The opinion of the court was delivered by: Reagan, District Judge
Before the Court are Defendant's, Mark Hall's, motion to suppress evidence (Doc. 23) and motion for disclosure of confidential sources (Doc. 26). Based upon the record and the fully briefed motions, along with testimony and exhibits received at the April 24, 2007 hearing, the Court will now rule on these motions.*fn1
I. Facts and Procedural History
On February 7, 2007, a two-count criminal complaint was filed against Mark A. Hall ("Hall"), alleging that (Count 1) he possessed 100 or more marihuana plants with the intent to manufacture marihuana, a Schedule I Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and that (Count 2) he maintained a place for the purpose of manufacturing marihuana, in violation of 21 U.S.C. § 856(a)(1).
In support of the Complaint, Agent John Boerm ("Boerm") of the Metropolitan Enforcement Group of Southwestern Illinois ("MEGSI") stated that, since 1994, other members of the Collinsville, Illinois Police Department and MEGSI have investigated the narcotic-related activities of Hall for offenses relating to marihuana manufacture in the Collinsville, Illinois area. The investigation gave rise to information leading to the application for and issuance of a federal search warrant for property at 608 Autumn Avenue in Collinsville, on February 6, 2007, which was executed on February 7, 2007.
Mark Hall, one of the owners of record of the property at 608 Autumn, was present at the time the search warrant was executed, along with his daughter, Jessica Hall. During the search, the officers discovered a hydroponic marihuana growing operation (the "Grow") in the basement of the residence. The Grow consisted of 483 marihuana plants. In the master bedroom on the first level of the home, the officers found nine jars containing suspected dried marihuana, the field weight of which was determined to be approximately 273 grams of a substance that field tested positive for the presence of the chemical components contained in marihuana. A safe, located on the floor of the master bedroom, was found to contain approximately $1,194.00 in U. S. currency.
On February 23, 2007, the grand jury charged Hall on the counts set forth in the complaint and on an additional forfeiture count, pursuant to 21 U.S.C. § 853(a). The indictment specifies that the time frame for Count I was approximately January, 2006, through about February 7, 2007, and that the date for Count 2 was February 7, 2007.
A. Motion to Suppress Evidence
Hall attacks the validity of the search warrant on the ground that the application for the search warrant is supported entirely by information supplied by five confidential sources ("CS") whose information is unreliable. First, CS-1 provided information, for the years 2002 and 2004, regarding a residence known as 626 Autumn and not 608 Autumn. Second, CS-2 provided information regarding observation of illegal activities by Hall for an unspecified date in September, 2004, at 626 Autumn and not 608 Autumn. Third, CS-3 failed to describe with any specificity the location, amount of marihuana allegedly observed and the source of the information. Fourth, CS-4, known only to the Collinsville Chief of Police as reliable, failed to provide evidence of reliability such as the location and amount of the Grow, and whether he had recently observed any Grow. Fifth, CS-5 is an anonymous individual who made an unsolicited telephone call only four days before the application was filed, indicating that he had unlawfully entered 608 Autumn at an unspecified time and had seen a Grow consisting of approximately 400 plants. Thus, according to Hall, the affidavit, on its face, falls well short of providing information that would establish probable cause consistent with the Fourth Amendment to the United States Constitution.
The Government responds that probable cause existed to support the issuance of the search warrant. The thirteen-page affidavit sets forth information received from five confidential sources for the time period from 2002 to 2007. In addition to the confidential sources, the affidavit contained information provided by Hall's son, Casey Hall ("Casey Hall"), in February, 2006. The affidavit detailed the 2004 arrest of Casey Hall for operating a Grow in a residence located at 626 Autumn. Boerm received information from CS-3, CS-4 and CS-5 between December 20, 2006, and February 2, 2007, including information from CS-3 and CS-5 that Hall had been using a lot of electrical power. CS-5 stated that Hall had just paid a $500 utility bill.
The Government contends that corroboration of the confidential source information using third-party utility data is an indicia of reliability. Because Boerm was aware from his investigations that marihuana growing operations require the use of electrical devices, he requested the assistance of the Drug Enforcement Administration ("DEA") in obtaining records of utility bills for the residence located at 608 Autumn and, for purposes of comparison, five nearby residences.*fn2 He received information obtained from Ameren-IP by the DEA that, for a bill issued on January 23, 2007, electric and gas service for the property located at 608 Autumn was $484.33. Both Ameren-IP and the Collinsville water department show Mark Hall as account holder of record for this address. A consensual search of 608 Autumn in June, 2004, revealed no Grow at that time, and electrical consumption for that month was 1,238 kilowatt hours. In June, 2006, the electrical consumption was 3,481 kilowatt hours, and, in January, 2006, the electrical consumption was 2,104. The average electrical consumption during 2006 showed a net increase of over 135% above the 2004 level. Moreover, the 2006-2007 electrical bills for the property at 608 Autumn showed significantly higher consumption than nearby residences for which the records were obtained. Based on this information, Boerm stated his belief that the Grow had been operational at that location for several months preceding the filing of the complaint.
Additionally, the Government asserts that information received by law enforcement from Casey Hall and from CS-5 may be viewed as reliable because it was provided against their penal interests.
The Government contends that the above actions on the part of law enforcement officials amounts to due diligence and more than accounts for any shortcomings in the origins of ...