R. ALLAN EDGAR, Chief Judge, District
Defendants James Shepard and Angela Parker move to suppress from use at trial all evidence seized as a result of the search of their home on April 1, 2004. [Court File Nos. 28, 30]. The Court held an evidentiary hearing on November 12, 2004. After hearing the proof, oral argument from the parties, and defendant Shepard's supplemental brief [Court File No. 44], the Court concludes that both motions to suppress will be DENIED. I. Facts
Sometime on April 1, 2004, an individual approached Chattanooga, Tennessee, police officer Brian Lockhart at a convenience store. This person told officer Lockhart that he was addicted to crack and needed help. He advised the officer that he could purchase crack anytime at 2101 Oak Street and that he wanted to help put drug dealers in jail.
There are some discrepancies in the facts as testified to by Officer Lockhart and those that appear in his affidavit. The affidavit says that the CI was found to be in possession of crack and agreed to work as an informant to avoid or mitigate punishment. Officer Lockhart testified at the suppression hearing that he did not find the CI in possession of crack, except, of course, during the controlled buy. The affidavit says that the controlled buy involved only twenty dollars in cash and one crack rock, while officer Lockhart now says that the amount was forty dollars, which was used to purchase three crack rocks.
Officer Lockhart and another officer then took this person (hereinafter "CI") to the Police Services Center, registered him as an informant, patted him down for illicit drugs, gave him some marked cash, and went to a location near 2101 Oak Street. The officers watched with binoculars from about four houses away while the CI went onto the porch of the residence and there encountered defendant James Shepard, also known as "June Bug." They saw the CI hand money to Shepard and observed Shepard enter the residence and return to the porch where he handed something to the CI. The CI then returned to the officers with three crack rocks.
The officers then completed an affidavit, which they brought to a State Magistrate Judge who issued a search warrant for 2101 Oak Street. When officers arrived at this address shortly after the issuance of the warrant, they saw defendant Shepard on the porch. Upon seeing the officers, Shepard ran into the house. The officers, without knocking and fearing that contraband would be destroyed, chased Shepard into the house where they observed him throwing two baggies of crack into a lounge chair. The officers also seized a .25 caliber semiautomatic pistol and ammunition and found Shepard's sister, co-defendant Angela Parker.
II. Analysis
Both defendants assert the same two grounds for suppressing the seized evidence from use at trial: first, that there was not probable cause for the issuance of the search warrant; and, second, that the officers failed to "knock and announce" before entering the residence.
A. Probable Cause for the Warrant
"[N]o Warrants shall issue, but upon probable cause, supported by Oath of affirmation." U.S. Const. amend. IV. In determining whether an affidavit establishes probable cause,
"[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed."
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting
Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
In Gates the Court adopted a totality of the circumstances test for determining whether an affidavit establishes probable cause for the issuance of a warrant. Gates, 462 U.S. at 230. When the evidence in an affidavit comes from a confidential informant, the Gates Court identified three relevant factors: 1) the basis of the informant's knowledge; 2) the reliability of the informant; and 3) the corroborative evidence presented by the government. Gates, 462 U.S. at 230-32, 245; United States v. Shamaeizadeh, 80 F.3d 1131, 1137 (6th Cir. 1996). These factors are not to be analyzed as "separate and independent requirements to be rigidly exacted in every case." Gates, 462 U.S. at 230. Rather, the reviewing court is to weigh them together in determining whether they form a substantial basis for finding probable cause. Id. The strength of one or more of these factors may compensate for the deficiencies of another factor. Gates, 462 U.S. at 233-34.
The affidavit in the instant case provides, in relevant part,
4. The location to be searched in this case is 2101 Oak St., Chattanooga, Tennessee.
5. The crimes being investigated are the possession and sale of a controlled substance in Hamilton County, Tennessee.
6. The informant in this case is a criminal confidential informant. On 4-1-04, I found the informant in possession of crack cocaine. In
order to avoid or mitigate punishment, the informant offered to work as a drug informant.
7. The informant told me that he could buy crack cocaine at #4 above.
8. He agreed to execute a controlled purchase. Within the 24 hours preceding the submission of this affidavit, I provided the informant with a $20.00 note, copies of which are ATTACHED. I checked the informant before sending him to #4 to buy, and he had no crack cocaine in his possession. I watched him go to #4, meet with a black male briefly at the door, and return to me. Upon returning, the informant told me that he had bought a rock of crack cocaine from the man, whom he identified as "June Bug," and gave it to me.
[Court File No. 30, Attachments].
Both defendants argue that the affidavit is insufficient to establish probable cause for two reasons: first, there is no evidence of the confidential informant's reliability; and, second, the affidavit contains false statements.
The defendants first argue that the affidavit is insufficient because there is no evidence of the confidential informant's reliability. Indeed, the officer virtually admitted in the affidavit and certainly testified at the hearing that this confidential informant was new to the officer, had never been used by the officer, and his reliability was unknown to the officer. However, as the government correctly argues, a complete deficiency of one factor is not fatal; instead, probable cause is based on a totality of the circumstances and the strength of one factor may compensate for the deficiency of another. In this case, the strength of the officer's corroborating evidence compensates for the lack of evidence on the informant's reliability.
