United States District Court, S.D. Alabama, Northern Division
V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendant's motion to
suppress evidence (Doc. 10), and the Government's
opposition thereto (Doc. 13). An evidentiary hearing was held
on the motion on February 15, 2018. At the hearing, the
parties were ordered to file supplemental briefs on the
issues and those briefs (Docs. 19 & 21) are also before
the Court for consideration. For the reasons explained below,
the Court finds that the motion to suppress should be denied.
moved to suppress evidence seized from his residence because
he claims the search and seizure violated the Fourth
Amendment of the Constitution. Defendant contends that the
affidavit submitted in support of the application for the
search warrant was insufficient to establish probable cause.
Defendant further argues that the search warrant was based on
an affidavit so lacking in indicia of probable cause as to
objectively render a reasonably well-trained officer's
belief in its existence entirely unreasonable.
affidavit offered in support of the warrant, dated November
17, 2016, stated the following:
Deputy Sonja Myles, has been working an undercover operation
using Confidential Informant(s) and has probable cause for a
Search Warrant at the said residence of Mr. Melvin Tensely
who resides at 640 Red Oak Road, Sweet Water, AL, 36782. I
have sent in Confidential Informant(s) to the said residence
to make drug buys. Confidential Informant(s) have bought
marijuana and powder cocaine from inside of the residence of
Melvin Tensely. Confidential Informant(s) have stated that
the subject Melvin Tensely has his drugs in different areas
of the residence as well as vehicles.
(Doc. 10-1, p. 2). The affidavit does not state when the
controlled drug buys were made or provide any other details
about how the drug buys were conducted. The affidavit also
does not provide any facts regarding the confidential
contends that the warrant is stale because the affidavit does
not state the dates for the surrounding facts. Probable cause
needed to obtain a search warrant “must exist at the
time surveillance is authorized.” United States v.
Domme, 753 F.2d 950, 953 (11th Cir. 1985), holding
modified by United States v. Dennis, 786 F.2d 1029
(11th Cir. 1986) (citations omitted).
It does not satisfy the probable cause standard if the
government can demonstrate only that the items to be seized
could have been found at the specified location at some time
in the past. Rather, the government must reveal facts that
make it likely that the items being sought are in that place
when the warrant issues.
Id. (citation omitted). “Probable cause is not
determined merely by counting the number of days between the
facts relied upon and the warrant's issuance, ” but
there must be some facts from which the Magistrate could
evaluate whether the affidavit was stale. Id.
(citation omitted). Here, the facts contained in the
affidavit alone were clearly insufficient for the Magistrate
to make that determination.
hearing on this motion Deputy Myles and Chief Investigator
Patrick Champion testified that they applied for the search
warrant together and that they told the Magistrate Judge that
the most recent drug buy was conducted the day before, on
November 16, 2016. They also testified that they told the
Magistrate that they have used this confidential informant
before on several occasions and that he has been reliable.
They also told the Magistrate that they had information come
in on a tip line on the Defendant and that the Defendant was
a felon. Deputy Myles first testified that their statements
to the Magistrate were not under oath, but she was later
recalled to the stand and said she had been confused by the
attorney's questions and testified that the Magistrate put
them under oath as soon as they told him they were there for
a search warrant. Investigator Champion also testified that
the Magistrate started off by putting them under oath at the
beginning of their meeting and stated that that same protocol
is followed every time they apply for a search warrant. Both
Myles and Champion admitted that their oral statements to the
Magistrate were not recorded. The Court finds that the
information the officers told the Magistrate and testified to
in this Court, together with the affidavit, is sufficient to
establish probable cause.
still contends that the search warrant application was
insufficient because under Ala. R. Crim. P. 3.9(a) and Fed.
R. Crim. P. 41(d)(2), testimony taken in support of a warrant
must be recorded. However, Federal Rule 41 does not apply to
this case because it governs searches that are “federal
in execution.” United States v. Brown, 569
Fed.Appx. 759, 762 (11th Cir. 2014) (citing United States
v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th Cir.1992)).
“A search is federal in execution if a federal official
had a hand in it.” Id. (citing
Lehder-Rivas, supra). The search warrant in this
case was a state warrant sought by state officers. There has
been no suggestion or facts put forth that would indicate
that federal agents provided assistance to state officers or
had any other hand in the investigation or request for the
any violation of Alabama Rule 3.9, the Government points out
that a violation of a state or local rule is not dispositive
in federal court. This Court is “not required to
suppress the evidence on the ground that the state rule had
been violated because federal law, not state law, governs the
admissibility of evidence in federal court, and
‘complaints that the evidence was obtained in violation
of state law are of no effect.' ” United States
v. Noriega, 676 F.3d 1252, 1263 n.4 (11th Cir. 2012)
(quoting United States v. Glinton, 154 F.3d 1245,
1252 (11th Cir.1998)). The issue before the Court is whether
the search violated the Fourth Amendment's prohibition
against unreasonable searches and seizures. “The Fourth
Amendment does not require that the basis for probable cause
be established in a written affidavit; it merely requires
that the information provided the issuing magistrate be
supported by ‘Oath or affirmation.' ”
United States v. Donaldson, 558 Fed.Appx. 962, 967
n.3 (11th Cir. 2014) (quoting United States v.
Clyburn, 24 F.3d 613, 617 (4th Cir.1994)). “The
Fourth Amendment likewise does not require ‘that
statements made under oath in support of probable cause be
tape-recorded or otherwise placed on the record or made part
of the affidavit.' ” Id. (quoting
Clyburn, supra). Accordingly, this Court “may
consider an affiant's oral testimony, extrinsic to the
written affidavit, which is sworn before the issuing
magistrate, in determining whether the warrant was founded on
probable cause.” Id. (quoting United
States v. Hill, 500 F.2d 315, 320 (5th Cir.1974)). After
considering the affidavit and the officers' sworn
testimony under the totality of the circumstances, the Court
finds that the Magistrate had a substantial basis for
concluding that probable cause existed. See Illinois v.
Gates, 462 U.S. 213, 232, 238-39 (1983) (The “duty
of a reviewing court is simply to ensure that the magistrate
had a ‘substantial basis for . . . concluding that
probable cause existed.”).
the affidavit and sworn testimony were insufficient to
support probable cause, the officers were justified in
relying on the warrant to conduct the search. “When an
officer has in good faith obtained a search warrant from a
judge or magistrate and acted within its scope, ‘there
is no police illegality and thus nothing to deter.'
” United States v. Travers, 233 F.3d 1327,
1329 (11th Cir. 2000) (quoting United States v.
Leon, 468 U.S. 897, 921 (1984)). “Under
Leon, ‘searches pursuant to a warrant will
rarely require any deep inquiry into reasonableness, for a
warrant issued by a magistrate normally suffices to establish
that a law enforcement officer has acted in good faith in
conducting the search.' ” United States v.
Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003) (quoting
Leon, supra). However, “in some circumstances
the officer will have no reasonable grounds for believing
that the warrant was properly issued.” Id.
(quoting Leon, supra).
Leon's good faith exception, therefore, does not
apply to the following situations: (1) where the magistrate
or judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known
was false except for his reckless disregard of the truth; (2)
where the issuing magistrate wholly abandoned his judicial
role; (3) where the affidavit supporting the warrant is so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable; and (4) where,
depending upon the circumstances of the particular case, a
warrant is so facially deficient- i.e., in ...