Department received information from an informant that (s)he had been inside an apartment at 2121 Minnehaha Avenue South, # 1001 that day and had observed a large quantity of cocaine. The informant had been supplying reliable information to Mr. Klund for two years. Klund received the information from the informant by telephone and immediately relayed it to another officer, David Hayhoe, as the conversation was proceeding. Officer Hayhoe typed the warrant affidavit as Klund was speaking. The relevant parts of Officer Hayhoe's supporting affidavit stated the following:

Officers of the Minneapolis Narcotics Unit are currently conducting an investigation involving two black male parties by the names of Reginald Montgomery and Eric Hewitt, who are trafficking large amounts of cocaine in the City of Minneapolis. On 1-10-94, officers, including your affiant, conducted a search warrant at 790 Blair Avenue, St. Paul, in which approximately $25,000 ... and drug notes were seized. The above two parties were arrested and subsequently released. On the person of [Reginald] Montgomery at the time of arrest was found a phone number, 341-2936, which Montgomery stated was the phone number of his Uncle Boo. Within the past 72 hours, your affiant received information from a Confidential Reliable Informant (CRI) that a large quantity of suspected cocaine is being stored at the residence of Uncle Boo, whose real name is Chester Montgomery. The CRI states that Montgomery's phone number is 341-2936. The CRI states that Montgomery lives on 2121 Minnehaha Avenue South, Apt. 1001 ... Your affiant did an administrative subpoena on the above listed phone number which lists to Chester Smith, 2121 Minnehaha Avenue South, # 1001 ...

The affidavit also stated that the informant had previously provided reliable information to the Minneapolis Narcotics Division, "including your affiant," and this information had led to seizures of large amounts of crack and cocaine, currency and property.

A state court judge approved the warrant based upon the information in the warrant affidavit. The police immediately executed the warrant. The officers found roughly 917 grams of cocaine and drug paraphernalia in the apartment. Defendants Gladney and Smith were in the apartment during the search and were arrested. Mr. Gladney also had in his possession telephone numbers and notes relating to Montgomery and Hewitt. Defendants moved to suppress the evidence obtained as a result of the warrant. The motion to suppress was based upon the arguments that, first, the warrant on its face was not sufficient to establish probable cause, and second, that the warrant affidavit was tainted by intentional or reckless misrepresentations and omissions of facts critical to the probable cause determination. Magistrate Judge J. Earl Cudd ruled that the affidavit was not supported by probable cause, but found that the officers had relied in good faith on a facially valid search warrant, citing their knowledge that the informant had actually seen the drugs in the apartment and had provided information leading to arrests and convictions in the past. Upon de novo review of the Magistrate Judge's report and recommendation, Senior District Judge Robert Renner ruled that the search warrant affidavit did establish probable cause. Judge Renner also concluded that the affidavit's incorrect implication that Reginald Montgomery was arrested at 790 Blair, rather than in a vehicle several hours later (as in fact he was), did not undermine the existence of probable cause. Since he held that the affidavit did establish probable cause, Judge Renner did not reach the question of whether the officers relied in good faith upon a facially valid warrant. For the reasons discussed below, we affirm Judge Renner's ruling.

PROBABLE CAUSE FOR THE SEARCH WARRANT

Affidavits for search warrants are reviewed using the "totality of circumstances" analysis. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The task of the issuing magistrate is to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... concluding that probable cause existed." Id. When the magistrate relied solely on the affidavit presented to him, "only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause." United States v. Leichtling, 684 F.2d 553, 555 (8th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983). Affidavits must be read in "a common-sense and realistic fashion," United States v. Cadwell, 864 F.2d 71, 74 (8th Cir.1988), citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). "Deference is accorded an issuing magistrate's probable cause determination ..." United States v. Brown, 584 F.2d 252, 256 (8th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979). Probable cause exists when "there are sufficient facts to justify the belief by a prudent person that contraband or evidence of a crime will be found in the place to be searched." United States v. Bieri, 21 F.3d 811, 815 (8th Cir.1994). A district court's denial of a motion to suppress must be affirmed unless it is "unsupported by substantial evidence, based on an erroneous interpretation of the law, or, based on the entire record, it is clear that a mistake was made." Id. at 814.

In this case, the government acknowledged that the search warrant affidavit should have been more carefully drafted. However, this Court finds that Judge Renner was correct in ruling that the affidavit established probable cause. The District Court emphasized the statements in the affidavit relating to the execution of the search warrant at 790 Blair Avenue and to the administrative subpoena Mr. Hayhoe obtained for the telephone number belonging to "Uncle Boo." When Reginald Montgomery was arrested on January 10, 1994, he had on his person a telephone number, 341-2936; the subpoena revealed that the telephone number belonged to "Uncle Boo," who is Chester Smith, then of 2121 Minnehaha, # 1001. The affidavit stated that the confidential informant (CI) had indicated to the police that a large quantity of cocaine could be found in "Uncle Boo's" apartment, which was identified in the affidavit as 2121 Minnehaha, # 1001. Judge Renner also cited the affidavit's description of the proven record of the informant, who had "provided information to the Minneapolis Narcotics Division before ... and [the information] resulted in the seizures of large amounts of controlled substances, money and other property."

Appellants challenge the informant's reliability and the basis of the informant's knowledge. Reading the affidavit in its entirety, it clearly contained both statements from the informant and other information (noted above) providing a substantial basis for finding a "fair probability" that contraband or evidence of illegal activity could be found at the residence stated in the search warrant. When an informant's information is at least partly corroborated, as it was in the instant case, "attacks upon credibility and reliability are not crucial to the finding of probable cause." United States v. Humphreys, 982 F.2d 254, 259 (8th Cir.1992). In any event, the affidavit also set forth the informant's proven reliability as established by the past seizures of large amounts of controlled substances based upon the CI's information. This Court finds no error in the District Court's determination that probable cause existed.

ISSUES OF OMISSIONS AND MISREPRESENTATIONS

Appellants contend that even if this Court concludes that the warrant affidavit was facially sufficient, it is nonetheless subject to a challenge that it included deliberate or reckless misrepresentations in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In order to prevail on a challenge to a warrant affidavit under Franks, a defendant must show:

1) that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit, and 2) that the affidavit's remaining content is insufficient to establish probable cause. The same analysis applies to omissions of fact. The defendant must show: 1) that facts were omitted with the...