United States District Court, E.D. Arkansas, Western Division
January 13, 2015
UNITED STATES OF AMERICA, Plaintiff
FINDINGS AND RECOMMENDATION
H. DAVID YOUNG, Magistrate Judge.
The following findings and recommendation have been sent to United States District Judge Susan Webber Wright. Any party may serve and file written objections to these findings and recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the Office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendation. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Defendant Jared Tumbleson ("Tumbleson") has filed the pending motion to quash search warrant and to suppress evidence seized pursuant to that warrant. See Document 16. For the reasons that follow, the undersigned recommends that the motion be denied.
On July 30, 2010, law enforcement officers stopped a vehicle along an Arkansas highway. See Document 20, Exhibit A at 2. The vehicle was occupied by two individuals, one of whom was Brandon Lovell ("Lovell"). See Id . The officers obtained consent to search the vehicle, and three firearms were found in it. See Id . Because Lovell was wanted on an outstanding warrant, he was arrested. See Id.
Lovell was interviewed that same day by law enforcement officers at the Van Buren County, Arkansas, Detention Center. See Document 20, Exhibit A at 2. During the interview, Lovell signed a handwritten statement prepared for him by Warren Newman ("Newman"), an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). In the statement, Lovell attested to the following:
On 29 [July] 2010, I went to Jerod Tumbleson's residence and removed three pistols he wanted me to hide. I hid them in the woods [and] went back today to get them. I picked them up, placed them in a friend's car, and was pulled over by the police.
I have been using [methamphetamine] since I was [sixteen] years old. I have been to [rehabilitation] that was court ordered and am now out on bond for a drug charge.
See Document 20, Exhibit A, Attachment 1.
Because Tumbleson was known to be a convicted felon who should not be in possession of firearms, Newman applied to a state court judge for a warrant to search Tumbleson's residence. The application was supported by Newman's affidavit in which he represented, in part, the following:
That he [i.e., Newman] has good reason to believe that there is now being kept in the property known and described as: 8584 Highway 254 East Dennard, Arkansas, Van Buren County, Arkansas 72623, which is a white house with brown trim and a black shingles roof. The residence is located on the North side of the highway, facing south and it has three outbuildings. This residence is known to the Afffiant and Officers.
Directions to the property are as follows: From the northern Clinton, Arkansas, city limits on Highway 65 North, travel north on Highway 65 approximately 10.8 miles to the junction of highway 65 and 254. Turn west onto Highway 254 and travel approximately 5.3 miles to 8584 Highway 254, Van Buren County, Arkansas.
Certain property described as follows: U.S. Currency and documents obtained by the purchase and sale of firearms, firearms with barrel length with less than 18 inches, or an overall length of less than twenty-seven inches, sawed off shotguns, explosives and fully automatic firearms, ...
Which is sought because: Such is believed to be contraband and is in violation of Arkansas Statute 5-73-103 Possession of firearms by certain persons, 5-73-108 Possession of explosives by a convicted felon.
That the facts establishing probable cause and grounds for issuance of Search Warrant are as follows:
I have... investigated cases of individuals who have been arrested and admit their own involvement in criminal activity with other individuals, against their own best interest. It is my experience that these individuals provide truthful information [due] to the fact that false information would have no bearing on their level of cooperation.
FACT 1: On 07/30/2010, 20th Judicial Drug Crime Task Force Interdiction Unit made a traffic stop of a white Cadillac Escalade with no tags on HWY 336 West. The vehicle was occupied by Brandon Lovell and Blain Gizezzi. The driver of the vehicle gave consent to search and three firearms were located in the cargo area of the vehicle. Brandon Lovell was arrested on a warrant from Conway County.
FACT 2: On 07/30/10, Alcohol and Tobacco and Firearm Special Agent Warren Newman and 20th Judicial Drug Crime Task Force Agent Johnny Sowell interviewed Brandon Lovell at the Van Buren County Detention Center. Lovell stated that the three firearms that we recovered from him were received by him from Jarrod Tumbleson at his residence, known to be 8584 HWY 254 West. Lovell advised that he obtained the firearms from Tumbleson yesterday and was advised by Tumbleson to hide them. Lovell placed the firearms in a wooded area. He returned to that location today and retrieved the firearms today and the firearms were recovered by the Drug Task Force. Lovell also stated that he [saw] a sawed off shotgun and two AR-15 rifles in Tumbleson['s] bedroom last night. Lovell also saw, in a back room of Tumbleson['s] house, a box containing yellow sausage looking items marked high explosives. These would be consistent with the type of explosives used in gas mining operations. Brandon Lovell gave a written statement. See Attachment A.
