E.D.Tenn.: Detail alone in hearsay from an untested informant is not enough to make probable cause

With an untested and unknown informant, detail alone is not enough because detail can be made up, too. Thus, this affidavit lacks probable cause. Nevertheless, the good faith exception will sustain it. United States v. Martin, 2015 U.S. Dist. LEXIS 75030 (E.D.Tenn. March 25, 2015):

The government’s arguments lean heavily on the informant’s relationship to the Defendant and her report of seeing narcotics in Defendant’s possession and hearing Defendant use terms that describe measurements for weighing narcotics. While the degree of detail of an informant’s report may properly be considered in a totality of the circumstances review, the level of detail of an informant’s story may not be strong indicia of reliability, because “[i]f detail is all that is needed to support a search warrant, the Fourth Amendment will no longer be any constraint or check on the issuance of search warrants. Any ‘detailed’ information, uncorroborated by the police, from virtually any unknown, unreliable source, would support issuance of a search warrant.” Neal, 577 F. App’x at 443 (quoting United States v. Sonagere, 30 F.3d 51, 55 (6th Cir. 1994)). In addition, the government’s argument that the informant “subjected herself to prosecution for possessing the drugs” is not convincing. The Affidavit only provides that the informant “advised that [Defendant] was in possession of several types of narcotics” somewhere and was using drug measurement language on the phone. The Affidavit does not indicate where the possession occurred or that the informant herself was involved in any activity subject to criminal prosecution.

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When viewing the Affidavit under the totality-of-the-circumstances standard and with the required deference, I FIND the Affidavit as a whole contains insufficient indicia of the reliability of the informant to provide probable cause to support the issuance of the search warrant at issue. In so finding, I recognize that this is a closer case than most with respect to the determination of probable cause. Because I conclude the good faith exception applies in this case, however, it is not necessary to dwell on the probable cause determination.