United States v. Allen

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0157P (6th Cir.)
File Name: 00a0157p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 96-6313
v.

>
KENNETH EUGENE ALLEN, 
Defendant-Appellant. 
1
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 96-00023—Curtis L. Collier, District Judge.
Argued: December 8, 1999
Decided and Filed: May 4, 2000
Before: MARTIN, Chief Judge; MERRITT, RYAN,
BOGGS, NORRIS, SUHRHEINRICH, SILER,
BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY,
and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: David Ness, FEDERAL DEFENDER
SERVICES OF EASTERN TENNESSEE, INC.,
Chattanooga, Tennessee, for Appellant. David P. Folmar, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee. ON BRIEF: Deirdra J. Brown,
1
2 United States v. Allen No. 96-6313
FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Chattanooga, Tennessee, Leah J.
Prewitt, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, for Appellant. David P. Folmar, Jr., ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, Paul
W. Laymon, Jr., ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
BOGGS, J., delivered the opinion of the court, in which
MERRITT, RYAN, NORRIS, SUHRHEINRICH, SILER,
BATCHELDER, and DAUGHTREY, JJ., joined. GILMAN,
J. (pp. 13-16), delivered a separate opinion concurring in the
judgment, in which MARTIN, C. J., joined. CLAY, J.
(pp. 17-33), delivered a separate dissenting opinion, in which
MOORE and COLE, JJ., joined.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Kenneth Eugene Allen pled guilty
to an indictment charging him with possession of crack
cocaine and an illegal firearm, after his motion to suppress
evidence seized pursuant to a warrant issued on an allegedly
insufficient affidavit was denied by the district court. He
appealed that denial. A panel of this court ruled that the
affidavit was insufficient to provide probable cause for the
warrant, and reversed his conviction. United States v. Allen,
168 F.3d 293 (6th Cir. 1999). We granted a rehearing en
banc, and now hold that an affidavit based upon personal
observation of criminal activity by a confidential informant
who has been named to the magistrate and who, as the
affidavit avers, has provided reliable information to the police
in the past about criminal activity, though without further
specificity as to the type of such activity, can be sufficient for
a magistrate to find probable cause to issue a warrant. We
affirm the district court’s denial of Allen’s motion to suppress
evidence, and Allen’s subsequent conviction.
No. 96-6313 United States v. Allen 3
I
On October 11, 1995, Detective Gary Lomenick of the
Chattanooga Police Department received a tip from a
confidential informant (“CI”) that a man called Red Dog,
residing at 910 North Market Street, was in possession of
cocaine. Red Dog was familiar to other officers, though not
to Lomenick, as someone known to be involved with drugs,
named Kenneth Allen. Based on the CI’s information,
Lomenick sought and obtained a search warrant that same
day. The affidavit read in full as follows:
I, Gary Lomenick, a duly sworn Chattanooga Police
Officer, hereby apply for a search warrant and make oath
as follows:
1. I am a sworn Chattanooga Police Officer with the
Narcotics Division, where I have been assigned for over
15 years, and a commissioned Special Deputy Sheriff for
Hamilton County, Tennessee.
2. On the 11th day of October 1995 I Gary Lomenick
received information from an informant, a responsible
and credible citizen of the county and state, who I know
to be a responsible and credible citizen because, I have
known said informant for 5 years and said informant has
given me information about individuals involved in
criminal activity in the past that has proven to be reliable.
Said informants’s name whom I have this day disclosed
to the Judge to whom this application is made, that [sic]
John Doe (Alias) Red Dog who resides in or occupies
and is in possession of the following described premises
910 North Market Street, apartment directly underneath
carport located in Chattanooga, Hamilton County
Tennessee, unlawfully has in his possession on said
premises legend and/or narcotic drugs including Cocaine
in violation of law made and provided in such cases.
3. On the 11th day of October 1995 said informant
advised me that said informant was on the premises of
the said John Doe (Alias) Red Dog located at 910 North
4 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 33
Market Street, apartment directly underneath carport 529, 532 (5th Cir. 1986) (finding that the case fell under
within seventy-two hours prior to our conversation on Leon’s third exception because an officer could not obtain a
October 11th, 1995 and while there saw Cocaine in warrant based upon a bare bones affidavit, and then rely upon
possession of the said John Doe (Alias) Red Dog[.] the same bare bones affidavit to justify his alleged good faith
belief in the warrant).
WHEREFORE, as such officer acting in performance
of my duty in the premises I pray that the Court issue a Indeed, Leon was not intended to make a mockery of the
warrant authorizing the search of the said John Doe Fourth Amendment’s warrant requirement, but the
(Alias) Red Dog and the premises located at 910 North concurrence uses Leon exactly for that purpose today, and
Market Street, apartment directly underneath the carport, fulfills Justice Stevens’ prophetic concern regarding the
for said legend and/or narcotic drugs including Cocaine potential for abuse under Leon’s good faith exception: “Under
and that such search be made either by day or by night. the . . . new rule, even when the police know their warrant
application is probably insufficient, they retain an incentive to
Id. at 296-97. submit it to a magistrate, on the chance that he may take the
bait. No longer must they hesitate and seek additional
Lomenick executed the warrant that day, with a team of evidence in doubtful cases.” Leon, 468 U.S. at 974 (Stevens,
other officers. When they approached the building, Allen, J., concurring in part and dissenting in part).
who was on a porch, saw them and fled inside. The officers
gave chase. As Allen ran past a closet, the police heard a loud Accordingly, for the above stated reasons, I would reverse
thump, and shortly thereafter found a 9-mm pistol on the floor the district court’s order denying Defendant’s motion to
of the closet. Allen left a trail of crack cocaine rocks behind suppress the evidence because the affidavit submitted in
him as he fled. When he was apprehended, more rocks of support of the warrant was nothing more than a ratification of
crack were found in his pockets, totaling 9.3 grams in all. the bare bones assertion of a reliable informant – which was
unsupported by any police corroboration or other indicia of
Allen was indicted on March 12, 1996. He was charged reliability – and therefore failed to establish probable cause.
with (1) possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. § 841; (2) possession of a firearm in
connection with a drug offense, in violation of 18 U.S.C.
§ 924(c); and (3) possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g). In a motion filed on April
18, 1996, he moved to suppress the evidence as illegally
seized, alleging that the indictment was based on an
insufficient affidavit, one that did not provide probable cause, the warrant was applied for and issued prior to the Weaver decision. See
United States v. Weaver, 99 F.3d 1372 (6th Cir. 1998). Weaver simply
since it did not claim or detail any expertise or previous interpreted Leon and applied it to the facts of the case before it; Weaver
reliability in narcotics contexts on the part of the CI. The certainly did not – and in fact could not – change the exceptions to the
district court referred the motion to a magistrate judge for a good faith provision as articulated by the Supreme Court. See id. at 1380-
report and recommendation, which was filed May 15, 1996, 81; see also supra note 1. Before Weaver was decided, and indeed until
and which recommended the motion’s denial. This the Supreme Court states otherwise, an officer cannot have a good faith
recommendation was adopted by the district court in an order belief in a warrant that is based upon nothing more than a bare bones
affidavit. This is Leon’s command, not Weaver’s, and it is the premise
filed May 31, 1996. Allen pled guilty to counts (1) and (2) upon which Lomenick was acting at the time he applied for the warrant,
pursuant to a plea agreement entered on June 14, 1996, and as well as the premise upon which his actions are judged.
