United States v. Reivich

• Decision Date: 30 April 1985
• Docket Number: No. 85-00018-01-CR-W-5.,85-00018-01-CR-W-5.
• Citation: 610 F. Supp. 538
• Parties: UNITED STATES of America, Plaintiff v. Kirk C. REIVICH, Defendant.
• Court: U.S. District Court — Western District of Missouri

610 F. Supp. 538

UNITED STATES of America, Plaintiff v. Kirk C. REIVICH, Defendant.

No. 85-00018-01-CR-W-5.

United States District Court, W.D. Missouri, W.D.

April 30, 1985.

COPYRIGHT MATERIAL OMITTED

Robert C. Larsen, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.

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

ORDER

SCOTT O. WRIGHT, Chief Judge.

Defendant has moved to suppress all items seized during the execution of a search warrant at his residence and a search of his automobile on August 31, 1984. Pursuant to that motion, an evidentiary hearing was held before Chief United States Magistrate Calvin K. Hamilton. In light of the evidence adduced at that hearing, and after review of the challenged affidavit and warrant, the Court is compelled to grant defendant's motion to suppress.

FACTS

Shortly after selling an eighth of an ounce of cocaine to an informant, Creg Burns and Thomas Linsin were arrested by two Johnson County policemen. Lt. Vince Werkowitch followed the pair, stopped them and ultimately arrested them with the assistance of Det. Joe Sweeten, also of the Johnson County Police Department. The two men were separated and detained in the parking lot. Both were read their Miranda rights.

Lt. Werkowitch admits quickly telling Linsin that he had an opportunity to better his situation; that he was currently charged with possession of cocaine, which is a Class C felony in Kansas. Werkowitch explained to Linsin that in order to better his situation, he needed to "tell us where he got the cocaine from." Werkowitch then contacted the Assistant District Attorney and inquired as to what deal he could make Linsin. It was agreed that if Linsin cooperated that night, he would avoid going to jail, and would later be charged with conspiracy to sell cocaine, a Class E felony. Werkowitch testified that Det. Sweeten was present at, and participated in, these discussions in the parking lot and later at the police station. Linsin's part of the bargain, Werkowitch continued, was to reveal his source and assist in the investigation of that person. Linsin had yet to reveal his source.

Linsin insists that Werkowitch maintained he "could pretty much guarantee probation" in return for the information. Although Werkowitch denies this, he concedes explaining to Linsin that a Class E felony raised a presumption of probation. Linsin testified that the officers told him that "they could unarrest me just as easily as they arrested me." Linsin was led to believe Burns was also providing information. Linsin alleges the officers put him on "a little guilt trip" by describing his family background and explaining to him if he wanted to get off he would have to provide information "now or never." Linsin further maintains that he merely confirmed the information the officers sought from him — the officers asserted that he had gotten the cocaine from Reivich and he (Linsin) merely agreed. In any event, Linsin provided Reivich's phone number (after calling home to obtain it), yet could not recite Reivich's address with any specificity beyond 59th & Troost.

Burns was not offered the Class E felony deal, however, claims to have been told he too could "better his situation" by helping the officers out. Burns provided neither Reivich's phone number nor a specific address, however, he did identify Reivich as his source after assurances from a third officer that it would be in his best interest to tell them about the cocaine. No written statements were obtained from the two suspects. Neither these men, nor the unidentified informant that led to their arrest had previously been used as informants.

Werkowitch passed his information along to Det. Sweeten who contacted Officer Donna L. Rollo of the Kansas City Police Vice Department. Sweeten and Rollo had never met, and no written reports or statements were exchanged. Sweeten relayed the information by phone to Rollo who prepared the affidavit. Rollo had no personal knowledge of any part of the information, and it appears much of the information Sweeten proffered he had obtained from Werkowitch. Although Rollo's supervisor reviewed the affidavit, advice was neither sought nor obtained from the Jackson County Prosecutor's office. Sweeten read over the affidavit and actually went with Rollo to Associate Circuit Judge Baker's chambers in order to obtain the warrant. Sweeten did not sign the affidavit, however. Judge Baker took no testimony nor requested additional information prior to issuing the warrant.

