The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Factual/Procedural Background
On June 20, 2007, a grand jury returned an indictment against Thomas E. Wilkerson and six other defendants. Wilkerson was charged with two counts: (1) conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine, and (2) possession of methamphetamine manufacturing products. On September 4, 2007, Wilkerson filed a motion to suppress evidence obtained from the search of the garage and residence of Cathy Nickels on November 6, 2006 (Doc. 92). On December 4, 2007, the Court held a hearing on the motion.
On November 5, 2006, police obtained a warrant to search Nickels's home for controlled substances and paraphernalia. The warrant was supported by an affidavit that explained the following. In late 2004, Cathy Nickels and her husband, Brad Nickels, were charged with manufacturing methamphetamine after a search of their residence revealed items used in the manufacture of methamphetamine and over 900 grams of a substance containing methamphetamine. Brad Nickels was convicted and sentenced to 15 years imprisonment, and Cathy Nickels pled guilty to the conspiracy and was sentenced to 48 months probation. On May 19, 2006, Cathy Nickels gave a positive drug test for methamphetamine and thereafter failed to appear at probation and court settings. A warrant was issued for her arrest, which remained in effect through November 5, 2006.
The affidavit further states that on November 5, 2006, a confidential source (CS) contacted Deputy Kelvin Worker of the Fayette County Sheriff's Department. The CS stated that while at Nickels's residence earlier that day, both Cathy Nickels and Wilkerson stated that Wilkerson and others would be manufacturing methamphetamine in the garage late that evening. The CS also observed Nickels in the act of grinding pseudoephedrine tablets, and an unknown individual delivered anhydrous ammonia. The affidavit also states that the CS saw two gas masks and was shown an underground room that Cathy Nickels said was used for manufacturing methamphetamine. Additionally, the CS alleged that just before leaving the residence, Nickels stated she was going to Wal-Mart to purchase lithium batteries and Coleman fuel. The CS also claimed that on prior occasions, the CS saw Nickels extract methamphetamine from a coffee filter.
The affidavit further stated that in corroboration of the CS's statements, Deputy Worker obtained records maintained by various establishments selling pseudoephedrine, which indicated that Wilkerson and Nickels made at least 14 pseudoephedrine purchases between April 25, 2006 and November 5, 2006. Additionally, others identified by the CS as being present at Nickels's residence were recorded as having made purchases of pseudoephedrine "in amounts that violate Illinois law." Doc. 122-3, ¶ 12.
Based on the information in the affidavit, Judge Roberts of the Fourth Judicial Circuit, Fayette County, Illinois issued a warrant to arrest Cathy Nickels and to search Nickels's home for controlled substances and paraphernalia. Upon execution of the warrant on November 6, 2006, Wilkerson was arrested while in the process of manufacturing methamphetamine.
Wilkerson now moves this Court to suppress all physical evidence obtained pursuant to the search warrant on the grounds that the affidavit was insufficient to support a finding of probable cause, and that he had a reasonable expectation of privacy in the garage and residence of Cathy Nickels. For the following reasons, Court DENIES the motion to suppress (Doc. 92).
1. Validity of the Warrant
When the challenged search or seizure was undertaken pursuant to a warrant, the defendant bears the burden of proving that the search was illegal. United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985). Additionally, "[w]here the police have acted pursuant to a warrant, the independent determination of probable cause by a [judge] gives rise to a presumption that the arrest or search was legal." Id.
In determining whether there is "a fair probability that contraband or evidence of a crime will be found in a particular place," a judge must consider the totality of the circumstances set forth before him. Illinois v. Gates, 462 U.S. 213, 238 (1983). In reviewing the validity of a search warrant, "the duty of a reviewing court is simply to ensure that the [judge] had a 'substantial basis for concluding' that probable cause existed." United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002). Where the judge only considered the affidavit, as was the case here, "the warrant must stand or fall solely on the contents of the affidavit."Id. As a result, the Court will only consider the contents of the affidavit in determining whether the supporting affidavit was sufficient to support the judge's finding of probable cause.
Here, Wilkerson argues that the affidavit is insufficient to make a finding of probable cause because it does not allege that the CS was reliable or that the CS had provided reliable information in the past. In Koerth,the Seventh Circuit explained that even where a search warrant is supported by an affidavit that generically states that the informant is believed reliable without additional supporting facts, the Court must treat the informant as being of "unknown reliability." 312 F.3d 862. The affidavit in the instant case that was presented to state court Judge Roberts did not discuss the reliability of the CS in this case, and thus, the CS shall be treated as being of "unknown reliability."
However, reliability is only one consideration of many, and probable cause is to be established under a totality of the circumstances test. The Seventh Circuit has ...