U.S. v. Johnson, 95-3067

• Decision Date: 18 April 1996
• Docket Number: No. 95-3067,95-3067
• Citation: 78 F.3d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Dean JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1258

78 F.3d 1258

UNITED STATES of America, Plaintiff-Appellee, v. Jack Dean JOHNSON, Defendant-Appellant.

No. 95-3067.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1996.

Decided March 1, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied April 18, 1996. ^*

Appeal from the United States District Court for the Southern District of Iowa, Ronald Longstaff, Judge.

James Whalen, Asst. Federal Public Defender, Des Moines, Iowa, argued, for appellant.

Mary Clare Luxa, Asst. U.S. Attorney, Des Moines, Iowa, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, ^** Senior District Judge.

JOHN B. JONES, Senior District Judge.

Jack Dean Johnson entered a conditional plea of guilty to a charge of manufacturing marijuana, and has been sentenced thereon. He sought to suppress evidence seized in the search of his residence pursuant to a search warrant by alleging that his Fourth Amendment rights were violated by the search. He appeals the district court ¹ ruling that the evidence should not be suppressed. We affirm.

I.

On February 14, 1994 Detective Konopa of the Ames Police Department received an anonymous phone call. The call came in at approximately 12:40 pm. The caller was a male who stated that approximately twenty minutes earlier he had observed a tall, skinny white male deliver three-and-a-half pounds of marijuana to the Jack Johnson residence. The caller stated the marijuana was in a paper bag wrapped in three one-pound bundles and one half-pound bundle. The caller stated that after the delivery was made, Johnson and the deliverer went out to the garage of Johnson's home. The caller also stated that Johnson lived with his wife Vicki in a house across from the DOT (Iowa Department of Transportation). When Detective Konopa questioned the caller about the source of his knowledge, the caller replied he had been inside Johnson's house and had seen the marijuana. The caller went on further, stating that Johnson left some of the marijuana in the refrigerator, and possibly some in a filing cabinet. The caller also relayed unrelated information concerning a stolen jeep.

After the call was completed, Detective Konopa verified Johnson's address with the city utility files. Detective Konopa also discovered that Johnson had been arrested in 1988 for marijuana possession. Detective Konopa then relayed this information to Ames Detective James Robinson. Detective Robinson also verified that the address given by the caller was Johnson's with the city utility office. Detective Robinson also verified that Johnson's wife name was Vicki. Detective Robinson directed an officer to drive by the Johnson house to verify it was across the street from the DOT and had a garage attached to it.

Detective Robinson shared the information with an Assistant County Attorney who advised him to prepare an application for a search warrant. Detective Robinson presented Judge Steven Van Marel an affidavit for a search warrant of Johnson's address. The affidavit detailed the conversation with the anonymous caller and the steps taken to corroborate the caller's information plus Johnson's criminal history. Judge Van Marel issued a search warrant and it was executed that afternoon. The search of Johnson's home resulted in the discovery of plastic bags of marijuana in Johnson's refrigerator and his file cabinet and also uncovered 373 marijuana plants and growing equipment.

On May 3, 1994 the defendant filed a motion to suppress the evidence obtained from the search of his residence pursuant to the warrant. The district court held an evidentiary hearing and entered an order denying the motion on June 1, 1994. The district court ruled that probable cause did not exist to issue the warrant, but determined the evidence was admissible because the searching officers had a good faith belief in the warrant's validity. Johnson entered a conditional plea of guilty on June 6, 1994 reserving the right to appeal the suppression issue.

Johnson was sentenced to 120 months in prison. Johnson then brought this appeal.

II.

In reviewing the decision of the district court to deny a motion to suppress evidence, this court will not reverse unless the decision is clearly erroneous. "The decision will be affirmed unless the decision of the district court (1) is unsupported by substantial evidence, (2) is based on an erroneous interpretation of applicable law or, (3) in light of the entire record, the court is left with a firm and definite conviction that a mistake has been made." United States v. Gibson, 928 F.2d 250, 253 (8th Cir.1991) (citing United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987)).

