United States v. Tuter

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 1 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 00-5086

CHRISTOPHER SHAWN TUTER,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 00-CR-18-C)

Submitted on the briefs:

Stephen C. Lewis, United States Attorney, Lucy O. Creekmore, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellant.

Robert S. Durbin, Tulsa, Oklahoma, for Defendant-Appellee.

Before EBEL , KELLY , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.
 The government appeals the district court’s suppression of evidence

discovered during a search of defendant Christopher Tuter’s residence executed

pursuant to a search warrant. Although we affirm the district court’s conclusion

that the search warrant was not supported by probable cause, we reverse its

determination that the good-faith exception to the exclusionary rule does not

apply. 1

BACKGROUND

On December 21, 1999, a federal magistrate judge issued a search warrant

to agents of the federal Bureau of Alcohol, Tobacco and Firearms (ATF) to search

the residence of defendant Tuter at 4104 West Princeton Street in Broken Arrow,

Oklahoma, for firearms, explosives, and related materials. The search was

conducted the next morning and agents discovered sixteen firearms of various

makes and models, numerous live rounds of ammunition, four assembled

grenades, a readily assembled grenade, a pipe bomb, and other related explosive

materials.

The search warrant was issued based upon an affidavit by ATF agent Bruce

Magalassi. According to his affidavit, on December 20, 1999, an anonymous

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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caller phoned WeTIP, Inc., a nationwide company that takes anonymous calls

regarding crimes and passes the tips along to law enforcement agencies for further

investigation. The caller reported to WeTIP that a thirty-eight year old white man

named Chris Tuter, living at 4104 West Princeton Street in Broken Arrow,

Oklahoma, was making pipe bombs in his garage. The operator took down the

caller’s information on an intake form, and immediately called Lieutenant Paul

Krouter of the Broken Arrow, Oklahoma Police Department, leaving a message on

his answering machine. When Krouter heard the phone message he called Agent

Magalassi and relayed the information to him.

Agent Magalassi obtained a faxed copy of the WeTIP operator’s intake

form. It stated:

SUSPECT MAKES PIPE BOMBS IN HIS GARAGE/ SUSPECT
ALSO HAS 2-3 WEAPONS IN HIS HOME/ SUSPECT HAS ONE
SON/IAN TUTER AGE 12 LIVING IN THE HOME/ ATTENDS
UNION ELEMENTARY OR MIDDLE SCHOOL/ SON HAS BEEN
KNOWN TO SHOW WEAPONS TO SCHOOL FRIENDS WHEN
THEY COME OVER TO SUSPECT[’]S HOME

Appellant’s App. at 88. The intake form described the kind of weapons Tuter

possessed as “RIFLE/AKA,” id., and stated Tuter owned a gold colored 1997 Jeep

Cherokee. The intake sheet also stated the caller’s information was

“FIRSTHAND,” id., but no explanation was given as to how the caller came to

have this information.

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 Agent Magalassi began an investigation and attempted to corroborate the

information provided by the anonymous caller. He verified that a thirty-eight year

old white male named Christopher Tuter lived at 4101 West Princeton Street in

Broken Arrow, Oklahoma, with his thirty-seven year old wife, Cecily Tuter, and

his twelve-year old son Ian. He verified that Cecily Tuter owned a 1997 Jeep

Cherokee. He also investigated defendant Tuter’s criminal history and learned

that Tuter had a 1983 burglary conviction, a 1984 burglary conviction, a 1984

conviction for knowingly concealing stolen property, a 1984 arrest for auto theft

and possession of marijuana, and a 1984 arrest for possession of a firearm after a

felony conviction. Finally, he learned that the Tuters had reported the theft of a

vehicle in 1998, and that two firearms were inside the car at the time of the theft.

Agent Magalassi’s affidavit contained several errors and inconsistencies.

His affidavit gave an incorrect social security number for defendant Tuter, and

misspelled Tuter’s name twice. The affidavit stated that the anonymous caller

reported that Tuter’s son attended a Broken Arrow school. In fact, the caller had

correctly reported that the son attended Union elementary or middle school.

Agent Magalassi’s affidavit also stated the caller reported Tuter as having an

“AKA rifle,” Appellant’s App. at 31, though Agent Magalassi later conceded that

no such weapon exists. The intake form, however, actually described the

weapons possessed by Tuter as “RIFLE/AKA,” which could refer to two different

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weapons, rather than just one. Although Agent Magalassi’s affidavit stated that

public records indicated the Tuters had lived at the Princeton Street address since

1988, Tuter testified he has only lived there since 1995. Tuter also testified that

the 1998 vehicle theft report was filed only by Cecily Tuter, his wife, not by the

couple, as stated in the affidavit. Further, based on a description from the Broken

Arrow police department, Agent Maglassi described Tuter’s Jeep Cherokee in his

affidavit as mocha-colored, whereas the anonymous caller described it as gold-

colored.

