United States District Court, C.D. Illinois, Springfield Division
SUE E. MYERSCOUGH, District Judge.
This matter is before the Court on Defendant Chad Hansmeier's Amended Supplemental Motion to Suppress Evidence (d/e 54). The Motion raises a number of claims already raised by Hansmeier in his two previous motions to suppress, which the Court denied in its May 8, 2014 Opinion (d/e 38).
On November 7 and November 12, 2014, this Court held a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Following the hearing, the Court took the matter under advisement. After a careful review of the motion, the Government's response, the Court's May 8, 2014 Opinion, and the evidence presented at the hearing, the Amended Supplemental Motion to Suppress Evidence is DENIED.
The facts are set forth in this Court's May 8, 2014 Opinion. To summarize, on the morning of May 15, 2013, Michael Murphy, a special agent with the Northeast Missouri Narcotics Task Force, executed an Affidavit for a No-Knock Search Warrant. The information in the Affidavit was primarily supported by information received from a confidential source. The Confidential Source had just been arrested while in the possession of approximately 68 grams of methamphetamine. See Opinion, d/e 38, for a full recitation of the contents of the Affidavit.
After Murphy drafted the Affidavit, he took it to Lewis County, Missouri, prosecuting attorney Jules DeCoster. DeCoster notarized the Affidavit and prepared the warrant application. The documents were faxed to Judge Rick R. Roberts, who issued the No-Knock Search Warrant.
The search warrant was executed on May 15, 2013 by Agent Murphy and other officers. The Government asserts that officers found marijuana, a loaded firearm, large amounts of currency, zipper bags containing numerous smaller sandwich bags, drug paraphernalia, and 200 grams of a white, powdery substance that appeared to be either a cutting agent or methamphetamine mixed with a cutting agent. After being arrested and given his Miranda warnings, Hansmeier made statements to the police.
Hansmeier was originally charged in Missouri state court with two counts of possession of a controlled substance and unlawful possession of a firearm. On April 30, 2014, the prosecuting attorney, DeCoster, requested dismissal of the case.
Seven months earlier, in September 2013, Defendant Chad Hansmeier was charged in federal court with conspiracy to distribute 500 grams or more of mixtures or substances containing a detectable amount of methamphetamine and heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and (b)(1)(C). See Superseding Indictment (d/e 8). On May 8, 2014, a Second Superseding Indictment amending the dates of the charged conspiracy was filed. See Second Superseding Indictment (d/e 39) (alleging a conspiracy occurring no later than March 1, 2013 and continuing no later than August 27, 2013).
A. Hansmeier Files and the Court Denies the First Two Motions to Suppress
In January 2014, Hansmeier filed a Motion to Suppress, which he supplemented in March 2014. See d/e 20, 33. Hansmeier argued: (1) Judge Roberts did not have the authority to issue the warrant; (2) Judge Roberts did not comply with Federal Rule of Criminal Procedure 4.1; (3) the Affidavit failed to set forth sufficient facts to establish probable cause; and (4) the good-faith exception did not apply, in part because Agent Murphy deliberately or recklessly made materially false statements or omissions in the Affidavit.
In May 2014, this Court denied the First Motion to Suppress. See Opinion, d/e 38. In sum, the Court found Judge Roberts had the authority to issue the warrant and was not required to comply with Federal Rule of Criminal Procedure 4.1. The Court further found that the Affidavit in support of the search warrant contained sufficiently reliable information to support issuance of the search warrant. The Court noted that because the Affidavit was supported by information from a Confidential Source, the probable cause determination turned on the Confidential Source's credibility. While some of the factors weighed against finding the Confidential Source credible (including the fact that there was no indication that he had provided reliable information in the past, he did not prepare an affidavit or appear before the judge, and the Confidential Source was recently arrested), the Court found that the totality of the circumstances supported the Confidential Source's credibility. The relevant factors included that the Confidential Source's information was based on first-hand observation, he gave specific details, the agent was able to corroborate some of the information (Hansmeier's criminal history and where Hansmeier lived), the Confidential Source described ongoing criminal activity, some of which had occurred within a few days, and the Confidential Source made statements against his own interest.
The Court also found that, even if probable cause were lacking, the good-faith exception applied. In particular, the Court found no evidence that the issuing judge abandoned his judicial role and served as a rubber stamp for the police or that the affidavit was so lacking in probable cause that no officer could have an objectively reasonable belief in the existence of probable cause.
Moreover, the Court found that Hansmeier did not make a substantial preliminary showing that Agent Murphy deliberately or recklessly made materially false statements or omissions. The Court found that the information Hansmeier claimed was either false or recklessly omitted-including the Confidential Source's criminal history, that the Confidential Source was looking to help himself with his own charges, and that the Confidential Source was found with heroin-were not material. The Court also found that the references to Hansmeier purportedly trying to dispose of drugs and drug paraphernalia down the toilet were not false because that information came from another police officer. Finally, the Court found that it was not enough to show that the informant lied about how long he had been buying methamphetamine from Hansmeier (the Confidential Source said he had purchased methamphetamine 18 times in the past six months but Hansmeier had only been out of prison for three months) because Hansmeier did not make any showing that Agent Murphy knew or should have known the statement was false. The Court also found that the statement was not material.
