United States v. Garey, Ikeitz ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2680
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IKEITZ GAREY,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 01 CR 108—David F. Hamilton, Judge.
____________
ARGUED DECEMBER 5, 2002—DECIDED MAY 15, 2003
____________
Before BAUER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. Defendant-Appellant Ikeitz Garey,
who pleaded guilty to illegally possessing a firearm,
challenges the district court’s denial of his motion to
suppress evidence of weapons seized from his residence
in violation of the Fourth Amendment. Because we agree
with the district court’s conclusion that police seized the
weapons from Garey’s residence in good-faith reliance
upon a validly issued search warrant, we affirm the dis-
trict court’s ruling.
2 No. 02-2680
BACKGROUND
During the course of an arson investigation in November
1998, law enforcement agents in Indianapolis interrogated
Patrick Henry, who reeked of gasoline at the time of his
detention near the crime scene. Initially denying any
involvement, Henry eventually admitted to throwing two
Molotov cocktails into the firebombed building. According
to Henry, he was living in the garage of an individual
whom he knew only as “Keith” or “Batch” when Batch
and another individual woke him and drove him, at gun-
point, to a building which they then forced him to fire-
bomb under cover—or coercion—of gunshots. Henry de-
scribed to investigators the house adjacent to the garage
where he had been sleeping on Carrollton Avenue as “the
one that’s at, I hope that’s the right address, that 1617,
it’s a white double. One side is boarded up, the other side
is not. . . . It’s, matter of fact it’s on the east end side
of the street, there’s a parking lot next to it, I mean an
empty lot next to it.”
Following Henry’s interrogation, Detective Michael L.
Mack of the Indiana Police Department prepared a prob-
able cause affidavit stating, inter alia, that Henry had
informed police that a man whom Henry knew as “Batch,”
and with whom Henry was then living in a residence
located “at 1615 North Carrollton Avenue and as described
in the attached Search Warrant,” coerced Henry at gun-
point to throw the Molotov cocktails.1 On the basis of
1
Mack appears to have determined that Henry, despite his
uncertainty as to the address number, was in fact describing
the residence at 1615, rather than 1617, North Carrollton
Avenue, and included the correct address in his affidavit. Al-
though Garey contends that the discrepancy—insofar as it calls
Henry’s credibility into question—betrays the objective unreason-
(continued...)
No. 02-2680 3
Mack’s affidavit, Marion County Superior Court Judge Gary
Miller found probable cause and issued a search warrant
which, by its terms, incorporated Mack’s affidavit.2 The
search warrant authorized police to enter
the north half of a two story double family residence
with white siding and a stone and brick front porch.
The resiodence [sic] has two doors on the west side, two
doors on the east side and one door on the north side.
The south half of the duplex is vacant and boarded.
There is also a white cinder block, one car detached
garage at the rear east side of the residence. There
is a partial numbered address affixed to the front of
the residence. The first and third numbers are “1”,
and [sic] the second and fourth numbers are missing.
The residence is directly south of the duplex to the
north, which bares [sic] the address of 1617/1619
N. Carrollton.
The search warrant further authorized police to search for
any materials that may have been used to make
Molotov cocktails, specifically gasoline and “Big Bear”
brand, 40 ounce beer bottles as alleged by the confiden-
tial source as the type that were utilized in a recent
arson/ firebombing . . . . Further, several firearms that
were utilized by the subjects during the commission
of this arson/firebombing, to include [sic] an AK-47
1
(...continued)
ableness of the police officer’s belief that probable cause existed
to search the residence, we regard it as trivial in light of Henry’s
thorough physical description of the house and the fact that
the house was missing several numbers.
2
It appears that Mack also prepared the search warrant which,
along with the affidavit, Judge Miller read prior to issuing the
search warrant.
4 No. 02-2680
type assault rifle, and blue steel and chrome-plated
semi-automatic handguns[,] are believed to be within
this residence.
Though Judge Miller signed the search warrant, no signed
copy of the affidavit was found on file with the Marion
County court clerk.3
Approximately twenty-four hours after detaining Henry,
officers executing the search warrant encountered Joseph
Wooten and Defendant-Appellant Ikeitz Garey sleeping
inside the residence at 1615 North Carrollton. In addi-
tion to an assault rifle, a Molotov cocktail, and “miscella-
neous drugs” seized from the house, police recovered two
handguns from the bed in which Garey slept.
In September 2001, Garey was indicted on two counts
of possession of an unregistered firearm and two counts
3
With respect to his issuance of the search warrant, Judge
Miller would eventually testify before the district court as follows:
Prosecution: Sir, on the day that this search warrant was
signed are you sure that you read the affidavit
for probable cause?
Miller: Oh, I’m quite certain.
Prosecution: And, sir, can you tell the Court did you intend
to sign the search warrant?
