Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 323 -- Marvin E. Aspen, Judge.
Bauer, Wood, and Cudahy, Circuit Judges.
In this appeal the government challenges the district court's order quashing a search warrant. We conclude that the affidavit supporting the search warrant established probable cause, and, therefore, we vacate the order.
The affidavit in support of the search warrant set forth the following facts. Spiro Anast told a government informant that he would set fire to a warehouse in Hammond, Indiana using an electronic detonating device which his accomplice would make. On June 16, 1981, Anast and the informant drove to Hammond to examine the warehouse. Anast told the informant that he was going to meet Eric Rambis, the accomplice who was going to make the detonating device, the next day.
On June 17, 1981 surveillance agents watched Anast closely. They saw Anast drive from his home to a nearby restaurant where he met Rambis. Anast and Rambis drove to several stores, many of which sold electronic supplies, and left these stores carrying packages. Next, they drove back to Anast's home and parked in the driveway. Anast walked to the back of the car, then got back inside the car and drove to a house in Skokie, Illinois. Both men got out of the car. Rambis was carrying a bag similar to one he had carried out of a store earlier that day. They walked to the back of the car and opened and closed the trunk. Anast drove away and Rambis walked into the house. The agents could not see whether Rambis carried anything into the house.
On June 18, 1981, FBI surveillance agents followed Anast as he and Emil J. Crovedi, a second accomplice, drove to the Hammond warehouse. They stopped en route to fill a can with gasoline, which they placed in the trunk. As Anast and Crovedi were about to enter the warehouse the agents arrested them. The men were standing in front of two containers of gas, an open paper bag containing pipe wrenches and gun powder, and a zipped brown vinyl bag containing an electronic detonating device and a radio transmitter when arrested.*fn1
FBI agents continued their surveillance of Rambis. On the same day that Anast and Crovedi were arrested in Indiana, the FBI agents observed Rambis eating dinner inside the Skokie house where Anast had left him after their shopping trip. The following day a special agent went to some of the stores at which Anast and Rambis had shopped. Based on invoices and owner descriptions, the agent determined that Anast and Rambis had purchased four transmitters and twelve pounds of gun powder.
The FBI agents submitted an affidavit setting forth the above-described information in support of a search warrant for the Skokie home. The magistrate issued the search warrant and a warrant for Rambis' arrest. A search of the home uncovered a sales receipt for four radio transmitters, three transmitters, an empty transmitter box, batteries, electrical wire, solder, electrical tape, solar ignitors and numerous tools. Rambis was arrested.
The trial court held that the affidavit supporting the search warrant did not establish probable cause because it did not allege facts showing a sufficient nexus between the Skokie house and the intended arson. It held that it was not reasonable to infer that the purchased items would be in the house because there was no evidence that Rambis had carried any of them inside. The government filed a motion to reconsider, urging the trial court to consider whether a good faith exception to the exclusionary rule precluded the suppression of evidence seized pursuant to a search warrant. This motion was also denied.
The government raises two issues on appeal. As might be expected, it contends that there was more than sufficient evidence to satisfy probable cause and that in reviewing this finding, the district court did not accord proper deference to the magistrate's determination. Second, the government urges that the exclusionary rule should not be applied because the agents acted in good faith.
A magistrate, who has considerable experience evaluating affidavits in support of search warrants and the reasonable inferences which flow from the sworn facts, is in the best position to determine if probable cause exists. Frequently, the magistrate is familiar with the affiant or the government informant as well as the circumstances which generally indicate that items connected with criminal activity are likely to be at a particular location. For these reasons, the magistrate's determination of probable cause is given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated. United States v. Coppage, 635 F.2d 683 (8th Cir. 1980).
Whether the information in the affidavit establishes probable cause is a determination based solely on written evidence. Since this determination involves the application of law rather than an evaluation of factual evidence, on review the appellate court is not limited to a determination of whether the district court's finding was clearly erroneous. It must independently review the sufficiency of the affidavit, United States v. Minis, 666 F.2d 134 (5th Cir. 1982), recognizing that doubtful cases should be resolved in favor of upholding the warrant. United States v. Allen, 588 F.2d ...