Tuter moved to suppress the evidence discovered at his residence, claiming

the warrant’s supporting affidavit contained materially false statements and failed

to establish probable cause, that the warrant was overly broad, and that the search

was executed in an unreasonable manner. After a hearing, the district court found

that the errors in the affidavit were insubstantial. However, it suppressed the

evidence on the basis that the supporting affidavit did not establish probable

cause to justify the issuance of the search warrant. Applying a recent decision of

the Supreme Court, Florida v. J.L. , 529 U.S. 266 (2000), the court ruled that the

supporting affidavit was insufficient to establish probable cause because Agent

Magalassi failed to corroborate any of the anonymous tipster’s allegations of

criminal wrongdoing. The court also rejected the application of a good faith

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exception to the exclusionary rule because the affidavit was insufficient to justify

the issuance of the warrant.

DISCUSSION

I. PROBABLE CAUSE

A. Standards of Review

A magistrate judge’s task in determining whether probable cause exists to

support a search warrant “is simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). We

have stated that a magistrate judge’s decision to issue a warrant is “entitled to

‘great deference’” from the reviewing court. United States v. Le , 173 F.3d 1258,

1265 (10th Cir. 1999) (quoting United States v. Wittgenstein , 163 F.3d 1164, 1172

(10th Cir. 1998)). Accordingly, we need only ask whether, under the totality of

the circumstances presented in the affidavit, the magistrate judge had a

“‘substantial basis’” for determining that probable cause existed. Id.; see also

Gates , 462 U.S. at 238-39. We review de novo the district court’s determination

of probable cause, Ornelas v. United States , 517 U.S. 690, 697 (1996), while

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reviewing its findings of historical fact for clear error, United States v.

Barron-Cabrera , 119 F.3d 1454, 1457 (10th Cir. 1997).

B. Anonymous Informants

The Supreme Court has adopted a “totality of the circumstances” test to

determine when information from a confidential informant or an anonymous tip

can establish probable cause. Gates , 462 U.S. at 238. The Court has explained

that an informant’s “‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all

highly relevant in determining the value of his report.” Id. at 230. In Gates , the

information came from an anonymous letter which provided no indication of the

informant’s veracity, reliability, or basis of knowledge. The Court held that the

anonymous tip, standing alone, was insufficient to establish probable cause. Id. at

227. However, it explained that “a deficiency in one [factor] may be compensated

for, in determining the overall reliability of a tip, by a strong showing as to the

other, or by some other indicia of reliability.” Id. at 233. The Court found that

the anonymous tip in Gates was sufficient to establish probable cause because it

“contained a range of details relating not just to easily obtained facts and

conditions existing at the time of the tip, but to future actions of third parties not

easily predicted.” Id. at 245.

In Alabama v. White, 496 U.S. 325 (1990), the Court addressed the standard

for determining when an anonymous tip can provide “reasonable suspicion” to

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justify an investigatory stop. 2
The Court recognized that “there are situations in

which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of

reliability to provide reasonable suspicion to make the investigatory stop.’” J.L .,

529 U.S. at 270 (quoting White , 496 U.S. at 327). In White , the Court deemed an

anonymous tip sufficiently reliable to justify an investigatory stop because it was

highly detailed and police independently corroborated the informant’s predictions

regarding the suspect’s future activity. Id. at 332. It reasoned that the caller’s

ability to predict the suspect’s future activity “demonstrated inside information--a

special familiarity with [the suspect’s] affairs.” Id. The Court explained that

when “an informant is shown to be right about some things, he is probably right

about other facts that he has alleged, including the claim that the object of the tip

is engaged in criminal activity.” Id. at 331.

After Agent Magalassi prepared his affidavit and the magistrate judge

issued the search warrant in this case, but before the district court ruled on

Tuter’s motion to suppress the evidence, the Supreme Court decided J.L. , 529

2

Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or content
than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.

White , 496 U.S. at 330.

