Search warrant lacked probable cause but it was save by good faith exception

Facts

Around 9:45 p.m. on November 17, 2020, pursuant to a search warrant, Investigator Ryan Stachura and other officers with the Pearl River County Sheriff’s Department (PRCSD) searched Brandon Keith Jackson’s residence in Pearl River County. The officers seized approximately ten pounds of marijuana, eighty-three Methylenedioxymethamphetamine (MDMA) pills, half a pound of Tetrahydrocannabinol (THC) edibles, and twenty-one Amphetamine pills. They also seized digital scales, a vacuum sealer, a Gilboa Snake AR-15 rifle, and a satchel containing approximately $8,000 in bundles of $1,000.

Stachura signed the affidavit for the search warrant, setting out the following facts and circumstances in support:

For approximately one-month Investigators with the [PRCSD] Narcotics Unit have been receiving intelligence on 10A and 10B Luther Walker Rd. in reference to the sale and distribution of controlled substances. On October 7th, 2020 Investigators received a crime stoppers tip in reference to an unknown white male selling marijuana, pharmaceutical pills, and other controlled substances. Investigators were also informed from another source that one trailer on the property was being renovated, and one was being lived in. Investigators were informed that both trailers were controlled and occupied by the same individual. Around the same time, Investigators also received intelligence from a source that has proven reliable in the past that wishes to remain confidential.

The source informed Investigators that there may be narcotics being delivered to that address through parcel services. Investigator Stachura is familiar with these types of investigations as he has seen several in the past. Typically, when conducting package interdiction, one would look for packages originating in California, Oregon, Colorado, or other states with legalized marijuana or other known drug distribution hubs. Also, an indicator is paying excessive amounts for overnight air, as the sender and receiver wish to have the package in the mail system for the shortest amount of time to prevent discovery by employees or law enforcement. Based upon training, experience, and previous investigations, Inv. Stachura knows that voluminous amounts of controlled substances are being delivered through the mail daily, unbeknownst to the carrier.

On Tuesday, November 17, 2020 Investigators Stachura, Giadrosich, and Quave were on routine narcotics patrol when they traveled down Luther Walker road, which is a dead-end road. Upon coming to the end of the roadway near 10 Luther Walker Rd., Investigators observed a motorcycle leaving the residence. The motorcycle almost struck investigators, and . . .Investigators followed the motorcycle . . . to a safe distance away from the residence as to not alert the suspects to law enforcement presence in the area, and conducted a traffic stop on the motor vehicle.

Upon making contact with the driver of said motorcycle, investigators observed bulges coming from the suspect’s jacket. Investigators conducted a pat down, commonly referred to as a Terry frisk, upon the driver, at which point the driver spontaneously uttered “I have some weed on me.” Investigators recovered the marijuana from the driver’s front right jacket pocket and furthered their Investigation. The driver did not wish to cooperate with law enforcement on the source of his marijuana, however investigator Stachura examined the packaging and took note of its condition. The outside temperature at that time of night was approximately 51 degrees Fahrenheit.

The clear plastic ziplock bag was contained within a jacket pocket, and the driver was exposed to extremely cold air on a motorcycle. There was no condensation located within the clear plastic bag of marijuana even though it had been held next to the driver’s body, and also exposed to cold weather from riding the motorcycle.

Investigators have reason to believe, and do believe that marijuana is being sold and stored at 10A and 10B Luther Walker Rd. Investigators believe that both residences that are located on the same property are being controlled by the same suspect. Investigators further believe that controlled substances, packaging material that would be consistent with the bag of marijuana recovered on the traffic stop, drug ledgers and other common implements associated the sale of controlled substances will be held within both residences. . . .