32 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 5
falls squarely within the third exception to Leon’s good faith was sentenced to sixteen years and three months in prison.
provision – that the affidavit was so lacking in indicia of He had reserved his right to appeal, and an appeal to this court
probable cause as to render official belief in its existence ensued.
entirely unreasonable, or that the warrant application was
supported by nothing more than a bare bones affidavit – so II
that any doubt about the illegality of the search is put to rest.
Id. at 914-15, 923. If the concurrence was correct in its Our review of the sufficiency of an affidavit underlying a
application of Leon under these facts, then any officer could search warrant follows, as it must, the principles laid down by
obtain a warrant on the bare, generalized assertions of an the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983).
informant secure in the knowledge that even if the warrant There, the Court rejected the rigid tests that had evolved as
was held invalid for a lack of probable cause, the search lower courts attempted to implement earlier Supreme Court
would be saved by nothing more than the officer’s alleged decisions, in favor of a “totality of the circumstances”
“good faith.” Surely every officer seeking a warrant approach. Id. at 230-31 (abandoning the inflexible two-part
inherently makes such an allegation; however, Leon expressly test developed in the light of Aguilar v. Texas, 378 U.S. 108
states that more is needed for the good faith exception to (1964), and Spinelli v. United States, 393 U.S. 410 (1969)).
apply -- i.e., there must be evidence that the officer had an The Court explained its deviation from the earlier approach in
objective good faith belief. See id. this way:
It is precisely the lack of objective evidence to support a “[V]eracity,” “reliability” and “basis of knowledge” are
finding of good faith necessary to save the search that takes all highly relevant in determining the value of [a CI’s]
this case out of Leon’s reach. Although the concurrence report. We do not agree, however, that these elements
agrees that the warrant was not supported by probable cause should be understood as entirely separate and
because “in the absence of greater specificity, the special independent requirements to be rigidly exacted in every
judge who issued the warrant in this case could not have had case . . . . Rather, . . . they should be understood simply
a substantial basis for concluding that a search of Allen’s as closely intertwined issues that may usefully illuminate
residence would uncover any illegal drugs,” it goes on to hold the commonsense, practical question whether there is
that Leon applies to save the illegal search because Lomenick “probable cause” to believe that contraband or evidence
held a good faith belief that the warrant was valid, without is located in a particular place.
any further support for this declaration. I believe that one
cannot legally or logically agree that the affidavit was so Id. at 230.
woefully lacking in any indicia of specificity that it failed to
provide the magistrate with a substantial basis to conclude Gates also guides our deference to the issuing magistrate’s
that probable cause existed to allow the warrant to issue, and determination of probable cause: “line-by-line scrutiny [of an
yet conclude that based upon the same woefully lacking underlying affidavit is] . . . inappropriate in reviewing [a]
affidavit, Lomenick’s belief in the warrant’s existence was magistrate[’s] decisions.” Id. at 246 n.14. The Court
reasonable.4 See, e.g., United States v. Barrington, 806 F.2d emphasized in that case that it had “repeatedly said that after-
the-fact scrutiny by courts of the sufficiency of an affidavit
should not take the form of de novo review.” Id. at 236. It
4 soundly rejected “[a] grudging or negative attitude by
Likewise, because I believe that there is nothing to indicate that
Lomenick held a good faith belief that the warrant was validly issued reviewing courts toward warrants” Ibid. (quoting United
based upon the bare bones affidavit, I think it of little consequence that States v. Ventresca, 380 U.S. 102, 108 (1965)). Rather,
6 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 31
reviewing courts are to accord the magistrate’s determination was lacking in specificity and detail, and was not corroborated
“great deference” Ibid. (quoting Spinelli, 393 U.S. at 419). by independent police investigation. As emphasized above,
The Court stressed that a hypertechnical critique of warrants the particularized inquiry under a totality of the circumstances
would only, in the end, encourage warrantless searches, as prescribed by Gates is not limited to those instances where
undermining the very Fourth Amendment right such an the informant was anonymous.
approach would seek to protect. Instead, it reaffirmed the
traditional standard: III.
Reflecting this preference for the warrant process, the My opinion should not be mistaken as a call to return to the
traditional standard for review of an issuing magistrate’s rigid mandates of Aguilar and Spinelli. To the contrary, the
probable cause determination has been that so long as the Supreme Court has made clear that the factors required by
magistrate had a “substantial basis for . . . conclud[ing]” these decisions best lend themselves to a probable cause
that a search would uncover evidence of wrongdoing, the analysis when they are balanced and weighed in light of the
Fourth Amendment requires no more. totality of the circumstances. Gates, 462 U.S. at 230-31. The
Court has also directed that the credibility and persuasiveness
Ibid. (quoting Jones v. United States, 362 U.S. 257, 271 of one factor can compensate for the lack of the other in order
(1960)). This circuit has long held that an issuing to support a finding of probable cause. Id. at 238-39.
magistrate’s discretion should only be reversed if it was However, with equal force the Court has commanded that
arbitrarily exercised. See United States v. Swihart, 554 F.2d both the veracity or reliability of the informant as well as the
264, 267-68 (6th Cir. 1977). basis for knowledge of the tip must be weighed and
considered, see id. at 230-31; contrariwise, the rule espoused
The Allen panel examined for guidance three decisions of by the majority today allows for a warrant to issue based
this court, formulated in the light of Gates. These are: simply upon a generalized assertion regarding the reliability
United States v. Pelham, 801 F.2d 875 (1986); United States of the informant. Such a result finds no support in Gates and
v. Finch, 998 F.2d 349 (1993); and United States v. Weaver, surely no support in the history of the Fourth Amendment.
99 F.3d 1372 (1996). But as the dissent in Allen pointed out, Under the majority’s approach, the Fourth Amendment’s
these cases themselves, particularly the last, would appear to warrant requirement is eviscerated, and now amounts to little
yield an inconsistent standard; the hope was accordingly more than an inconsequential formality and a mere “form of
expressed that this court, sitting en banc, would “clarify the words.” See Silverthorne Lumber Co. v. United States, 251
law in this circuit regarding the necessary requirements for the U.S. 385, 392 (1920). As a result, the citizens in this circuit
issuance of a search warrant based on uncorroborated cannot rest easily or feel secure in their homes against
information from an informant.” 168 F.3d at 308 (Gilman, J., unreasonable searches and seizures.
concurring in part and dissenting in part).
On a final note, I disagree with the concurrence that the
Pelham held that an affidavit naming an informant, and illegal search is saved by the good faith exception to the
stating that the informant had personally observed marijuana warrant requirement as enunciated in United States v. Leon,
being stored and sold on certain premises in the immediate 468 U.S. 897 (1984). Like its hyperbolic “apocalyptic
past, provided a “substantial basis” for believing that a search sentiments” language, the concurring opinion’s belief that
would uncover evidence of criminal activity there, and “Lomenick ‘acted in objective good faith’ when he relied on
therefore was sufficient for a magistrate to find that probable the warrant” as set forth in Leon, is unfounded. This case
cause existed for a warrant to issue.
