United States v. Deano Babe Formaro

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-4359
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States District
* Court for the Southern District of Iowa.
Deano Babe Formaro, *
*
Appellant. *
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Submitted: May 12, 1998
Filed: July 29, 1998
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Before McMILLIAN, ROSS and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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ROSS, Circuit Judge.
Deano Babe Formaro appeals from a judgment entered upon a conditional guilty
plea to conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and 846. In the plea Formaro reserved his right to challenge the district
court's denials of his suppression motions.1 We affirm.
On March 21, 1997, Officer John Van Haaften, who was assigned to a county
drug task force, submitted an application for a warrant to search Formaro's house. Van
Haaften stated that since January 1996 the task force had been investigating Formaro
and his wife for illegal drug distribution and during that time confidential informants
had made controlled purchases of marijuana and methamphetamine from Formaro's
house. In attachments to the application, Van Haaften stated that the informants had
given reliable information in the past and that their information as to Formaro had been
corroborated. A state court judge issued the warrant that day. On executing the
warrant one week later, officers found one pound of methamphetamine, one-half pound
of marijuana, over $29,000 in cash, a pistol, and drug paraphernalia.
On appeal, Formaro argues that the district court erred in denying his motion to
suppress, claiming the information in the search warrant application was too vague and
too stale to establish probable cause. His arguments are without merit. "Probable
cause is a fair probability that contraband or evidence of a crime will be found in the
location to be searched." United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996).
"Our duty as a reviewing court is to ensure that the issuing judge had a 'substantial
basis' for concluding that probable cause existed, and we owe substantial deference to
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, denied Formaro's first motion to suppress. The
Honorable Harold D. Vietor, Senior United States District Judge for the Southern
District of Iowa, denied a second motion.
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the determination of probable cause by the issuing judge." Id. (quoting Illinois v.
Gates, 462 U.S. 213, 236 (1983)).
Formaro does not dispute that "[t]he statements of a reliable confidential
informant are themselves sufficient to support probable cause for a search warrant."
United States v. Wright, No. 97-2869, 1998 WL 271534, at *2 (8th Cir. May 29,
1998). However, he argues that Van Haaften's information concerning the reliability
of the confidential informants was too vague. We disagree. "The reliability of a
confidential informant can be established if the person has a history of providing law
enforcement officials with truthful information." Id. In this case, Van Haaften noted
that one of the informants had supplied information fifteen times and the information
had led to two search warrants, four arrests and five drug charges, and that the other
informant had supplied truthful information that led to seizure of contraband. "[T]his
information adequately established the informant[s'] track record and hence, [their]
reliability." Id.
Moreover, "corroboration of the [confidential informant's] information by
independent investigation is an important factor in the calculus of probable cause."
LaMorie, 100 F.3d at 553. As to the controlled buys, Van Haaften noted that the
informants had been searched before the buys and, except for the time they were with
Formaro, were under constant surveillance. Thus, the "issuing judge had a 'substantial
basis' for concluding" that drugs would be found in Formaro's house.2 Id. at 552; see
2
Formaro also incorrectly argues that the information in the application was
vague as to the location of the controlled buys. In the application, Van Haaften
specifically stated that the informants had made "controlled purchases of marijuana
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also United States v. Phillips, 88 F.3d 582, 586 (8th Cir. 1996) (officer's information
in search warrant application established probable cause "based on the stated previous
experience with the informant and the independent corroboration of his other
comments").
We also reject Formaro's argument that the application was deficient because,
except for the date of the last controlled buy, Van Haaften did not indicate the dates or
the number of the other sales.3 Although it would have been preferable to include the
information, we are "not convinced that the lack of specific dates [or number of buys]
deprived the [judge] of essential information in determining probable cause." United
States v. McKeever, 5 F.3d 863, 866 (5th Cir. 1993). Applications "should be read in
a 'common-sense and realistic fashion' and [judges] must make a practical decision
based on the totality of the circumstances." Phillips, 88 F.3d at 585 (quoting United
States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995)). In this case, even though the
information in the application "lack[ed] factual specificity as to the exact dates," United
States v. $149,442.43, 965 F.2d 868, 873 (10th Cir. 1992), we believe that Van
Haaften's statements that Formaro had been under investigation since January 1996 and
and methamphetamine from the Formaro[s'] residence," and in an attachment stated
that one of the informants went into the house to purchase drugs. Even if the other
informant had not purchased drugs at the house, there was sufficient probable cause
to believe that evidence of drug activity would be found in the house. See United
States v. Hulett, 22 F.3d 779, 780 (8th Cir.) ("Few places are more convenient
tha[n] one's residence for use in planning criminal activity and concealing fruits of a
crime.") (internal quotation omitted), cert denied, 513 U.S. 882 (1994).