At the suppression hearing, Stachura testified that it was difficult to blend in and conduct surveillance on Jackson’s residence because Luther Walker Road is a relatively short dead-end road with a cul-de-sac at the end. Consistent with his affidavit, Stachura testified that on the night in question, he stopped a motorcycle leaving Jackson’s residence for careless driving, and the driver admitted to having “a little weed,” which he voluntarily turned over to Stachura. According to Stachura, certain characteristics of the bag of marijuana indicated to him that it had come from Jackson’s residence:

So the first thing is the plastic bag looked very clean, very fresh. In my experience, if marijuana jostles around in a clear plastic bag for a time, the buds of marijuana are typically very sticky and they have resin, which is the
active ingredient for THC that everybody wants to consume. That will typically leave a small film of residue within the bag on there. The bag didn’t appear that it had been old, yellowed, or anything thereof. What was also significant to me was it was relatively a cool night. It was approximately 51 degrees. The gentleman was operating a motorcycle and having driven motorcycles, the windchill goes up through the roof as you’re driving, as well as it was contained in an inner pocket. And one of the things that I know from training and experience is that marijuana is a vegetative substance, so it will leave a — it will produce water condensation from within if it’s held in a warm spot for too long because of — it’s a vegetative substance. That’s why a lot of times when we submit evidence to the crime lab it will be come back lower than the initial field weight because it dries up in storage waiting for the lab to test it.

THE COURT: There was no condensation within the clear plastic bag?
THE WITNESS: No, sir.
THE COURT: And with your training, that told you something?
THE WITNESS: Yes, sir. It had been placed there freshly. It had not been riding around for hours, in my opinion.

Stachura testified that the unnamed motorcyclist would not disclose the source of his marijuana. Stachura seized the marijuana but did not arrest the motorcyclist or issue a citation. Instead, Stachura allowed the motorcyclist to leave because he was worried that someone might alert Jackson that the motorcyclist had been stopped leaving Jackson’s residence. Stachura was concerned that Jackson might move his drugs before Stachura could obtain and execute a search warrant.

Because Stachura felt he needed to act quickly, he prepared the application for the search warrant at the PRCSD’s office in Picayune, which was closer than his own office at the PRCSD’s headquarters. Stachura testified that he had previously identified Jackson as the resident of 10 Luther Walker Road, but that information was in his files at his office. Stachura didn’t want to place the wrong person’s name on the search warrant, so he referred to Jackson as an “unknown white male” in his affidavit.

Stachura took the warrant application to the home of Pearl River County Justice Court Judge John Mark Mitchell. Stachura testified that he did not remember giving Judge Mitchell any information that was not in his affidavit. Stachura and Judge Mitchell both testified that if Stachura had told Judge Mitchell anything significant that was not in the affidavit, Judge Mitchell would have required Stachura to add it to the affidavit. Judge Mitchell issued a warrant to search the two trailers on the property for controlled substances, paraphernalia, proceeds, and guns. Officers immediately returned to the property, executed the warrant, and seized the above-described evidence from Jackson’s residence.

Johnson was convicted and sentenced. On appeal, he argues the search warrant should have been suppressed. MCOA affirmed using good faith.

Analysis

A. Search Warrant

In this case, four sources of information were presented to the issuing judge:
• an anonymous crime stoppers tip that an unknown white male was selling marijuana, pharmaceutical pills, and other controlled substances;
• a report from another source that one trailer on the property was being renovated, that one was being lived in, and that both trailers were controlled and occupied by the same individual;
• intelligence from a source that has proven reliable in the past that wishes to remain confidential, who informed investigators that there may be narcotics being delivered to that address through parcel services; and
• the questioning of the unnamed motorcyclist.

By itself, the anonymous crime stoppers tip did not constitute probable cause. However, probable cause may be established through personal observations of police officers involved in the case that corroborate the information received from anonymous sources.

The second unnamed source mentioned in Stachura’s affidavit merely advised that one trailer on the property was being lived in, that a second trailer was being renovated, and that both trailers were controlled and occupied by the same individual. This information, while perhaps relevant to the scope of the warrant, is clearly irrelevant to the probable cause determination.

