After Steve Woods was indicted for possession of cocaine with intent to sell, he filed a motion to suppress, claiming that the confidential informant (C.I.), upon whose information the affidavit for the search warrant was based, was “an individual previously unknown for her reliability.”
The information supplied by the confidential informant “was not corroborated by any independent, reliable source, and, accordingly, could not be used as the single source for the issuance of the” search warrant. Certain evidence was seized during the execution of the warrant and a confession was given.
David Lindsey, the agent who applied for the search warrant, attached his affidavit which set out the following underlying facts: the Natchez/Adams Metro Narcotics Unit received a telephone call from a person who was previously unknown to them, that is, a C.I. who had never been used by the Unit before.
The C.I. stated that she had seen a large Ziploc bag of crack cocaine in Woods’ residence located at 14 O’Brien Street in Natchez. She advised that Woods kept the crack either behind his stereo or in his closet, and that Woods called it “butter” because of its yellowish color. Later the same day, the C.I. called again to report that she had again seen the crack at Woods’ apartment. Lindsey concluded, “Though the C.I. has never made a case for the Metro Narcotics Unit the information she has given concerning Steve Woods, the vehicles, and the address at 14 O’Brien St. seem to be true and correct.”
Lindsey testified at the motion to suppress that the C.I. was a “female” whose name was Keisha Flowers and that Flowers and Woods were dating at the time she called the Unit. Her motivation for calling the Unit was that Woods “was doing wrong and that she wanted [the Unit] to take care of it for her.” Lindsey did a background check on Flowers and found no pending criminal charges against her or any prior arrests.
Another agent drove by Woods’ house to verify the street address. During the search, the agents found cocaine exactly where Flowers told them it would be.
The issuing judge testified that probable cause for the warrant existed based on the totality of the circumstances.
The circuit court granted the motion to suppress, threw the confession out, and dismissed the indictment, saying in part: “That this search warrant was issued solely based upon two telephonic conversations a metro narcotics agent had with a C.I. who had never previously supplied any information to any law enforcement agencies. That the agent failed to conduct an in person interview with the informant, or to otherwise make attempts to test her veracity or credibility other than conducting an NCC background check. Further, the agent failed to corroborate any of the information supplied by the informant through any independent investigatory means.”
From this ruling, the State appeals. MSC affirmed but noted that the dismissal of the indictment should be without prejudice.
The U.S. Supreme Court in Illinois v Gates, 462 U.S. 213 (1983), established a totality of the circumstances standard for determining the existence of probable cause. In State v. Wagner, 624 So. 2d 60 (Miss. 1993), we said that probable cause means more than a bare suspicion but less than evidence that would justify condemnation.
In Petti v. State, 666 So. 2d 754 (Miss. 1995), we said in reviewing the issuance of a search warrant and whether it was based on probable cause, we look both to the facts and circumstances set forth in the affidavit for the search warrant as well, the sworn oral testimony presented to the issuing magistrate.
The C.I.’s statements in this case provided evidence to the Unit that cocaine was in Woods’ apartment. The C.I. obtained her information in a reliable way because she personally observed the cocaine in Woods’ apartment. Therefore, the C.I.’s basis of knowledge, i.e., personal observation, supports a finding that the issuance of the search warrant was based on probable cause.
However, the affidavit, standing alone, lacks indicia of veracity and reliability. Lindsey stated in the affidavit that this particular C.I. had never provided evidence to the Unit before and was unknown to any of the Unit officers. The affidavit is entirely devoid of any corroborating evidence which would have shown that the C.I. was truthful or reliable.
Usually this corroborating evidence consists of a statement that the officer had successfully used the C.I. in the past (see federal 5th Satterwhite), or that the suspect had a prior criminal record relating to the current investigation (Satterwhite), or that an undercover agent had seen the suspect engaging in behavior consistent with the current investigation (Williams v. State, 583 So.2d 620 (Miss.1991)).
Because the affidavit sub judice does not contain any corroborating evidence to show that the C.I. was truthful and reliable, the affidavit, standing alone, does not support a finding that probable cause existed for the issuance of the search warrant.
However, as stated previously, we also look to the information presented to the judge at the time of the issuance of the search warrant. In this case, testimony revealed that no indicia of veracity or reliability was presented orally to the issuing judge
If the arrest was illegal because of the insufficiency of the search warrant, the cocaine found in Woods’ apartment and his subsequent confession should be suppressed as fruit of the poisonous tree.
Finally, the State contends that the dismissal of the indictment should be without prejudice. We agree. The items seized pursuant to the invalid search warrant may be only part of the evidence that tends to show that Woods may have committed a crime. We would not presume to speculate as to the substance of the prosecution’s case against Woods.