JOSEPH F. BATAILLON, U.S. District Judge
This matter is before the court on defendant Andre Miller's objection, Filing No. 20, to the report and recommendation of Magistrate Judge Kathleen Jaudzemis, Filing No. 19. In her report and recommendation, Magistrate Judge Jaudzemis recommends that this court deny the defendants motion to suppress search warrant, Filing No. 10.
Pursuant to 28 U.S.C. § 636 (b)(1)(c), this court has conducted an independent and de novo review of the record concerning the report and recommendation, including the transcript of the evidentiary hearing held on October 12, 2001 Filing No. 16.
BACKGROUND
During the hearing on Miller's motion to suppress, the government called Omaha Police Officer Mark Lang. Officer Lang testified that he has been an Omaha Police Officer for the last fifteen years, currently assigned to the Narcotics Unit Two exhibits were entered into evidence at the hearing, a copy of the application and affidavit (Exhibit 1) and a copy of the search warrant (Exhibit 2).
On April 20, 2001, Omaha Police Sergeant Adam Kyle filed an application and affidavit for the issuance of a search warrant. The following is a summary of the information detailed in the application and affidavit.
A cooperating witness ("CW") informed the police that a black male known as Fat Boy was an active crack dealer. The CW provided the officers with Fat Boy's pager number. Omaha Police Officer Bianchi determined the party responsible for paying the bill on the pager was Damien Wells. Wells' address was identified as 2022 North 40th Street. The officer also determined that Wells owned a Brown 1983 Buick LeSabre. The investigation further revealed that Well had a criminal history that included drug and firearm-related offenses. After the officer obtained a picture of Wells, he verified with the CW that the picture was the person known to the CW as Fat Boy.
According to the application, the CW placed a call to Wells on his pager. Wells returned the call from a phone located at 3643 Charles Street. Wells set up a place to meet the CW. Officers observed Wells leave the 3643 Charles Street address after receiving the call and travel to the 2022 North 40th Street address. As instructed by Wells, the CW paged Wells when the CW was near the 40th and Lake Street meeting place. After the page, the CW met Wells at the designated location where he made his first delivery of one-half ounce of crack. The CW wore a listening device during the transaction.
On April 18, 2001, the CW again placed a page to Wells. The officers were watching both the 3643 Charles Street and 2022 North 40th Street residences when the CW placed the call. Again, the officers witnessed Wells exit the 3643 Charles Street address and drive to the 2022 North 40th Street address. Wells left the 2022 North 40th Street address to conduct the second transaction with the CW.
Based on this information the state court judge issued a search warrant for both the 2022 North 40th Street and the 3643 Charles Street residences and certain vehicles operated by Wells. During the execution of the warrant, the officers searched both residences. During the search of Miller's home located at 3643 Charles Street, the officers located a loaded gun under a chair in the living room.
The indictment charges Miller with being a felon in possession of a firearm. In his motion to suppress, Miller ask this court to suppress the evidence found at his residence. Miller contends that the evidence was obtained through an invalid search warrant.
DISCUSSION
Miller argues that the application and affidavit do not contain a sufficient factual basis to establish probable cause. Specifically, Miller contends that the connection between the events detailed in the application and 3643 Charles Street are tenuous. The government contends that there are ample facts in the application to support the state court judge's finding that there was probable cause to search the residence. Following an evidentiary hearing, Magistrate Judge Jaudzemis found that there were sufficient facts in the affidavit to support a determination of probable cause. Alternatively, Judge Jaudzemis found that the officers' reliance on the state court judges findings was reasonable.
After considering the totality of the circumstances, this court concludes that the issuing state court judge did not have a substantial basis for concluding that there was probable cause to search the residence at 3643 Charles Street. See United States v. Fulgham, 143 F.3d 399, 400) (8th Cir. 1998) (the issuing judge must have a substantial basis that there was probable cause). Probable cause exists if there is a fair "probability that contraband or evidence of a crime will be found in a particular place given the circumstances set forth in the affidavit" United States v. Johnson, 219 F.3d 790, 791 (8th Cir. 2000). Here, the details in the application and affidavit center around the activities of Damien Wells. The application includes details regarding the background investigation of Wells and the officer's surveillance of Wells's activities during controlled purchases of crack cocaine by a confidential witness. However, the only connections in the application to Wells and the 3643 Charles residence are that (1) Wells returned a page from the confidential witness from the residence; (2) officers observed Wells leave the residence after a second page from the confidential witness on another date and (3) Wells returned to the residence after the second controlled buy by the confidential witness. See United States v. Herron, 215 F.3d 812, 813 (8th Cir. 2000) (search warrant invalid because the details in the affidavit that connected the defendant's residence were incidental to the investigation). The application is unclear as to the frequency of Wells' visits to the 3643 Charles residence outside the two observed by the officers. Also, there was no evidence provided by either the officers' observations or the confidential witness that Wells picked up the crack cocaine or delivered the proceeds of the sales to the 3643 Charles residence.
The police officers' background investigation did not tie the target suspect, Mr. Wells, to the Charles Street residence, but only to the 40th Street residence. The officers presented no information in the warrant application that surveillance of the Charles Street residence at times other than shortly before and after the controlled buys indicated that the target suspect or anyone else was engaged in criminal activity at that address. Moreover, the target suspect, Mr. Wells, left the Charles Street residence and went to the 40th Street residence prior to each controlled buy to pick up drugs stored in the back yard at the 40th Street residence. The officers therefore had no background or surveillance evidence suggesting that Mr. Wells sold drugs or engaged in other criminal activity from the Charles Street residence. Therefore, because the connection to the residence and Miller was tenuous, there was insufficient evidence before the state court judge to create a fair probability that evidence of a crime would be found at 3643 Charles.
Further, this court finds that the Leon good faith exception is not applicable in the present case. See United States v. Leon, 468 U.S. 897, 922 (1984) (establishing a good faith exception when probable cause is found lacking). Here, for the reasons noted above, the affidavits were so lacking in indicia of probable cause that a reasonable officer could not believe that the facts established probable cause. For this reason, the officers should have been aware that the affidavit did not include sufficient facts specific to Miller and the 3643 Charles Street address to suggest that evidence of a crime would be found at the residence. See Herron, 215 F.3d at 813 (Leon exception not applicable because the officers should have been aware of the deficiencies). The officers may have had a suspicion that the Charles Street residence would yield contraband but had no probable cause to believe so.
Accordingly, Miller's motion to suppress the search warrant is hereby granted. All items found and statements made during the execution of the search warrant pertaining to the residence at 3643 Charles are hereby suppressed.
IT IS THEREFORE ORDERED:
1. The defendant's objections, Filing No. 20, to the magistrate's report and recommendation are sustained;
2. The magistrate's report and recommendation, Filing No. 19, is reversed in its entirety; and
3. The defendant's motion to suppress physical evidence, Filing No. 12, is granted.