U.S. v. Mendonsa

Citation989 F.2d 366
Decision Date30 March 1993
Docket NumberNo. 91-30413,91-30413
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kevin MENDONSA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark S. Werner, McNamer, Thompson, Werner & Stanley, Billings, MT, for defendant-appellant.

Diane G. Barz, Asst. U.S. Atty., Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Jack D. Shanstrom, District Judge, Presiding.

Before WRIGHT, HUG, and POOLE, Circuit Judges.

HUG, Circuit Judge:

This case involves a conditional plea of guilty to drug offenses and being a felon in possession of a firearm. Mendonsa contests the order denying suppression of evidence obtained from his residence in the execution of a search warrant. He asserts that there was not probable cause for the issuance of the warrant, that there was not good faith in executing it, and that the officers violated the "knock and announce" requirement of 18 U.S.C. § 3109 (1988).

The issues in this appeal are: (1) whether there was sufficient probable cause for the search warrant based on an anonymous informant's tip and certain confirming evidence; (2) if not, did the officers rely in good faith on the validity of the warrant when they initiated their search of Mendonsa's home; and (3) whether the officers violated 18 U.S.C. § 3109 when they forcibly entered Mendonsa's home.

FACTS

On February 26, 1991, the Billings, Montana police department received an anonymous tip through the local "Crime Stoppers" system. The tipster stated that sometime around the twelfth of February, 1991, he or she had been at a house, later determined to belong to the appellant Kevin Mendonsa, where the tipster witnessed various sales of marijuana. The anonymous tipster stated that he or she had witnessed the sales of a quarter-ounce, quarter-pound, and full pound of marijuana at a certain white house on February 12, 1991. The tipster described the house, its occupants, the participants in the sales, and the sales prices for the various quantities of marijuana being sold.

On March 7, 1991, Detective O'Connell, of the Billings, Montana police department, relying on a written summary of the anonymous call, filed an affidavit supporting a request for a search warrant of the house described in the anonymous tip. O'Connell provided corroborative information concerning some of the facts related by the tipster. O'Connell verified that the appellant, Kevin Mendonsa, lived in the house described in the tip and that he matched the description of the man referred to as "Kevin." O'Connell also verified that there were cars parked in front of the house that matched the tipster's descriptions. O'Connell also made a background inquiry into Mendonsa's criminal history, and found that he was on parole for a prior criminal conviction for armed robbery in the state of California. O'Connell also stated in his affidavit that he knew from experience that the prices quoted by the tipster regarding the sales of marijuana were accurate reflections of market prices.

O'Connell neglected to include other information in his affidavit. He did not mention that he had observed no unusual activity during a week-long period of surveillance, nor that Kevin Mendonsa's wife, Julie Mendonsa, also described in the tip, had no prior criminal history.

Based on the anonymous tip, and the corroborative evidence in the affidavit from Detective O'Connell, the magistrate issued the search warrant to O'Connell. O'Connell and several other agents arrived at Mendonsa's home at 10:00 a.m. on March 14th. The evidence in the record shows that the officers knocked loudly on the door and shouted "Police! Open up, we have a search warrant." The officers waited approximately three to five seconds, then, after hearing some noise inside, smashed in Mendonsa's front door.

The search incident to the forced entry produced some 35 pounds of marijuana, various smoking paraphernalia, a scale and a .22 caliber pistol. At trial, Mendonsa moved to suppress all evidence found in the search, contending that the search warrant was not supported by probable cause, and that the officers violated the "knock and announce" requirement of 18 U.S.C. § 3109.

The district court held a suppression hearing, and denied the motion in a written order. In a conditional plea, Mendonsa pled guilty to conspiracy to possess with intent to distribute and possession with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846 (1988), and felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (1988). Mendonsa was sentenced to 96 months of imprisonment and four years of supervised release.

I.

Mendonsa argues that evidence seized pursuant to the search of his home should be suppressed because the search warrant executed by the officers was not supported by probable cause. The district court found that probable cause existed.

