United States v. Charles Leppert ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2132
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United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for the
* Northern District of Iowa.
Charles John Leppert, *
*
Appellant. *
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Submitted: December 15, 2004
Filed: May 20, 2005
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Before LOKEN, Chief Judge, and MORRIS SHEPPARD ARNOLD and RILEY,
Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
After the district court1 denied his motion to suppress, Charles Leppert entered
a conditional plea of guilty to being an unlawful user of methamphetamine in
possession of a firearm. See 18 U.S.C. §§ 922(g)(3), 924(a)(2). He appeals,
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, adopting the report and recommendations of the Honorable John A.
Jarvey, Chief Magistrate Judge, United States District Court for the Northern District
of Iowa. See 28 U.S.C. § 636(b)(1)(B).
contending that the district court should have granted his suppression motion because
the warrant underlying the search was obtained without probable cause. We affirm.
I.
The police in Dubuque, Iowa, applied for and obtained a warrant to search a
residence at 2618 Central Avenue for methamphetamine, chemicals and equipment
used to make methamphetamine, and firearms. Sergeant Gregory Egan of the
Dubuque Drug Task Force signed an affidavit in support of the application, in which
he attested as follows:
At about 11:00 p.m., Sergeant Egan met with an informant, Robert Gretillat,
at the county jail following Mr. Gretillat's arrest for a probation violation.
Mr. Gretillat told Sergeant Egan that he was "currently residing" at the Central
Avenue address with Melissa Altman and an individual whom he knew only as
"Chuck." Mr. Gretillat described Chuck, and at the end of the interview he identified
a photograph of Mr. Leppert as Chuck, an individual with whom he had been living
for the past month. According to Mr. Gretillat, Jodi Riesdorf also lived at the
residence until her recent arrest, and the lease for the property was in the names of her
parents.
Mr. Gretillat also told Sergeant Egan that Chuck had cooked methamphetamine
in the basement of the Central Avenue residence about 2:00 p.m. that afternoon.
Because the methamphetamine had not turned out properly, Mr. Gretillat expected
Chuck to try to cook again that night. Mr. Gretillat named specific chemicals and
equipment for cooking methamphetamine that he had observed in the basement of the
residence that day. He added that Chuck manufactured methamphetamine by using
red phosphorous obtained from the striker plates of matchbooks and that he
(Mr. Gretillat) helped to remove the phosphorous by first soaking the striker plates
in paint thinner.
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In addition, Mr. Gretillat said that a .380 pistol was in the residence: He had
seen the gun in Chuck's waistband that afternoon while Chuck was cooking
methamphetamine; the gun was black, with a clip, and was from Italy. Mr. Gretillat
also said that he had seen a 12-gauge sawed-off shotgun at the residence. He had first
seen the shotgun about six weeks earlier, and he last saw it shortly after Chuck and
Ms. Altman obtained it from Ms. Riesdorf for one-half gram of methamphetamine.
The application for a warrant also included information from a confidential
informant (CI), whom an investigator had spoken to nine days before Sergeant Egan
talked to Mr. Gretillat. The CI said that he had once seen John Fuller with a sawed-
off shotgun and Jody [sic] Riesdorf with a smaller sawed-off shotgun. According to
the CI, Mr. Fuller had "sold" the larger shotgun to two individuals named Chuck and
Melissa for one-half gram of methamphetamine, and Chuck and Melissa were
"resid[ing] with" Ms. Riesdorf. An attachment to the warrant application described
the CI as having a reputation for truthfulness and "no motivation to falsify the
information." The CI had "been an active informant" for the drug force for ten years,
and had "made several undercover narcotics purchases that ... resulted in successful
prosecution of numerous cases in the Dubuque area."
II.
The facts are not in dispute, and we review de novo the district court's legal
conclusions, United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004). Under the
fourth amendment, warrants may issue only upon "probable cause," U.S. Const.
amend. IV, which is present when 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 (1983); see United States v. Riedesel, 987 F.2d 1383, 1390 (8th Cir. 1993).
Before issuing a warrant, a magistrate must determine based on the totality of the
circumstances that probable cause exists, Gates, 462 U.S. at 230, and if the magistrate
had a "substantial basis" for that determination both the district court and this court
must uphold it, id. at 236-37.
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Mr. Leppert contends that the state magistrate's probable cause finding cannot
be upheld because it was based on Mr. Gretillat's statements, which were not shown
to be reliable. In addition, according to Mr. Leppert, the magistrate was presented
with evidence that showed as a matter of law that Mr. Gretillat was an unreliable
informant.
