Truth In Affidaviting: "Concerned Citizen" Label Not Fatal To CI-Based Search Warrant

UNITED STATES v. TAYLOR, USCA-7, No. 05-3819, 2006 U.S.App. LEXIS 31303, appeal from USDC-ILCD, before Circuit Judges Bauer, Wood, and Williams, opinion by Williams filed 20 Dec 2006,

LONG STORY SHORT: Though the seach warrant affidavit omitted some information about a confidential informant's unsavory background, the affidavit still established probable cause to search, even if the omitted information were put back in. Binding in IL, IN

FACTS: On 24 May 2004, Detective Atteberry of the Bloomington, Illinois Police Department applied for a search warrant supported by an affidavit containing the following facts: Ten days ago, CS 241, the identifier for a reliable confidential source that the department had been using for a long time, said Defendant had been growing 150-200 marijuana plants for each of the last 15 years on his property in Bloomington. At the moment, Defendant had 160 plants growing under a tarp next to a boat and a 6-foot fence. The plants were by now 4 feet high and Defendant removed the tarp every morning to give the plants light. CS 241 also related Defendant's full name, weight, height, phone number, description and color of Defendant's house where the plants were growing and the car he drove. CS 241, with Detective Atteberry next to him listening, phoned Defendant on 24 May to ask if the plants were still there, and Defendant confirmed same. Detective Atteberry surveilled the house, determined that the fence and boat were present, saw a man answering Defendant's description walk inside, and checked water bills and tax records to confirm that Defendant lived there. The body of the affidavit referred to CS 241 as a "confidential informant/source" but a report attached to the affidavit called him a "concerned citizen."

Not in the affidavit were any mentions of CS 241's criminal record, probation violations, drug use, or that he took cash payments from the police department for information. The warrant issued as requested. That same day, police executed it while Defendant's wife was home but Defendant was absent. Between a fence and a boat in the yard, police found four flats of styrofoam cups in which were growing 1,417 marijuana plants.

PROCEDURE: The United States indicted Defendant for unlawful manufacture and of possession with intent to manufacture more than 1000 marijuana plants, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Defendant moved to suppress on grounds that if the warrant affidavit had included the negative information about CS 241 and not referred to him as a "concerned citizen," the affidavit would not have established probable cause to issue the warrant. At the Franks hearing, Detective Atteberry testified that "concerned citizen" was how his department always referred to interviewees in first contact reports and that the term was not in the affidavit itself. Detective Atterberry listed cases in 1998, 2003, and 2004 in which CS 241's information had led to a number of felony arrests and convictions. The trial court admonished Detective Atteberry's department to do away with the term "concerned citizen" altogether, but that there had been no attempt to mislead the issuing judge, and the very substantial corroboration tended to enhance credibility. SUPPRESSION DENIED. A jury convicted Defendant as charged and he received 120 months minimum mandatory. Defendant appealed his conviction and sentence to the U.S. Court of Appeals for the Seventh Circuit, arguing that suppression should have been granted on the same grounds as at the trial court.

DECISION: To win a Franks challenge, Defendant had to establish by preponderance of the evidence both (1) the search warrant affiant committed perjury or acted with reckless disregard by including false statements in the warrant affidavit, and (2) upon the exclusion of those false statements from the affidavit and the inclusion of any material omitted facts, the remaining information is insufficient to establish probable cause. In the Seventh Circuit, confidential informants' reliability, veracity, and basis of knowledge must face four questions (no one of which is dispositive) as to whether the informant (1) had firsthand knowledge, (2) provided sufficient detail, (3) relayed information which was subsequently corroborated, and (4) testified at a probable cause hearing. CS 241 satisfied the first three. Although he did not testify as to probable cause, in these circumstance CS 241 had already established his reliability. Criminal records by themselves do not disqualify a CI. Defendant could not prevail on a Franks challenge. Denial of suppression AFFIRMED; conviction AFFIRMED; sentence VACATED on other grounds.

EDITORIAL: Hey, people don't show the Pope their marijuana plants. CIs are absolutely necessary to narc work, but of course, CIs get their intel from, well, being in the same lifestyle. They provide a valuable service, so they should get paid somehow, whether in cash or in breaks on their pending cases. It helps that ganja growers can get complacent and forget that the federal government cares about them, very much. When you have a veritable Felony Forest of product in your backyard, you probably shouldn't talk about it even to your friends. Can you imagine the phone call CS 241 made to confirm? Must have gone about like:

ring, ring.
"yo."
"Dude?"
"Yo, dude."
"Dude! It's CS 241 dude!"
"Dude, heyy sup?"
"Dude, you still got all that herb dude?"
"Dude, can you even ask!? Sure it's still there dude!"
"Dude, my brother from another mother, you mean like 160 plants dude?"
"Dude, you have NO idea. More like 1,417 plants dude."
"Dude, well, hook a brother up dude!"
"Dude, no problemo. Haven't I been hooking you up for 15 years dude?"
"Dude, how could I have doubted you. There in ten, dude."
"Dude, sure thing, just remember to bring your [Also Sprach Zarathustra from 2001] bong, Bong, BONGGGGG ... BONGbong, dude!"
[raucous laughter on both ends]
"Later, dude."
"Dude, later."

Well anyway, suburban grass growing might have been a great gig for awhile, but the word is out and the heat is on. The bigger the operation, the more people inevitably know about it, so get out while the getting's good.