C.D.Cal.: Conclusory affidavit for MDMA suppressed

In a rare judicial conclusion, and a reaffirmation of the risk of a “judge as rubber stamp,” a state search warrant in a multi-hundred thousand pill MDMA search was found based on mere conclusions of the officer and was suppressed for a failure to show probable cause. United States v. Underwood, 2011 U.S. Dist. LEXIS 63531 (C.D. Cal. June 16, 2011). I’ve raised this a few times myself, because police officers often just put conclusions in their affidavits. The conclusions here:

(1) “Underwood is a courier for a multi- hundred thousand pill MDMA drug trafficking organization”;

(2) “On April 14, 2010, Drug Enforcement Administration (“DEA”) Special Agents and Beverly Hills Police Department (“BHPD”) Detectives observed Underwood deliver two wooden crates to known co-conspirators Jimmy Luong (“Luong”) and Tony Barrera (“Barrera”). Based on other seizures in this investigation, I believe the crates contained approximately 260,000 pills of MDMA”;

(3) Agent Johnson’s descriptions of “fronting” in paragraph 2 of the state affidavit; and

(4) that marijuana was observed in plain view upon a protective sweep of Underwood’s home.

The holding:

Detective Kaiser’s affidavit baldly asserts that he learned from Agent Johnson that Underwood was a courier for a multi-hundred thousand pill MDMA drug trafficking organization. The facts supporting the basis of Agent Johnson’s conclusion are not disclosed in the affidavit. In an analogous situation, probable cause is lacking when an informant’s conclusory allegations, but not the factual bases for the informant’s knowledge, are offered to support probable cause. See, e.g., Aguilar v. Texas, 378 U.S. 108, 114 (1964) (“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were … [o]therwise the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate … but instead … by an unidentified informant.”) (internal citations and quotations omitted).

Although the parties do not discuss this issue, the Court acknowledges that other law enforcement agents’ observations are assumed reliable, unlike informants’ observations, which must be supported by the affiant’s basis for concluding the statements are reliable. See Ventresca, 380 U.S. at 111 (‘Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”); United States v. Lapsins, 570 F.3d 758, 764 (6th Cir. 2009) (“[I]n general, another law enforcement officer is a reliable source and consequently no special showing of reliability need be made as a part of the probable cause determination.”) (quoting LaFave § 3.5(a)) (internal quotation marks and corrections omitted). However, though observations of other police officers may be relied upon, the affiant may not simply state the bare-boned conclusions of other officers as a basis for probable cause. It is clear that if Agent Johnson, not Detective Kaiser, had made the statement “Underwood is a courier for a drug trafficking organization” in an affidavit, the statement would be conclusory. The conclusory nature of this statement is not improved because Detective Kaiser relied upon the conclusions of Agent Johnson. If an affiant could simply circumvent the requirement to include a factual basis supporting probable cause by relying on the bald conclusions of another law enforcement officer, the detached and neutral magistrate required to approve the search may as well be replaced by a rubber stamp.