Miller: Yes.
Prosecution: And did you intend to provide to Detective
Mack a valid search warrant for the residence
that is indicated in the State’s Exhibit Num-
ber Two?
Miller: Yes.
Prosecution: Did you find probable cause for the search
warrant that day?
Miller: Yes.
No. 02-2680 5
of firearm possession by a felon.4 Garey then filed—and
the district court denied—a motion to suppress evidence
seized from 1615 North Carrollton, asserting that the
search violated his Fourth Amendment rights insofar as
the police lacked probable cause, the search warrant
notwithstanding. Without making any determination as
to probable cause, the district court concluded that the
search and seizure fell within the scope of the good-
faith exception to the exclusionary rule as articulated in
United States v. Leon, 468 U.S. 897 (1984). Reserving his
right to appeal the district court’s ruling on his motion to
suppress, Garey entered a conditional plea of guilty to
one count of firearm possession by a felon, in violation of
18 U.S.C. § 922(g) (2003), and was sentenced to 84 months’
imprisonment and three years of supervised release.
Garey now appeals the district court’s denial of his mo-
tion to suppress evidence seized from the residence at
1615 North Carrollton Avenue.
ANALYSIS
In Leon, the United States Supreme Court established an
exception to the Fourth Amendment exclusionary rule—
which remedies Fourth Amendment violations through
the exclusion from the prosecution’s case-in-chief of evi-
dence obtained as a result thereof—in cases where law
enforcement officers have acted in objectively reasonable
reliance on a search warrant issued by a neutral and
detached magistrate. 468 U.S. at 927 (BLACKMUN, J.,
4
State arson charges were dismissed after the state court
granted Garey’s motion to suppress evidence seized from 1615
North Carrollton Avenue. Garey subsequently pleaded guilty to
federal arson charges and was sentenced to 60 months’ imprison-
ment, but his conviction was vacated after the district court
awarded him post-conviction relief pursuant to 28 U.S.C. § 2255.
6 No. 02-2680
concurring in judgment). Writing for a majority of the
Court, Justice White reasoned that the suppression of
evidence obtained through magistrate error inadequately
served to deter law enforcement agents from overstep-
ping the bounds of the Fourth Amendment. Id. at 921(observing that “penalizing the officer for the magistrate’s
error, rather than his own, cannot logically contribute
to the deterrence of Fourth Amendment violations”). Be-
cause the exception is premised on the officer’s good-
faith reliance on the search warrant, its application is
limited in several respects, including the following:
Suppression . . . remains an appropriate remedy if
the magistrate or judge in issuing a warrant was mis-
led 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. Franks v. Dela-
ware, 438 U.S. 154, 171 (1978) . . . . Nor would an
officer manifest objective good faith in relying on a
warrant based on an affidavit “so lacking in indicia
of probable cause as to render official belief in its
existence entirely unreasonable.” Brown v. Illinois, 422
U.S. 590, 610-611 (1975) (POWELL, J., concurring in
part); see Illinois v. Gates, 462 U.S. 213, 263-264 (1983)
(WHITE, J., concurring in judgment).
Id. at 923.
As a matter of course, application of the good-faith
exception assumes that the warrant issued in (spite of)
the absence of probable cause. In the instant case, it
appears that the district court made precisely this as-
sumption in its statement that it “need not and does not
decide whether the search warrant was actually sup-
ported by probable cause.” United States v. Garey, No. IP
01-108-CR-1 H/F at 12 (S.D. Ind. Apr. 11, 2002) (entry
on defendant’s motion to suppress) (citing United States
v. Fairchild, 940 F.2d 261, 264 (7th Cir. 1991) (assum-
No. 02-2680 7
ing without deciding that affidavit failed to establish
probable cause, but holding that good-faith exception
applied)). Deferring to the district court’s election to confine
its analysis to the issue of the good-faith exception to
the exclusionary rule, cf. United States v. Arch, 7 F.3d
1300, 1302 (7th Cir. 1993), we review its application there-
of for clear error, see United States v. Spry, 190 F.3d 829,
834 (7th Cir. 1999) (citation omitted).
In support of his challenge to the district court’s applica-
tion of the good-faith exception, Garey contends that
(i) Detective Mack’s omission from the affidavit of several
facts surrounding Henry’s statement misled Judge Miller
and (ii) the affidavit supporting the search warrant was
“so deficient on the issue of probable cause that no reason-
ably minded police officer could have relied upon it in
good faith.” We address each of these arguments in turn.
