Evidence of drug trafficking is likely to be found where a drug suspect resides, sufficient for probable cause for a search warrant. Here, however, there was insufficient evidence. The good faith exception, however, saves it because the affidavit was not bare bones. United States v. Davis, 2006 U.S. Dist. LEXIS 95532 (E.D. Mich. November 9, 2006):
Even if the affidavit contained more specific information regarding defendant’s activities, it lacks sufficient information to create a nexus between those activities and 18196 Goldwin Street. As indicated in the affidavit, DEA-2 informed Agent Dosch that defendant lived on Goldwin Street in Southfield, Michigan, and that defendant drove a Corvette, a Dodge Charger, and a Chevrolet pickup. Agent Dosch stated that he and other agents conducted surveillance and observed vehicles matching the description provided by DEA-2 at 18196 Goldwin at “various times” over the course of “the past several weeks.” It does not identify those vehicles as belonging to defendant. A search of property records revealed that the title owner of the property was an individual named Bridget Huddleston. Another informant, DEA-3, informed Agent Dosch that defendant’s girlfriend was named Bridget, that she had no known source of legitimate income, and that defendant had provided the funds used to purchase the house.
In the court’s view, these facts fall short of constituting verification that defendant actually resided at 18196 Goldwin Street at time the warrant was issued. The basis of DEA-3’s knowledge regarding defendant’s connection to the property is not set forth in the affidavit and, in any event, the fact that he might have furnished the funds for the purchase of the home at some unspecified time does not mean that defendant resided there when the warrant was issued. Only DEA-2 specifically stated that 18196 Goldwin Street was defendant’s residence, and the affidavit lacks any information regarding the basis of DEA-2’s knowledge. Further, no time frame is given for the information provided by DEA-2. The affidavit merely states that “[r]ecently, DEA-2 advised your affiant that [defendant] lived on Goldwin Street in Southfield, Michigan.” n2 Moreover, DEA-2’s tip regarding defendant’s residence was corroborated only to the slightest degree. Agents conducted surveillance at 18196 Goldwin Street, but no agent appears to have personally observed defendant at the Goldwin Street address. Rather, they merely observed vehicles defendant purportedly drove parked at 18196 Goldwin Street. In addition, Agent Dosch provided no specific information as to when this surveillance occurred, stating only that the vehicles were observed “at various times” over the course of “the past several weeks.” In sum, the affidavit lacks information showing that defendant actually resided at 18196 Goldwin Street at the time the warrant was issued.
For the reasons discussed above, the court concludes that the affidavit fails to establish probable cause to search 18196 Goldwin. It contains only vague references to defendant’s drug trafficking activities, it lacks specific information indicating that defendant was actively engaged in drug trafficking activities at or near the time the warrant was issued, and it lacks sufficient averments to establish that defendant actually resided at 18196 Goldwin at that time. The court finds that it lacks both “verified allegations of drug trafficking” and “verification that said defendant lives at a particular residence,” and is thus insufficient under the rule stated in Goward to give rise to probable cause to search the Goldwin Street address in the absence of evidence indicating that any illegal activity had occurred there. Goward, 2006 WL 1952282, at *3.
. . .
Agent Dosch’s affidavit cannot be deemed a bare bones affidavit. . . .
. . .
For the reasons discussed above, the court concludes that the warrant was invalid, but that the agents’ reliance thereon in conducting a search of 18196 Goldwin Street was objectively reasonable. As set forth in the affidavit, the agents conducted an extensive investigation, obtained information from reliable confidential informants that defendant was a long-time participant in a large scale drug trafficking operation, obtained information tying defendant to the Goldwin Street address, and partially corroborated the information provided by the informants. The affidavit, while lacking in the type of specific, corroborated information that might ordinarily be desired, is not “so lacking in indicia of probable cause” as to preclude application of the Leon good faith exception.
There is no due process claim in malicious prosecution. Castro v. Negron, 475 F. Supp. 2d 147 (D. P.R. 2007):
It is now clearly established that claims for malicious prosecution cannot serve as grounds for Due Process violations either in the procedural due process or substantive due process modes. Nieves v. McSweeney, 242 F.3d 46, 53 (1st Cir. 2001); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996). In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), a plurality of the Supreme Court ruled that no substantive due process violation is available for criminal prosecutions instituted without probable cause. Further, because there is an adequate remedy at law available in Puerto Rico to indemnify victims of malicious prosecution there is no viable procedural due process claim either. See, Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994)(“availability of an adequate remedy for malicious prosecution under commonwealth law … is fatal to appellants’ procedural due process claim.”).
Two sentence point in a suppression motion making a Franks challenge was insufficient to even get a hearing on the issue because there was “no substantial preliminary showing.” United States v. Carlisle, 2007 U.S. Dist. LEXIS 14552 (N.D. Ind. February 28, 2007):
The Defendant’s argument on this point is a mere two sentences long and reads “The Judge issuing the Search Warrant had nothing before him except the bare facts set forth in the Affidavit presented to him by the law enforcement officer. The law enforcement officer failed to address the reliability of the informant, as well as information provided by the Confidential Informant, that being CI 515.” (Dfdt’s Br. at 7).
The problem with Defendant’s argument is that even assuming all the above is correct, it does not get the Defendant past the first hurdle in the Franks analysis, that is a preliminary showing that the affidavit contained erroneous information or omitted information material to the probable cause determination. Amerson, 185 F.3d at 687. Rather, Defendant’s argument is not that the affidavit was incorrect or that Lt. Barile’s affidavit contains untruths, but is, in essence, a complaint that the affidavit could not support probable cause because it didn’t contain more information, namely, more information regarding the reliability of the informant.
Handcuffing was reasonable under the circumstances, and this handcuffing does not rise to the level of excessive force. Kim v. Barnes, 2007 U.S. Dist. LEXIS 14575 (S.D. Ind. February 28, 2007).*
Encounter between plaintiff and police officer was objectively consensual, so summary judgment granted for the defense. Greer v. City of Duluth, 2007 U.S. Dist. LEXIS 14601 (D. Minn. January 31, 2007).*
