U.S. v. Murphy

• Citation: 69 F.3d 237
• Decision Date: 31 October 1995
• Docket Number: No. 95-1623,95-1623
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael D. MURPHY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 237

69 F.3d 237

UNITED STATES of America, Plaintiff-Appellee, v. Michael D. MURPHY, Defendant-Appellant.

No. 95-1623.

United States Court of Appeals,

Eighth Circuit.

Submitted June 13, 1995.

Decided Oct. 31, 1995.

Nancy Graven, Federal Public Defender, Springfield, MO, argued (R. Steven, Brown, Federal Public Defender, on the brief), for appellant.

Rose A. Barber, Asst. U.S. Atty., Springfield, MO, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Michael D. Murphy appeals his convictions, for attempt to manufacture methamphetamine, use of a firearm in relation to a drug trafficking crime, and possession of machine guns, entered after conditional pleas of guilty. On appeal, he argues that the district court ¹ erred in denying his motion to suppress evidence because the affidavit supporting the search warrant for his residence did not demonstrate probable cause, the warrant did not authorize a no-knock entry, and the warrant failed to specify narcotics and drug paraphernalia as objects of the search. He also argues that the district court erred in sentencing him to consecutive sentences under USSG Sec. 5G1.3 (1994). We affirm.

Murphy was charged with attempting to manufacture methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988), use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (1994), and possession of machine guns in violation of 18 U.S.C. Sec. 922(o) (1994). He was sentenced to seventy-month terms on the methamphetamine and machine gun charges, concurrent to each other, but consecutive to a 1979 Missouri sentence for second-degree murder, and a consecutive sixty-month term on the firearm charge. The issues Murphy raises on appeal are fact specific, and we will state the relevant facts in the discussion of each of the issues.

I.

Murphy argues that the "bare bones" affidavit for the search warrant was insufficient, it failed to establish probable cause, and the warrant was not saved by the good faith exception. He argues that the district court's findings of the two corroborating facts provided by the informant, namely Murphy's address and release from the Department of Corrections, were clearly erroneous. Murphy also argues that the warrant did not mention the drug-related materials.

Tracy Sparrow, a Jasper County Sheriff's Office Investigator, executed the affidavit for the warrant. After talking with an anonymous informant in his office, Sparrow contacted the prosecuting attorney, explained the information he had, and arranged for the informant to go to the prosecutor's office. Sparrow told the prosecutor that he knew nothing of the informant, but that Officer Gail Bass had recognized him. He relayed to the prosecutor what he had been told by the informant. The prosecutor then prepared an affidavit for Sparrow to sign. The affidavit states:

That I have reason to believe on the premises known as 907 W. 5th, Joplin, Jasper County, Missouri, occupied by Michael D. Murphy in Joplin, Jasper County Missouri, there is now being concealed certain property, to wit: .22 caliber pistol with silencer, 9mm fully automatic rifle, three fully automatic AK 47 rifles, which is subject to search and seizure in that it is contraband.

That the fact tending to establish the foregoing grounds for the issuance of a Search Warrant are as follows:

I, Tracy Sparrow, was told by a confidential informant that Michael Murphy who was recently released from Department of Corrections for murder was living at 907 W. 5th in Joplin, Missouri. That he had in his possession the above items and was threatening to kill a Jew. That I have checked and found that Michael Murphy was released from the Department of Corrections in 1992 for murder and is living at 907 W. 5th in Joplin, Missouri.

The application for a search warrant and the affidavit were presented to Circuit Judge Copeland, who asked why Sparrow was using a confidential informant. Sparrow told him that the informant feared for his life if his name was used. Judge Copeland then signed the search warrant.

Following a suppression hearing, the district court concluded that the affidavit, combined with corroborated facts, was sufficient to support the warrant. As the district court stated in the suppression hearing, the affidavit at issue here is bare bones at best. ² However, the affidavit was not uncorroborated. Officer Sparrow verified that Murphy lived in the house at 907 W. 5th and that he had been released on parole for murder in 1992.

