US v. Tuter

• Decision Date: 01 March 2001
• Docket Number: No. 00-5086,00-5086
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CHRISTOPHER SHAWN TUTER, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1292

240 F.3d 1292 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CHRISTOPHER SHAWN TUTER, Defendant-Appellee.

No. 00-5086

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 01, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 00-CR-18-C)

Submitted on the briefs: Stephen C. Lewis, United States Attorney, Lucy O. Creekmore, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellant.

Robert S. Durbin, Tulsa, Oklahoma, for Defendant-Appellee.

Before EBEL, KELLY, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

The government appeals the district court's suppression of evidence discovered during a search of defendant Christopher Tuter's residence executed pursuant to a search warrant. Although we affirm the district court's conclusion that the search warrant was not supported by probable cause, we reverse its determination that the good-faith exception to the exclusionary rule does not apply.¹

BACKGROUND

On December 21, 1999, a federal magistrate judge issued a search warrant to agents of the federal Bureau of Alcohol, Tobacco and Firearms (ATF) to search the residence of defendant Tuter at 4104 West Princeton Street in Broken Arrow, Oklahoma, for firearms, explosives, and related materials. The search was conducted the next morning and agents discovered sixteen firearms of various makes and models, numerous live rounds of ammunition, four assembled grenades, a readily assembled grenade, a pipe bomb, and other related explosive materials.

The search warrant was issued based upon an affidavit by ATF agent Bruce Magalassi. According to his affidavit, on December 20, 1999, an anonymous caller phoned WeTIP, Inc., a nationwide company that takes anonymous calls regarding crimes and passes the tips along to law enforcement agencies for further investigation. The caller reported to WeTIP that a thirty-eight year old white man named Chris Tuter, living at 4104 West Princeton Street in Broken Arrow, Oklahoma, was making pipe bombs in his garage. The operator took down the caller's information on an intake form, and immediately called Lieutenant Paul Krouter of the Broken Arrow, Oklahoma Police Department, leaving a message on his answering machine. When Krouter heard the phone message he called Agent Magalassi and relayed the information to him.

Agent Magalassi obtained a faxed copy of the WeTIP operator's intake form. It stated:

SUSPECT MAKES PIPE BOMBS IN HIS GARAGE/ SUSPECT ALSO HAS 2-3 WEAPONS IN HIS HOME/ SUSPECT HAS ONE SON/IAN TUTER AGE 12 LIVING IN THE HOME/ ATTENDS UNION ELEMENTARY OR MIDDLE SCHOOL/ SON HAS BEEN KNOWN TO SHOW WEAPONS TO SCHOOL FRIENDS WHEN THEY COME OVER TO SUSPECT[']S HOME

Appellant's App. at 88. The intake form described the kind of weapons Tuter possessed as "RIFLE/AKA," id., and stated Tuter owned a gold colored 1997 Jeep Cherokee. The intake sheet also stated the caller's information was "FIRSTHAND," id., but no explanation was given as to how the caller came to have this information.

Agent Magalassi began an investigation and attempted to corroborate the information provided by the anonymous caller. He verified that a thirty-eight year old white male named Christopher Tuter lived at 4101 West Princeton Street in Broken Arrow, Oklahoma, with his thirty-seven year old wife, Cecily Tuter, and his twelve-year old son Ian. He verified that Cecily Tuter owned a 1997 Jeep Cherokee. He also investigated defendant Tuter's criminal history and learned that Tuter had a 1983 burglary conviction, a 1984 burglary conviction, a 1984 conviction for knowingly concealing stolen property, a 1984 arrest for auto theft and possession of marijuana, and a 1984 arrest for possession of a firearm after a felony conviction. Finally, he learned that the Tuters had reported the theft of a vehicle in 1998, and that two firearms were inside the car at the time of the theft.