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U.S. 266. In that case, an anonymous caller reported to the police that a young

black male wearing a plaid shirt was standing at a particular bus stop and carrying

a gun. Police verified that the caller had accurately described the man’s location

and appearance, and conducted an investigatory stop. The Court ruled the caller’s

information was inadequate to justify the stop, holding that reasonable suspicion

“requires that a tip be reliable in its assertion of illegality, not just in its tendency

to identify a determinate person.” Id. at 272. The Court noted that if an

anonymous tip provides “predictive information” about “future movements” that

officers can corroborate, then officers might have reasonable suspicion, as was

found in the “close case” of White . Id. at 271. The Court concluded that the tip

in J.L. , however, “lacked the moderate indicia of reliability present in White ”

because it “provided no predictive information and therefore left the police

without means to test the informant’s knowledge or credibility.” Id. The Court

ruled that police cannot rely upon “the bare report of an unknown, unaccountable

informant who neither explained how he knew about the [alleged criminal

activity] nor supplied any basis for believing he had inside information about [the

suspect].” Id. The Court rejected the argument that “the tip was reliable because

its description of the suspect’s visual attributes proved accurate” because “[s]uch

a tip . . . does not show that the tipster has knowledge of concealed criminal

activity.” Id. at 271, 272.

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 More recently, in United States v. Danhauer , 229 F.3d 1002 (10th Cir.

2000), we addressed an affidavit similar to the one at issue here. In Danhauer , a

police officer received information from another officer about a confidential

informant’s report that Robbi and Dennis Danhauer were cooking

methamphetamine in a garage located on their property, and that a person named

“Casey” was acting as a lookout in front of their home. Id. at 1004. The first

officer did not reveal the identity of the confidential informant to the

investigating officer. Id. The investigating officer independently corroborated

that the Danhauers lived at the home identified by the informant, and observed

Robbi Danhauer going back and forth between the home and the garage. Id. He

also learned that both the Danhauers had recent criminal histories involving drugs

and outstanding arrest warrants, and that the day before, Robbi Danhauer had

tested positive for methamphetamine and opiates in a probation report. Id. The

investigating officer prepared an affidavit based on this information.

We held that this affidavit was insufficient to establish probable cause

because “the affiant neither established the veracity of the informant, nor obtained

sufficient independent corroboration of the informant’s information.” Id. at 1006.

The affidavit did “not reveal . . . the informant’s basis of knowledge or

adequately verify the informant’s most serious allegation, that the Danhauers were

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manufacturing methamphetamine.” Id. We held that the police failed to link

methamphetamine to the Danhauers’ residence. Id.

C. Analysis

In this case, the anonymous caller’s identity was unknown, so Agent

Magalassi had no information about the veracity or historical reliability of the

caller. Thus, as in Gates and White , the anonymous tip standing alone “provides

virtually nothing from which one might conclude that [the caller] is either honest

or his information reliable.” White , 496 U.S. at 329 (alterations in original)

(quoting Gates , 462 U.S. at 227).

“When there is sufficient independent corroboration of an informant’s

information, there is no need to establish the veracity of the informant.”

Danhauer , 229 F.3d at 1006. However, corroboration of non-predictive

information only cannot be used to confirm the reliability of an anonymous

informant for the purpose of establishing even the less demanding standard of

reasonable suspicion of criminal activity. J.L. , 529 U.S. at 271. Here, as in J.L.,

none of the caller’s information was predictive; that is, the caller did not provide

any details regarding the future behavior or actions of Tuter. Thus, “[t]he

anonymous call . . . left the police without means to test the informant’s

knowledge or credibility.” Id.

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 The government contends that Agent Magalassi’s independent investigation

corroborated the information provided by the tipster, citing in particular the fact

that Agent Magalassi learned that Tuter had a past criminal history, that his wife’s

vehicle contained firearms as recently as a year ago, and that Tuter did have a

twelve-year old son. As in Danhauer , however, Agent Magalassi only

corroborated innocent, innocuous information about the Tuter’s appearance,

residence, cars and child. Almost anyone can describe the residents of, and

vehicles at, a particular home without having any special knowledge of what goes

on inside the home. See United States. v. Soto-Cervantes , 138 F.3d 1319, 1323

(10th Cir. 1998) (“The verification of facts readily observable to anyone on the

street, without more, is insufficient to support a reasonable suspicion that criminal

conduct is occurring.”). As made clear in J.L. , an accurate description of a

suspect’s readily observable location and appearance does not, without more,

show that “the tipster has knowledge of concealed criminal activity.” 529 U.S. at

272. “Apart from the tip, [Agent Magalassi] had no reason to suspect . . . illegal

conduct” and his suspicion that Tuter was making pipe bombs “arose not from

[his] own observations but solely from a call made from an unknown location by

an unknown caller.” Id. at 268, 270. The fact that Tuter had a fifteen-year old

criminal history or that his wife legally possessed firearms a year ago is

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insufficient to corroborate the informant’s claim that Tuter was making pipe

bombs in his garage. See Danhauer , 229 F.3d at 1006.

