United States v. Edward Joseph Lowen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1177
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Michael Anthony Clay, *
*
Appellant. *
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Submitted: June 17, 2011
Filed: July 28, 2011
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Before BYE and MELLOY, Circuit Judges, and SMITH CAMP, District Judge.1
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BYE, Circuit Judge.
Michael Clay appeals the district court’s denial of his motion to suppress the2
items recovered during a search of his apartment, undertaken pursuant to a search
warrant. Clay entered a conditional guilty plea to being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The Honorable Laurie Smith Camp, United States District Judge for the1
District of Nebraska, sitting by designation.
The Honorable James E. Gritzner, United States District Judge for the2
Southern District of Iowa.

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Exercising his reserved right to appeal the suppression ruling, Clay challenges the
existence of probable cause allowing the officers to perform the search of his
apartment and the district court’s application of the good-faith doctrine to the police
officer’s reliance on the judge-issued search warrant. We affirm.
I
In May 2009, a confidential informant (“CI”) provided Des Moines Police
Officer Robert Hoelscher (“Officer Hoelscher”) with information concerning Michael
Clay’s sale of marijuana and cocaine from his apartment in Des Moines. The CI
described Clay as a six-foot tall, 185-pound black male. The CI subsequently
cooperated with Officer Hoelscher by conducting three controlled marijuana buys
from Clay. Officer Hoelscher followed specific protocol for all of the buys, including
(1) searching the CI to ensure the CI did not have any drugs, money, or other
contraband prior to the buy; (2) giving the CI money in order to conduct the buy; (3)
following the CI to and from Clay’s apartment building; (4) meeting with the CI after
the buy to recover any narcotics the CI purchased; (5) again searching the CI for
contraband; and (6) debriefing the CI. The time during which no officer directly
observed the CI’s actions was limited to the moments inside Clay’s building.
During his debriefing following the first buy, the CI claimed he entered the
apartment building and went directly to Clay’s apartment on the second floor. Clay
told the CI to wait at the bottom of the stairs, after which time the CI witnessed Clay
meet with an individual for about thirty seconds in another apartment on the second
floor. After this meeting, Clay called the CI back up to the second floor, delivered
the marijuana to the CI, and the CI exited the apartment building. Officer Hoelscher
and Officer John Scarlett, who was also present during the buys, testified the CI
provided Officer Hoelscher with detailed information in response to questions about
the buy. Additionally, the CI positively identified Clay from a picture as the man
from whom he purchased the marijuana. The second and third controlled buys
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proceeded similarly to the first, with only minor differences. During the second buy,
Clay returned inside his own apartment for about thirty seconds before returning with
the marijuana. During the third buy, Clay and the CI exchanged the cash for the
marijuana without any interlude.
Although not present in Clay’s apartment building during the buys, Officer
Hoelscher testified he completed a walkthrough of Clay’s apartment building and
verified the layout matched the CI’s description. Officer Hoelscher also wired the CI
during the first and third buys, which allowed Officer Hoelscher to hear every other
word of the interchanges, thus providing him with an understanding of what occurred
inside Clay’s apartment building. However, the information about the walkthrough
of the building and use of a wire was not included in the search warrant application
and not provided to the judge issuing the warrant.
Officer Hoelscher initially applied for a search warrant after the second
controlled buy, following the consultation with an assistant prosecuting attorney for
Polk County, Iowa. Officer Hoelscher testified that in his experience, the prosecutor
reviewing the application will notify officers if they need to gather more information
to establish probable cause. Since the prosecuting attorney did not believe Officer
Hoelscher needed to supply extra information, he submitted the application to Polk
County District Associate Judge Cynthia Moisan. Judge Moisan issued a warrant
allowing for the search of Clay’s apartment; however, the tactical unit needed to
execute the search could not be procured and the search warrant became stale. See
Iowa Code § 808.8 (1978) (requiring a search warrant to be executed within ten days
from the date of issuance). Officer Hoelscher applied for another search warrant after
the third controlled buy, again consulting an assistant prosecuting attorney for Polk
County for review before submission. The prosecutor did not return the application
citing a need for more information, so Officer Hoelscher again submitted the
application to Judge Moisan, who issued the search warrant.
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The search of Clay’s apartment revealed a loaded pistol, mail addressed to Clay
at the apartment’s address, a digital scale, two hundred dollars, and drug
paraphernalia. Clay filed a motion to suppress, arguing the search warrant application
did not provide adequate probable cause to support the issuance of the warrant
because law enforcement was unable to corroborate the CI’s statements given they
were not actually present in the apartment when the buys occurred. Clay also argued
the good-faith exception to the exclusionary rule under United States v. Leon, 468
U.S. 897 (1984), would not apply because a reasonably well trained officer would not
believe the warrant was supported by sufficient probable cause. The district court did
not reach the probable cause issue and instead upheld the search under the Leon
good-faith doctrine. Clay now appeals the denial of his motion to suppress, raising
the same two issues.
