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United States v. Goodman

United States District Court, D. Montana, Missoula Division

December 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ALLAN ROY GOODMAN, Defendant.

          ORDER

          Donald W. Molloy Judge

         Defendant Allan Roy Goodman is charged with five drug offenses, two firearm offenses, and one count of obstructing justice by retaliating against an informant. (Doc. 52.) He seeks to suppress the evidence gathered as a result of five search warrants on the ground that the warrant affidavits failed to establish the requisite reliability of the confidential informants used. (Doc. 66.) The government opposes the motion. (Doc. 73.) A hearing was held on December 12, 2019, and the government called FBI Special Agent Levi Kroschel. For the reasons stated below, Goodman's motion is denied.

         Analysis

         Goodman seeks to suppress the evidence gathered as a result of five separate warrants, three issued by a state district judge and two issued by a United States magistrate judge. "The burden is on the defendant who seeks to suppress evidence obtained under a regularly issued search warrant to show the want of probable cause." Chin Kay v. United States, 311 F.2d3l7, 321 (9th Cir. 1962). The warrants are addressed in turn.

         I. Controlled Buys

         The first three warrants Goodman challenges were issued by the state court and authorized audio recordings of controlled buys by an informant. (See Docs. 67-1, 67-2, 67-3.) Such recordings are specifically permitted by statute, see 18 U.S.C. § 251 l(2)(c), and Goodman has no Fourth Amendment privacy interest in what he voluntarily stated to a cooperating individual who consented to the recording, see United States v. White, 401 U.S. 745, 749-51 (1971); United States v. Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013). Nor would suppression be appropriate under Montana law because "evidence obtained from a consensual wiretap conforming to 18 U.S.C. § 251 l(2)(c) is admissible in federal court proceedings without regard to state law." United States v. Adams, 694 F.2d 200, 201-02 (9th Cir. 1982). Thus, Goodman's challenges to the first three warrants fail as a matter of law.

         II. Pen Register

         The fourth warrant was issued by a federal magistrate and authorized the collection of location data from Goodman's cellular telephone. (See Doc. 67-4.) The government has stated that "[t]here was no evidence obtained from this warrant and none to be presented at trial." (Doc. 73 at 2.) Accordingly, Goodman's challenge to this warrant is moot.

         III. Garage Search

         Based on the foregoing, the only warrant at issue involves the search of Goodman's detached garage at 4700 Mullan Road. (See Doc. 67-5.)

         A. Legal Standard

         "A magistrate judge's finding of probable cause is entitled to great deference" and a search warrant will not be invalidated if the judge "had a 'substantial basis' for concluding that the supporting affidavit established probable cause." United States v. Reeves, 210 F.3d 1041, 1046 (9th Cir. 2000) (internal quotation marks omitted). "Probable cause exists when the magistrate judge finds that, considering the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found." Id. (internal quotation marks and alteration omitted).

         The determination of whether information provided by confidential informants establishes probable cause is assessed under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). Under this standard, "[e]vidence bearing on the veracity of the informant and his basis of knowledge is considered together with other relevant evidence." United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). An informant's "veracity" or trustworthiness may be established by showing that the informant "provided accurate information on past occasions," the informant made "admissions against penal interest," or there was "independent police corroboration of the information provided." Id. at 1397; accord United States v. Rowland, 464 F.3d 899, 907-908 (9th Cir. 2006). The "basis of knowledge" prong "requires that the affiant set forth the underlying circumstances that led the informant to believe that criminal activity was occurring; a mere conclusory allegation that a suspect was engaging in criminal activity is insufficient." Angulo-Lopez, 791 F.2d at 1397. "[A] weakness in either the 'veracity' or 'basis of knowledge' prong is not fatal to a finding of probable cause, as long as the issuing magistrate had a 'substantial basis' for the finding." Id. at 1396.

         B. ...


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