It has been Special Agent Warren Newman's experience that people keep firearms, firearms manuals, records and receipts of purchase of firearms for extended periods of time, unlike narcotics which are not kept for long periods of time.
FACT 3: 20th Judicial Drug Crime Task Force Agent Johnny Sowell verified that Jerrod Tumbleson was in fact a convicted felon, and it is unlawful under Arkansas State law for him to possess a firearm and explosives. Tumbleson was sentenced to 120 months SIS for Possession of Drug Paraphernalia on October 27, 2008.
See Document 20, Exhibit A at 1-3. The state court judge granted the application, and a warrant to search the house at 8584 Highway 254, Dennard, Arkansas ("8584 house") was issued. See Document 20, Exhibit B.
Law enforcement officers went to what they knew to be Tumbleson's residence, only they went to the house he was residing in at 8427 Highway 254, Dennard, Arkansas ("8427 house"), not the house identified with the street address 8584 Highway 254 in the warrant and in Newman's affidavit. The officers searched the 8427 house, and the return made on the warrant reflects that the officers found a number of firearms.
Tumbleson came to be indicted in the case at bar with being a felon in possession of firearms. The indictment came about as a result of his possession of the firearms found during the search of the 8427 house.
Tumbleson has now filed a motion to quash search warrant and to suppress evidence seized pursuant to the warrant. See Document 16. His motion is built upon the following two assertions: 1) there was no probable cause to support the issuance of the warrant, and 2) the house actually searched was not the house identified in the warrant. With regard to the first assertion, he maintains that Newman's affidavit contained nothing attesting to Lovell's reliability. Specifically, Tumbleson alleges the following:
The affidavit does not state how [Newman] had information as to [Lovell's] reliability. Absent an indication of personal knowledge of this information in the warrant, and of how that knowledge was obtained, and absent any corroboration of [Lovell's] claimed knowledge, the affidavit is clearly insufficient to support a warrant.
See Document 19 at 6. Tumbleson additionally maintains that the contents of Newman's affidavit did not conform to Lovell's statement, and the affidavit contained an inaccurate address and physical description of the house actually searched.
In United States v. O'Dell, 766 F.3d 870 (8th Cir. 2014), the Court of Appeals addressed a challenge to the probable cause supporting the issuance of a search warrant, specifically, the reliability of the information provided by an informant. The Court of Appeals provided the following guidance in considering such a challenge:
The existence of probable cause depends on whether, in the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... We accord great deference to a magistrate's determination as to whether an affidavit establishes probable cause.... The issuing judge should review the affidavit with a common sense approach and not in a hypertechnical fashion....
When the issuing judge relied solely upon the supporting affidavit to issue the search warrant, only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.... The core question in assessing probable cause based upon information supplied by an informant is whether the informant is reliable.... Information may be sufficiently reliable to support a probable cause finding if the person supplying the information has a track record of supplying reliable information, or if it is corroborated by independent evidence....
See Id. at 874 (internal quotations and citations omitted). The Court of Appeals noted that it has "long accorded known informants more credence than anonymous or confidential informants: for one thing, they can be held responsible if the allegations turn out to be fabricated." See Id.
The undersigned finds that the state court judge relied solely upon Newman's affidavit and Lovell's accompanying statement to issue the search warrant. Although Newman testified that he prepared other materials during his interview of Lovell, those materials were not presented to the state court judge. Thus, only the information contained within the four corners of Newman's affidavit and Lovell's statement can be considered in determining the existence of probable cause.
There is nothing in Newman's affidavit attesting to Lovell's "track record of supplying reliable information." Lovell's lack of such a track record, though, does not necessarily undermine the validity of the affidavit. Newman represented in his affidavit that he has experience investigating cases of individuals who "have been arrested and admit their own involvement in criminal activity with other individuals, against their own best interest." He represented that the individuals who have been arrested "provide truthful information [due] to the fact that false information would have no bearing on their level of cooperation." Newman's representations have little value as they offer no specific insight into Lovell's reliability. They are simply generalized assertions about individuals who have been arrested and allegedly have involvement with other individuals in criminal activity. Were such representations alone sufficient to support the issuance of a search warrant, they would justify the issuance of a warrant any time an arrestee implicated another individual in criminal activity.
Notwithstanding the foregoing, and for the following reasons, Newman's affidavit and Lovell's statement set forth sufficient evidence of probable cause. First, Lovell provided an in-person statement. It therefore allowed Newman to assess Lovell's veracity. See United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002) (in-person statement allowed affiant to assess informant's veracity).
