U.S. v. Reivich

• Decision Date: 25 June 1986
• Docket Number: No. 85-1630,85-1630
• Parties: UNITED STATES of America, Appellant, v. Kirk C. REIVICH, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 957

793 F.2d 957

UNITED STATES of America, Appellant, v. Kirk C. REIVICH, Appellee.

No. 85-1630.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 15, 1986.

Decided June 25, 1986.

Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellant.

Bruce C. Houdek, Kansas City, Mo., for appellee.

Before HEANEY, ARNOLD and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

This appeal from an order suppressing evidence raises issues regarding the omission from a search warrant affidavit of information allegedly relevant to the judicial officer's determination of the reliability of the informants, and thus of the existence of probable cause.

Kirk C. Reivich was charged with possession with intent to distribute cocaine, see 21 U.S.C. Sec. 841(a)(1) (1982), after police seized a large quantity of that drug and a substantial sum of money during a search of his alleged residence. The warrant authorizing the search had been based upon the identification of Reivich as a drug source by two persons who had just been arrested on drug charges. Reivich moved to suppress the evidence seized during the search, and the district court, citing the lack of assurances of reliability or of corroboration regarding the tip provided by the informants, granted the motion. United States v. Reivich, 610 F.Supp. 538 (W.D.Mo.1985). The district court particularly asserted that the judicial officer issuing the warrant might have had greater doubts about the reliability of the identification of Reivich had the affidavit revealed that the informants spoke in response to promises of more lenient treatment regarding their arrests. Id. at 544. We reverse and remand.

The affidavit upon which the Reivich search was based set forth essentially the following information:

On the afternoon of August 30, 1984, Creg Burns engaged in a drug transaction in Johnson County, Kansas, with a confidential police informant. Police then followed Burns and a companion, Thomas Linsin, to the area of 59th Street and Troost, Kansas City, Missouri. After losing sight of Burns and Linsin for about thirty minutes, police located them again in Johnson County, Kansas, and arrested them, seizing approximately one ounce of cocaine from Burns' vehicle.

Linsin identified Reivich as the source of the cocaine, provided a phone number, and said that Reivich three days previously had moved to a house in the area of 59th and Troost. Linsin further stated that he had been purchasing cocaine from Reivich for three years, that Reivich had in the past gone to Florida for cocaine and had on one occasion had a pound of cocaine, and that Reivich was never out of cocaine.

Burns separately identified Reivich as the source of the cocaine, provided the same phone number for Reivich, and said that Reivich lived just west of 59th and Troost. Burns told police that about two months previously he had accompanied Reivich to Florida where they had purchased one kilo of cocaine and that Reivich at present had cocaine left and was expecting to obtain a further quantity of cocaine late the next morning.

A police detective determined that the phone number provided by Burns and Linsin was listed to a person residing at 5912 Harrison in Kansas City. A car observed at 7:30 a.m. in the driveway of that dwelling bore a Kansas license plate and was registered to Reivich.

I.

The sufficiency of a search warrant is in the first instance determined on the basis of the information before the issuing judicial officer. See Hunt v. Swenson, 466 F.2d 863, 864 (8th Cir.1972) (on habeas, citing decision of state supreme court, State v. Hunt, 454 S.W.2d 555, 558 (Mo.), cert. denied, 400 U.S. 942, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970)). On a motion to suppress, a district court should not make a de novo determination of probable cause; rather, the decision to issue the warrant is to be upheld if supported by substantial evidence in the record. Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2086, 80 L.Ed.2d 721 (1984) (per curiam).

"Probable cause" to issue a search warrant exists when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband 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); see Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). A determination whether probable cause has been established involves a "practical, common sense" evaluation of the "totality of the circumstances." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. When an affidavit is based in substantial part on information from an informant, the informant's reliability, veracity, and basis of knowledge are relevant considerations--but not independent, essential elements--in finding probable cause. Id. at 230, 103 S.Ct. at 2328; United States v. Ross, 713 F.2d 389, 393 (8th Cir.1983).

