Good-Fath Exception and Form Affidavits

United States v. Moore, No. 11-5663 (6th Cir. Nov. 22, 2011) (published).

Panel of Judges Moore, Rogers, and Hood (E.D. Ky.).  Judge Moore filed a separate concurrence.

Felon-in-possession case.  Defendant moved to suppress the evidence.  Dist ct denied the motion.  Defendant appealed. 

Government acknowledged at oral argument that the search-warrant affidavit was "imperfect":
* Not detailed,
* CI not named (nor was the CI named to the magistrate),
* No cocaine quantity specified,
* Detective had more information, but did not include it in the affidavit.

Yet the appellate court found that "the warrant contains enough information to support the magistrate's finding of probable cause." 

The warrant/affidavit:
* Included statements from a CI,
* Included information regarding the CI's reliability and basis of knowledge,
* Used recent info (not stale),
* Established a nexus b/t the alleged criminal activity and the place to be searched.

Essentially, officers received info from a CI that an individual was selling cocaine from an apartment.  The warrant was mostly boilerplate.  (The affidavit was essentially a form affidavit widely used in the county.)

"Although a more detailed affidavit would have better served the purposes of the warrant requirement, the warrant in this case was valid." 

The affidavit stated that the CI had given information in the past that had led to two drug seizures, and the CI had seen personally the drugs and been at the residence in question.  This information satisfied the requirement that a CI's allegations "be bolstered by additional information in an affidavit." 

The appellate court does admonish that its "holding does not mean that the magistrate was required to issue the warrant, particularly since the affidavit was minimal in the ways conceded by government counsel."  The warrant requirement, the court continues, "puts primary responsibility on the magistrate to determine probable cause, and if the affiants repeatedly provide the minimum of information, magistrates would be acting within their discretion to demand more."

The appellate court goes on to say that, regardless of any defects in the warrant, the good-faith exception would save the warrant.  "Similar warrants have been upheld in numerous cases." 

Judge Moore's concurrence is interesting.  She would uphold the search only b/c of the good-faith exception.  She admonishes that "the majority's opinion does not constitute an open invitation to continue blind reliance on warrants of this nature."  Recognition of the problems with the warrant here, by the court and by the government, "provides notice that continued reliance on similar warrants, based on form affidavits with little to no particularized detail, may in the future result in inadmissible evidence without the backstop of the good-faith exception." 

Judge Moore continues, "the form affidavit's repeated use---with minimal to no unique detail and no further explanation under oath to the issuing magistrate---has persisted to the point of constitutional concern."  On the subject of unnamed CIs, Judge Moore explains that "when the identity of the informant has not been disclosed in the affidavit or to the magistrate, other indicia of reliability beyond the affiant's personal knowledge or past reliability---such as corroboration or a substantially detailed description of the alleged conduct---have also generally been required." 

Judge Moore points out that the officer did take steps to corroborate the CI's information.  (At the motion hearing in the district court, the detective revealed that he had previously set up two undercover buys b/t the CI and the target of the investigation at the apartment identified in the warrant application, and the detective had conducted surveillance on the apartment to confirm the defendant's identity.)  This additional investigation and its exclusion from the affidavit may suggest a practice of blind reliance on form affidavits in the county.  The concurrence concludes, "The practice of skirting this constitutional requirement in Shelby County is unacceptable and unsustainable.  Should officers wish to continue relying in good faith on issued warrants, they must conform their conduct to the Fourth Amendment's requirements." 

SCOTUS Grants Cert to Resolve FSA Issues

Sorry for the delay in posting. 

The Supreme Court has granted cert in two cases to resolve the circuit split over FSA "pipeline" cases (cases involving pre-FSA conduct and post-FSA sentencing).  I posted to the Sixth Circuit blog earlier; here is the info again:

The Supreme Court has granted cert in two FSA "pipeline" cases to resolve the circuit split over whether or not the FSA applies to defendants whose conduct pre-dated the FSA, but who were sentenced after the FSA was enacted.

The cases are Hill v. United States, No. 11-5721, and Dorsey v. United States, 11-5683.

Question presented in Dorsey:

"Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?"

Dovetailing with the FSA theme, the Sixth Circuit issued its decision in United States v. Thigpen, No. 10-3127 (6th Cir. Nov. 21, 2011) (unpublished), last week. Court again followed Carradine and denied FSA relief to the defendant, who was sentenced on January 28, 2010. The Court did state that the defendant "was properly sentenced under the law applicable at the time his crimes were committed." This language is broad, but given the defendant's sentencing date, it is dicta in "'pipeline" cases (defendants sentenced after the FSA was enacted, whose offenses pre-dated the FSA).

CDAM: Traverse City 2011

Last week's CDAM conference in Traverse City was great.  Thank you, Western District panel attorneys (and others!) who attended the Federal Session on Thursday.  Dick and I hope everyone got something out of the session. 

I will not be posting much this week, but I will be back on-line ASAP! 

Miranda, and a Short Reminder Regarding Corpus Delicti

The picture below shows the derelicti ship that has sailed.  Sorry . . . couldn't resist.  :) 

United States v. Brown, No. 10-6458 (6th Cir. Nov. 1, 2011) (unpublished).  Panel of Judges Sutton, McKeague, and Jonker (W.D. Mich.) (yes, our own Judge Jonker sat by designation). 

Defendant appealed his conviction and sentence for being a felon  in possession of a firearm.  The Court affirmed. 

Facts and Procedural History:
Robbery of home.  Police read the defendant his Miranda rights and secured a signed waiver.  The defendant confessed he had taken the missing gun.  After a grand jury indicted the defendant for being a felon in possession of a firearm, the police questioned the defendant again (first reading the defendant his Miranda rights and again securing a waiver).  The defendant's story changed, but at the end of it, he still admitted possessing the missing gun.

Before trial, the defendant sought to suppress the statements.  Jury convicted the defendant.  But the district court granted the defendant's post-verdict motion for acquittal, finding that the only pieces of evidence linking the defendant to the crime were the defendant's statements: his uncorroborated confessions. 

The government appealed, and the Sixth Circuit reversed, finding that sufficient independent evidence corroborated the defendant's statements.  On remand, the district court found that the defendant's prior convictions made him an armed career criminal under the ACCA.  The district court imposed a below-guidelines sentence of 15 years, the mandatory minimum.  The defendant appealed.

Conclusions:
* Corroboration: defendant sought to relitigate the issue of whether sufficient evidence corroborated the confessions.  The appellate court, however, found that "that ship has sailed."  The Court had decided the issue in the previous appeal; the defendant never sought rehearing; there was no change in controlling authority.  The previous decision remains binding.

* Suppression of statements: the defendant's alleged cognitive infirmities and/or possible drug use at the time did not render his waiver of Miranda invalid.  Nothing in the record suggested that the defendant did not understand his rights.  No coercive police behavior. 

* ACCA: defendant qualified as an armed career criminal.  The defendant had three prior convictions for aggravated burglary from Tennessee.  Application of the ACCA did not offend the Fifth Amendment (due process and equal protection) or the Eighth Amendment (cruel and unusual punishment).  The Court was clear: "We have seen this movie before, and each time it ends badly for the defendant."