Second, Lovell's statement was timely. He gave his statement the day after he obtained the firearms from Tumbleson's residence and the same day he retrieved them from a wooded area. See United States v. Gabrio, supra (informant saw firearms in defendant's possession on same day warrant issued).
Third, Lovell provided a detailed, eyewitness account of criminal activity and his statement implicating Tumbleson was not motivated by Lovell's attempt to avoid criminal charges related to the firearms as Lovell was not a convicted felon and it would not have been illegal for him to possess the weapons. Lovell's statement is therefore entitled to greater weight than "might otherwise be the case." See Illinois v. Gates, 462 U.S. 213, 234 (1983) (detailed description of wrongdoing, along with statement it was observed first-hand, entitles tip to greater weight).
Fourth, Newman offered some evidence, although admittedly not much, to buttress Lovell's statement. See United States v. Stevens, 530 F.3d 714, 718-719 (8th Cir. 2008) (corroboration of even minor details can support probable cause). Newman confirmed and recited in his affidavit that Tumbleson was a felon, which increased the credibility of Lovell's information. See United States v. Gabrio, 295 F.3d at 883 (recital that defendant had felony record increased credibility of tip).
Tumbleson alleges that Newman's affidavit did not conform to Lovell's statement in that the affidavit contained more information about the firearms and alleged explosives in the residence than did Lovell's statement. It is true that Newman's affidavit provided more information about the firearms and alleged explosives in the residence than did Lovell's statement, but that fact is of little consequence. Newman was merely attesting to what he had been told by Lovell during the interview, and there is no evidence Newman misrepresented what he had been told by Lovell.
Tumbleson alleges that Newman's affidavit contained an inaccurate address and physical description of Tumbleson's residence. He represents, and the undersigned accepts as true, that although the warrant directed law enforcement officers to search the 8584 house, they instead searched the 8427 house. Whether the 8427 house was clearly marked as such and how long it may have been so marked have been the points of much disagreement and the subjects of a supplemental hearing. For the reasons that follow, the undersigned finds that although a mistake was made as to the street address, it did not undermine the validity of Newman's affidavit.
There is a presumption of validity with regard to an affidavit supporting a search warrant. See Franks v. Delaware, 438 U.S. 154, 171 (1978). The Fourth Amendment nevertheless entitles a defendant to a hearing challenging the veracity of a warrant if he can make a substantial preliminary showing that the affiant's statement or omission was deliberately false or demonstrated a reckless disregard for the truth and that the statement or omission was essential to the issuing judge's finding of probable cause. See United States v. Summage, 575 F.3d 864, 873 (8th Cir. 2009) (citing Franks v. Delaware ).
Tumbleson has either owned or occupied two different houses along Highway 254: the 8427 house and the 8584 house. The houses are approximately two-tenths to three-tenths of a mile apart. On two separate occasions in 2005, Tumbleson was arrested and booked into the Van Buren County, Arkansas, Sheriff's Office ("Sheriff's Office") on charges unrelated to the charge at bar. At both bookings, he listed his residence as being the 8584 house. See Government's Hearing Exhibit 16.
In 2007, law enforcement officers obtained a warrant to search Tumbleson's residence. The warrant identified his residence as being the 8584 house. The physical description of the house to be searched pursuant to the 2007 warrant, though, was not that of the 8584 house but was instead that of the 8427 house. When law enforcement officers served the 2007 warrant and searched the Tumbleson's residence, they did so at the 8427 house. When Tumbleson was booked into the Sheriff's Office following the search of his residence in 2007, he again listed his residence as being the 8584 house. See Government's Hearing Exhibit 16.
Newman testified during the initial hearing that prior to applying for the search warrant in this case, he drove along the highway in front of the house to be searched. He testified that the address of the house to be searched was not readily apparent. Tumbleson offered evidence during the supplemental hearing, though, that the address of the house to be searched was clearly visible from the highway and had been so since at least 2006. Whether the address of the house to be searched was actually visible is not outcome determinative. Newman adequately noted the driving directions to, and the physical description of, the house to be searched. The undersigned finds that he drove not to the 8584 house but to the 8427 house, the house he knew to be Tumbleson's residence. When Newman applied for the warrant in this case, he used the street address and physical description of the property that had been used for the 2007 warrant, an address for Tumbleson's residence that was incorrect but a physical description of which was largely correct.
Newman's attention to detail with respect to the address of the house to be searched was not a model of professionalism. There is no evidence, though, that his representation regarding the address was deliberately false or demonstrated a reckless disregard for the truth. He had no motivation for such falsity or recklessness. He adequately described the driving directions to, and the physical description of, the house to be searched with sufficient particularity as to enable other officers to locate and identify the house with reasonable effort, and there was no reasonable probability another house might be mistakenly searched. He was simply negligent in failing to confirm the street address of the house to be searched. Assuming, arguendo, that Newman's representation as to the address was deliberately false or demonstrated a reckless disregard for the truth, there is no evidence his representation was essential to the state court judge's finding of probable cause.