According to the affidavit, the confidential informant claimed he could buy crack cocaine from 2101 Oak Street. The affidavit also indicates that the officers corroborated this tip by executing a controlled buy from 2101 Oak Street with the CI. Before the buy the informant had no crack cocaine in his possession; afterward, he provided the officer with three rocks of crack cocaine. Furthermore, the affidavit indicates the affiant police officer watched this controlled buy occur on the porch. Based on the informant's tip and the officer's corroboration, the magistrate had a substantial basis for concluding that probable cause existed, even without evidence of the informant's reliability.
The defendants next argue that the affidavit is insufficient because it contains false statements. The Supreme Court addressed the parameters governing such an allegation in Franks v. Delaware, 438 U.S. 154 (1978). Under Franks
the hearing court must strike from the warrant affidavit statements that the defendant can prove by a preponderance of the evidence to be both (a) materially false and (b) made with reckless or intentional disregard to their falsity. If the redacted affidavit, purged of reckless and materially false statements, no longer establishes probable cause, then the court must hold the resulting search warrant invalid.
United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (citing
Franks, 438 U.S. at 155-56).
In this case, the defendants claim that Officer Lockhart's testimony at the suppression hearing contradicts statements in the affidavit. In the affidavit Officer Lockhart stated that he "provided the informant with a $20.00 note" which was used to buy one rock of crack cocaine; at the hearing Lockhart testified that he provided the CI forty dollars which was used to buy three rocks of crack cocaine. Although the affidavit was inaccurate, the Court finds that these inaccuracies were immaterial. The material fact is that the CI made a controlled buy; the amount of cash used and the number of rocks purchased are immaterial. Indeed, as the defendants recognized at the hearing, whether the CI purchased one rock or three rocks, both scenarios support a finding of probable cause.
Further, Officer Lockhart stated in the affidavit that he "found the informant in possession of crack cocaine. In order to avoid or mitigate punishment, the informant offered to work as a drug informant." At the hearing, Officer Lockhart testified that he never found the CI in possession of crack cocaine and that the CI offered to work as an informant to help stop drug dealers, not to avoid or mitigate punishment. Even assuming the statement in the affidavit is materially false and was made with reckless or intentional disregard to its falsity, the redacted affidavit, purged of the reckless and materially false statement, still establishes probable cause. Eliminating this statement, the affidavit still contains the informant's tip that he could buy crack cocaine from 2101 Oak Street and the corroboration of this tip — the controlled buy watched by the officers. As discussed above, this evidence provided the magistrate a substantial basis for concluding probable cause existed. Accordingly, the false statement in the affidavit does not invalidate the resulting search warrant.
B. Failure to Knock-and-Announce
The knock-and-announce rule is an element of the Fourth Amendment "reasonableness" inquiry. Wilson v. Arkansas, 514 U.S. 927, 930-36 (1995). Although the knockand-announce principle
generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers "have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence."
United States v. Banks, 540 U.S. 31, 36 (2003) (quoting
Richards v. Wisconsin, 520 U.S. 385, 394 (1997);
accord Wilson, 514 U.S. at 936;
United States v. Smith, 386 F.3d 753, 759 (6th Cir. 2004).
"[I]f circumstance support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in."
Id. at 37 (citing
Richards, 520 U.S. at 394, 396 n. 7).
Exigent circumstances justifying a no-knock entry exist when one of the following is present: 1) the persons within the residence already know of the officers' authority and purpose; 2) the officers have a justified belief that someone within is in imminent peril of bodily harm; or 3) the officers have a justified belief that those within the residence are aware of their presence and are engaged in escape or the destruction of evidence. Smith, 386 F.3d at 759 (citing United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996)). "`Officers must have more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing their presence.'" Id. (quoting Bates, 84 F.3d at 795).
In the instant case, there is no dispute that the officers did not knock and announce their presence before entering the residence. However, the government argues the no-knock entry was constitutional because the officers anticipated the destruction of evidence. In this regard, the government must prove the officers had a reasonable belief that the loss or destruction of evidence was imminent. Id. at 760 (quoting Bates, 84 F.3d at 796). "`[T]he generalized and often recognized fear that destruction of evidence is an inherent possibility during the execution of a warrant [is not] adequate grounds to find exigent circumstances, although this is more likely to be accepted when the drugs are in easily disposable quantities.'" Id. (quoting Bates, 84 F.3d at 796).
The Court finds the officers reasonably believed that the loss or destruction of evidence was imminent. The officers approached the residence at 2101 Oak Street on foot and saw Shepard sitting on the porch. Upon seeing the officers, Shepard ran into the house. The officers feared that Shepard was attempting to dispose of the drugs. This fear was reasonable given the offices' knowledge, based on the controlled buy, that Shepard dealt small quantities of crack cocaine and Shepard's reaction upon seeing the officers approach the residence. Accordingly, the officers faced exigent circumstances permitting a no-knock entry.
Finding no constitutional violations, the Court DENIES both Shepard's motion to suppress [Court File No. 28] and Parker's motion to suppress [Court File No. 30].
SO ORDERED.