30 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 7
considered the totality of the circumstances to provide the Finch upheld the sufficiency of an affidavit to establish
requisite particularity for the warrant to issue. In the instant probable cause, against challenges both that the informant’s
case, however, the majority makes probable cause a fait reported observation of cocaine on the premises was
accompli once the informant’s tip is considered. It is not speculative, since he couldn’t “know” the substance was
coincidental or a mere slip of the pen that the majority cites cocaine, and that the affidavit was merely conclusory.
no authority for its sweeping declaration. Rejecting these contentions, the court in Finch pointed out
that, given the informant’s stated experience and past
However, support for my position is well-steeped not only reliability in drug cases, the informant could reasonably be
in Gates, but also in the Supreme Court’s decision in assumed to be familiar with cocaine and able to identify it by
Alabama v. White, 496 U.S. 325, 330 (1990), where the Court observation,1 and that an affidavit setting out the reasons for
articulated the standard for “reasonable suspicion.” a belief, as opposed to merely stating a belief, is not
Specifically, the Court found that although “reasonable conclusory. 998 F.2d at 352. Such is the case here.
suspicion is a less demanding standard than probable cause[,]
. . . like probable cause, [reasonable suspicion] is dependent In Weaver, a panel of this court weighed the sufficiency of
upon both the content of information possessed by police and an affidavit used to obtain a warrant to search the residence of
its degree of reliability. Both factors – quantity and quality Gary Weaver for marijuana believed to be held there in
– are considered in the ‘totality of the circumstances – the quantity for distribution. The CI, after providing an initial tip
whole picture.’” See id. (emphasis added) (quoting United based on hearsay, was furnished with $100 and instructed to
States v. Cortez, 449 U.S. 411, 417 (1981)); see also Florida go to Weaver’s house and make a buy. He did so, informing
v. J.L., ___ U.S. ___, No. 98-1993, 2000 WL 309131 (Mar. the police of his purchase of a half-ounce of marijuana from
28, 2000). It logically follows that if reasonable suspicion, a Weaver, and of his belief (though without personal
standard less demanding than probable cause, cannot be found observation) that Weaver was growing marijuana at home.
without a consideration of both the quantity and quality of the The resulting affidavit indicated that the CI, unnamed in the
information provided, surely probable cause cannot be found affidavit but named to the magistrate, was known to be
without a consideration of both of these factors. reliable, having provided information about drug activity in
the past, and that he had personally observed marijuana in
Furthermore, the majority makes a futile attempt to Weaver’s house. (The affidavit did not mention the half-
distinguish those cases where the affidavits were found to be ounce drug sale, for which the police did not intend to charge
insufficient to establish probable cause, solely on the basis Weaver.) The officers who subsequently searched the house
that the informant was anonymous or that the affidavit was found a quarter-ounce of marijuana, for which Weaver was
lacking as to the informant’s reliability. See Ante (citing not prosecuted; nor was he prosecuted for the misdemeanor
United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir.
1996); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir
1993); United States v. Gibson, 928 F.2d 250, 253 (8th Cir.
1
1991); United States v. Mendonsa, 989 F.2d 366, 369 (9th A contrary approach, taken by the Illinois courts, was used by the
Cir. 1993)). In my opinion, these cases are indistinguishable Supreme Court as an example of the folly to which rigid application of the
from the case at hand and support my position, as well as the “two-prong” test can lead. See Gates, 462 U.S. at 235 n.9 (citing People
v. Palanza, 55 Ill. App. 3d 1028, 371 N.E.2d 687 (Ill. App. 1978)
position of the unanimous Allen panel, that the affidavit failed (holding a warrant invalid because “[t]here is no indication as to how the
to provide a substantial basis to believe that Defendant was informant or for that matter any other person could tell whether a white
engaged in the criminal activity alleged because the affidavit substance was cocaine and not some other substance such as sugar or
salt.”)).
8 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 29
sale to the CI. But the police also found several rifles, and not enough without any meaningful follow up by the police.
Weaver, a convicted felon, was charged with unlawfully Id. at 55. In Judge Merritt’s opinion, to hold otherwise
possessing them. “reduced the castle to a hovel where the state may presume
that marijuana is grown” or other contraband is kept. Id. at
In finding the affidavit insufficient to establish probable 55. The same holds true in the case at hand. Contrary to the
cause for the warrant to issue, reversing the district court, the majority’s holding today, the fact that the informant is known
Weaver panel noted that the stated purpose of the search was to the officer and has provided reliable information in the past
to find evidence of suspected drug dealing; yet the affidavit does not a fortiori make the second factor irrelevant or end
itself had contained no information about the purchase the CI the inquiry.
was supposed to have attempted, nor about the quantity of
marijuana he observed, nor any other facts which would Indeed, nowhere in Gates is there support for the majority’s
support a belief that drugs were being held in the house for sweeping holding. Although it is true that the informant in
sale. As this court observed of Weaver in another case, what Gates was anonymous, the pronouncements made therein
was lacking in the Weaver affidavit was any indication of regarding the relevant inquiry into whether the information
probable cause to suspect drug trafficking, the offense for received by an informant provides a substantial basis for
which the warrant was expressly being sought. See United determining probable cause were not limited to the case
States v. Smith, 182 F.3d 473, 480 (6th Cir. 1999). But that where the informant was anonymous. The Court easily could
was not in itself fatal, since an affidavit need only provide have held that the balancing of reliability and basis of
probable cause to believe a search will uncover evidence of knowledge under a totality of the circumstances is limited to
some wrongdoing, without need for further specificity. See those instances where the informant was unknown or had not
United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991) provided reliable information in the past. However, the
(holding “that knowledge of the precise crime committed is Supreme Court did no such thing. The only qualifier that was
not necessary to a finding of probable cause provided that placed upon the instance where a “particular informant is
probable cause exists showing that a crime was committed by known for the unusual reliability of his predictions of certain
the defendants”). What was finally fatal in the Weaver types of criminal activities in a locality” is that the
affidavit was its lack of probable cause to believe any informant’s “failure . . . to thoroughly set forth the basis of his
marijuana previously observed by the CI would be left to be knowledge surely should not serve as an absolute bar to a
discovered by a search, for there was no mention of the finding of probable cause based on his tip.” Id. at 233. The
quantity of drugs observed. Nor was there any attempt to note majority’s holding that “[a]n affidavit based upon personal
behavior indicating ongoing sales. observation of criminal activity by a confidential informant
who has been named to the magistrate and who, as the affiant
As Weaver pointed out, in an effort to keep secret the avers, has provided reliable information to the police in the
identity of a CI, the affidavit had been stripped of almost all past about criminal activity, though without further specificity
particularity, and been reduced to “bare bones,” with little as to the type of such activity, can be sufficient for a
added to the boilerplate language kept on file. In that magistrate to find probable cause to issue a warrant[,]”
situation, the panel held that other particularized facts, not convolutes the pronouncement in Gates. In other words, the
identifying the CI, but obtained, for example, through police Supreme Court in Gates held that a tip lacking in detail or
surveillance, should have been adduced to buttress the CI’s specificity from a known confidential informant should not
information, if preserving his identity prevented the affidavit prove an absolute bar to finding probable cause, because other
from going into further detail. See Weaver, 99 F.3d at 1378. indicia of reliability (the basis for knowledge) would be
28 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 9
requirement is not a factor to be assumed or a mere Weaver’s holding that the uncorroborated search warrant
technicality; it is an express constitutional command. See, was defective is limited to the facts of that case. Weaver does
e.g., Ybarra v. Illinois, 444 U.S. 85, 92 (1979); Lo-Ji Sales, not support the general propositions that a CI’s information
Inc. v. New York, 442 U.S. 319 (1979); Marron v. United must always be independently corroborated by police, or that
States, 275 U.S. 192, 196 (1927). This affidavit lacked any an affidavit must in every case set out and justify a CI’s
indicia of basis of knowledge, and the magistrate simply expertise in identifying the particularities of the criminal
ratified the bare bones assertions made in the affidavit when activity alleged, propositions we reject for the reasons that
he issued this warrant, contrary to the Supreme Court’s follow.