"An issuing judge's determination of probable cause should be paid great deference by reviewing courts and should be upheld if the judge had a substantial basis for concluding that a search would uncover evidence of wrongdoing." See United States, Defendant v. Stevens, 530 F.3d at 718 (internal quotations and citations omitted). Here, there was not a wealth of evidence supporting a finding of probable cause. The undersigned, though, is not reviewing the documents in the first instance; instead, the undersigned is reviewing them in hindsight. The undersigned finds the state court judge could find as he did that there was sufficient evidence of probable cause.
Assuming, argendo, that Newman's affidavit and Lovell's statement did not set forth sufficient evidence of probable cause, the Government maintains that the evidence obtained pursuant to the search warrant should not be excluded. The Government builds its assertion on the basis of the United States Supreme Court decision in United States v. Leon, 468 U.S. 897 (1984). In that decision, the Supreme Court announced a good faith exception to the exclusionary rule. The Supreme Court determined that "even if the affidavit does not set forth sufficient probable cause, evidence obtained pursuant to the search warrant subsequently invalidated will not be excluded if: (1) the executing officers relied in good faith on a search warrant signed by a neutral and detached magistrate, and (2) the officers' reliance on the warrant was objectively reasonable." See United States v. Farlee, 757 F.3d 810, 819 (8th Cir. 2014).
Newman knew that Tumbleson was a felon, had been involved in other criminal activity, and was oftentimes with Lovell. Newman knew that Tumbleson's residence had been searched in 2007, and the search warrant issued at that time identified his residence as being the 8584 house. Newman did not know that the house actually searched in 2007 was the 8427 house. He erroneously brought the information from the 2007 warrant forward into the 2010 search warrant. He did, though, adequately describe the driving directions to, and the physical description of, the house to be searched. There is no evidence that Newman provided information he knew or should have known to be false, and the evidence does not support a finding the state court judge who issued the search warrant was not neutral and detached. The undersigned is satisfied that Newman's reliance on the warrant was objectively reasonable as a reasonable officer could rely upon the driving directions to, and physical description of, the 8427 house. Accordingly, the evidence obtained pursuant to the warrant should not be excluded even if Newman's affidavit does not set forth sufficient probable cause.
Tumbleson also challenges the manner in which the search warrant was executed. He maintains that law enforcement officers violated the terms of the warrant when they searched the wrong house, that is, the house actually searched was not the house identified in the warrant.
This case, when pared to its essence, involves an incorrect street address for the residence to be searched. Such an error does not necessarily undermine the validity of the search executed pursuant to that warrant. See United States v. Ridinger, 805 F.2d 818, 819 (8th Cir. 1986) (incorrect street address not necessarily fatal to validity of search warrant); United States v. McCain, 677 F.2d 657, 660-661 (8th Cir. 1986) (not every defect in search warrant compels suppression of evidence seized pursuant to warrant). Such an error does, however, require the undesigned to consider the two factors identified in United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). Those two factors are "whether the place to be searched is described with sufficient particularity as to enable the executing officers to locate and identify the premises with reasonable effort, and whether there is any reasonable probability another premise might be mistakenly searched." See Id . Applying those two factors to the facts of the case at bar, the undersigned is satisfied that the incorrect street address does not undermine the validity of the search warrant. Newman described the correct driving directions to the house to be searched and largely provided an accurate physical description of the house to be searched. Given the specificity of those details, there was no reasonable probability another house might be mistakenly searched. See United States v. Gitcho, 601 F.3d at 371 (where part of description of premises to be searched is inaccurate, but description has other parts which identify place to be searched with particularity, search pursuant to warrant routinely upheld).
In summary, Newman's affidavit and Lovell's accompanying statement set forth sufficient evidence of probable cause. Assuming, argendo, that those documents did not set forth sufficient evidence of probable cause, the evidence obtained pursuant to the warrant should not be excluded. The executing law enforcement officers relied in good faith on a warrant signed by a neutral and detached magistrate, and the law enforcement officers' reliance on the warrant was objectively reasonable. Although the warrant contained an incorrect street address, the place to be searched was described with sufficient particularity as to enable the officers to locate and identify the premises with reasonable effort, and there was no reasonable probability another premise might be mistakenly searched. The undersigned recommends that Tumbleson's motion to quash the warrant and suppress the evidence seized pursuant to the warrant be denied.