The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
RECOMMENDATION ON REPORT AND DEFENDANT'S MOTION TO SUPPRESS [DOCKET NO. 23]
Defendant Wesley Wade Running Shield is before the court on an indictment charging him with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moves the court to suppress the evidence seized as a result of the execution of a search warrant issued on June 1, 2012, and executed on June 6, 2012. See Docket No. 23. The government resists the motion. See Docket No. 25. The district court, the Honorable Jeffrey L. Viken, referred this motion to this magistrate judge for a recommended disposition pursuant to the court's standing order and 28 U.S.C. § 636(b)(1)(B). The following is this court's recommended disposition.
Both parties agreed that this court should determine the issues raised in Mr. Running Shield's motion on the briefs with reference only to the search warrant and its accompanying affidavit. Accordingly, no evidentiary hearing was held.
Special Agent Justin M. Hooper with the Bureau of Indian Affairs, Office of Justice Services, Pine Ridge Agency, submitted to this court an affidavit in support of his request for a search warrant on June 1, 2012. That affidavit set forth the following facts.
On May 8, 2012, a female who is named in the affidavit, but whose name is not published herein for privacy reasons and will be referred to as "X," contacted BIA Special Agent Sheri Salazar. See Docket No. 26-2, page 1, ¶ 3. X reported to Agent Salazar that Mr. Running Shield had sexually assaulted her on September 12, 2011. Id. X further reported that Mr. Running Shield and another woman, also named in the affidavit, but who will be referred to herein as "M," had a video of that sexual assault. Id.
X told Agent Salazar that Mr. Running Shield and M were distributing the video of Running Shield's sexual assault of X via the internet and mobile phones. Id. X said that this sexual assault video would be found on the phones of both Mr. Running Shield and M. Id. at page 2. X told Agent Salazar that Mr. Running Shield and M were distributing the sexual assault video in an attempt to intimidate X so that she would not report that Mr. Running Shield, a convicted felon, possessed three firearms. Id.
X described having seen these three firearms in the home that Mr. Running Shield shared with his mother. Id. X said that the firearms were stowed in a crawl space near the bathroom in the Running Shield home. Id. X could not recall the make or model of any of the three firearms. Id.
X also told Agent Salazar that the Running Shields distribute marijuana out of the home Mr. Running Shield lived in with his mother. Id. X had observed the marijuana to be stored in the same crawl space where she observed the firearms being stored. Id.
X told Agent Salazar that she had not been in the Running Shield home since September, 2011. Id. She described the house Mr. Running Shield lived in with his mother as being blue in color, with tires placed on the ground leading up to the sidewalk. Id. She stated that M owned a purple van which was usually parked in the driveway of the home. Id. X told Agent Salazar that she was not certain of the house number of the Running Shield residence, but she thought it might be "34." Id.
Agent Hooper stated in his affidavit that he checked Mr. Running Shield's criminal record and confirmed that he was convicted of a felony assault on a law enforcement officer in Nebraska in 2008, and a felony first degree burglary in 2005. Id. at page 2, ¶ 4. A copy of Mr. Running Shield's criminal background was attached to Agent Hooper's affidavit. Id.; see also Docket No. 26-2 at pages 5-24. Although Agent Hooper did not identify in his affidavit the jurisdiction of the first degree burglary conviction, the attached records indicate that Mr. Running Shield was convicted of that charge in the District of South Dakota, Western Division. See Docket No. 26-2 at pages 5-24.
Agent Hooper also recited the facts gleaned from reading the case of United States v. Water. United States v. Water, 413 F.3d 812 (8th Cir. 2005); see also Docket No. 26-2, page 2, ¶ 5. In Water, the defendant was convicted of second degree murder for a shooting that occurred in House 33 of the Northridge Housing Development in Pine Ridge, South Dakota. Water, 413 F.3d at 814. After the shooting, the defendant ran to House 32 and gave the gun to Mr. Running Shield, who told the defendant he would dispose of or hide the gun. Id. at 815, 820. Authorities later retrieved the gun. Id. at 816. In the court's opinion, Mr. Running Shield was described as living in House 32 of the Northridge Housing Development along with his mother, his twin brother, M, and M's son. Id. at 815. Agent Hooper attached a copy of the Water opinion to his affidavit in support of his request for a search warrant. See Docket No. 26-2, pages 25-34.