command under the Fourth Amendment. See Gates, 462 U.S.
at 239. As stated, the fact that the informant was known and III
reliable is not enough, by itself, to provide a substantial basis
to the issuing magistrate that Defendant was engaged in the In applying Gates to the circumstances before it, the Allen
criminal activity alleged. See, e.g., United States v. McNatt, panel referred to the “totality of the circumstances” approach
931 F.2d 251, 253 (4th Cir. 1991) (finding that the of that decision as a “test,” and then applied this “test’ in a
information provided by the known, reliable informant was two-factor analysis, indicating that a CI’s information would
sufficient to establish probable cause under Gates because the gain significant weight when supported by (1) explicit and
information was specific in nature and corroborated by the detailed description gleaned from first-hand observation, and
police). (2) independent investigative corroboration. Allen, 168 F.3d
at 298. No doubt this is so, but the question is whether these
In a case from this circuit where the converse was true – factors are requirements, both of which must be satisfied to
i.e., the affidavit while being rich in detail was from an comply with the Fourth Amendment’s bar against
anonymous tip in which minimal corroborative efforts were unreasonable searches and seizures. See U.S. Const. amend.
taken by the police – one panel member disagreed with the IV. As the Court observed in Gates, tests and prongs have an
majority that the affidavit supported a finding of probable unfortunate tendency to develop a life of their own, and tend
cause. See United States v. Sonagere, 30 F.3d 51, 55 (6th Cir. to draw more attention to their individual characteristics than
1994) (Merritt, J., dissenting). Judge Merritt noted that “if to the totality of the circumstances. See Gates, 462 U.S. at
detail is all that is needed to support a search warrant, the 230 n.5 (criticising “[t]he entirely independent character that
Fourth Amendment will no longer be any constraint or check the Spinelli prongs have assumed”). That is what has
on the issuance of search warrants. Any ‘detailed’ happened here.
information, uncorroborated by the police, from virtually any
unknown, unreliable source, would support issuance of a The majority of the panel that heard Allen’s appeal to this
search warrant.” See id. Judge Merritt disagreed with the court criticized the affidavit on four grounds. First, it is not
majority that the specific nature of the tip was sufficient to specific as to the type or amount of cocaine observed in the
compensate for the fact that the information source had never residence to be searched. Second, facts bearing on the
been used before and that the affidavit failed to provide any informant’s familiarity with the appearance of cocaine are not
indication of the reliability of the source; however, he found provided. Third, especially in the light of the second
it “[e]ven more troubling [that] the officers did nothing to objection, independent police corroboration is lacking.
corroborate any of the information or develop independent Fourth, the text was largely prefabricated boilerplate,
information that might supplement that of the information supposedly encouraging the lack of specificity already
source.” Id. at 54. The fact that the tip was rich in detail was complained of. See Allen, 168 F.3d at 302.
10 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 27
These complaints do not call for individual rebuttal. The drugs without compromising their case or a potential
affidavit is judged on the adequacy of what it does contain, conviction. Here, any indicia of corroboration by Lomenick
not on what it lacks, or on what a critic might say should have such as minimal surveillance of Defendant’s residence to
been added. It is the totality of the circumstances that determine a pattern of drug activity, or simply asking for more
persuade us that the affidavit in the instant case was, in fact, details from the informant would have assisted in providing
not merely “conclusory and ‘bare bones’” in nature but the magistrate a more particularized basis for determining
sufficient. The panel wrote: “the affidavit failed to provide probable cause. However, Lomenick failed to so much as
any facts about the informant’s knowledge or familiarity with provide a statement that he had dealt with this informant in
the appearance of cocaine. Instead, the affidavit merely stated relation to Lomenick’s duties as a narcotics officer, or that
that the tips of ‘criminal activity’ provided by the informant this informant had provided information which had led to
in the past have ‘proven to be reliable.’” Ibid. But in fact, the narcotics convictions in the past.
affidavit states under oath that the affiant, Detective
Lomenick, has known the CI for five years, that Lomenick has The majority engages in speculation or conjecture in order
been assigned to the Narcotics Division for fifteen years, and to supply the requisite indicia of reliability to this affidavit
that “said informant has given me [Lomenick] information when it assumes, without more, that Lomenick’s dealing with
about individuals involved in criminal activity in the past that the informant involved narcotics. (“It is obvious on the face
has proven to be reliable.” Id. at 296. It is obvious on the of the affidavit that such information in the past most likely
face of the affidavit that such information in the past most concerned narcotics.”) The majority bases this assumption on
likely concerned narcotics. Affidavits are not required to use the fact that Lomenick has worked in the narcotics division
magic words, nor does what is obvious in context need to be for fifteen years and has known the confidential informant for
spelled out; if a CI saw guns, he is not required to explain five years – not because of any information derived from the
how he knew what a gun looks like. Nor is an affidavit affidavit itself. It is well known that criminal activity
required to present proof that would without question associated with illegal narcotics also includes a bevy of other
withstand rigorous cross-examination. Clearly, this CI’s past criminality such as prostitution, gambling, illegal firearms,
experience with the drug trade was reflected anew in the burglary, and various other illegal means to finance drug
circumstances of this case. Taken as a whole, the affidavit operations and use. As such, without more specificity
provided sufficient facts from which the magistrate could concerning the type of information this informant had
draw an independent conclusion as to the probability provided in the past, it is impossible to determine “on the face
(certainty is not required) of what it alleged a search would of the affidavit” whether Lomenick’s past dealings with this
disclose. There was nothing arbitrary about a conclusion that, informant directly involved illegal narcotics transactions, or
in this case, probable cause existed. whether his dealings with this informant dealt with other
types of criminal activity.
