JOSEPH F. BATAILLON, U.S. District Judge
Before me are the defendant's objections, Filing No. 40, to the magistrate's report and recommendation, Filing No 36, in which the magistrate recommends that this court deny the defendants motion to suppress physical evidence, Filing No. 12. The indictment, Filing No. 1, charges the defendant with one count of conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846, and three counts of possession with intent to deliver crack cocaine in violation of 21 U.S.C. § 841 (a)(1). The defendant seeks to suppress evidence seized as a result of search warrants executed at two residences and of the warrantless search of a vehicle involved in a traffic stop.
Pursuant to 28 U.S.C. § 636 (b)(1)(C), I am to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the parties object. To that end, I have carefully reviewed the record, the transcript of the suppression hearing, Filing No. 35, the report and recommendation, the defendant's brief, the exhibits, and the relevant case law. I conclude that the defendants objections should be overruled and that the report and recommendation of the magistrate should be adopted in its entirety.
Because the report and recommendation presents an accurate summary of the facts adduced at the suppression hearing, a lengthy repetition of the factual background is not necessary in this order.
Residence Search. The defendant objects to the magistrate's conclusion that the affidavit and supporting application contained sufficient detail to establish probable cause to search the residences at 2022 North 40th Street and 3643 Charles Street. The defendant notes that neither the application nor the affidavit states that the confidential informant had seen drug at either residence. Rather, the affidavit states that police saw someone matching Damion Wells' description come out the front door of the 40th Street residence, go to the backyard, and then reappear in front and drive off The defendant further contends that beyond the surveillance, the police officers did not independently investigate the occupants of the two residences. Thus the investigation did no more than confirm the defendants presence at those locations. The defendant argues that no evidence links the two residences to drug sales, since the controlled buys involving the confidential informant did not occur at either of the residences. However, the defendant overlooks other circumstances tying the defendant? alleged drug dealing to the two residences.
The confidential informant contacted the defendant before each controlled buy using a pager number. Pager record indicated the defendant was the responsible party and listed his residence as 2022 North 40th Street. To set up the controlled buys, the confidential informant entered a prearranged code on the pager to indicate the amount of drugs the confidential informant wished to buy from the defendant, and then left a return number of a telephone with Caller ID.
When the defendant returned the confidential informants call for the first controlled buy, the Caller ID indicated that the defendant was calling from the Charles Street residence. Officers then initiated surveillance on both the Charles Street and the 40th Street residences. They observed the defendant leave the Charles Street address in a Buick LeSabre, which was registered to him and listed his address as 2022 North 40th Street. The officers observed the defendant drive to the 40th Street address, and enter the house. When the confidential informant again paged the defendant, the defendant called back and set the buy for a store parking lot. Officers observed the defendant leave the front door of the 40th Street residence, go t its backyard, then return to front of the house and drive away in the LeSabre. Officers followed him to the store parking lot where the buy took place. The confidential informant was wired, so officers were able to hear and to record the transaction.
The second controlled buy took the same course. After the confidential informant paged the defendant and the defendant returned the confidential informant's call, the officers observed the defendant leave the Charles Street residence this time in a red Mitsubishi, and drive to 40th Street address. He again went to the backyard of the residence. He then returned to the Mitsubishi, which he drove to the location arranged between him and the confidential informant. Following the buy, also recorded, officers followed the defendant to the Charles Street residence.
Thus, the totality of the circumstances plainly indicates that the state court judge had a substantial factual basis for deciding that probable cause existed to sign the search warrants for the defendants residence at 2022 North 40th Street. See Illinois v. Gates, 462 U.S. 213, 239 (1983) (reviewing court merely ensures that judicial officer signing the warrant had a "substantial basis" to determine probable cause existed, based on the totality of the circumstances). Information supplied by an untested confidential informant such as the individual in this case is sufficient to establish probable cause "if it is corroborated by independent evidence." United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing United States v. Draper, 358 U.S. 307, 313 (1959)).