Counsel for the United States conceded at oral argument that probable cause was insufficient for a search warrant to issue. We agree with the district court's conclusion that probable cause was insufficient.

III.

The Fourth Amendment to the United States Constitution does not expressly preclude the use of evidence obtained in its violation. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1984). The Court in Leon created the good-faith exception to the exclusionary rule. Id. at 922, 104 S.Ct. at 3420. The purpose of the exclusionary rule is to deter police misconduct. United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir.1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 997, 112 L.Ed.2d 1081 (1991). The exclusionary rule is generally not served by the suppression of evidence seized in a search conducted on a facially valid search warrant. Id. The Leon good faith exception provides four situations in which an officer's reliance on a warrant would be unreasonable: (1) the officer included information in an affidavit that he "knew was false or would have known was false except for his reckless disregard of the truth"; (2) where the judge abandons his role and fails to act in a neutral and detached manner; (3) where the affidavit is so lacking in probable cause that it is objectively unreasonable for the officer to rely on it; or (4) the warrant is so facially deficient that the officer cannot reasonably presume the warrant to be valid. 468 U.S. at 923, 104 S.Ct. at 3420-21. Johnson contends that the first three situations are applicable in this case.

Johnson first asserts that the affidavit included false information for two reasons, first, that the police fabricated the existence of the anonymous tip that led to the search, and secondly the statement that the informant had not given false information in the past created a false impression.

There are no logs or other documentary evidence to prove the existence of the phone call from the anonymous informant. The question of whether the phone call existed is clearly a question of fact. Detective Konopa testified at the suppression hearing that he received the phone call. Detective Konopa testified that the telephone lines connected to the detective division do not automatically record calls. Detective Konopa stated he inadvertently disconnected the caller and took the second call in his office. Detective Konopa was unsure if the caller would call back after being disconnected and did not take the time to set up a tape recorder. Detective Konopa also pointed out that his department does not require the taping of anonymous phone calls. The anonymous caller provided reasonably detailed information. To rebut this information and in support of his claim that the police received no such phone call, Johnson offered the testimony of Carol Scott at the supplemental suppression hearing. Scott is an acquaintance of Johnson's, who claimed to be at his residence from noon until around 1:00 pm on the day the police executed the search warrant. Scott testified that Johnson and his wife, Vicki, were the only two present at the house when she arrived and no one else came to the house during the time she was there. The district court judge was present to listen to the testimony and evaluate the credibility of both Detective Konopa and Carol Scott. The district court's finding that an anonymous phone call was made to the police department is not "clearly erroneous." See, Prince v. Sargent, 960 F.2d 720, 720 (8th Cir.1992).

The affidavit for search warrant had a printed form attached, Attachment B. This form had a section relating to whether the informant was anonymous or confidential, and a section with four printed reasons why the informant is reliable. The officer checked two reasons why the anonymous caller was reliable: "C. Information he has supplied has been corroborated by law enforcement personnel." and "D. He has not given false information in the past."

Judge Van Marel wrote on the search warrant affidavit, "Court finds informant's information to be reliable in that he has given specific information concerning the delivery, packaging and storage of the marijuana. His information has been corroborated by law enforcement. Court knows of no reason for informant to lie."

The police officers had corroborated the information concerning Johnson before seeking the warrant from Judge Van Marel. The issue then becomes whether the officer's included information in the affidavit that they "knew was false or would have known was false except for his reckless disregard of the truth" when they checked the line stating that the informant had not given false information in the past.

In determining whether statements were made with a "reckless disregard for the truth", we have applied the standard used in First Amendment cases. United States v. Clapp, 46 F.3d 795, 801 (8th Cir.1995). That standard being, "whether the affiant 'in fact entertained serious doubts as to the truth of the affidavits or had obvious reasons to doubt the accuracy of the information contained therein.' " Id. (citing United States v. Dorfman, 542 F.Supp. 345, 369 (N.D.Ill.1982)).

In United States v. Wellman, 33 F.3d 944, 946 (8th Cir.1994), cert. denied, ---...