United States of America v. GARNETT L. TUTTLE and LARRY SETTLE

*The Honorable Sandra S. Beckwith, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0011P (6th Cir.)
File Name: 00a0011p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant,
v.
GARNETT L. TUTTLE and
LARRY S ETTLE ,
Defendants-Appellees.
;>

1
No. 98-5575
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 97-00020—Jennifer B. Coffman, District Judge.
Argued: December 13, 1999
Decided and Filed: January 7, 2000
Before: MERRITT and SILER, Circuit Judges;
BECKWITH,* District Judge.

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2 United States v. Tuttle, et al. No. 98-5575
1A second superseding indictment was ultimately returned which
added several counts to the original indictment, including one conspiracy
count in violation of 18 U.S.C. § 371, fourteen counts of possession with
intent to dispose of motor vehicles and parts with altered VINs in
violation of 18 U.S.C. § 2321, fourteen counts of altering or removing
VINs from motor vehicles or parts in violation of 18 U.S.C. § 511(a), and
two counts of possession of drugs in violation of 21 U.S.C. § 844(a).
_________________
COUNSEL
ARGUED: David Bunning, OFFICE OF THE U.S.
ATTORNEY, Covington, Kentucky, for Appellant. David A.
Tapp, Somerset, Kentucky, Thomas L. Jensen, London,
Kentucky, for Appellees. ON BRIEF: David Bunning,
OFFICE OF THE U.S. ATTORNEY, Covington, Kentucky,
for Appellant. David A. Tapp, Somerset, Kentucky, Thomas
L. Jensen, London, Kentucky, for Appellees.
_________________
OPINION
_________________
MERRITT, Circuit Judge. In this criminal case in which
the defendants were indicted for operating an auto “chop
shop” in violation of 18 U.S.C. § 2322,1 the government
appeals the district court’s grant of the motion of the two
defendants to suppress evidence seized under three search
warrants found by the district court to lack probable cause. In
adopting the report and recommendation of the magistrate
judge, the district court held that the first warrant was based
upon a “bare bones” affidavit that relied on insufficient
independent police investigation and an anonymous
confidential informant whose reliability was not established.
The second warrant was likewise held by the district court to
be factually deficient, and the second and third warrants were
held to be tainted under the “fruit of the poisonous tree
doctrine” because each warrant relied on information acquired
during the first, but subsequently invalidated, search. We do

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6 United States v. Tuttle, et al. No. 98-5575
Supervised Release for Interstate Transportation of Stolen
Motor Vehicles.
Accordingly, for the foregoing reasons, the judgment of the
district court invalidating the three search warrants and
suppressing the seized evidence is REVERSED and the case
remanded for further proceedings consistent with this opinion.
No. 98-5575 United States v. Tuttle, et al. 3
not agree with these rulings because the information provided
by the confidential informant was corroborated by other
information which together was sufficient to establish
probable cause under the Fourth Amendment.
* * *
On March 7, 1999, Kentucky State Police detective Bill
Riley inspected a rebuilt pickup truck that had been purchased
from an auto sales store in London, Kentucky. Based on his
long experience in investigating stolen cars and parts, his
inspection revealed to him a truck made from stolen parts.
Detective Riley then learned from the auto sales shop that the
truck had been rebuilt for it by co-defendant Garnett Tuttle.
Detective Riley immediately conducted an independent
investigation that included an interview of a London city
police officer who had received information from an
unidentified confidential informant indicating that the auto
sales shop was currently selling cars and trucks assembled
with stolen parts by Tuttle at a garage rented by Tuttle on
property owned by co-defendant Larry Settle. The informant
said that Tuttle’s work was ongoing and that he was currently
using the same place to rebuild other vehicles with stolen
parts. The London city police officer specifically stated that
he had received information within the past week that the
informant’s information was still current.
Detective Riley memorialized the foregoing information in
an affidavit submitted to a Kentucky state court judge, who
issued a search warrant on March 8, 1996, authorizing the
Kentucky State Police to search a white garage located on
property owned by Settle and leased to Tuttle. The state court
found that probable cause existed to believe that the garage
was being used to house an illegal automobile “chop shop”
operation. While executing the warrant on the white garage,
the state police found and seized numerous items believed to
be stolen property or evidence of crimes, including three
autos, auto parts, VIN plates, boxes of records and receipts,
and small amounts of marijuana and methamphetamine seized
as contraband in plain view of the searching officers.