The government contends that the informant’s information was reliable

because the WeTIPs intake sheet indicated that the caller’s information was

firsthand. Courts have recognized that, in some circumstances, firsthand

observations from a confidential informant can support a finding of reliability.

See Gates , 462 U.S. at 234 (the informant’s “explicit and detailed description of

alleged wrongdoing, along with a statement that the event was observed first-

hand, entitles the tip to greater weight than might otherwise be the case”). Here,

however, the statement that the caller’s information was firsthand is completely

unsubstantiated. The caller did not claim to have ever been inside the Tuter’s

home or garage or to have seen the pipe bombs or firearms. The statement that

the caller’s information was firsthand was simply a conclusory notation on the

intake form, and gave no supporting explanation of the caller’s basis of

knowledge. Moreover, the caller did not provide the kind of highly specific or

personal details from which one could reasonably infer that the caller had

firsthand knowledge about the claimed criminal activity. Cf. United States v.

Taylor , 985 F.2d 3, 6 (1st Cir. 1993) (noting that affidavit may support

informant’s veracity “through the very specificity and detail with which it relates

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the informant’s first-hand description of the place to be searched or the items to

be seized”).

The government also suggests that because the tipster alleged that Tuter

was manufacturing explosives in Oklahoma on the eve of the millennium, a

relaxed showing of reliability should be permitted because of the risk of imminent

danger to the public. The Supreme Court in J.L. did state in dicta the possibility

of such a relaxed standard in the case of information suggesting imminent mass

destruction. The Court explained:

The facts of this case do not require us to speculate about the
circumstances under which the danger alleged in an anonymous tip
might be so great as to justify a search even without a showing of
reliability. We do not say, for example, that a report of a person
carrying a bomb need bear the indicia of reliability we demand for a
report of a person carrying a firearm before the police can
constitutionally conduct a frisk.

Id. at 273-74.

The government contends that the caller’s report of Tuter “making pipe

bombs” presents just such a circumstance. We do not believe, however, that an

uncorroborated report of someone “making” a pipe bomb in his or her garage

carries with it quite the same sense of urgency and risk of imminent danger as is

present in a report that someone is “carrying” a bomb. More importantly, Agent

Magalassi said nothing in his supporting affidavit about an exigent or emergency

situation or about an increased risk to the public because of the upcoming

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millennium, necessitating either a need to act urgently or a need to relax the usual

probable cause standards, and the affidavit contains no information about any

intended use of such pipe bombs. See Aguilar v. Texas , 378 U.S. 108, 109 n.1

(1964) (“It is elementary that in passing on the validity of a warrant, the

reviewing court may consider only information brought to the magistrate’s

attention.”), overruled on other grounds, Gates , 462 U.S. 213.

We conclude, therefore, that the district court correctly held that the facts

set forth in the affidavit fell short of providing probable cause for a search

warrant. The minimal corroboration of innocent, readily observable facts was

insufficient to establish the veracity or reliability of the caller or to link Tuter

with the allegation that he was making pipe bombs in his garage.

II. LEON GOOD FAITH EXCEPTION

Although the search warrant was not supported by probable cause, we

conclude that the evidence seized at Tuter’s residence need not be suppressed

because of the good faith exception to the exclusionary rule set forth in United

States v. Leon , 468 U.S. 897 (1984). In Leon , the Supreme Court held that the

purpose of the exclusionary rule is to deter police misconduct, id. at 916, and that

“the suppression of evidence obtained pursuant to a warrant should be ordered . . .

only in those unusual cases in which exclusion will further the purposes of the

exclusionary rule,” id. at 918. “Where an officer acting with objective good faith

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obtains a search warrant from a detached and neutral magistrate and the executing

officers act within its scope, there is nothing to deter.” United States v. Nolan ,

199 F.3d 1180, 1184 (10th Cir. 1999). (citing Leon , 468 U.S. at 920-21).

“The Supreme Court recognizes four situations in which an officer would

not have reasonable grounds for believing a warrant was properly issued. In these

situations, the good-faith exception to the exclusionary rule would not apply.”

Danhauer , 229 F.3d at 1007 (citation omitted).

First, evidence should be suppressed if the issuing magistrate was
misled by an affidavit containing false information or information
that the affiant would have known was false if not for his reckless
disregard of the truth. Second, the exception does not apply when
the issuing magistrate wholly abandons [his] judicial role. Third, the
good-faith exception does not apply when the affidavit in support of
the warrant is so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable. Fourth, the
exception does not apply when a warrant is so facially deficient that
the executing officer could not reasonably believe it was valid.