Since Gates, affidavits have been found insufficient for
various deficiencies, none of them exhibited here. For Gates commands a reviewing court to weigh and balance
example, a merely conclusory statement of the affiant’s belief the evidence presented before it; Gates does not command --
in an informant’s past credibility, unsupported by further and indeed could not legally command under the Fourth
detail, failed to pass muster in the Seventh Circuit. See Amendment -- that a reviewing court compensate for
United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996). deficiencies in the affidavit by engaging in speculation or
That result complies with Gates’s requirement that the conjecture. See U.S. CONST. amend. IV; Gates, 462 U.S. at
information presented to the magistrate in the affidavit be 230-31. Contrary to the majority’s assertion, the specificity
26 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 11
had provided reliable information regarding narcotics in the sufficient to allow “that official” to assess probable cause
past; it failed to provide any information as to where the independently, and not merely to rubber-stamp the affiant’s
cocaine was being stored or sold; and it failed to indicate the conclusion. See Gates, 462 U.S. at 239.
amount of cocaine that was allegedly seen or any basis as to
why the informant had reason to believe that the substance This court has upheld a district court’s finding that no
which he allegedly observed was cocaine. As such, the probable cause existed when a warrant was issued based on
affidavit failed to provide a substantial basis that cocaine an affidavit whose information came from an anonymous tip
would likely be found in Defendant’s possession on the sparse in detail and wholly uncorroborated by the police. See
premises some seventy-two hours later. See United States v. United States v. Leake, 998 F.2d 1359, 1365 (6th Cir. 1993).
McKinney, 143 F.3d 325, 328 (7th Cir. 1998) (noting that “[a] The Eighth Circuit also found no probable cause provided by
search warrant should not issue except on probable cause that an affidavit also based on an anonymous tip, albeit one rich in
evidence of a crime is currently located at a particular place” particulars, where police investigation corroborated only
(emphasis added)). innocent details and found nothing suspicious. See United
States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991). The
Moreover, the affidavit failed to indicate any corroborating Ninth Circuit invalidated a warrant under very similar
efforts by the police which, as stated by the Allen panel, may circumstances. See United States v. Mendonsa, 989 F.2d
have changed the outcome here.3 The majority’s concern for 366, 369 (9th Cir. 1993). These cases rightly insisted upon
detectives conducting surveillance in crack-ridden substantial independent police corroboration, because of the
neighborhoods or for investigative measures adding absence of any indicia of the informants’ reliability. Gates
additional time for the “highly mobile” drug operations to had turned on precisely such a question, and emphasized the
relocate, are unfounded and completely unsupported by the need for corroboration in those circumstances. See 462 U.S.
record. Drug interdiction officers such as Lomenick are at 244.
trained to carry out such tasks as surveying suspected
residences in crack-ridden neighborhoods, and determining That is not a factor here. The CI was not anonymous, but
the pattern of activity of those suspected of dealing in illegal personally known to the detective who swore the affidavit,
and who revealed the CI’s name to the magistrate. The CI’s
reliability in criminal matters in which the detective was
involved had extended over a five-year period. The
3 information alleged was of direct personal observation of
The majority seems to imply that the Allen panel argued that police
investigation and corroboration are necessary in every case in order for a criminal activity. Corroboration is not a necessity in such a
warrant to issue; however, the Allen panel made no such argument and I case. A requirement that information from such a CI should
make no such averment here. Rather, as stated in Gates, police invariably have to be personally corroborated by further
corroboration becomes valuable and particularly significant when the tip
provided by the informant lacks detail and specificity sufficient to comply police investigation would aid lawbreakers, as detectives tried
with the particularity requirement of the Fourth Amendment. See Gates, to conduct surveillance in crack-ridden neighborhoods
462 U.S. at 243-44. In fact, the Allen panel began its analysis by stating without themselves being detected and their suspects alerted.
that “[t]his case asks us to decide whether the affidavit presented to Moreover, the additional time thus added to the process by
Special Judge McColpin set forth sufficient particularized facts for the mandating an independent police investigation following a
judge to find a substantial basis for probable cause to issue the search
warrant . . . .” See United States v. Allen, 168 F.3d at 297. It is the lack CI’s contact would provide a further advantage to drug
of specificity of the informant’s tip coupled with the lack of any dealers’ already highly mobile, hit-and-run operations. We
corroboration by the police that should have been fatal to the affidavit decline to handicap the state in that way.
here, as the Allen panel found.
12 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 25
Nevertheless, a caveat is in order. Police should be aware Said differently, the affidavits submitted in Aguilar and
that failure to corroborate all that can easily be corroborated Nathanson were insufficient to allow the issuing magistrate
incurs two dangers. The first is to risk that a warrant will not to determine probable cause because they lacked reliable
issue where it should. The second is to risk the loss, at trial information; the magistrate’s determination otherwise would
or on appeal, of what has been gained with effort in the field. have improperly been “a mere ratification of the bare
But while better investigative work is preferable to merely conclusions of others.” Gates, 462 U.S. at 239. Although the
adequate investigation, it is not the constitutional measure of information may have been attested to as being “reliable,” it
probable cause. lacked any indicia of specificity or corroboration. Indeed, the
Aguilar Court found that had the police made some efforts at
At bottom, we return to the basics of the Fourth corroborating the “reliable” informant’s tip, “an entirely
Amendment: is there “probable cause” to believe that different case” would have been presented. See Aguilar, 378
evidence of a crime will be found in the search? We hold that U.S. at 109 n.1.
where a known person, named to the magistrate, to whose
reliability an officer attests with some detail, states that he has The value of corroborative police efforts was also
seen a particular crime and particular evidence, in the recent emphasized in Gates. Specifically, the Court found two
past, a neutral and detached magistrate may believe that factors significant in allowing a reviewing court to assess
evidence of a crime will be found. There is, of course, no whether an informant’s tip provides a substantial basis to
guarantee that the evidence will still be there, but the constitute probable cause. First, an “explicit and detailed
magistrate may determine that such a probability exists. This description of alleged wrongdoing, along with a statement
holding requires evidence sufficient to provide a basis for that that the event was observed firsthand, entitles [the
judgment. It cannot properly be characterized, in the dissent’s informant’s] tip to greater weight that might otherwise be the
terms, as “driv[ing] a stake through the very heart of the case.” Gates, 462 U.S. at 234. Second, the extent to which
Fourth Amendment” or “mak[ing] a mockery of the Fourth the tip is corroborated by the police officer’s own
Amendment’s warrant requirement.” Such a description investigation is significant. Id. at 244.