II
When reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its Fourth Amendment determination de
novo. United States v. Guzman, 507 F.3d 681, 684 (8th Cir. 2007). We also review
de novo the district court’s application of the Leon good-faith exception to the
exclusionary rule. Id. at 684-685. “[W]e may consider the applicability of the good-
faith exception to the exclusionary rule before reviewing the existence of probable
cause.” United States v. Warford, 439 F.3d 836, 841 (8th Cir. 2006).
The Supreme Court held the exclusionary rule should not be applied so as to
bar the admission of “evidence obtained by officers acting in reasonable reliance on
a search warrant issued by a detached and neutral magistrate,” even if that search
warrant is later held to be invalid. Leon, 468 U.S. at 900, 922-23. “The good-faith
inquiry is confined to the objectively ascertainable question whether a reasonably
well trained officer would have known that the search was illegal despite the [issuing
judge’s] authorization.” United States v. Perry, 531 F.3d 662, 665 (8th Cir. 2008)
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(internal quotation marks and citation omitted). In determining the presence of good-
faith reliance on a judge-issued search warrant, the court must consider totality of
circumstances, including information not presented to the judge issuing the search
warrant but known to the police officers. Id.
One relevant circumstance to consider when determining whether an officer’s
actions were objectively reasonable is whether the officer consulted with an attorney
prior to seeking the warrant. United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir.
1996). Officer Hoelscher sought the advice of an assistant Polk County prosecuting
attorney before each of the two applications for a search warrant. By custom, if the
attorney believed more evidence was needed to secure a search warrant, she would
return the applications to the officer. Officer Hoelscher, however, did not have either
application returned from the attorney, which supports his objective reasonableness
in relying on the warrant.
Officer Hoelscher also interviewed the CI in person, a circumstance further
supporting Officer Hoelscher’s good-faith reliance on the warrant, see United States
v. Carpenter, 422 F.3d 738, 744 (8th Cir. 2005) (finding “officers could assess the
informant’s credibility because the information was provided in person”), and had
first-hand knowledge of the deals from his participation in the three controlled buys.
Cf. United States v. Kattaria, 553 F.3d 1171, 1178 (8th Cir. 2009) (“There is an
inherent indici[um] of reliability in the richness and detail of a first hand
observation.”) (internal quotation marks and citation omitted).
Moreover, we have held when the CI’s information is independently
corroborated by the officers, the information is more likely to be reliable. United
States v. Neal 528 F.3d 1069, 1073 (8th Cir. 2008). Considering evidence available
to the officer, but not perhaps the judge, see Perry, 531 F.3d at 665, Officer Hoelscher
was able to hear much of the drug sales through the audio he received from the
transmitter the CI wore during the first and third controlled buys. He also completed
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a walkthrough of Clay’s apartment building and verified the layout matched the CI’s
description. The CI further identified Clay as the individual who sold him marijuana
in a photograph presented by Officer Hoelscher. Taking into account all of the
surrounding circumstances, the officers could act in good-faith on the warrant issued
by the judge. See Kattaria, 553 F.3d at 1178 (“It is not objectively unreasonable to
execute a warrant where there was evidence to corroborate [an informant’s] tip and
where an independent magistrate had found that the affidavit stated probable cause.”)
(internal quotation marks and citation omitted).
Clay contends, however, no reasonably well trained officer would believe the
sufficiency of the warrant because of the failure to establish the CI’s reliability. He
cites United States v. Jackson, 818 F.2d 345, 350 (5th Cir. 1987), where the Fifth
Circuit held an affidavit did not support a finding of probable cause because it failed
to show the informant’s reliability and veracity. Beyond finding no probable cause
to support the warrant, the court further noted the total lack of reliability rendered the
good-faith exception inapplicable. Id. at 350 n.8. Viewing the present case in totality
quickly shows Jackson is distinguishable because the CI in the present case was
reliable and the information he provided was corroborated. The CI here provided
very specific details about the occurrences inside the apartment building; his
testimony was corroborated by the portions of the interchange between the CI and
Clay the transmitter was able to record. Additionally, the CI submitted himself to
questioning as part of the debriefs, during which time he was able to identify Clay as
the person who sold him the marijuana.
Accordingly, the district court properly denied Clay’s motion to suppress based
on the Leon good-faith exception. In light of this conclusion, we need not reach the
underlying question of probable cause.
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III
For the foregoing reasons, we affirm the district court’s denial of Clay’s motion
to suppress.
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