Id. (citations and quotations omitted).

The district court denied application of the good-faith exception, stating

only that Agent Magalassi’s affidavit was insufficient to justify the issuance of

the warrant. The applicability of Leon’s good faith exception is a question of law

that we review de novo. United States v. Rowland , 145 F.3d 1194, 1206 (10th

Cir. 1998). Applying that standard, we disagree with the district court’s

conclusion that the good faith exception does not apply.

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 Tuter contends that the first and third exceptions listed above are applicable

here to preclude use of the good faith exception. We are satisfied that the first

exception is not present here. Under Franks v. Delaware , 438 U.S. 154 (1978), if

a defendant establishes that a police officer made false statements in an affidavit

supporting a search warrant knowingly or with reckless disregard for the truth,

and that the false statement was necessary to the finding of probable cause, the

evidence seized during the resultant search must be excluded. Id. at 155-56.

Allegations of negligence or innocent mistake, however, are insufficient. Id. at

171. The district court conducted a Franks hearing on the veracity of the

affidavit here, and listened to the testimony of Agent Magalassi. After reviewing

the record, we conclude that the district court did not clearly err in finding that

the mistakes in the supporting affidavit were insubstantial and did not contribute

to the magistrate judge’s finding of probable cause, and that nothing in his

testimony would show that Agent Magalassi deliberately lied or recklessly

disregarded the truth.

We are also satisfied that the third exception does not preclude application

of Leon . At the time the underlying affidavit was prepared and the warrant was

issued, neither the Supreme Court’s J.L . decision nor this court’s Danhauer

decision had been issued. Agent Magalassi thus had reason to believe that

corroboration of innocent facts, coupled with his investigation leading to

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discovery of Tuter’s criminal history, would be sufficient to establish probable

cause. See Gates , 462 U.S. at 244 n.13 (“[I]nnocent behavior frequently will

provide the basis for a showing of probable cause” and “the relevant inquiry is

not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of

suspicion that attaches to particular types of non-criminal acts.”). Further, Agent

Magalassi testified that he contacted an attorney in the U.S. Attorney’s office who

told him he had sufficient probable cause. See Appellant’s App. at 153.

“Just as reviewing courts give ‘great deference’ to the decisions of judicial

officers who make probable-cause determinations, police officers should be

entitled to rely upon the probable-cause determination of a neutral magistrate

when defending an attack on their good faith for either seeking or executing a

warrant.” United States v. Corral-Corral , 899 F.2d 927, 939 (10th Cir. 1990).

In the ordinary case, an officer cannot be expected to question the
magistrate’s probable-cause determination. . . . Once the warrant
issues, there is literally nothing more the policeman can do in
seeking to comply with the law. Penalizing the officer for the
magistrate’s error, rather than his own, cannot logically contribute to
the deterrence of Fourth Amendment violations.

Leon , 468 U.S. at 921 (quotations, citations and internal brackets omitted).

We conclude it was not unreasonable for Agent Magalassi and the ATF

agents to rely on the magistrate judge’s authorization of the warrant. See United

States v. Cardall , 773 F.2d 1128, 1133 (10th Cir. 1985) (stating that in

considering the Leon good-faith principles, “it must . . . be remembered that the

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knowledge and understanding of law enforcement officers and their appreciation

for constitutional intricacies are not to be judged by the standards applicable to

lawyers”); see also Leon , 468 U.S. at 919 (“If the purpose of the exclusionary rule

is to deter unlawful police conduct, then evidence obtained from a search should

be suppressed only if it can be said that the law enforcement officer had

knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” (quotations omitted)).

Although we have determined that the supporting affidavit did not establish

probable cause, we cannot say it was so facially insufficient under the state of law

at the time he obtained the warrant that Agent Magalassi should have known the

search was illegal despite the magistrate’s authorization. See id. at 922 n.23;

Danhauer , 229 F.3d at 1007 (“The absence of information establishing the

informant’s reliability or basis of knowledge does not necessarily preclude an

officer from manifesting a reasonable belief that the warrant was properly issued,

particularly when the officer takes steps to investigate the informant’s

allegation.”). At the time Agent Magalassi obtained the search warrant, he

reasonably believed the fruits of his investigation provided sufficient

corroboration of the information provided by the anonymous caller to WeTIP to

establish probable cause.

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 Accordingly, the judgment of the United States District Court for the

Northern District of Oklahoma is REVERSED and REMANDED for further

proceedings consistent with this opinion.

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