United States v. Pope

330 F. Supp. 2d 948, 2004 U.S. Dist. LEXIS 15957, 2004 WL 1792514
CourtDistrict Court, M.D. Tennessee
DecidedJuly 29, 2004
Docket1:04-00005
StatusPublished
Cited by2 cases

This text of 330 F. Supp. 2d 948 (United States v. Pope) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pope, 330 F. Supp. 2d 948, 2004 U.S. Dist. LEXIS 15957, 2004 WL 1792514 (M.D. Tenn. 2004).

Opinion

MEMORANDUM

HIGGINS, District Judge.

This matter is before the Court on the defendant’s motion (filed June 25, 2004; Docket Entry No. 32) to suppress evidence seized in the execution of a search warrant for his person and two residences, 1 and the government’s response. (Filed July 9, 2004; Docket Entry No. 37). Although this matter was originally set for an evi-dentiary hearing (Docket Entries No. 34, 35), the defendant withdrew his request for such a hearing (motion filed July 7, 2004; Docket Entry No. 36, 38) and has specifically requested that the motion be decided based on the evidence in the record. The Court’s findings are as follows.

I.

As an initial matter, the Court notes that all parties expressed agreement at the July 9, 2004 hearing on this matter that the question of whether probable cause existed to support the search warrants should be decided by reference solely to the warrants and affidavit 2 themselves. While the defendant questions the credibility of the confidential informant, he has not made any allegations of official fabrication that would warrant looking beyond the documents themselves. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (a defendant may challenge probable cause with evidence outside the affidavit by making a *952 substantial showing that the affidavit contains deliberate falsehoods or reckless disregard for the truth, without which the affidavit would be an insufficient basis for the warrant). Accordingly, while the defendant has submitted the transcript (filed May 6, 2004; Docket Entry No. 21) of his preliminary detention hearing, the court has not relied upon that material in reaching its decision. 3

The affidavit, sworn to by ATF special agent Wayne Kilday, contains the following relevant assertions of fact: that Jerry Pope was convicted of a felony in the Criminal Court of Wayne County, Tennessee, in 1998 (see Attachment A to Docket Entry No. 15, ¶ 2); that on January 22, 2004, a confidential informant (hereinafter “Cl”) who had proven reliable in previous work for law enforcement, in cooperation with authorities, wore a transmitting device and a tape recorder when the “Cl” entered a trailer residence used by Mr. Pope at 817 Moccasin Creek Road in Waynesboro (¶ 3(A)); that the Cl was allowed into the trailer where s/he purchased methamphetamine and whiskey from Mr. Pope, who during the encounter pointed a pistol at the Cl and remarked “did I ask you if you wanted to die or not?” (¶ 3(B)); that upon further questioning on March 2, 2004, the Cl stated that s/he had purchased methamphetamine from Mr. Pope at the Moccasin Creek location fifteen to twenty times between September and December 2003, and that on almost every occasion Mr. Pope was in possession of what appeared to be the same pistol displayed on January 22, 2004 (¶ 3(D)); that Mr. Pope also utilized and paid utilities for a second nearby residence at 1130 Pope Circle Road, where a vehicle registered to him at that address was seen on March 2, 2004, and that a local law enforcement officer and the Cl state that he frequently goes to and from both residences (¶ 3(E-G)); that in Agent Kilday’s over fourteen years of experience in investigating firearms cases he has found that people who own firearms tend to keep them on their persons-and in their residences and vehicles for long periods of time. (¶¶ 1, 3(H)).

II.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. A person’s home or person may be searched pursuant to a warrant, however, where there is probable cause to believe that the search will reveal evidence that a crime has been committed. “Probable cause has been defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.1995) (citation omitted). It exists where there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

“[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Gates, 462 U.S. at 235, 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). A reviewing court should “accord[] ‘great deference’ to a magistrate’s determination” *953 that probable cause exists to issue a search warrant. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citation omitted). “That determination should not be set aside unless arbitrarily exercised.” United States v. Swihart, 554 F.2d 264, 270 (6th Cir.1977). The test that a court applies in deciding whether an affidavit offered in support of a search warrant provided the requisite probable cause to sustain the warrant is the “totality of the circumstances”:

Although we must avoid simply “rubber stamping” the conclusions of the magistrate judge, we should equally avoid engaging in a hypertechnieal, line-by-line critique of an affidavit. We should instead conduct a common sense review of the affidavit and ask if the issuing magistrate, using a “practical” and “common-sense” analysis, correctly determined under “all the circumstances set forth in the affidavit,” that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

United States v. Mick, 263 F.3d 553, 564 (6th Cir.2001) (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317).

III.

Mr. Pope asserts that the information provided by the confidential informant was not sufficiently reliable to support a finding of probable cause. In determining whether a tip by an informant establishes probable cause for the issuance of a search warrant, a court must look at the totality of the circumstances. United States v. Smith, 182 F.3d 473, 477 (6th Cir.1999). In doing so, a court is to consider the veracity, reliability and basis of knowledge of the informant, as those terms have been defined:

“Veracity” involves the credibility of the informant or, alternatively, the reliability of the informant’s report.

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Bluebook (online)
330 F. Supp. 2d 948, 2004 U.S. Dist. LEXIS 15957, 2004 WL 1792514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pope-tnmd-2004.