Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 86 CR 69 -- Sarah Evans Barker, Judge.
Cummings, Coffey and Easterbrook, Circuit Judges.
On January 29, 1987, Vernon Lloyd Brown pleaded guilty*fn1 to five counts of mail theft and one count of possession of a firearm by a convicted felon. 18 U.S.C. §§ 1708, 1202(a)(1). The district court accepted his plea and imposed an earlier agreed-upon five-year sentence. Brown now appeals that court's November 19, 1986, denial of his motion to suppress evidence seized pursuant to a search warrant. Applying the Fourth Amendment analysis as provided by the Supreme Court in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, we hold that the police officers executing the search of Brown's apartment had an objectively reasonable good faith belief that the warrant was based on probable cause and valid and that it had been properly issued by a neutral and detached magistrate. Accordingly, we affirm.
Because both the defendant and the investigating officer, Detective Jack Sandlin of the Indianapolis Police Department, had earlier dealt with each other in a similar matter which formed part of Sandlin's later determination of probable cause to search Brown's residence, it is important to describe the factual background of this case. In March of 1983, Brown was convicted of forgery under Indiana law for participating in a scheme to defraud insurance companies. Using false names, Brown would obtain automobile policies from various insurance companies. The addresses he provided to these companies in his insurance applications primarily consisted of apartments he rented for six-month periods.
Next, Brown would file false reports of break-ins and thefts to the police departments in the several states where he allegedly resided. After the police officers investigated these reports, Brown then made stolen property claims to the insurance companies regarding the supposed automobile thefts. While the individual claims in each reported theft involved low dollar amounts, the aggregate sum of money received by Brown was substantial. Using various aliases, he was able to deposit the reimbursement checks from the insurance companies in a bank clearing account held by a purported business entity with Brown as an authorized signator. Sandlin's investigation of these activities eventually led to Brown's 1983 Indiana forgery conviction and subsequent three-year sentence. The defendant was paroled in September of 1984.
Approximately one year later, in the fall of 1985, Sandlin commenced another insurance fraud investigation involving Brown in a nearly identical scheme to that which resulted in his earlier incarceration. On May 21, 1986, Sandlin sought a search warrant for a residence at 4021 North High School Road in Indianapolis, Indiana. Believing that Brown used this address to further his insurance fraud scheme, Sandlin submitted an eight and one-half page affidavit which stated the sources of the information relied on, related the details of the scheme, and named Brown as a scheme participant. The day after Municipal Court Judge Charles Wiles issued the search warrant, the policy officers searched the High School Road residence and later arrested Brown. When Brown refused to consent to a search of his apartment at 1201 Westminster Row, Apartment # 709, in Greenwood, Indiana, Sandlin prepared a second search warrant affidavit which stated in part:
In support of your affiant's assertion of Probable Cause, the following facts are within your affiant's personal knowledge, to-wit: That on or about 2/12/86, Vernon L. Brown did lease apartment # 709 at 1201 Westminster Row, Greenwood, Johnson County, Indiana. That an affidavit of probable cause filed on 5/21/86 for 4021 N. High School Road , Indianapolis, Marion County, Indiana, is hereby incorporated as a part of this affidavit by copy. That as a result of the execution of the search warrant at 4021 N. High School Road on 5/22/86, partial records were found which tends to be evidence of the crimes of forgery and theft. Partial bank records relating to this scheme to defraud insurance companies were located. It is the opinion of your affiant, upon knowledge learned during the course of this investigation, other records which are kept as a part of the scheme are under control of Vernon L. Brown at the above described premises. (Emphasis supplied).
Sandlin then described the desired items to be seized in the same manner as in the earlier warrant, specifying "Store receipts, fraudulent store receipts, bank records, typewriters, and letters correspondence relating to the submission of fraudulent insurance claims." Relying on this affidavit, Municipal Court Judge A. Toni Cordingley issued a search warrant approximately one hour and fifteen minutes after the end of the first search on May 22. While searching the 1201 Westminster Row address later that day, Sandlin found a briefcase which contained a handgun and a manila folder that contained five pieces of stolen mail. Nothing else was seized.
Brown was subsequently indicted by a federal grand jury on five counts of mail theft and one count of wrongful possession of a firearm by a prior felon. On August 19, 1986, he moved to suppress the evidence seized at the Westminster Row address, alleging that the second search was illegal. After taking testimony from both Sandlin and Judge Cordingley, the district court denied this motion on November 19, 1986, and held that while the second warrant to search the Westminster Row address was not based on probable cause under the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317, (1) the officers executing the warrant had an objectively reasonable good faith belief that the warrant was based on probable cause and valid, (2) the warrant did describe the times to be seized with sufficient particularity, and (3) Judge Cordingley did not act as a mere "rubber stamp" for the police officer.
We do not dispute both the defendant's argument and the district court's conclusion that the totality of the circumstances in this case did not establish a substantial basis for concluding that probable cause existed to search the second address. For example, as the district judge noted, neither search warrant affidavit showed how the police knew that the Westminster apartment was truly one of Brown's addresses. Also there was a paucity of information suggesting that a search of the Westminster address would uncover evidence of wrongdoing. If the affidavit had shown that this address was truly Brown's and had been one of his mail-drops, there of course would have been probable cause. But because of the absence of probable cause, it is necessary to decide whether the officers acted in reasonable reliance on the validity of a search warrant issued by a detached and neutral magistrate. We rely here on the analysis provided in Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, where the Supreme Court adopted a good faith exception to the exclusionary rule. The Court held that:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an ...