Here, the affidavit and application for the search warrants not only presented the information from the confidential informant, but also detailed the officers' background investigation of the pager records, the utility records for the two residences, the defendant's criminal history, and the defendant's car registration; the particulars of the first two controlled buys and the confidential informants role in those buys; and the results of the officers' surveillance of the two residences before and after the first two controlled buys. Although the confidential informant apparently did not tell the officers about having personally seen drugs at either residence, the officer's own investigation, the timing of the sequence of events leading up to the buys, and the defendant's conduct before and after the buys all corroborated the confidential informant's information that the defendant was selling crack cocaine. "When an informant's information is at least partly corroborated" by other information, "`attacks upon credibility and reliability are not crucial to the finding of probable cause.'" United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995) (quoting United States v. Humphreys, 982 F.2d 254, 259 (8th Cir. 1992)). The court finds that the state court judge had ample information to conclude that evidence of a crime of contraband would probably be found at the 40th Street residence and/or in the cars the defendant used before and after the first two buys.
However, there was insufficient evidence to establish probable cause for a search of the Charles Street residence The police officers' background investigation did not tie the defendant to the Charles Street residence, but only to the 40th Street residence. Nor did the officers present evidence of probable criminal activity at the Charles Street residence. The defendant's presence at the Charles Street residence when he returned the confidential informants page did not establish, by itself, that the defendant was likely selling drugs from there. 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 defendant was engaged in criminal activity at that address. Moreover, the defendant 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 the defendant sold drugs or engaged in other criminal activity from the Charles Street residence. Consequently, the defendant's motion to suppress evidence is granted as to the Charles Street address.
Traffic Stop. The defendant also contends that the officers lacked probable cause to stop and search a vehicle in which the defendant was a passenger because the driver had not violated any traffic laws prior to the stop. The court agreed with the magistrate, however, that the totality of the circumstances provided probable cause for the stop.
After the confidential informant called the defendant to set up a third controlled buy for two ounces of crack cocaine officers observed the defendant, dressed in a red shirt and wearing a red ball cap, leave the Charles Street residence, drive to the 40th Street residence, then return to the Charles Street residence. The officers did not see the defendant subsequently leave the Charles Street residence, but they did observe a bluegreen vehicle drive away from it. Shortly thereafter, they spotted a man in a red shirt in a blue-green vehicle in the parking lot where the buy was scheduled to occur. The car left the parking lot before the confidential informant arrived, so officers followed and then stopped the car. The officer discovered the defendant in the passenger seat and arrested him. A search of the car revealed two ounces of crack cocaine the amount the defendant was to have sold to the confidential informant — on the floor behind the driver's seat.
Officers have probable cause to make a warrantless arrest if "kit the moment the arrest was made, . . . the facts and circumstances within [the officers] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). Here, the defendant and the confidential informant had arranged a buy of two ounces of crack cocaine to take place in a store parking lot. The officers who had the Charles Street residence under surveillance did not actually see the defendant drive away, but they did observe a blue-green car leaving that address. When they checked the parking lot where the buy was to occur, the officers found a bluegreen vehicle matching the description of the one seen leaving the Charles Street residence. In it, they saw a man dressed in the same manner as the defendant had been a short time earlier when he had made the round trip between the Charles Street and the 40th Street residences.
The collective knowledge of all the officers involved in the investigation, the surveillance, and the previous buy provided probable cause to stop the blue-green vehicle. See United States v. Morgan. 997 F.2d 433, 435 (8th Cir. 1993) (in determining whether probable cause to make warrantless arrest existed, "court may consider the collective knowledge of all officers involved"). Taken together, the facts here established sufficient grounds to support a belief that the defendant was committing or had committed an offense in connection with the possession and sale of crack cocaine. The stop and the warrantless arrest were therefore justified.
Finally, the defendant argues that the officers were not entitled to search the car without either a search warrant of consent. At the time of the stop, the officers only had a search warrant for the defendant; they did not have a search warrant for the blue-green car. Because probable cause existed to stop the car and arrest the defendant, however, the search of the car was valid as a search incident to a lawful arrest. New York v. Belton, 453 U.S. 454, 460 (1981).
Accordingly, the court finds that the officers had probable cause to stop the bluegreen car, to arrest the defendant, and to search the car.
IT IS THEREFORE ORDERED:
1. The defendant's objections, Filing No. 40, to the magistrate's report and recommendation are overruled in part and sustained in part;
2. The magistrate's report and recommendation, Filing No. 36, is adopted in part; and
3. The defendant's motion to suppress physical evidence, Filing No. 12, is sustained as to evidence seized a 3643 Charles Street and is otherwise denied.