Pertinent information in the affidavit, with respect to probable cause is:

1. On 8-30-84 a confidential informant purchased 1/8 oz. of cocaine from Creg Burns.

2. Mr. Burns and Thomas Linsin were surveilled by Johnson County Detectives and followed from 7801 Grant Lane to the area of 59th & Troost where the Detectives lost sight of the pair.

3. After locating and arresting the pair in Overland Park, Kansas, Det. Sweeten debriefed Linsin, who identified the source of the cocaine as Kirk Reivich who resides in the area of 59th & Troost, Kansas City, Jackson County, Mo., tel. no: XXX-XXX-XXXX.

4. Linsin stated that while at Reivich's residence he was told by Reivich that "there's plenty of coke left."

5. Linsin stated that he has been purchasing cocaine from Mr. Reivich for approximately 3 years and that Mr. Reivich is never out of cocaine. Linsin stated that he knows that Reivich has gone to Florida in the past for cocaine. Linsin stated that on one occasion Reivich had a pound of cocaine and that this occurred within the last three months. Linsin stated that Reivich had moved to the house at 59th & Troost three days ago.

6. Burns was interviewed by Werkowitch at the same time. Burns stated that he received the ounce of cocaine from Reivich who lives just west of 59th & Troost, Kansas City, phone number XXX-XXX-XXXX.

7. Burns claims to have been told by Reivich "I have more coke left." Burns stated that two months ago he and Reivich went to Florida where they purchased 1 (one) kilo of cocaine which was transported back to the Kansas City area. Burns was confident Reivich was obtaining a further quantity of cocaine during the late morning hours of 8-31-84.

8. Det. Sweeten stated that he verified the telephone number to be listed to a Mark Bland at 5912 Harrison, Kansas City. On 8-31-84 Sweeten drove by the 5912 Harrison address and observed a 1979 tan/bronze Cutlass registered to Kirk Reivich parked in the driveway.

The affidavit was signed by Officer Donna L. Rollo.

OPINION

The Fourth Amendment to the Constitution of the United States guarantees freedom from unreasonable search and seizure, and provides that no warrant shall issue except upon probable cause. One of the primary values of the warrant process is that it permits informed and deliberate determinations of probable cause to be made by a neutral and detached magistrate. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In assessing the sufficiency of information and/or affidavits offered to establish probable cause, a "two-prong" test was designed to establish the reliability of the information and the credibility of the source. See, e.g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Prior to the development of the two-prong test, the United States Supreme Court had maintained that the probable cause standard was a practical, non-technical conception. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Embracing a return to traditional motions of probable cause determination, the United States Supreme Court has recently advanced a "totality of the circumstances" analysis for probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). This standard simply requires the magistrate to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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., 103 S.Ct. at 2332.

The Gates decision arises out of the fact that the determination of probable cause does not lend itself to a prescribed set of rules, like those that had developed after Spinelli and Aguilar. The "totality of the circumstances" is a flexible, common sense standard that better serves the purposes of the Fourth Amendment's probable cause requirement.

This Court does not review de novo the previous determination of probable cause now challenged by way of defendant's motion. Great deference is to be afforded the magistrate's determination of probable cause. United States v. Leon, ___ U.S. ___, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); Spinelli v. United States, supra, 89 S.Ct. at 590. However, in abandoning the two-prong test for probable cause, in no way did the Supreme Court sanction the abdication of the magistrate's duty. Deference to the magistrate is not boundless, and this Court still conscientiously reviews the sufficiency of an affidavit upon which a warrant issues. This court will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause. United States v. Leon, supra, 104 S.Ct. at 3417; Illinois v. Gates, supra, 103 S.Ct. at 2332. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. Id.

Review of the probable cause determination is not yet an exercise in "2020" hindsight. Regardless of the result obtained by way of the challenged warrant and/or search, the "totality of the circumstances" set forth in the affidavit presented to the magistrate must sufficiently establish probable cause for the issuance of the warrant. Nothing in the Gates or Leon decisions...