U.S. v. Martin

• Decision Date: 24 November 1987
• Docket Number: No. 86-5490,86-5490
• Citation: 833 F.2d 752
• Parties: UNITED STATES of America, Appellant, v. Terry Jon MARTIN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 752

833 F.2d 752

UNITED STATES of America, Appellant, v. Terry Jon MARTIN, Appellee.

No. 86-5490.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 2, 1987.

Decided Nov. 24, 1987.

Jon M. Hopeman, Asst. U.S. Atty., Minneapolis, Minn., for appellant.

Craig Cascarano, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

The United States appeals from an order of the district court ¹ suppressing firearms seized during a search of an automobile owned by Terry Jon Martin in this case involving unlawful possession of firearms. 18 U.S.C. Sec. 1202(a) Appendix (1982 and Supp.1985). For the reasons stated below we reverse.

I. BACKGROUND

On February 24, 1986, Martin was indicted in federal court on a firearms possession charge. The primary evidence against Martin consists of firearms seized from Martin's 1979 Mercury automobile pursuant to a state search warrant. The warrant was one of five issued in culmination of a state undercover investigation involving stolen furs. A brief summary of that investigation follows.

On October 6, 1985, fifty-two fur coats were stolen from Cedric's Clothing Store in Edina, Minnesota. On January 3, 1986, Hennepin County Sheriff's Detective Walter Powers, acting undercover as a businessman, met with Norman Mastrian in a Minneapolis parking lot to discuss purchasing several of the coats. On January 6, Powers made his first purchase at 4832 28th Avenue South in Minneapolis. Earlier that day surveillance officers observed Mastrian and Martin leaving Mastrian's residence at 1615 Northeast Third Street in Minneapolis and driving to the 28th Avenue address. Martin was observed removing a large tan duffel bag from the trunk of his Mercury, bringing it into the building, and returning it to the car a few minutes later.

Powers purchased a second fur coat from Mastrian on January 30, 1986 at 719 Marshall Street Northeast in Minneapolis. Powers observed Mastrian unloading several coats from a large tan duffel bag and after buying one of the coats Powers helped reload the remainder back into the duffel bag. None of the coats retained their original price tags or labels--generic tags were substituted to make identification difficult.

On February 15, 1986, Powers and Mastrian again met and agreed to trade fur coats for cocaine. Powers met with Mastrian and Martin on February 18 to consummate the deal and arrested both of them. Later that day Martin's automobile was searched and two firearms were found. The automobile was located at Mastrian's residence, while the arrests occurred in the nearby town of Golden Valley, Minnesota.

After the arrests, Detective Powers submitted to a state court judge an affidavit in support of five separate search warrants. The items sought from Martin's automobile were "[p]rice tags, handwritten notes and lists pertaining to the stolen coats, minute fur residue from the coats, identifying labels including Cedric's of Edina, [and] items to show constructive possession of the above property."

Powers' affidavit is two-and-one-half typed pages long. The references to Martin are as follows:

1) Martin was seen loading a tan duffel bag into his car on January 6, 1986, at Mastrian's residence;

2) Powers saw the same bag on January 30 while purchasing a coat at 719 Marshall Street Northeast;

3) Martin was seen on numerous occasions coming from and going to the Marshall Street address.

4) While telephoning Mastrian at the number he had provided, Powers spoke with a man who identified himself as Terry.

The state court judge issued the warrants and firearms were found in the trunk of Martin's car. At his trial on federal firearms charges Martin moved to have the guns suppressed on the grounds that the affidavit did not set forth probable cause to believe that the car contained contraband.

A magistrate ² recommended that the guns be suppressed and upon objection by the United States, the district court issued an order suppressing the firearms based on the magistrate's report and recommendation. On November 26, 1986, the district court issued an order staying trial to permit the United States to bring this interlocutory appeal.

II. DISCUSSION

On appeal the United States argues first, that the district court erred in holding that Powers' affidavit is insufficient, and second, that assuming the affidavit is insufficient, the good faith exception to the exclusionary rule should apply and make suppression unnecessary.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the two-pronged test for determining whether there exists probable cause. The Court stated that the role of the issuing magistrate is to determine whether given all the circumstances set forth in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332. The task of the reviewing court, in this case the district court, simply is to "ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The district court's determination that the Powers' affidavit is insufficient will not be overturned by this court unless it is clearly erroneous. United States v. Henry, 763 F.2d 329, 331 (8th Cir.1985).

In the present case Powers' affidavit was marginal in directly connecting Martin with any criminal enterprise. The United States argues, however, that from the information about Martin contained in the affidavit we may infer that Mastrian and Martin were in the business of selling stolen fur coats and that they frequently moved them by car from one location to another. We also may infer that Martin's car was used on many occasions between January 6 and February 18, 1986, and that tags, labels, and minute bits of fur would still be in the trunk on February 18, despite the time lag from January 6 to the 18th of February.

The district court held that Powers' affidavit may support an educated guess, but not probable cause. Although we believe that the sighting of a tan duffel bag at the Marshall Street address on January 30, 1986, may establish a fair probability that the duffel bag contained stolen furs on January 6, we can not say with assurance that the decision of the district court is clearly erroneous. Consequently, the portion of the district court's order declaring the warrant invalid is affirmed. However, any violations of Fourth Amendment requirements in either the affidavit or the magistrate's issuance of the warrant were neither deliberate, predicated on false statements, nor such as to constitute official misconduct.

The United States next argues that assuming the affidavit is insufficient, the warrant was executed in good faith, and consequently, the firearms need not be suppressed. The district court disagreed, holding that the affidavit was so lacking in facts necessary to establish probable cause that a reasonably well trained police officer would have known that the warrant was invalid.

The good faith exception to the exclusionary rule was announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon the Court recognized that in certain instances the purpose of the exclusionary rule--deterring police misconduct--will not be served by suppressing illegally seized evidence. When a police officer acts in an objectively reasonable manner in reliance on a subsequently invalidated search warrant, there is no rational reason for suppressing the fruits of the search. However, under certain limited circumstances suppression remains the appropriate remedy. For example, if the magistrate who issued the warrant "wholly abandoned his judicial role," then an officer's reliance on the warrant would be unreasonable. Id. at 923, 104 S.Ct. at 3421. Likewise, if the issuing magistrate was misled by the affiant, then suppression is appropriate. Id. Further, if the warrant is facially deficient--i.e., it fails to state with particularity the place to be searched or the thing to be seized--then it can not reasonably be relied upon. Id. The final situation in which suppression is appropriate is at issue in this case because Martin argues that Powers' affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)). We disagree.

Powers' affidavit is not clearly insufficient. It details an undercover investigation lasting over six weeks during which Martin was seen on several occasions driving his Mercury automobile. It states that undercover police officers observed Martin placing a tan duffel bag into the trunk of the Mercury just before Powers purchased a stolen coat from Mastrian. Approximately three weeks later the same tan duffel bag was seen during a second buy at the Marshall Street address. Whether these facts establish probable cause to believe that price tags, labels, bits of fur, etc., would be found in Martin's car is a close question.

Although a police officer may not rely entirely on the magistrate's finding of probable cause, Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986), in cases where, as here, the courts can not agree on whether the affidavit is sufficient, it would be unfair to characterize the conduct of the executing officers as bad faith, particularly where there has been no material false statements or misrepresentations in the affidavit and where the officer is acting in good faith. Although we may not look to facts outside of the affidavit to determine probable cause, ...