U.S. v. Johnson
| Decision Date | 27 August 2007 |
| Docket Number | No. 4:07-cr-00043.,4:07-cr-00043. |
| Citation | 504 F.Supp.2d 554 |
| Parties | UNITED STATES of America, Plaintiff, v. Shawn Demar JOHNSON, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Nicholas Todd Drees, Federal Public Defenders Office, Des Moines, IA, for Defendant.
John S. Courter, United States Attorney, Des Moines, IA, for Plaintiff.
Before the Court is a Motion to Suppress Evidence filed by the Defendant, Shawn Demar Johnson, on June 28, 2007.1 Clerk's No. 31. The Government filed a response in opposition to the motion on July 11, 2007. Clerk's No. 35. A hearing on the motion was held on July 24, 2007,2 at which the Court received the testimony of Officer James Allen Robinson.3 Clerk's No. 39. The matter is fully submitted.
Officer Robinson of the Knoxville Police Department and the Mid-Iowa Narcotics Enforcement task force works undercover on narcotics cases, primarily conducting undercover drug buys. After utilizing a confidential informant ("CI") to make three controlled drug buys from the Defendant, Shawn Demar Johnson, between August 24 and September 7, 2006, Officer Robinson applied for, and obtained, a search warrant for the Defendant's residence.4 See Gov't Ex 1.
When applying for the search warrant, Officer Robinson typed out an affidavit asserting grounds for finding probable cause to issue the warrant. See id. He testified at the hearing on this matter that, after speaking with an Assistant Polk County Attorney about the case and information he had provided in the typed statement, he added some hand-written additions to the typed statement that the Assistant Polk County Attorney thought were pertinent to the warrant application before submitting the application to a Judge. See Hr'g Tr. at 3-4. The Polk County District Court considered the search warrant application, and signed off on the issuance of the search warrant. See Gov't Ex. 1.
Officer Robinson's affidavit accompanying the search warrant application described three controlled drug buys from the Defendant. The first involved a buy at a predetermined location where the CI and her vehicle were first searched for contraband, and then given money to make the purchase from the Defendant. Officer Robinson followed and observed as the CI met with the Defendant at a McDonald's parking lot. The Defendant's vehicle type and license plate were noted. After the buy, Officer Robinson met with the CI and she turned over illegal narcotics she had purchased from the Defendant. Officer Robinson testified that this controlled buy took place on August 24, 2006, although the warrant affidavit erroneously refers to it occurring "[b]etween September 4th and September 9th" of 2006. See Hr'g Tr. at 10.
The second controlled buy described in the affidavit provided by Officer Robinson occurred "[b]etween August 24th and September 1st," and took place in a similar manner. Officer Robinson met with the CI it a predetermined location, searched her and her vehicle for the presence of illegal contraband, provided her with a predetermined amount of money for the buy, and followed the CI to the buy location. The affidavit indicates that the buy occurred at "605 Forest Ave. # 202." The CI was observed entering and exiting the apartment building by Officer Robinson, and she again turned over illegal narcotics she purchased from the Defendant to investigators at a predetermined location after the buy.5 The affidavit further indicates that the CI told Officer Robinson that the Defendant had vehicles with Minnesota license plates. Officer Robinson testified that this buy took place on August 31, 2006. See id. at 11.
The third controlled drug buy referenced in the warrant affidavit refers to a transaction that occurred "[b]etween September 4th and September 9th." Officer Robinson again met with the CI at a predetermined location, searched her and her vehicle, gave her a predetermined amount of money, and followed her to the Defendant's apartment building. The CI was observed entering and exiting the apartment building by Officer Robinson and other investigators,6 and she again turned over narcotics she had purchased from the Defendant to the investigators at a predetermined location after the buy. Officer Robinson testified that this third controlled buy took place on September 7, 2006. See id. at 12. On that same day, the search warrant was applied for by Officer Robinson, issued by the Polk County District Court, and executed by law enforcement officers.7 See Gov't Ex. 1.
Attachment B to the Search Warrant Application was also filled out by Officer Robinson. Attachment B indicated the law enforcement officers' basis for using the CI and the reasons why the officers believed the CI should be deemed reliable by the Polk County District Court Judge examining the search warrant application. Officer Robinson checked the boxes on the form indicating that disclosure of the CI's identity would endanger her safety and that disclosure would impair her future usefulness to law enforcement officers. Officer Robinson also indicated on the form that the CI had provided reliable information in the past on four occasions, and that the past information helped supply the basis for one search warrant. See id., Attach. B. He also indicated that the informant had not given false information in the past, and that the information supplied by the informant in the investigation had been corroborated by law enforcement personnel. See id.
Officer Robinson, however, misunderstood this section of the form. He testified that no search warrant had actually been issued based on information provided by the CI because this was the first warrant application based on information she provided. See Hr'g Tr. at 21-22. He also testified that the four occasions in the past where the CI provided reliable information was in reference to the three successful, and the one unsuccessful, controlled drug buys in this case. See id. at 22. He further related that the statement that the informant has not given false information in the past did not refer to any event prior to the attempted controlled buy on August 3, 2006. See id.
Officer Robinson originally met the CI when he accompanied the Department of Human Services during a visit to the CI's residence in response to a complaint about drug use. During this visit, Officer Robinson located a "crack" cocaine pipe in the residence. He testified that he then recruited the CI to assist in some investigations by participating in controlled drug buys in exchange for not being charged with a simple misdemeanor for possession of drug paraphernalia. See id. at 19. Officer Robinson conducted a criminal history check on the CI and checked her Department of Transportation file, as is required before she could be used as an informant. He testified that the CI was not legally permitted to drive at the time, but that he had her drive to the controlled buys under his direction and supervision.8 See id. at 19-20.
Officer Robinson testified that, besides the money provided to purchase the drugs, he gave the CI gas money after each of the controlled buys.9 See id. at 14. He also stated that, although the CI was wired for sound during each of the buys, the audio was not recorded. See id. at 13-14, 16. He further testified that investigators were only able to watch the CI be buzzed into and enter the Defendant's apartment building, and could not see her enter a specific apartment in the building, but that he could hear her through the audio setup. See id. at 15.
The Defendant argues that suppression of the evidence in this case is required based on three grounds. He argues that the warrant affidavit provided by Officer Robinson deliberately or recklessly omitted information material to the determination of probable cause, that the warrant was not issued by a magistrate acting in a neutral and detached manner, and that the good faith exception to the exclusionary rule does not apply. As the evidence seized and statements obtained would therefore be the products of an illegal search, the Defendant seeks their exclusion. The Government responds by asserting that the Defendant cannot show that Officer Robinson deliberately or recklessly omitted material information in his affidavit, that probable cause existed even if the information referred to by the Defendant was included in the warrant affidavit, by asserting that the issuing magistrate did act in a neutral and detached manner, and by arguing that, regardless, the good faith exception to the exclusionary rule applies in this case even if probable cause is lacking in the warrant affidavit. The Government concludes, therefore, that the evidence obtained by the law enforcement officers should be admitted.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to' be seized.
U.S. Const., amend. IV. Thus, in order for a warrant to be issued, a showing of probable cause must be made to the official tasked with deciding whether the warrant should issue. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The task of the issuing magistrate is simply 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.
Id.; accord United States v. Gabrio, 295 F.3d...
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