Agent Magalassi's affidavit contained several errors and inconsistencies. His affidavit gave an incorrect social security number for defendant Tuter, and misspelled Tuter's name twice. The affidavit stated that the anonymous caller reported that Tuter's son attended a Broken Arrow school. In fact, the caller had correctly reported that the son attended Union elementary or middle school. Agent Magalassi's affidavit also stated the caller reported Tuter as having an "AKA rifle," Appellant's App. at 31, though Agent Magalassi later conceded that no such weapon exists. The intake form, however, actually described the weapons possessed by Tuter as "RIFLE/AKA," which could refer to two different weapons, rather than just one. Although Agent Magalassi's affidavit stated that public records indicated the Tuters had lived at the Princeton Street address since 1988, Tuter testified he has only lived there since 1995. Tuter also testified that the 1998 vehicle theft report was filed only by Cecily Tuter, his wife, not by the couple, as stated in the affidavit. Further, based on a description from the Broken Arrow police department, Agent Maglassi described Tuter's Jeep Cherokee in his affidavit as mocha-colored, whereas the anonymous caller described it as gold-colored.

Tuter moved to suppress the evidence discovered at his residence, claiming the warrant's supporting affidavit contained materially false statements and failed to establish probable cause, that the warrant was overly broad, and that the search was executed in an unreasonable manner. After a hearing, the district court found that the errors in the affidavit were insubstantial. However, it suppressed the evidence on the basis that the supporting affidavit did not establish probable cause to justify the issuance of the search warrant. Applying a recent decision of the Supreme Court, Florida v. J.L., 529 U.S. 266 (2000), the court ruled that the supporting affidavit was insufficient to establish probable cause because Agent Magalassi failed to corroborate any of the anonymous tipster's allegations of criminal wrongdoing. The court also rejected the application of a good faith exception to the exclusionary rule because the affidavit was insufficient to justify the issuance of the warrant.

DISCUSSION

I. PROBABLE CAUSE

A. Standards of Review

A magistrate judge's task in determining whether probable cause exists to support a search warrant "is simply 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." Illinois v. Gates, 462 U.S. 213, 238 (1983). We have stated that a magistrate judge's decision to issue a warrant is "entitled to 'great deference'" from the reviewing court. United States v. Le, 173 F.3d 1258, 1265 (10th Cir. 1999) (quoting United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th Cir. 1998)). Accordingly, we need only ask whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a "'substantial basis'" for determining that probable cause existed. Id.; see also Gates, 462 U.S. at 238-39. We review de novo the district court's determination of probable cause, Ornelas v. United States, 517 U.S. 690, 697 (1996), while reviewing its findings of historical fact for clear error, United States v. Barron-Cabrera, 119 F.3d 1454, 1457 (10th Cir. 1997).

B. Anonymous Informants

The Supreme Court has adopted a "totality of the circumstances" test to determine when information from a confidential informant or an anonymous tip can establish probable cause. Gates, 462 U.S. at 238. The Court has explained that an informant's "'veracity,' 'reliability,' and 'basis of knowledge' are all highly relevant in determining the value of his report." Id. at 230. In Gates, the information came from an anonymous letter which provided no indication of the informant's veracity, reliability, or basis of knowledge. The Court held that the anonymous tip, standing alone, was insufficient to establish probable cause. Id. at 227. However, it explained that "a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233. The Court found that the anonymous tip in Gates was sufficient to establish probable cause because it "contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties not easily predicted." Id. at 245.

In Alabama v. White, 496 U.S. 325 (1990), the Court addressed the standard for determining when an anonymous tip can provide "reasonable suspicion" to justify an investigatory stop.² The Court recognized that "there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" J.L., 529 U.S. at 270 (quoting White, 496 U.S. at 327). In White, the Court deemed an anonymous tip sufficiently reliable to justify an investigatory stop because it was highly detailed and police independently corroborated the informant's predictions regarding the suspect's future activity. Id. at 332. It reasoned that the caller's ability to predict the suspect's future activity "demonstrated inside information--a special familiarity with [the suspect's] affairs." Id. The Court explained that when "an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity." Id. at 331.

After Agent Magalassi prepared his affidavit and the magistrate judge issued the search warrant in this case, but before the district court ruled on Tuter's motion to suppress the evidence, ...