cannot be used “in the extreme acceptance of th[os]e word[s]
without some risk of terminological inexactitude,” to employ Despite these clear directives from the Court that both the
Churchill’s phrase. See 1 Winston S. Churchill, His reliability as well as the basis of knowledge of the information
Complete Speeches 1897-1963 562 (Robert Rhodes James, must be considered in light of the totality of the circumstances
ed.). to insure that a warrant does not issue based upon the bare
bones conclusions of others, the majority today holds that a
IV warrant may issue based upon the averment made by a
reliable informant, regardless of the lack of specificity or
For the foregoing reasons the judgment of the district court independent corroboration. The warrant at issue simply
is AFFIRMED. averred that 1) the affiant had known the informant for five
years and that the informant had provided information in the
past that had proven to be reliable; 2) that the informant’s
name was provided to the magistrate; and 3) that informant
had seen Defendant in possession of cocaine at Defendant’s
home approximately seventy-two hours prior to informing the
affiant. The affidavit lacked any indication that this informant
24 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 13
In fact, the Gates Court provided examples of cases which _____________________
“illustrate[d] the limits beyond which a magistrate may not
venture in issuing a warrant.” 462 U.S. at 239. Included in CONCURRENCE
these examples were those instances when the warrant was _____________________
based upon a “wholly conclusory statement” which provided
the magistrate with no basis at all for making an informed RONALD LEE GILMAN, Circuit Judge, concurring in the
judgment. One such example was in the case of Aguilar judgment. Although I agree with the majority’s ultimate
where an officer’s statement that “[a]ffiants have received conclusion that the district court did not err in denying
reliable information from a credible person and do believe Allen’s motion to suppress, I write separately because my
that heroin” is stored in the home, was found to be reasoning is not based on the validity of the warrant itself, but
insufficient to provide the magistrate with probable cause to rather on the good faith exception to the warrant requirement
issue the warrant. See Id. (quoting Aguilar, 378 U.S. at 109). as established by United States v. Leon, 468 U.S. 897 (1984).
Likewise, in Nathanson v. United States, the Supreme Court
found that the affiant’s sworn statement that “‘he has cause to I agree with the dissent’s position that the warrant in this
suspect and does believe that’ liquor illegally brought into the case was deficient, but do not share its somewhat apocalyptic
United States is located on certain premises” was not sentiments. The key language of the underlying affidavit
sufficient because it was merely a wholly conclusory simply stated that “[defendant] . . . unlawfully has in his
statement which failed to provide the magistrate with a possession on said premises legend and/or narcotic drugs
substantial basis upon which to issue the warrant. See 462 including Cocaine” and that the informant “while there saw
U.S. at 239 (quoting Nathanson, 290 U.S. 41, 44 (1933)). Cocaine in possession of the said [defendant] . . . .” No
information was provided as to quantity, storing, or selling.
Based on the information provided, the informant may have
observed nothing more than Allen possessing one or two
the officer attest “with some detail” as to the informant’s reliability. rocks of crack cocaine, which could have been quickly
Instead, the magistrate was simply provided with a general assertion made consumed. Thus, in the absence of greater specificity, the
by an informant, whom Lomenick had known for five years and who had special judge who issued the warrant in this case could not
provided information regarding “criminal activity” in the past, that
Defendant was in possession of “legend and/ or narcotic drugs including have had a substantial basis for concluding that a search of
Cocaine” on his premises. As discussed more fully infra in this dissent, Allen’s residence would uncover any illegal drugs. See
this generalized assertion fails to pass constitutional muster under the Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (adopting the
Fourth Amendment – and indeed fails even under the majority’s holding “totality of the circumstances” test as the controlling standard
as expressed in Section III – because it lacks specificity and particularity in determining probable cause for search warrants).
as to the quantity or location of the illegal drugs, or as to why this
informant had a basis of knowledge for making his assertion, especially
where Lomenick did nothing to corroborate the tip. Furthermore, I find it I therefore agree with the dissent’s conclusion that there
of no consequence that a magistrate is provided with the name of the was an absence of probable cause to support the issuance of
informant, particularly in this case where there is nothing in the record to the search warrant in question. See Zurcher v. The Stanford
suggest that the informant’s name was of any meaning to the magistrate -- Daily, 436 U.S. 547, 556-57 n.6 (1978) (quoting with
i.e., the name had no bearing in establishing a substantial basis to believe approval the following statement: “Search warrants may be
that criminal activity was afoot (probable cause). To borrow from
Shakespeare, “What’s in a name! that which we call [an informant] By issued only by a neutral and detached judicial officer, upon a
any other name would smell as [unreliable.]” See WILLIAM SHAKESPEARE showing of probable cause—that is, reasonable grounds to
THE COMPLETE WORKS, ROMEO AND JULIET act 2, sc. 1, 254 (Dorset Press believe—that criminally related objects are in the place which
1988).
14 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 23
the warrant authorizes to be searched, at the time when the basis of knowledge of the tip. Although it is true that a
search is authorized to be conducted.”) (emphasis added); deficiency in one of the prongs may be compensated by the
United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998) strength of the other prong, it is equally as true that both the
(“A search warrant should not issue except on probable cause “reliability” as well as the “basis of knowledge” prongs
that evidence of a crime is currently located at a particular should nonetheless be considered. See Gates, 462 U.S. at
place.”); United States v. Finch, 998 F.2d 349, 352 (6th Cir. 238-39. The majority’s relaxed standard for finding probable
1993) (“Probable cause for the issuance of a search warrant is cause is not supported by Gates and indeed fails to heed the
defined in terms of whether the affidavit sets out facts and Supreme Court’s mandate that “courts must continue to
circumstances which indicate a fair probability that evidence conscientiously review the sufficiency of affidavits on which
of a crime will be located on the premises of the proposed warrants are issued” in order to insure that a magistrate does
search.”) (citation and internal quotation marks omitted) not abdicate his duty by issuing2 warrants based upon the “bare
(emphasis added). bones” conclusions of others. Id. at 239.
Despite these deficiencies, however, I believe that
Detective Lomenick “acted in objective good faith” when he 2
relied on the warrant. Leon, 468 U.S. at 908. In Leon, the The majority’s holding as articulated in the last paragraph of Section
III of the opinion does not change my position. I specifically note the
Supreme Court held that the exclusionary rule does not “bar dichotomy between the holding set forth by the majority in the first
the admission of evidence seized in reasonable, good-faith paragraph of the opinion, and its holding – rephrased in response to this
reliance on a search warrant that is subsequently held to be dissent – set forth in Section III. Which is to say, the majority retreats
defective.” Id. at 905. The proper test of an officer’s good somewhat from its holding as set forth at the outset of the opinion in an
faith is “whether a reasonably well trained officer would have apparent attempt to compensate for its failure to account for the
particularity requirement of the Fourth Amendment.
known that the search was illegal despite the magistrate’s Juxtaposing the phraseology of the holdings is helpful to illustrate my
authorization.” Id. at 922 n.23. Here, Lomenick presented a point. In the first paragraph of the opinion, the majority holds that “an
neutral judicial officer with an affidavit stating that he had affidavit based upon personal observation of criminal activity by a
information about the presence of illegal drugs at a specific confidential informant who has been named to the magistrate and who, as
location from a reliable informant that was based on recent, the affidavit avers, has provided reliable information to the police in the
past about criminal activity, though without further specificity as to the
personal observation. type of such activity, can be sufficient for a magistrate to find probable
cause to issue a warrant.” In the last paragraph of Section III, the
After examining the warrant under the microscope of close majority attempts to strengthen the probable cause standard set forth in its
legal analysis, I agree with the dissent’s conclusion that the holding, when it states that “[w]e hold that where a known person, named
underlying affidavit lacked sufficient specificity to pass to the magistrate, to whose reliability an officer attests with some detail,
constitutional muster. I cannot further conclude, however, states that he has seen a particular crime and particular evidence, in the
recent past, a neutral and detached magistrate may believe that evidence
that the affidavit at issue was “so lacking in indicia of of a crime will be found.” Simply by adding the words “particular” and
probable cause as to render official belief in its existence “detail” to its holding as couched in Section III, does not thereby render
entirely unreasonable.” Leon, 468 U.S. at 923 (citations and the majority’s reasoning and result compatible with Gates or
internal quotation marks omitted); see also United States v. constitutional under the Fourth Amendment. Even when its additional
Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“Courts rhetoric is taken into account, the majority’s position is no stronger at the
end of Section III than it was at the outset of its opinion.