B. Hansmeier Files the Amended Motion to Suppress Evidence
In July 2014, Hansmeier filed his Amended Motion to Suppress Evidence (d/e 54). The new Motion raises some of the same arguments raised in the original motion but also raises some new arguments. Hansmeier argues that (1) the prosecuting attorney, Jules DeCoster, had a conflict of interest at the time the warrant was submitted to the state court judge because DeCoster represented Hansmeier in a civil matter; (2) the Affidavit failed to set forth sufficient facts to establish probable cause because (a) the information was stale, (b) Agent Murphy performed no corroboration, (c) no one appeared before Judge Roberts, (d) the Affidavit did not contain information that the Confidential Source had provided reliable information in the past, and (e) Agent Murphy included information received from Confidential Informant 648 (CI 648) without any indication that CI 648 was reliable; (3) the Court should reconsider its decision in light of United States v. Glover, 755 F.3d 811 (7th Cir. 2014); and (4) Agent Murphy deliberately or recklessly included false material information or omitted material information from the Affidavit by (a) omitting information about Agent Murphy's disciplinary record; (b) omitting information that the Confidential Source was an addict and by his own admission had injected himself with methamphetamine on May 14, 2013; (c) including false information about an incident where Hansmeier allegedly flushed drugs down a toilet when law enforcement served a search warrant on Defendant's residence when Defendant lived in Monroe County, Missouri; and (d) including information that the Confidential Source told him that Hansmeier had two cameras, one inside and one outside the front door, but that only one non-functioning camera was found inside the front door.
As an initial matter, the Court notes that Agent Murphy is a Missouri officer and the warrant was executed in Missouri. The parties barely address whether Seventh Circuit or Eighth Circuit law applies, although the Government notes the issue without much elaboration. The Court, therefore, will apply Seventh Circuit law. Neither party points to an Eighth Circuit case to show either that Agent Murphy relied on Eighth Circuit precedent or lacked good faith because an Eighth Circuit case put him on notice that the Affidavit was insufficient. See, e.g., Davis v. United States, 131 S.Ct. 2419 (2011) (holding that "evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule"); United States v. Koerth, 312 F.3d 862, 870 (7th Cir. 2002) (finding the officers acted in good faith and noting that the defendant failed to cite to any cases holding that a materially similar affidavit failed to establish probable cause).
A. Hansmeier Has Not Shown that the Alleged Conflict of Interest Warrants Suppression of the Evidence
Hansmeier argues that the evidence must be suppressed because Attorney DeCoster still represented Hansmeier in another case when, on May 15, 2013, DeCoster notarized the Affidavit and prepared the warrant application. Hansmeier asserts that DeCoster, in an effort to "cover his tracks, " drafted a letter essentially terminating the representation and back-dated the letter to May 13, 2013.
Specifically, DeCoster, in addition to serving as Lewis County prosecuting attorney, had a private law practice in Monticello, Missouri. On July 17, 2012, DeCoster filed an Entry of Appearance and Motion to Set Aside Judgment and Decree of Modification on behalf of Hansmeier in Marion County, Missouri, Case number 12-MR-CF00539. DeCoster billed Hansmeier for DeCoster's services.
On April 12, 2013, Hansmeier paid $600, leaving $954 still due and owing. On May 16, 2013, while Hansmeier was in the Lewis County, Missouri, Jail, Hansmeier received via hand delivery a letter from Attorney DeCoster, bearing the date of May 13, 2013. The letter advised Hansmeier and Kristina Ridgeway (Hansmeier's girlfriend) as follows:
Please be advised that I have decided to accept the cash payment which you made to my office as full settlement of your account. There is no remaining balance due at this time and as I was no longer representing you, I had closed my file.
Defendant's Exhibit 10.
Hansmeier testified at the hearing that DeCoster had told him that they would return to court once Hansmeier had paid him. Hansmeier also testified that he was consulting with DeCoster about some concerns Hansmeier had about "some false statements and false accusations" relating to a previous arrest on parole violations.
Hansmeier does not provide any citation or argument explaining why suppression is required. The Government interprets Hansmeier's statements as an argument that DeCoster violated the rules of professional conduct and, as such, the evidence should be suppressed. The Government argues that there was no conflict of interest and, even if a conflict existed, the entire issue has no bearing on the issues before the Court because DeCoster was not the affiant or the judge weighing probable cause. The Government further argues that even if DeCoster had a conflict that violated the rules of professional conduct, that is not an adequate basis for the court to suppress evidence that is otherwise admissible.
Even if the Court were to assume that DeCoster committed an ethical violation, suppression is not required. In United States v. Olson, 450 F.3d 655 (7th Cir. 2006), the defendant argued that his statements should be suppressed because the prosecutor obtained the statements in violation of Wisconsin Supreme Court Rule 3.8(b). Wisconsin Supreme Court Rule 3.8(b) required that prosecutors undertake "reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel." Wis. Sup.Ct. R. 20:3.8(b). The Seventh Circuit expressed doubt that the prosecutors violated any ethical rules. Id. at 682. The Seventh Circuit further noted that, even if an ethical violation occurred, suppression was not required because the record did not indicate a willful or egregious act, the conduct did not result in a constitutional violation, and there was no clear authority that they were under an obligation to do more than they did. Id.
Similarly, in United States v. Williams, 698 F.3d 374, 380 (7th Cir. 2012), the defendant attempted to have his attorney give a letter to the defendant's cousin in which the defendant asked the cousin to provide a false alibi. The attorney withdrew as defendant's counsel, turned the letter over to the government, and agreed at the government's request to testify at the defendant's trial. Id . The Seventh Circuit found the attorney did not violate the lawyer-client privilege and did not act ...