3
At the suppression hearing, Van Haaften testified that there were three
controlled buys.
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that during that time informants had made controlled purchases established probable
cause to believe that Formaro had been involved in ongoing drug activity. As the
government points out, the information in the application "support[ed] the inference that
[Formaro] was more than a one-time drug seller." United States v. Pitts, 6 F.3d 1366,
1370 (9th Cir. 1993); see also United States v. Murphy, 69 F.3d 237, 240 n.2 (8th Cir.
1995) ( affidavit sufficient to support probable cause despite concerns about its "bare
bones nature").
Nor, as Formaro argues, did the fact that the last controlled buy was made two
and one-half weeks before the application render the information in the application
stale. It is true that "[p]robable cause must exist when a warrant is issued, not merely
at some earlier time." LaMorie, 100 F.3d at 554. However, "'[t]here is no bright-line
test for determining when information is stale . . ., and the vitality of probable cause
cannot be quantified by simply counting the number of days between the occurrence
of the facts supplied and the issuance of the affidavit.'" Id. (quoting United States v.
Koelling, 992 F.2d 817, 822 (8th Cir. 1993)). "'Time factors must be examined in the
context of a specific case and the nature of the crime under investigation.'" Id. (quoting
Koelling, 922 F.2d at 822). In addition, "[w]here continuing criminal activity is
suspected, the passage of time is less significant." Id. In this case, given that
"continuing criminal activity [wa]s suspected," id., the two and one-half weeks lapse
did not negate the existence of probable cause. Indeed, "in investigations of ongoing
narcotics operations, 'intervals of weeks or months between the last described act and
the application for a warrant did not necessarily make the information stale.’" United
States v. Ortiz, No. 96-1183, 1998 WL 228126, at *5 (2d Cir. May 8, 1998) (quoting
Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991)); see also Pitts, 6 F.3d at
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1369 ("’With respect to drug trafficking, probable cause may continue for several
weeks, if not months, of the last reported instance of suspect activity.’'') (quoting
United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)).
Likewise, "[b]ecause continuing criminal activity was suspected and
corroborated, probable cause did not dissipate in the [seven] days that lapsed between
the time the state court issued the warrant and its execution." United States v. Gibson,
123 F.3d 1121, 1125 (8th Cir. 1997) (four-day delay in executing search warrant for
drugs did not invalidate search); United States v. Williams, 10 F.3d 590, 594-95 (8th
Cir. 1993) (given ongoing nature of drug trafficking, eight-day delay did not invalidate
search).
Formaro's argument that the district court erred in failing to hold a Franks hearing
is also without merit. Under Franks v. Delaware, 438 U.S. 154 (1978), "a facially valid
affidavit for a search warrant may be challenged if it contains deliberate or reckless
misrepresentations." LaMorie, 100 F.3d at 555. It is well-established that the burden
is on "the defendant to show that the affiant omitted facts with the intent to make, or
in reckless disregard of whether the omissions made, the affidavit misleading, and that
the affidavit, if supplemented by the omitted information, could not support a finding
of probable cause." Id. Here, as the district court held, Formaro failed to make the
required showing.4
4
Even if the application were deficient, we agree with the district court's
alternate holding that the search was lawful under the good-faith exception of
United States v. Leon, 468 U.S. 897, 923 (1983). Under this exception, "absent
allegations that the [issuing judge] was not neutral, 'suppression is appropriate only
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Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
if the officers were dishonest or reckless in preparing their affidavit or could not
have harbored an objectively reasonable belief in the existence of probable cause.' "
United States v. Fulgham, No. 97-3681, 1998 WL 208101, at *3 (8th Cir. Apr. 30,
1998) (quoting Leon, 468 U.S. at 926).
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