US v. Buis
| Decision Date | 02 July 2009 |
| Docket Number | No.: 3:08-CR-165.,: 3:08-CR-165. |
| Citation | 678 F. Supp.2d 665 |
| Parties | UNITED STATES of America, Plaintiff, v. Fred William BUIS, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
Cynthia F. Davidson, US Department of Justice, Knoxville, TN, for Plaintiff.
This criminal case is before the Court for consideration of the Report and Recommendation ("R & R") entered by United States Magistrate Judge H. Bruce Guyton on May 8, 2009 Doc. 22. Defendant Fred W. Buis filed objections to the R & R Doc. 23, which the Court will consider de novo.
Defendant Buis is charged with knowingly, intentionally, and without authority possessing with intent to distribute a mixture and substance containing a detectable amount of oxycodone hydrochloride, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). See Doc. 1. Defendant Buis is also charged with knowingly possessing firearms in furtherance of a drug trafficking crime for which the defendant may be prosecuted in a court of the United States, in violation of 18 U.S.C. § 924(c)(1). Additionally, the defendant is charged with knowingly receiving and possessing a firearm not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871.
The R & R addresses the motion to suppress filed in this case. Defendant Buis filed a motion to suppress certain evidence obtained from his home and vehicles. Doc. 10. Following an evidentiary hearing on the motion to suppress on January 27, 2009 and the filing of a post-hearing brief by the defendant and a response by the government, Magistrate Judge Guyton entered a R & R recommending that the motion to suppress be denied. See Doc. 22.
As required by 28 U.S.C. § 636(b)(1), the Court has undertaken a de novo review of those portions of the R & R to which Defendant Buis objects. In doing so, the Court has carefully considered Magistrate Judge Guyton's R & R Doc. 22, the underlying briefs Docs. 10; 11; 20; 21, Defendant Buis's brief regarding the pending objections Doc. 23, the government's response to Defendant Buis's objections Doc. 25, and the exhibits admitted at the suppression hearing see Doc. 15. For the reasons set forth herein, the Court will overrule Defendant Buis's objections, and the motion to suppress will be denied.
Defendant Buis objects to Magistrate Judge Guyton's finding that he is not entitled to a hearing under Franks v. Delaware, 438 U.S. 154, 155, 164, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Defendant Buis contends that Detective Bayless used bad or extraordinarily reckless faith in drafting and executing the search warrant. He argues that the deficiencies of the search warrant in stating incorrect descriptions of, and directions to, his home were so flawed that no reasonable officer would have executed the warrant. The government responds encouraging the Court to adopt the R & R.
Under Franks, a defendant has the right to contest the truthfulness of sworn statements of fact in a search warrant affidavit only under certain limited circumstances:
Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
438 U.S. at 155-56, 98 S.Ct. 2674; see also United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990). A defendant is entitled to a hearing only where allegations of intentional or reckless disregard are accompanied by an offer of proof, and mere conclusory allegations are insufficient. Id. Instead, the burden rests on the defendant to offer a requisite showing of such intent. United States v. Garnett, 951 F.Supp. 657, 660 (E.D.Mich.1996). Furthermore, "the deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. Thus, Defendant Buis's entitlement to a Franks hearing requires that Detective Bayless acted with intentional or reckless bad faith and disregard of the truth.
Detective Bayless testified that he used the 9-1-1 and driver's license databases to obtain the address of Defendant Buis's home for the search warrant. He also stated that he composed the directions to the home from memory, having been to the defendant's house twice previously. At the time Detective Bayless visited the defendant's house, it did have red siding and white trim, as described in the search warrant. Bayless also used a GPS device to determine the latitude and longitude coordinates for a point at the end of the defendant's driveway. Thus, the Court finds that although there were errors in the search warrant's description, these errors were not the result of bad or reckless faith on Bayless's part. Accordingly, the Court finds that Defendant Buis is not entitled to a Franks hearing, and this objection is OVERRULED.