cannot make the good faith of an officer turn upon whether In fact, the majority’s holding as articulated in Section III only serves
his reliance on a warrant was misplaced. It is only when the to undermine its conclusion that the warrant in this case was supported by
probable cause. The magistrate in this case was not provided with a basis
of knowledge of “a particular crime” and “particular evidence,” nor did
22 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 15
balanced assessment of the relative weights of all the reliance was wholly unwarranted that good faith is absent.”)
various indicia of reliability (and unreliability) attending (emphasis added).
an informant’s tip, the “two-pronged test” has
encouraged an excessively technical dissection of The dissent contends that, were my view to be adopted,
informants’ tips with undue attention being focused on “any officer could obtain a warrant on the bare, generalized
isolated issues that cannot sensibly be divorced from the assertions of an informant secure in the knowledge that even
other facts presented to the magistrate. if the warrant was held invalid for a lack of probable cause,
the search would be saved by nothing more than the officer’s
Id. at 233-34 (citations and footnotes omitted; emphasis alleged ‘good faith.’” I find this contention to be without
added). merit. As the Supreme Court in Leon emphasized, “the
standard of reasonableness . . . is an objective one.” Id. at 919
In short, the Court in Gates abandoned the rigid “two- n.20 (emphasis added). Thus, the determination of whether
prong” test and in its place, reaffirmed the traditional totality the good faith exception applies in a particular case does not
of the circumstances approach, holding that the elements of depend on the subjective beliefs of the officers involved. See
the two prong test are relevant factors to be balanced in light United States v. Maggitt, 778 F.2d 1029, 1035 n.3 (5th Cir.
of all of the information provided: 1985) (“Because the Leon standard is objective, the testimony
of the agent who prepared the affidavit . . . is not particularly
The task of the reviewing magistrate is simply to make a relevant.”); United States v. Gant, 759 F.2d 484, 487-88 (5th
practical, common-sense decision whether, given all the Cir. 1985) (“[T]he determination of good faith will ordinarily
circumstances set forth in the affidavit before him, depend on an examination of the affidavit by the reviewing
including the “veracity” and “basis of knowledge” of court.”).
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be Furthermore, the warrant was applied for and issued prior
found in a particular place. And the duty of a reviewing to this court’s decision in United States v. Weaver, 99 F.3d
court is simply to ensure that the magistrate had a 1372 (6th Cir. 1998), in which a panel of this court held that
“substantial basis for . . . conclud[ing]” that probable the search warrant in question was defective primarily
cause existed. because the officer’s affidavit did not provide any “underlying
factual circumstances to support the informant’s knowledge
Id. at 238-39 (citations omitted). regarding distribution, nor the detective’s own ‘belief’ that
. . . quantities of marijuana were present ‘for the purpose or
II. with the intention of unlawful possession, sale or
transportation,’ or even that marijuana would be on the
The flaw in the majority’s holding in the case at hand lies premises when the warrant was executed.” Id. at 1378.
in its failure to comply with Gates’ command to consider the Because the Weaver decision—with its clear mandate that the
totality of the circumstances; instead, the majority relaxes the underlying affidavit must include specific information
probable cause requirement to a degree unsupported by Gates, concerning the quantity, storing, or selling of illegal
and allows for a warrant to issue based simply upon the drugs—was handed down after the judicial officer in this case
averment that the informant “has provided reliable issued the warrant, it was all the more reasonable for an
information in the past about criminal activity . . . without the officer such as Lomenick to have formed an objective good
further specificity as to the type of such activity . . . .” In faith belief that the information supplied by the informant was
other words, the majority’s holding fails to account for the
16 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 21
sufficient under the authority of United States v. Pelham, 801 “reliability” and “basis of knowledge” of the informant
F.2d 875 (6th Cir. 1986), and United States v. Finch, 998 F.2d –] independent status. Instead, they are better understood
349 (6th Cir. 1993). as relevant considerations in the totality of circumstances
analysis that traditionally has guided probable cause
The dissent characterizes this fact as having “little determinations: a deficiency in one may be compensated
consequence” because “Weaver simply interpreted Leon and for, in determining the overall reliability of a tip, by a
applied it to the facts before it; Weaver certainly did not—and strong showing as to the other, or by some other indicia
in fact could not—change the exceptions to the good faith of reliability.
provision as articulated by the Supreme Court.” These
arguments, however, do not diminish my point that an officer Id. at 232-33 (citations, footnotes, and internal quotation
should not be expected to predict that warrant practices marks omitted).
similar to what the courts have found acceptable in the past
will subsequently fail to withstand the analysis of evolving By way of example, the Court then emphasized the
legal decisions. balancing approach not only of the informants’ “veracity” or
“reliability” and “basis of knowledge,” but the totality of the
Although not dispositive, it is also telling that the question circumstances in general. Gates, 462 U.S. at 233. In doing
of whether the warrant in this case was defective has so, the Court expressly provided a hypothetical scenario of
generated significant debate among the judges of this court. what the majority holds today as being decisively sufficient
See Leon, 468 U.S. at 926 (“The affidavit . . . provided regarding the informant and the information he or she has so
evidence sufficient to create disagreement among thoughtful provided, as well as other scenarios, noting that each scenario
and competent judges as to the existence of probable cause.”); should be assessed under the totality of the circumstances to
United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990) determine whether the information provided established
(noting that the Supreme Court’s observation in Leon—that probable cause.
reasonable jurists had disagreed on the issue—was “intended
to bolster the Court’s holding that the officer had acted If, for example, a particular informant is known for the
reasonably under the circumstances”). unusual reliability of his predictions of certain types of
criminal activities in a locality, his failure, in a
In sum, I conclude that even though the affidavit in this particular case, to thoroughly set forth the basis of his
case did not provide enough detail to establish probable knowledge surely should not serve as an absolute bar to
cause, it was sufficient to fit within the “good faith” exception a finding of probable cause based on his tip. Likewise,
of Leon. The dissent apparently believes that Lomenick’s if an unquestionably honest citizen comes forward with
actions amount to “flagrant misconduct” (United States v. a report of criminal activity – which if fabricated would
Hove, 848 F.2d 137, 141 (9th Cir. 1988)) and therefore the subject him to criminal liability – we have found rigorous
“extreme sanction” (Leon, 468 U.S. at 916, 926) of exclusion scrutiny of the basis of knowledge unnecessary.