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4 United States v. Tuttle, et al. No. 98-5575
Based in part upon information obtained during the earlier
search, the state court issued a second search warrant later
that same day authorizing the search of a gray garage owned
and controlled solely by Settle located on the same property
near the white garage. Although nothing was seized from the
gray garage, the state police observed a pickup truck with
suspicious parts. Finally, several days later, a third and last
search warrant was issued authorizing a search of both the
white and gray garages. The state police found and seized
additional auto parts, as well as other items believed to be
stolen property and evidence of crimes.
The magistrate’s report relied on by the district court to
suppress the seized evidence characterized the affidavit in
support of the first search warrant as lacking probable cause
because there was nothing in the first paragraph of the
affidavit that linked the white garage with any criminal
activity or contraband. The paragraph only indicated that the
seized truck was suspected of containing stolen parts and that
it had been rebuilt by Tuttle. Furthermore, the magistrate
found the second paragraph of the affidavit to be “fatally
flawed” because it failed to establish the credibility of the
confidential informant relied upon by the state police, as well
as failed to provide any independent corroboration of the
information relayed by the informant. The magistrate
apparently believed that the affidavit for the warrant was
insufficient under the rule of Illinois v. Gates, 462 U.S. 213
(1983), that an uncorroborated tip of an anonymous informant
is insufficient to establish probable cause.
* * *
We have previously held that information received from an
informant whose reliability is not established may be
sufficient to create probable cause when there is some
independent corroboration by the police of the informant’s
information. See United States v. Weaver, 99 F.3d 1372,
1377 (6th Cir. 1996); United States v. Leake, 998 F.2d 1359,
1365 (6th Cir. 1993). The error made by the magistrate in this
case was in concluding that probable cause for the search did
No. 98-5575 United States v. Tuttle, et al. 5
not exist because the basis for the warrant was only the
information provided by the anonymous informant whose
reliability was questionable. The informant statements recited
in Detective Riley’s affidavit saying that Tuttle was
rebuilding cars with stolen parts in a garage leased from Settle
were in fact corroborated. Prior to the warrant’s issuance,
Detective Riley had independently discovered from the
London auto sales shop on March 7 that a pickup truck rebuilt
with what appeared to be stolen auto parts had been
assembled for the shop by Tuttle. This information already
within Detective Riley’s knowledge clearly provided
independent corroboration of the informant and the
information the informant relayed that Tuttle was currently
rebuilding trucks with stolen parts in a garage leased from
Settle. The information from the informant linking the white
garage to the seized truck was not stale because the affidavit
clearly stated that, as of the previous week, the information
from the informant was that the work at the chop shop was
ongoing.
In light of the above discussion finding that the first warrant
was valid, the second and third search warrants withstand
constitutional scrutiny because any items seized under these
subsequent warrants can no longer be suppressed as “fruit of
the poisonous tree.” The court below was in error when it
held that the affidavit in support of the second search warrant
lacked a sufficient factual basis to establish probable cause.
First, the second affidavit indicated that a Kentucky State
policeman observed Settle leaving the white garage on his
property (where numerous auto parts believed to be stolen
were found and seized) immediately prior to execution of the
first search warrant. Second, business records of Settle
relating to the purchase of auto parts were found throughout
Tuttle’s business records seized by the police from the white
garage. Third, the affidavit indicated that Settle not only
owned the white garage and had a key to it, but that the gray
garage was within several feet of the white garage and on the
same property. Fourth, the affidavit said that Settle had a
prior federal conviction and was currently on Federal

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