Agent Hooper then stated that he personally observed House 32 in the Northridge Housing Development in Pine Ridge, South Dakota. Id. at page 3, ¶ 6. He described his personal observation of that home as follows: blue in color, with white trim at the bottom, and a tin or steel roof. Id. He further stated that the number "32" is affixed to the upper right of the front door of the house. Id. Agent Hooper averred that House 32 had tires leading up to the sidewalk and a metal swing set in the southwest side of the front yard. Id. Agent Hooper then attached photographs of House 32 to his affidavit. Id.; see also Docket No. 26-2, pages 35-36. Agent Hooper stated that the appearance of House 32 matched the description of the house given by X. Id. at page 3, ¶ 6. Finally, Agent Hooper stated that his own independent investigation as well as that of other law enforcement agents confirmed that House 32 was Mr. Running Shield's residence. Id.
Agent Hooper then requested that a search warrant be issued for House 32. Id. at ¶ 7. He asked for permission to search for the following evidence: any firearms, any items related to the use or sale of illegal narcotics, cell phones, or computers located at House 32. Id.
Law enforcement officers executed the search warrant on June 6, 2012. They found, among other things, three firearms: a 20-gauge shotgun, a .22 caliber pistol with the serial number scratched off, and a .380 caliber automatic pistol. See Docket No. 26-1, page 3-4. They also found 47 rounds of .380 caliber ammunition in a box, 15 cell phones (including six cell phones together in a bag), six rolled marijuana joints, a seventh partially-smoked marijuana joint, loose marijuana in a baggie, a digital scale, tin foil squares, additional used tin foil squares with burn marks on them, a rolled up dollar bill, and photographs depicting drug activity. Id.
Mr. Running Shield now moves to suppress the evidence seized pursuant to the search warrant, arguing that there was no probable cause in support of the search warrant. See Docket Nos. 23, 24. Mr. Running Shield specifically argues that the information provided by X was unreliable, not corroborated, and stale. Id. The government resists Mr. Running Shield's motion in all respects. See Docket No. 25. The government also argues that, even if probable cause was lacking in support of the search warrant, the court should apply the Leon good faith exception and refuse to suppress the evidence seized pursuant to the warrant. Id.*fn1
A. General Fourth Amendment Principles Applicable to Search Warrants The Fourth Amendment to the United States Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ." U.S. CONST. amend.
IV. "Generally, to search a private place, person, or effect, law enforcement must obtain a warrant supported by probable cause from a judicial officer." United States v. Sanders, 341 F.3d 809, 818 (8th Cir. 2003) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). The home is at the center of the Fourth Amendment's protections for it is the "physical entry of the home [that] is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585-86 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)).
The court concludes that the sole ground urged by Mr. Running Shield for the suppression of any evidence is the purported invalidity of the search warrant due to lack of probable cause. As such, the court does not address any other grounds which might affect the admissibility of evidence including statements from Mr. Running Shield, if in fact such statements exist. In addition, the court notes that the district court has instructed the parties that any motions must be "accompanied by a reasoned memorandum setting forth the precise issues to be considered by the court, together with an explanation of the relevant law to the particular facts of the case." See Docket No. 15, page 2, ¶ 2. If Mr. Running Shield intended to raise any independent argument for the suppression of his statements or if he intended to raise the broadness/particularity/specificity arguments, he has failed to abide by the district court's order by failing to explain the law and the facts applicable to suppression on these grounds.
The main motivation for the adoption of the Fourth Amendment by the founding fathers was the use of the hated "general warrants" by the British. See Payton, 445 U.S. at 583-84. Under a "general warrant," British customs officials had blanket authority to search whenever and wherever they pleased to find any goods that had been imported without paying British taxes on the imports. Id. at 583, n.21. The remedy against the general warrant that was embodied in the Fourth Amendment was to require that any search warrant must be particular, and that it must be supported by probable cause. Id. at 584.
Much has been written about what constitutes "probable cause." "If an affidavit in support of a search warrant 'sets forth sufficient facts to lead a prudent person to believe that there is a "fair probability that contraband or evidence of a crime will be found in a particular place," ' probable cause to issue the warrant has been established." United States v. Grant, 490 F.3d 627, 631 (8th Cir. 2007) (citing United States v. Warford, 439 F.3d 836, 841 (8th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))). "Probable cause requires only a showing of fair probability, not hard certainties." United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008). Whether a search warrant is supported by probable cause is to be determined by considering the totality of the circumstances. Grant, 490 F.3d at 631. The issuing judge's resolution of the issue of probable cause should be paid "great deference by reviewing courts." Id. at 631-32 (quoting Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))).
Reviewing courts examine the sufficiency of an affidavit in support of a search warrant using "common sense" and not using a "hypertechnical" approach. Grant, 490 F.3d at 632 (citing United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005) (quoting United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993)). "Where there is no evidentiary hearing before the magistrate judge, the probable cause determination must be based upon 'only that information which is found within the four ...