Search warrant based on C.I. not valid when there is no statement of reliability as to the C.I.


In 2001, a confidential informant (C.I.) placed telephone calls to Agent Jimmie Nichols of the Mississippi Bureau of Narcotics and Deputy Investigator Mark Wilcher of the Leake County Sheriff’s Office. The C.I. reported that he had been at Adam Roebuck’s residence and had seen methamphetamine inside Roebuck’s house. The C.I. also reported that he had observed Roebuck and another individual using methamphetamine as well as preparing, or “cooking,” methamphetamine.

Nichols prepared an affidavit, supplemented with a description of underlying facts and circumstances. Afterwards, Nichols and Wilcher went before the judge with the affidavit and Wilcher also offered oral testimony. Satisfied that probable cause for a search warrant existed, Judge Graham issued a search warrant, which authorized Nichols and Wilcher to search Roebuck’s residence.

Three to four hours after the warrant was signed, it was executed. Roebuck was at home when Nichols and Wilcher executed the search warrant. In their search of the property, the agents found a trace amount of ephedrine or pseudoephedrine on some coffee filters, a box of salt, and several empty lithium battery casings, indicating that the lithium had been stripped from the batteries. No lithium was found on Roebuck’s property, however. Additionally, pursuant to the warrant, Nichols obtained an imprint of Roebuck’s fingerprints. Roebuck was not arrested at the time of the search, as investigators did not uncover sufficient evidence to give rise to criminal charges against him.

Shortly after Nichols and Wilcher arrived at Roebuck’s house, they heard a four wheeler leave from somewhere around Roebuck’s mobile home. Wilcher stated that he had been contacted by an individual who reported that four wheelers traveled from Roebuck’s property to another property at all hours of the day.

The third party property was tied up in an estate and Wilcher obtained permission from someone involved in the estate to enter that property. Wilcher never attempted to obtain a warrant to search the estate property. The estate property was in the opposite direction of the four-wheeler flight.

During Wilcher’s and Mayes’s search of the estate property, they discovered a clandestine methamphetamine lab. They found a small bag, closed with a zipper. Six cans of Warren Premium Starter Fluid were inside that bag. Starter fluid contains ethyl ether, a precursor to the manufacture of methamphetamine.

Authorities also found two tanks of anhydrous ammonia and a green plastic box of the type commonly used to store tools or fishing tackle. Inside the green box were lithium batteries, a pack of coffee filters, and 98.6 grams of powdered ephedrine. Anhydrous ammonia, ephedrine, and lithium are all precursors to the manufacture of methamphetamine.

Roebuck was convicted of possession of precursors to manufacture methamphetamine and sentenced to 15 years. On appeal, he argued the affidavit did not contain a statement of reliability about the CI. MCOA agreed with Roebuck and reversed the conviction.


A. Probable cause

In reviewing a finding of probable cause, this court determines if there was a substantial basis for the determination of probable cause. We look to both the facts and circumstances set forth in the affidavit for search warrant and as well, the sworn oral testimony presented to the issuing judge.

In Petti v. State, 666 So. 2d 754 (Miss. 1995), MSC said that the information necessary to establish probable cause must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found. A demonstration of probable cause is sufficient where facts and circumstances, of which an officer has reasonably trustworthy information, should justify a man of average caution to believe that a crime has been committed and that a particular person committed it.

Under the totality of the circumstances test, a written affidavit supplemented by oral testimony of police officers can establish a substantial basis for a determination that probable cause existed for the issuance of a search warrant. However, simply repeating an informant’s allegation, without more, does not overcome the threshold requirements for probable cause.

In Satterwhite, the Federal 5th circuit stated that while an affidavit may rely on information gleaned from an informant’s report that is not within the personal knowledge of the affiant, an affidavit must present a substantial basis for crediting that hearsay.

That substantial basis has been overcome where the affidavit contains a statement that an officer has successfully used a confidential informant to prosecute criminal allegations in the past. Similarly, it is sufficient where an affidavit contains corroborating evidence to show a confidential informer is truthful and reliable.

B. Search warrant obtained without statement about reliability of C.I.

At the motion to suppress, Nichols admitted that he did not mention that his C.I. was credible or believable or that the informant had provided credible information in the past in the affidavit or the underlying facts and circumstances sheet that he presented to Judge Graham.

Wilcher also presented oral testimony to Judge Graham during the request for a search warrant. At no point did Wilcher mention telling Judge Graham that the C.I. was truthful and reliable or that the informant had aided in the successful prosecution of criminal investigations.

Also, Neither Wilcher nor Nichols had any first hand information regarding crimes committed at Roebuck’s house.

Because nothing in the record before this court suggests that Nichols or Wilcher presented any basis of reliability on the informer’s statement or any suggestion of the veracity of it, the motion to suppress should have been granted.

As the fingerprint exemplars taken pursuant to the invalid search warrant provided the only means by which the State could connect Roebuck to the methamphetamine lab, we hold that the evidence seized pursuant to the illegal search warrant must be suppressed as the fruit of the poisonous tree.