Contrary to Mr. Leppert's first assertion, we believe that ample evidence
supported the reliability of Mr. Gretillat's statements. An informant's tip may be
sufficiently reliable to support a probable-cause determination if the informant has
previously provided reliable information or if the tip is "corroborated by independent
evidence." See United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). Here the
CI gave reliable information in the past that resulted in numerous successful
prosecutions, and some of Mr. Gretillat's statements were corroborated by statements
of the reliable CI. Mr. Leppert argues that the police, rather than another informant,
must corroborate the statements of an untested informant. But we have said that
information provided by one informant may be "corroborated with specific, consistent
details provided by [a] second informant," and that, in fact, the tips of two informants
may be "reciprocally corroborative, rendering their information enough to support a
finding of probable cause." United States v. Fulgham, 143 F.3d 399, 401 (8th
Cir.1998) (citing United States v. Jackson, 67 F.3d 1359, 1365 (8th Cir.1995), cert.
denied, 517 U.S. 1192 (1996)).
Here the reliable CI said that individuals named Chuck and Melissa lived at
Ms. Riesdorf's residence. This statement corroborates Mr. Gretillat's statement nine
days later that Chuck and Melissa Altman lived where Ms. Riesdorf had resided until
her recent arrest, and that the residence was leased in her parents' names. We note,
moreover, that both the CI and Mr. Gretillat stated that Chuck and Melissa had
obtained a sawed-off shotgun in exchange for one-half gram of methamphetamine.
Although Mr. Gretillat said that the gun came from Ms. Riesdorf and the CI said that
it came from Mr. Fuller, the CI did state that he had once seen Ms. Riesdorf with a
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sawed-off shotgun. Cf. Gates, 462 U.S. at 246 n.14. An "informant who is correct
about some things more likely will be correct about critical unverified facts," and thus
we believe that the cross-corroboration of some details of the statements of
Mr. Gretillat and the CI supports the reliability of Mr. Gretillat's statements as a
whole. Cf. United States v. Reivich, 793 F.2d 957, 960 (8th Cir. 1986).
In addition, we note that Mr. Gretillat provided a detailed description of the
methamphetamine operation based on what he said were his firsthand observations
of recent activities. As the Supreme Court has noted, the "explicit and detailed
description of alleged wrongdoing, along with a statement that the event was
observed firsthand, entitles [the] tip to greater weight than might otherwise be the
case." Gates, 462 U.S. at 234; see also United States v. Jackson, 898 F.2d 79, 81 (8th
Cir. 1990). Also, we have held that an informant's statement against his or her own
penal interests (even if others are also implicated) is presumptively credible, and here
Mr. Gretillat admitted to having assisted in making methamphetamine. See United
States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001); see also United States v. Harris,
403 U.S. 573, 583-84 (1971) (plurality opinion). We reject Mr. Leppert's contention
that the harm to Mr. Gretillat's own penal interests does not enhance his credibility
because he incriminated others. For this argument, Mr. Leppert relies on the plurality
opinion in Lilly v. Virginia, 527 U.S. 116, 138-39 (1999), which indicates that the
sixth amendment's confrontation clause may be violated if hearsay statements that
inculpate an accused are admitted at trial, even if the statements are also self-
incriminating. But, unlike criminal convictions, probable-cause determinations
generally may be based on hearsay. See Franks v. Delaware, 438 U.S. 154, 165
(1978). We believe, moreover, that Tyler holds simply that statements against the
informant's own penal interests (not against the interests of others) are presumptively
credible, and we think that Mr. Gretillat's statement that he helped to make the
methamphetamine "carr[ies] considerable weight" in supporting a finding of
probable cause to search the location where he admitted to committing that crime.
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See United States v. LaMorie, 100 F.3d 547, 553 (8th Cir. 1996); see also Harris,
403 U.S. at 584 (plurality opinion).
We also reject Mr. Leppert's contention that the evidence presented to the
magistrate showed as a matter of law that Mr. Gretillat was unreliable because he had
at least one prior conviction, had violated his probation, and was in custody for
another crime when he spoke to Sergeant Egan. Although his previous (unspecified)
crime and subsequent arrest do not enhance Mr. Gretillat's credibility, many
informants have prior convictions, and Mr. Gretillat's statements need not have been
beyond any doubt to support a "fair probability" (not a certainty) that contraband
would be found at the Central Avenue address, see Reivich, 793 F.2d at 960. Finally,
Mr. Leppert contends that even the officers themselves must have doubted
Mr. Gretillat's credibility because they did not ask him for permission to search the
Central Avenue residence, although he had told Sergeant Egan that he lived there.
We believe, however, that it was reasonable for the police to obtain a search warrant,
for which the fourth amendment expresses a "strong preference," Gates, 462 U.S. at
236, rather than trying to get consent for a warrantless search from Mr. Gretillat, who
admittedly was not even a lessee of the premises.
III.
We conclude that substantial evidence supported the magistrate's finding of
probable cause for issuance of the warrant, and therefore we affirm the district court's
order denying Mr. Leppert's motion to suppress.
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