We affirm the district court's denial of a motion to suppress evidence "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." United States v. Bieri, 21 F.3d 811, 814 (8th Cir.) (citing United States v. Hyten, 5 F.3d 1154, 1156 (8th Cir.1993)), cert. denied, --- U.S. ----, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994).

The legal sufficiency of a search warrant affidavit depends upon the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The court issuing the search warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], 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. In addition, the Court emphasized the "value of corroboration of details of an informant's tip by independent police work," id. at 241, 103 S.Ct. at 2334, in making a determination based on the totality of the circumstances. Id. at 241-46, 103 S.Ct. at 2333-36.

Sparrow's independent corroboration of Murphy's release from the penitentiary and his address both provided assurances of the informant's reliability. This corroboration, together with the information in the affidavit concerning the weapons in the house, satisfies the totality of the circumstances test of Gates. Thus, the issuing court had reason to believe that criminal activity was occurring at Murphy's residence.

Murphy contends that United States v. Hove, 848 F.2d 137 (9th Cir.1988), supports his position regarding the inadequacy of the affidavit. Hove is inapplicable to Murphy's case. In Hove, 848 F.2d at 138-39, the officer's final affidavit for the search warrant did not contain any information linking Hove or the suspected criminal activity to the residence to be searched. The court held that the warrant lacked probable cause because the affidavit failed to "explain the significance or relevance of searching this particular location." Id. at 139.

Murphy argues that the affidavit was totally lacking in probable cause. "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. Gladney, 48 F.3d 309, 312 (8th Cir.1995) (quoting Bieri, 21 F.3d at 815). "We review the district court's determination of probable cause under a clearly erroneous standard, and give considerable deference to the issuing judge's determination of probable cause." Bieri, 21 F.3d at 815 (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331).

In this case, the affidavit stated that a confidential informant had told Sparrow that Murphy, a felon released from the Department of Corrections, possessed firearms at his home at 907 W. 5th in Joplin. It is a felony for Murphy to possess the types of weapons set out in the affidavit. See, e.g., Mo.Rev.Stat. Sec. 571.020 (1994); Mo.Rev.Stat. Sec. 571.070 (1994); 18 U.S.C. Sec. 922(o ). The affidavit contained facts sufficient to establish a reasonable belief that evidence of a crime would be found in the place to be searched. See Bieri, 21 F.3d at 815. Thus, the state court had a substantial basis to conclude that there was probable cause for the search. Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

Murphy argues that the district court's findings regarding the two corroborating facts supporting the search warrant were clearly erroneous. The affidavit stated that Murphy was "recently released from the Department of Corrections." Murphy argues that the 1992 release was not "recent." The argument is frivolous. What is significant is that Murphy was released after serving his term for murder, and thus his possession of a weapon violated the law. The nonspecific adverb "recently" is an insufficient basis for us to conclude that the finding of fact is clearly erroneous.

In addition, we believe that the officers executing the warrant "acted in objectively reasonable reliance on a warrant issued by a neutral magistrate." United States v. Gibson, 928 F.2d 250, 253 (8th Cir.1991) (citing United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984)).

Ordinarily, a police officer cannot be expected to question a judge's probable cause determination. Suppression is an appropriate remedy if the judge, in issuing the warrant, was misled by information in the affidavit that the affiant knew or would have known it was false except for the affiant's reckless disregard for the truth. Evidence should be suppressed only if the affiant-officer could not have harbored an objectively reasonable belief in the existence of probable cause.

Id. at 253-54 (citations omitted).

Nothing in the record indicates that Sparrow acted in reckless disregard of the truth when he prepared the affidavit, or that the issuing judge was not acting in a neutral and detached manner when he issued the warrant. Before issuing the warrant, the judge asked several questions, including why Sparrow had not included the name of the confidential informant in the affidavit. Accordingly, we believe that the Leon good faith...