Next, according to Stachura, a confidential source who had proven reliable in the past stated that there may be narcotics being delivered to that address through parcel services. Under the totality-of-the-circumstances test, the issuing judge was required to consider “the veracity and basis of knowledge of” the confidential source as part of the judge’s probable-cause determination. Stachura’s affidavit did state that this source had proven reliable in the past, which we have accepted as minimally sufficient to show some degree of reliability. However, Stachura provided the issuing judge with no information regarding the source’s basis of knowledge. Indeed, the wording of the affidavit only serves to cast doubt and raise questions regarding the basis for the source’s assertion. Again, this source only stated “that there may be narcotics being delivered to that address through parcel services.” As far as we know, the source could provide no additional details. And as Stachura
conceded on cross-examination, the source did not claim that he had actually seen any drugs at Jackson’s residence and could only report that there “may” or “may not” have been deliveries of drugs to that address.

It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched. In the present case, the source had not personally observed drugs at Jackson’s residence and could only say that it was possible that drugs had been delivered there. Moreover, the issuing judge was presented with no information concerning the basis of the source’s suspicion. For all we know, this source was merely passing along a rumor he or she had heard on the street. A confidential source’s unexplained statement that contraband may be found at the place to be searched is, by definition, insufficient to constitute probable cause.

We come finally to the unnamed motorcyclist who was stopped with a “little weed” in his pocket shortly after he pulled out of Jackson’s driveway. While this incident may have added to the officers’ suspicions, we fail to see how it established probable cause for the search of Jackson’s residence. For example, in United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), the United States Court of Appeals for the Sixth Circuit held that the fact that the defendant himself had cocaine in his pocket when he was arrested in the front doorway of his own house did not establish probable cause to search the house for additional drugs and paraphernalia. As the court explained, the fact that drugs are found on an individual’s person, even while he is in the immediate vicinity of his house, does not, by itself, constitute probable cause to search the house. It necessarily follows that possession of drugs by an unnamed third party who was merely seen leaving a property’s driveway also does not constitute probable cause to search the buildings on the property.

Stachura’s affidavit also stated that he examined the packaging of the motorcyclist’s marijuana and took note of its condition. Stachura observed that the temperature was approximately 51 degrees Fahrenheit at the time, that the clear plastic ziplock bag was contained within the motorcyclist’s jacket pocket, that the motorcyclist was exposed to extremely cold air on a motorcycle, and that there was no condensation located within the clear plastic bag. At the suppression hearing, Stachura offered additional opinions regarding the supposed significance of these observations. However, there is no evidence that these opinions were conveyed to Judge Mitchell, and we do not consider information that was not provided to the issuing judge. The mere absence of condensation in the ziplock bag did not establish probable cause to search Jackson’s residence.

The circumstances here, in totality, are merely one anonymous crime stoppers tip, another source who could only say that drugs might have been delivered to Jackson’s address, and one motorcyclist who had “a little weed” in his pocket after he pulled out of Jackson’s driveway.

Probable cause may be established in some cases if personal observations of police officers involved in the case corroborate the information received from anonymous sources. But there were no such corroborating personal observations in this case. Accordingly, we conclude that probable cause for the search warrant was lacking.

B. The Good-Faith Exception to the Exclusionary Rule

The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful
search. One limitation on the exclusionary rule is the good-faith exception. Summarizing the good-faith exception, the MSC has explained that the exclusionary rule should not be applied to suppress evidence if the
evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant. However, this good faith exception does not apply if: (1) in issuing the warrant the magistrate is misled by information in the affidavit that the affiant knows is false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial role; (3) the warrant is based on an affidavit so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or, (4) the warrant is so facially deficient in failing to particularize the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid.

The United States Supreme Court and the Mississippi Supreme Court have held that the exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. As the United States Supreme Court explained, the exclusionary rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. Typically, the mere existence of a warrant suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception. In such cases, the exclusionary rule will apply if the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Here, we cannot say that Stachura’s affidavit was so lacking in indicia of probable cause as to render officers’ belief in its existence entirely unreasonable.

Accordingly, we conclude that although probable cause was lacking, the exclusionary rule does not apply. Jackson’s convictions and sentences are AFFIRMED.

https://courts.ms.gov/images/Opinions/CO185459.pdf