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United States v. Roberts

United States District Court, E.D. Missouri, Southeastern Division

September 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LOUIS J. ROBERTS, Defendant.

          REPORT AND RECOMMENDATION

          ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is the Defendant's Motion to Suppress Evidence. (Doc. 24.)

         Roberts seeks to suppress the evidence secured by law enforcement officers following the execution of a Search Warrant at his home. He argues that the use of an unwitting person to purchase a controlled substance from a residence was insufficient information for the issuing judge to find probable cause and issue the Search Warrant. Roberts claims that “[i]f the court cannot judge the credibility of the ‘unwitting person,' a finding of probable cause cannot be prudently made.” Id. at 3. In his post-hearing brief, Roberts further argues that the officer who applied for the Search Warrant failed to include information that may have influenced the issuing judge's probable cause finding. (Doc. 37 at 4-5.)

         The Government responded that there was “sufficient probable cause” to support the issuance of the Search Warrant; and even if it lacked probable cause, the officers acted in “good faith” reliance on its validity. (Docs. 28, 38.)

         In consideration of the pleadings identified above and the evidence offered by the parties, the undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motion to Suppress Evidence be denied.

         I. Findings of Fact

         Roberts accepted and adopted (Doc. 37 at 1) the Government's description of the “Factual Background” in its Response to his Motion (Doc. 28 at 1-4). Roberts' primary contention is that the information in the Affidavit was insufficient for a probable cause finding. As such, the facts giving rise to Task Force Officer (TFO) Christopher Newton's request for the reviewing judge to find probable cause for the issuance of a search warrant are set out here. TFO Newton stated:

I was contacted by a Missouri State Highway Patrol Confidential Informant (CI), who has proven reliable in the past. This CI has previously conducted controlled buys in past drug related offenses and investigations. The target location for this search warrant is 503 South Frederick in Cape Girardeau. I have received numerous tips regarding this residence and those tips all related to the distribution of heroin and other controlled substances from the target residence. This reliable CI advised they could utilize an unwitting person to purchase heroin from the target premises of 503 South Frederick. An “unwitting person” is a subject who is unaware they are being utilized to perform a drug purchase on behalf of law enforcement.
CI advised they would meet with the unwitting person near 503 South Frederick. The CI advised they would provide the unwitting person with a quantity of U.S. Currency and the person would proceed to 503 South Frederick, obtain the heroin and bring it back to the CI. The CI advised they have conducted a drug transaction utilizing this unwitting person in the past in this same manner. CI advised me of the identity of the unwitting person and I was familiar with this individual and therefore knew who would be serving in that capacity.
Within the last 72 hours, I met with the CI at a predetermined location and their person was searched with negative results. I then drove CI to the area where they would meet the unwitting person and dropped CI off. A short time later, I observed the unwitting person leave the meeting location. At that time, I received a phone call from the CI, who advised me they had provided the unwitting person with an amount of U.S. Currency and the unwitting person was walking to 503 South Frederick to obtain the heroin.
I continued to maintain surveillance on the unwitting person and observed him/her walk to 503 South Frederick and enter the front door of the residence. Approximately five (5) minutes later, I observed the unwitting person exit the front door of 503 South Frederick and proceed directly back to the meeting location with the CI. The unwitting person did not make contact with any other subjects or enter any other residence while walking to and from 503 South Frederick. A short time later the CI left the meeting location where CI had met with the unwitting person and walked back to my location. The CI then provided me with a baggie containing a single rocklike substance which field tested positive for the presence of heroin.
Based on my training and experience, as well as my familiarity with this reliable CI, I believe probable cause exists to believe that the heroin turned over to me by CI was purchased from the target premises by the unwitting person.

See Gov't. Ex. #1 at 5-6.

         II. Conclusions of Law

         Roberts bemoans the fact that the Search Warrant in this case was not typical in that it targeted a location rather than a person at a specified location and the underlying investigation was not in accord with the typical controlled purchase since an unwitting person was used to conduct the actual buy. Roberts claims that the issuing judge had no way to gauge the reliability of the unwitting person or why the CI believed that person could purchase drugs from the target location thereby negating the probable cause finding. (Doc. 37 at 5-6.)

         The Government responded that whether TFO Newton followed the “typical” course in conducting this drug investigation is unavailing as:

The sole task of a judge reviewing a search warrant application is simply to make a common-sense assessment of whether the facts set forth in the affidavit, viewed in light of the totality of the circumstances, are sufficient to establish a “fair probability” that evidence of criminal activity will be found in the place to be searched.

(Doc. 38 at 7.) As discussed below, applying these principles results in a finding that there was probable cause to support the issuance of the Search Warrant in this matter.

         II.A. Probable Cause

         Probable cause to issue a warrant exists when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband will be found in a particular place. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Whether probable cause has been established involves ...


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