Defendant Buis objects to Magistrate Judge Guyton's finding that the confidential informant was reliable for the purposes of supporting probable cause in the subsequent search warrant. Defendant Buis argues that the statements by the informant are inconsistent and contradict the tape recordings of the informant and the defendant, indicating a lack of veracity on the part of the confidential informant and, thus, a lack of probable cause for the search warrant. The government responds encouraging the Court to adopt the R & R.
Generally, the Court need only consider the four corners of the affidavit in assessing whether it provided probable cause for a search. United States v. Hatcher, 473 F.2d 321, 323 (6th Cir.1973); see also Whiteley v. Warden, 401 U.S. 560 565, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). A "totality of the circumstances" approach is employed, and only a showing of "probability or substantial chance of criminal activity, not an actual showing of such activity" is required. Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). Thus, the Court need not consider outside information in assessing the reliability of the confidential informant beyond those facts detailed in the affidavit, and it need only find substantial probability of criminal activity based upon the reasonable reliability of the informant.
Although more is required than a simple attestation to the reliability of the informant, United States v. Ferguson, 252 Fed.Appx. 714, 721 (6th Cir.2007), the Court finds that this standard is met. Independent corroboration by police may establish probable cause even in the absence of any "indicia of an informant's reliability" in the affidavit. United States v. Frazier, 423 F.3d 526, 532 (6th Cir.2005). In United States v. Rodriguez-Suazo, police corroboration of the informant's tip was deemed sufficient to meet the reliability requirements for probable cause. 346 F.3d 637, 646-47 (6th Cir.2003). Likewise, in United States v. May, a confidential informant was held reliable for supporting probable cause where the informant had provided reliable information in the past and there was independent corroboration by the police. 399 F.3d 817 (6th Cir.2005). Even a single controlled purchase has been held sufficient to corroborate an informant's reliability. United States v. Henry, 299 Fed.Appx. 484, 487-88 (6th Cir.2008). United States v. Williams also held that an informant was reliable where the informant had previously provided information leading to arrests and convictions and the affiant mentioned his own personal knowledge of drug sales at the location to be searched. 224 F.3d 530, 532-33 (6th Cir.2000), cert. denied, 531 U.S. 1095, 121 S.Ct. 821, 148 L.Ed.2d 704 (2001).
Furthermore, however, evidence does not necessarily have to be excluded, even if probable cause is lacking. Where the search was performed with objective good faith in reasonable reliance on a search warrant, the fruits of the search are still admissible. United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Savoca, 761 F.2d 292, 295 (6th Cir.1985).
In the present case, Detective Bayless attested that the informant had proved reliable in the past and he set up two controlled purchases, both of which were simultaneously recorded and then reviewed by Bayless. The affidavit proclaims that (1) Detective Bayless had worked with the informant for at least one month, (2) the informant had previously provided information that lead to other prosecutions and successful convictions, and (3) Bayless visually monitored the two controlled purchases and listened to the recordings of those purchases, providing corroboration for the information provided by the informant. These facts buttress the statement that the informant was reliable and provide independent corroboration for the informant's reliability. Given these facts, the Court finds that the affidavit on its face shows the informant to be reliable and supports probable cause for the search warrant. In the alternative, the Court finds that the search was executed under a facially valid warrant obtained with objective good faith and that the fruits of the search are admissible under the good faith exception recognized in Leon, 468 U.S. 897, 104 S.Ct. 3405. Accordingly, this objection is OVERRULED.
Defendant Buis objects to Magistrate Judge Guyton's finding that the affidavit provides a sufficient nexus to the criminal activity alleged and the place to be searched,...
To continue reading
Request your trial
-
United States v. Henry
...a substantial risk to officer safety and that there was therefore "good cause" for a nighttime warrant. See United States v. Buis, 678 F. Supp. 2d 665, 674 (E.D. Tenn. 2009) (finding that nighttime execution of search warrant was permissible because "the police had substantial concerns over......