First, Garey infers that Mack intended to deceive Judge
Miller from the affidavit’s omission of the following infor-
mation relating to Henry’s statement to police: (i) the
inconsistency between Henry’s initial denial and eventual
admission of his involvement in the arson; (ii) Henry’s
admitted drug use; (iii) Henry’s uncertainty as to the
exact address number of the North Carrollton Avenue
residence; (iv) that Henry did not directly observe gaso-
line or “Big Bear” brand beer bottles inside the North
Carrollton Avenue residence; and (v) that investigators
informed Henry that only by cooperating with police
could he avoid a lengthy prison term. However, under Leon,
these omissions alone form an insufficient basis upon
which to conclude that Mack misled Judge Miller and
that suppression is thus appropriate. Garey bypasses
the requisite analytical step of demonstrating that the
affidavit contained information that Mack “knew was
false or would have known was false except for his reckless
disregard of the truth,” Leon, 468 U.S. at 923 (citation
omitted). On the contrary, all of the information included
8 No. 02-2680
in the affidavit was the product of Henry’s statement,
rather than Mack’s fabrication. Neither Garey’s argument
nor the record provides this Court with any indication
whatsoever that Detective Mack intentionally or recklessly
deceived Judge Miller.5
Secondly, Garey asserts that no reasonable police officer
could have concluded from the facts contained in the
affidavit that probable cause existed to search 1615
North Carrollton Avenue, since it lacked any reference
either to the instrumentality of the crime or to the nexus
between the crime scene and 1615 North Carrollton Ave-
nue. Although the district court considered and properly
rejected both of these points, we briefly address them here.
With respect to the issue of the affidavit’s silence on the
instrumentality of the crime, we note not only that the
affidavit explicitly mentioned “two Molotov cocktails,” but
also that the search warrant (which, by its terms, incorpo-
rated the affidavit) was more specific than the affidavit;
it referred to such items—specifically described in Henry’s
statement—as “ ‘Big Bear’ brand, 40 ounce beer bottles”
and “an AK-47 assault type rifle.”6 As the government
5
Moreover, any doubt as to Henry’s credibility implicit in various
of these omitted facts—to the extent that we entertain Garey’s
speculation that such doubt would have defeated Judge Miller’s
probable cause finding—is overcome by Mack’s inclusion in the
affidavit of statements Henry made against his penal interest.
See, e.g., United States v. Leidner, 99 F.3d 1423, 1429-30 (7th
Cir. 1996) (approving magistrate’s consideration of informant
as reliable due to statements made against penal interest); United
States v. Barnes, 909 F.2d 1059, 1069 (7th Cir. 1990) (fact
that informant’s statement was made against penal interest
added to credibility).
6
Henry’s statement describes both of these items as instru-
mentalities of the crime: the beer bottle was used to make a
(continued...)
No. 02-2680 9
correctly observes, “while this is poor draftsmanship, it
does not mean the affidavit was so lacking in probable
cause that no reasonable law enforcement officer could
have relied on the warrant.”
Nor does Garey’s claim that the affidavit lacked any
nexus between the arson scene and the Carrollton Avenue
residence support the argument that no reasonable offi-
cer could have concluded that probable cause existed to
search his residence. The district court’s statement of the
law is correct: “A search warrant may issue even in the
absence of direct evidence linking criminal objects to a
particular site” taking into account the totality of the
circumstances. United States v. Garey, No. 01-CR-108,
p.13 (S.D. Ind. 2002) (citing United States v. Sleet, 54 F.3d
303, 306 (7th Cir. 1995) (upholding search warrant for
home of bank robbery suspect; under totality of circum-
stances, reasonable to find evidence there)). What police
knew is thus more germane to our assessment of the
reasonableness of an officer’s probable cause belief than
what the affidavit did not make explicit. Police knew that
Henry, whom witnesses had observed smelling of gasoline
while fleeing the scene of an arson fire and gunshots,
claimed to have been living at 1615 North Carrollton
Avenue with an individual who coerced him, at gunpoint, to
throw two Molotov cocktails at the crime scene. Even
assuming, arguendo, that this information forms an
inadequate basis for a magistrate’s legal finding of prob-
able cause, it certainly establishes a nexus between the
crime scene and the place to be searched sufficient to
support a police officer’s reasonable belief that probable
cause exists.
6
(...continued)
Molotov cocktail and the rifle was fired at the crime scene
(whether as covering fire or to coerce Henry).
10 No. 02-2680
In short, neither Garey’s motion to suppress nor this
appeal makes the requisite showing “that the officers
were dishonest or reckless in preparing their affidavit or
could not have harbored an objectively reasonable belief
in the existence of probable cause,” Leon, 468 U.S. at 926,
and, as such, the good-faith exception to the exclusionary
rule applies to the evidence seized from 1615 North
Carrollton Avenue.
CONCLUSION
The district court properly applied the good-faith ex-
ception to the exclusionary rule in denying Defendant-
Appellant’s motion to suppress evidence seized from his
residence pursuant to a valid search warrant. AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-15-03