U.S. v. Simpkins, 89-2962

• Decision Date: 18 September 1990
• Docket Number: No. 89-2962,89-2962
• Citation: 914 F.2d 1054
• Parties: UNITED STATES of America, Appellant, v. Winston M. SIMPKINS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1054

914 F.2d 1054

UNITED STATES of America, Appellant, v. Winston M. SIMPKINS, Appellee.

No. 89-2962.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1990.

Decided Sept. 18, 1990.

Kathryn M. Geller, Kansas City, Mo., for appellant.

Christopher C. Harlan, Kansas City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, RE, Judge, ^* and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

The United States appeals from an order of the District Court suppressing evidence seized pursuant to a search warrant from a residence at 3613 State Line Road, Kansas City, Missouri. We reverse.

I.

In July and August 1989, the Kansas City Police Department, specifically Detective Jerry Gallagher, conducted a six-week investigation of cocaine dealer Larence Garrison during which Gallagher made a total of four undercover purchases of crack cocaine from Garrison. On August 17, a confidential informant arranged for Gallagher to make his third purchase from Garrison. As was the custom, the informant paged Garrison on his beeper and arranged to meet at a certain location. Garrison arrived at 10:48 a.m. and sold Gallagher one-half gram of crack cocaine for fifty dollars in marked currency. During this transaction, Gallagher commented that he had not been able to reach Garrison for several days. Garrison explained that he had been out of town getting a large shipment of cocaine and that he and his associates were presently in the process of "cooking it up"--converting the cocaine into crack. After the transaction, a surveillance team attempted to follow Garrison back to his base of operations. The team trailed Garrison to a known narcotics house at 721 Jackson Street where he made a twenty-minute stop, and then followed him to the intersection of Valentine Road (also known as 38th Street) and Southwest Trafficway. ¹ The police officers lost Garrison in traffic as he speeded west on Valentine.

Because of Garrison's statements regarding a large shipment of cocaine, Gallagher and the informant arranged another drug sale later that same day. The informant paged Garrison on his beeper and Garrison immediately returned the call, thus indicating to Gallagher that Garrison had ready access to a telephone. Gallagher and the informant were at a Quik Trip at 39th and Warwick (not far from where the officers previously had lost sight of Garrison), and Garrison stated that he would be there in ten minutes. Ten minutes later Garrison arrived from the west traveling on 39th Street and sold Gallagher another one-half gram of crack. During the sale, the informant told Garrison that he heard a noise coming from Garrison's truck and that he should check it out. The surveillance team then followed Garrison from the sale west on 39th Street to a residence at 3613 State Line Road. The drive took ten minutes. The officers observed Garrison park his car in the driveway, enter the residence, and come back out the garage door to work on his car.

Detective Gallagher and his team believed they had found the "safe house" where Garrison stored his cocaine and from which he ran his operation. Because the house was set back from the road and high on a hill, Gallagher concluded that police surveillance would alert the residents, so the house was not placed under surveillance. The next morning, August 18, 1989, Detective Gallagher submitted to a state court judge an affidavit in support of a warrant to search the residence at 3613 State Line Road. The items listed in the affidavit as sought included cocaine, weapons, drug paraphernalia, United States currency, and any documents related to drug trafficking. The two-page affidavit mentioned two prior drug buys from Garrison and described the two drug transactions on August 17. It also recited the fact that Garrison was first followed to within one mile of the State Line address and then successfully followed to the residence. The affidavit does not state that Garrison told Gallagher he was in possession of a large amount of cocaine and in the process of cooking up a large batch of crack. Nor does it include the fact that the confidential informant told Gallagher he believed Garrison lived in the area of 39th and Roanoke (a few blocks from the State Line address) or that Gallagher had previously surveilled two addresses corresponding to the registrations of Garrison's vehicles and determined that Garrison did not reside at either of these addresses. The state court judge issued a warrant to search the residence at 3613 State Line Road and five days later, on August 23, the warrant was executed. The evidence seized by police included over four kilograms of cocaine, more than $64,000 (including marked currency used in an undercover purchase of crack cocaine), various weapons and ammunition, and miscellaneous documents related to drug trafficking. The police arrested Winston M. Simpkins, who was at the residence at the time of the search, and a few weeks later a federal grand jury returned an indictment charging him with knowingly and intentionally possessing cocaine base in an amount of fifty grams or more, in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) (1988), and with using firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) (1988).

Simpkins moved to suppress the evidence seized in the August 23 search on the grounds that the affidavit did not set forth probable cause to believe that the residence at the State Line Road address contained drug trafficking material. The Magistrate held an evidentiary hearing on this motion and filed his Report and Recommendation that Simpkins's motion be granted. The District Court adopted the Magistrate's Report and Recommendation and ordered that the evidence be suppressed. The United States appeals from this order.

II.

The government first challenges as clearly erroneous the District Court's finding that the affidavit is insufficient to establish probable cause. In the alternative, the government asserts that the good faith exception to the exclusionary rule should apply and make suppression of the seized evidence unwarranted.

"The sufficiency of a search warrant is ... determined on the basis of the information before the issuing judicial officer." United States v. Reivich, 793 F.2d 957, 959 (8th Cir.1986). We review a district court's finding that an affidavit failed to establish probable cause under the clearly erroneous standard. United States v. Martin, 833 F.2d 752, 755 (8th Cir.1987), cert. denied, --- U.S. ----, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). Although we believe that following a known drug dealer to a particular residence may establish a fair probability that the residence contains drug trafficking materials, we cannot say that the District Court's decision was clearly erroneous. The affidavit presented to the state judge omitted several key details of the investigation and Detective Gallagher testified at the suppression hearing that he did not orally inform the issuing judge of anything beyond the information in the affidavit. Transcript of Evidentiary Hearing at 23. The judge was not aware of Gallagher's belief that Garrison was presently processing a large amount of cocaine into crack nor the detective's understanding that Garrison did not reside at either address to which he was traced through his motor vehicle registrations. Accordingly, we find no fault with the District Court's determination that the warrant was invalid.

Our conclusion in that regard, however, does not end our inquiry. The government argues that, because the police officers executed the warrant in a good faith belief in its validity, the exclusionary rule does not require that the evidence be suppressed.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court announced the good faith exception to the exclusionary rule. The Court recognized that the purpose of the exclusionary rule--deterring police misconduct--generally is not served by suppressing evidence seized by an officer in reliance on a facially valid search warrant.

In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law."

468 U.S. at 921, 104 S.Ct. at 3419 (quoting Stone v. Powell, 428 U.S. 465, 498, 96 S.Ct. 3037, 3054, 49 L.Ed.2d 1067 (1976) (Burger, C.J., concurring)). So long as an officer's reliance on the issuing judge's determination of probable cause is "objectively reasonable," evidence seized pursuant to an ultimately invalid search warrant need not be suppressed at trial. 468 U.S. at 922, 104 S.Ct. at 3420. The Court outlined four situations in which an officer's reliance on a warrant would be unreasonable: (1) the affiant included information in the affidavit that he "knew was false or would have known was false except for his reckless disregard of the truth" and that information misled the issuing judicial officer; (2) the issuing judge abandoned his neutral judicial role; (3) the warrant was based on an affidavit with so few indicia of probable cause that an official belief in its validity would be unreasonable; and (4) the warrant itself was so "facially deficient ... that the executing officers" could not reasonably rely on its validity. 468 U.S. at 923, 104 S.Ct. at 3421. In the instant case, the District Court adopted the Magistrate's conclusion "that the affidavit is so lacking in indicia of probable cause that no reasonably well-trained officer should have relied upon it." Report and...