The probable cause determination in this case, in contrast to that in Gates and many other cases, does not involve evaluation of a tip from either an anonymous or a confidential informant. Furthermore, since the police had already seized cocaine from Burns and Linsin, the question was not whether a crime was being committed, but only where and by whom. Burns and Linsin obviously had firsthand knowledge of the facts they provided, and their identities and the bases of their knowledge were made clear in the affidavit. The Supreme Court in part specifically adopted the flexible "totality of the circumstances" test for probable cause so that, for example, an informant's clear basis of knowledge could be balanced against, rather than automatically overruled by, that informant's lack of a "track record" of reliability. Gates, 462 U.S. at 233-35, 103 S.Ct. at 2329-30.

The affidavit further was not totally devoid of indicia of reliability. First, Burns and Linsin each made statements against penal interest by admitting past and current drug dealings. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2081-82, 29 L.Ed.2d 723 (1971). These statements were no less against penal interest because Burns and Linsin had already been arrested. As the Supreme Court reasoned in Harris, "People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. * * * That the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct." Id. Statements against penal interest also should not be rigidly parsed into incriminating portions and portions which, because they identify other participants in the criminal acts, might be characterized as constituting mere finger-pointing or bald accusations. The seminal Harris case itself involved a statement by an informant admitting past and current purchases of illicit liquor and identifying the premises at which the transactions took place. 403 U.S. at 584, 91 S.Ct. at 2082. Burns and Linsin similarly admitted to past and current participation in illegal transactions, and we do not believe their credibility is less in that they identified a person or source, rather than a premises, in connection with their drug dealings. The concept of statements against penal interest should not be interpreted narrowly and grudgingly but should be applied consistently with the underlying concern of determining the reliability of tips from informants. See 1 W. LaFave, Search and Seizure Sec. 3.3, at 527-29 (1978). As the District of Columbia Circuit has recognized, a person admitting a crime risks disfavor with the prosecution if he lies to the police: " '[O]ne who knows the police are already in a position to charge him with a serious crime will not likely undertake to divert the police down blind alleys.' " United States v. Davis, 617 F.2d 677, 693 (D.C.Cir.1979) (quoting 1 W. LaFave, supra, Sec. 3.3, at 528), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980).

Second, the information provided by Burns and Linsin was generally corroborated by police investigation. The neighborhood in which Burns and Linsin placed Reivich corresponded to the neighborhood to which the police previously had followed Burns and Linsin; the phone number provided by Burns and Linsin was listed to a residence in that same neighborhood; and police the next morning observed a car registered in Reivich's name parked in the driveway of that residence. Furthermore, the affidavit suggested that Burns and Linsin had independently told consistent stories. The theory connecting reliability and corroboration is that an informant who is correct about some things more likely will be correct about critical unverified facts, Spinelli v. United States, 393 U.S. 410, 427, 89 S.Ct. 584, 594, 21 L.Ed.2d 637 (1969) (White, J., concurring), and it is not necessary to a finding of reliability that the corroboration extend to illegal activity as well as to innocent details. United States v. Thompson, 751 F.2d 300, 302 (8th Cir.1985) (per curiam).

In arguing that these indicia still are not sufficient to show reliability, Reivich and the district court focus, for example, on the fact that Burns and Linsin were neither citizen informants nor informants with established records of reliability and on the fact that the information Burns and Linsin provided did not consist of predictions of future events that were ultimately corroborated by subsequent happenings. Such emphases typify the "excessively technical dissection of informants' tips" and the "judging [of] bits and pieces of information in isolation against * * * artificial standards" against which the Supreme Court cautioned in Gates and Upton. See Upton v. Massachusetts, 466 U.S. 727 at 732, 104 S.Ct. 2085 at 2088, 80 L.Ed.2d 721 (1984). The police knew of the presence of drug traffic because they had found cocaine on Burns and Linsin, and Burns and Linsin had firsthand knowledge of the identity of their...