We review a magistrate's "issuance of a search warrant for clear error and will uphold it so long as the [magistrate] had a 'substantial basis' for concluding probable cause existed based on the totality of the circumstances." United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991) (quoting United States v. Stanert, 762 F.2d 775, 779 (9th Cir.), amended on other grounds, 769 F.2d 1410 (9th Cir.1985)).

The "totality of the circumstances" analysis requires that a magistrate make a common sense determination that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). An anonymous tip, without more, does not constitute probable cause. Id. at 227, 103 S.Ct. at 2326. In Gates, the Supreme Court held that an anonymous letter, coupled with independent corroboration of predicted activity, even though innocent on its face, established probable cause. Id. at 244-46, 103 S.Ct. at 2335-36. In United States v. Alvarez, 899 F.2d 833 (9th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991), we held that an anonymous phone tip predicting Alvarez's activities, along with corroboration of those activities, established probable cause.

Here, Detective O'Connell did provide some corroborative evidence in support of the informant's tip. However, Mendonsa argues that this case differs from Gates and Alvarez because the facts O'Connell confirmed did not corroborate predicted activity.

In support of this argument, Mendonsa relies primarily on United States v. Gibson, 928 F.2d 250 (8th Cir.1991). In Gibson, an anonymous phone call alerted officers that a man and woman were selling cocaine from their residence. The caller described the occupants, the inside of the house, and the drugs and money he or she had seen. The caller also described various vehicles owned by the residents and stated that two dogs were on the premises. Id. at 251-52.

In his affidavit supporting his request for a search warrant, the investigating officer corroborated only the facts that a man matching the suspect's description lived at the house, that the cars were registered to him, and that there were dogs on the premises. A state judge issued the search warrant, and the officers entered the home. A cache of marijuana and cocaine were discovered in the search. The defendants moved to suppress the evidence on the grounds that the search warrant was based on facts that were insufficient to establish probable cause. Id. at 252-53.

The Eighth Circuit held that there was insufficient evidence to establish probable cause to issue the search warrant. Id. at 253. The court found that probable cause exists only when an affidavit sets forth sufficient facts that would enable a prudent person to believe that evidence of criminal activity would be found. The court found that "[a]t most, however, only several innocent details had been corroborated by the police in driving by the address given and by making a few telephone calls." Id. As in the present case, the detectives in Gibson had observed no unusual civilian or vehicular traffic characteristic of drug activity during the period of surveillance. Id. Although the Eighth Circuit found no basis for probable cause, it upheld the district court's denial of the suppression motion because the officers had relied in good faith on the search warrant. Id.

We agree with the Gibson opinion that mere confirmation of innocent static details is insufficient to support an anonymous tip. The fact that a suspect lives at a particular location or drives a particular car does not provide any indication of criminal activity. On the other hand, prediction of significant future activity to carry out particular criminal activity as in Gates and Alvarez does provide a reasonable basis for evaluating the validity of an anonymous tip. Here, Detective O'Connell merely verified "innocent" facts; he did not corroborate predictions of future activity. The district court erred in finding that the warrant was supported by probable cause.

II.

Even though a warrant is based on insufficient probable cause, the evidence need not be suppressed if an officer relies in good faith on the warrant's validity. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). This reliance must be objectively reasonable. Id. at 922, 104 S.Ct. at 3420. Because the purpose of the exclusionary rule is to deter police illegality, we will not suppress evidence when the magistrate, not the officer, errs. See id. at 921, 104 S.Ct. at 3419. Suppression remains an appropriate remedy, however, when a magistrate is misled by information in the affidavit, which the affiant knows, or should know, is false. Id. at 923, 104 S.Ct. at 3421.

The district court held that if it had not found probable cause, it would apply the good faith exception. We review de novo. United States v. Ramos, 923 F.2d 1346, 1353 (9th Cir.1991).

Mendonsa argues...

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