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."