should be imposed. Because I disagree, I would affirm the Conversely, even if we entertain some doubt as to an
denial of Allen’s motion to suppress, albeit for reasons other informant’s motives, his explicit and detailed description
than those set forth by the majority. of alleged wrongdoing, along with a statement that the
event was observed first-hand, entitles his tip to greater
weight than might otherwise be the case. Unlike a
totality of circumstances analysis, which permits a
20 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 17
knowledge” – are all highly relevant. However, the Court _______________
went on to opine that these elements should not “be
understood as entirely separate and independent requirements DISSENT
to be rigidly exacted in every case [as they had been applied _______________
by lower courts]. Rather, . . . they should be understood
simply as closely intertwined issues that may usefully CLAY, Circuit Judge, dissenting. Because I believe that
illuminate the commonsense, practical question whether there the majority’s holding relaxes the standard upon which a
is ‘probable cause’ to believe that contraband or evidence is warrant may issue to a point unsupported by Fourth
located in a certain place.” See Gates, 462 U.S. at 230. Amendment jurisprudence, and indeed unsupported by the
letter and spirit of the Fourth Amendment itself, I respectfully
The Court found this “totality of the circumstances dissent. As a result of today’s holding, any tip provided by an
approach . . . far more consistent with prior treatment of informant who has provided reliable information to the police
probable cause than . . . any rigid demand that specific ‘tests’ in the past is sufficient to constitute probable cause for the
be satisfied by every informant’s tip.” Gates, 462 U.S. 230- warrant to issue, irrespective of the bare, generalized nature
31. Moreover, the Court reasoned that the less rigid approach of the information provided and without any corroboration by
was in concert with the dynamic nature of probable cause as the police. This result strips away the protection that is
being a “‘practical, nontechnical conception.’” Id. at 231 afforded to all citizens -- both innocent and guilty alike -- to
(quoting Brinegar v. United States, 338 U.S. 160, 176 be free from legally unsupportable and hence unreasonable
(1949)). The Court embraced its earlier teachings regarding searches and seizures, and is at variance with the meaning of
probable cause as dealing in “probabilities.” Id. These probable cause as envisioned by the drafters of the
probabilities “‘are not technical; they are the factual and Amendment.
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’” Id. (quoting Although I disagree with the majority’s decision to affirm
Brinegar, 338 U.S. at 175). The Court further opined as the district court’s order denying Defendant’s motion to
follows: suppress the evidence, I am most troubled by the far reaching
effects of the majority’s opinion which drive a stake through
[P]robable cause is a fluid concept – turning on the the very heart of the Fourth Amendment. It is for this reason
assessment of probabilities in particular factual contexts that while I address the matter at hand, I pay particular
– not readily, or even usefully, reduced to a neat set of attention to the devastating impact that this decision has on
legal rules. Informant’s tips doubtless come in many Fourth Amendment jurisprudence in this circuit as a whole.
shapes and sizes from many different types of
persons. . . . Informants’ tips, like all other clues and I.
evidence coming to a policeman on the scene may vary
greatly in their value and reliability. Rigid legal rules are The Fourth Amendment provides:
ill-suited to an area of such diversity. One simple rule
will not cover every situation. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
*** and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
There are persuasive arguments against according [the affirmation, and particularly describing the place to be
elements of the “two-pronged test” – “veracity” or searched, and the persons or things to be seized.
18 United States v. Allen No. 96-6313 No. 96-6313 United States v. Allen 19
U.S. CONST. amend. IV. It was argued when the Constitution confusion as to the appropriate standards for determining
and Bill of Rights were being adopted that a provision probable cause as well as their proper application. However,
providing against searches and seizures unsupported by I disagree that the various holdings have led to confusion as
evidence of wrongdoing was needed to prevent general to the proper standards or their application. Any arguable
warrants from issuing: inconsistencies in cases from this circuit are not the result of
confusion as to the standards or their application in probable
[G]eneral warrants, by which an officer may search cause analysis, 1but rather a function of the fluid nature of
suspected places, without evidence of the commission of probable cause. See id. at 231. With that said, I focus upon
a fact, or seize any person without evidence of his crime, the Gates decision itself in this dissent because it provides the
ought to be prohibited. As these are admitted, any man benchmark for probable cause analysis. As will be illustrated,
may be seized, any property may be taken, in the most the majority opinion is at odds with the Supreme Court’s
arbitrary manner, without evidence or reason. Every mandates regarding a reviewing court’s determination of
thing most sacred may be searched and ransacked by the whether a warrant is supported by probable cause, and
strong hand of power. therefore sets a dangerous and unfounded precedent in this
circuit.
See 3 JONATHAN ELLIOT, THE DEBATES OF THE SEVERAL
STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL In Gates, the Supreme Court examined its earlier decisions
CONSTITUTION 588 (2d ed. J.B. Lippincott Comp. 1831) in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.
(comments of Patrick Henry). Hence, the requirement that a United States, 393 U.S. 410 (1969) and rejected the strict
warrant be supported by specific evidence of criminal activity interpretation that had been given these decisions by
before being issued is deeply rooted in our history. Moreover, reviewing courts. Specifically, the Court acknowledged that
the Framers of the Bill of Rights carefully sought to define the the elements of the “two pronged test” established in these
precise conditions under which government agents could decisions regarding the value that should be afforded to an
search private property so that citizens would not be at the informant’s tip – “veracity” or “reliability” and “basis of
mercy of those agents for the protection of their privacy. As
such, the express language of the Fourth Amendment must be
heeded, and the particularized nature of the oath or 1
Cases from this circuit may indeed be looked to for guidance
affirmation made in support of the warrant as required by the nonetheless. The Allen panel considered the cases of United States v.
Amendment cannot be considered a mere technicality. Pelham, 801 F.2d 875 (1986), United States v. Finch, 998 F.2d 349
(1993), and United States v. Weaver, 99 F.3d 1372 (1996) for guidance.
The quantum of evidence or information required to However, the Allen panel also found that any apparent inconsistencies
support the issuance of a warrant – i.e., the requirements of between these decisions were due to the nature of probable cause and the
the particularized inquiry to establish probable cause – has fact that various factors must be weighed and balanced when determining
whether sufficient evidence was presented by the affiant in order to
long been debated in the courts, especially when the warrant provide a substantial basis for determining whether criminal activity was
is based upon hearsay information from an informant. The afoot. See United States v. Allen, 168 F.3d 293, 299 (6th Cir.), rehearing
jurisprudential evolution concerning the requirements for the en banc granted, judgment vacated by United States v. Allen, 179 F.3d
issuance of warrants reached its peak in the seminal case of 1002 (6th Cir. 1999). It is this very weighing and balancing of factors
Illinois v. Gates, 462 U.S. 213 (1983). The cases from our that the majority opinion now finds unnecessary, contrary to Supreme
Court precedent. As a result, the majority’s opinion does not “clarify the
circuit applying the standards set forth in Gates span a wide law in this circuit” as it claims to do in response to the invitation extended
range of holdings which the majority claims has given rise to by the Allen panel’s dissent; instead, the majority’s opinion derogates the
law as dictated by the Supreme Court.