be approved." The testimony at the suppression hearing was consistent
with the information set forth in the affidavit.
Evidence submitted at the suppression hearing also established that
Mr. Ricketts testified to the grand jury that he did not buy drugs from
2135 Spencer on March 10, but not whether he told the officers this at
the time he was searched. In addition, Officer Brunswick and other police
witnesses testified at the hearing that the complaints of drug sales
regarding 2135 Spencer Street were all made orally and that there were no
written records of these complaints. The court finds this testimony
2. April 21, 1999, Warrant Affidavit
Officer Brunswick was also the author of the probable cause affidavit
for the April 21, 1999, warrant. In this affidavit, Officer Brunswick
stated that there had been complaints regarding the sale of narcotics at
2135 Spencer Street. Testimony at the hearing established that these
reports were made orally, there was no record of them, and that the
reports were received after the location was searched in March. Officer
Henderson arranged for a confidential informant to undertake a controlled
buy at that location. On April 21, 1999, at approximately 8:30 a.m., the
confidential informant was checked for narcotics, paraphernalia, and
money and then given $20.00 in pre-recorded buy money. Officer Brunswick
observed the confidential informant enter 2135 Spencer and exit a minute
later. The informant returned to the officers with a vial containing an
off-white chunky substance, explaining that he or she had obtained the
vial in 2135 Spencer Street from a male named Curt in exchange for
$20.00. The substance field tested positive for cocaine base. The
affidavit also stated that the confidential informant had been used by
the officers on two occasions in the past that had lead to arrests on
drug charges. The affidavit again concluded with a statement of the
officer's eleven years of experience in narcotics and his request, based
on the above information, that a warrant be issued.
The court finds that the testimony submitted at the suppression hearing
supported the information set forth in the probable cause affidavit.
B. The Execution of the Warrants
Philadelphia police officers executed the warrant issued on March 11,
1999, on the same day. Upon arriving at 2135 Spencer Street, the officers
saw Mr. Dixon standing on the front porch. As the officers approached the
porch, Mr. Dixon retreated into the house and shut the door. The officers
announced that they were police and that they had a search warrant. After
receiving no response to their announcement, the officers forced open the
door. The officers found Mr. Dixon on the second floor of the house,
flushing the toilet while seated fully clothed on it. Also in the house
were two other males and two females. The officers seized items including
drug paraphernalia, two firearms, money, cocaine and cocaine base.
The April 21, 1999, warrant was also executed on the same day it was
issued. Again, the officers knocked on the door and announced that they
were police officers and that they had a search warrant. After receiving
no response, the officers knocked down Mr. Dixon's door. The officers
seized items including drug paraphernalia, money, and cocaine base. The
prerecorded $20.00 used by the confidential informant was found in a pair
of jeans hanging over a bedroom door.
Mr. Dixon disputes that the officers knocked on his door and announced
their presence before forcibly entering the house on both occasions. Upon
consideration of the demeanor of the witnesses at the suppression
hearing, as well as the content of their testimony, the court credits the
testimony of the arresting officers.
C. Signature of Issuing Authority on March 11, 1999 Warrant
Officer Brunswick testified that he took the application for the March
11, 1999, warrant to a bail commissioner and witnessed the commissioner
fill out, sign and affix his seal to the warrant. Although the court only
had a poor copy to review, the warrant appears consistent with the
officer's testimony in that the portion reserved for the issuing
authority is filled out. The court finds that the warrant was issued.
II. Conclusions of Law
Mr. Dixon offers several grounds for attacking the warrants and
suppressing the physical evidence seized pursuant to them. He first
alleges that neither warrant contained sufficient, reliable information
for the issuing authority to make a probable cause determination. He
argues that the affidavits contained materially false statements. Mr.
Dixon also alleges that the March 11, 1999, warrant lacks the signature
of the issuing authority. As noted previously, the court finds that the
warrant was signed and properly issued. Finally, he alleges that officers
failed to comply with the "knock and announce" rule in executing the
A. Probable Cause
A magistrate's initial probable cause determine should be paid great
deference by the reviewing court. See Illinois v. Gates, 462 U.S. 213,
236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "A reviewing court must
determine only that the magistrate judge had a `substantial basis' for
concluding that probable cause existed to uphold the warrant." United
States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (quoting Gates, 462
U.S. at 238, 103 S.Ct. 2317). Nevertheless, this deferential standard
does not mean that the reviewing court should simply "rubber stamp" the
magistrate's conclusions. United States v. Jones, 994 F.2d 1051, 1055 (3d
Cir. 1993) (citation, punctuation omitted).
In determining whether a warrant should be issued, "[t]he task of the
issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before
him, there is a fair probability that contraband or evidence of a crime
will be found in a particular place." New York v. P.J Video, Inc.,
475 U.S. 868, 876, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986) (citations,
punctuation omitted); see also Whitner, 219 F.3d at 296. Probable cause is
a "fluid concept" and the inquiry turns on "the assessment of
probabilities in particular factual contexts — not readily or even
usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232,
103 S.Ct. 2317. Certain considerations guide the reviewing court's
The supporting affidavit must be read in its entirety
and in a commonsense and nontechnical manner.
Statements in an affidavit may not be read in
isolation — the affidavit must be read as a
whole. Furthermore, the issuing judge or magistrate
may give considerable weight to the conclusions of
experienced law enforcement officers regarding where
evidence of crime is likely to be found and is
entitled to draw reasonable inferences about where
evidence is likely to be kept, based on the nature of
the evidence and the type of offense.
Whitner 219 F.3d at 296.
The court considers the content of each affidavit in turn. When read in
its entirety, the March 11, 1999, affidavit set forth sufficient
information for a magistrate to make a probable cause determination.
During the course of his half-hour surveillance, Officer Brunswick
observed three males each enter 2135 Spencer Street and leave after only
a minute or so in the house. Given that these visits were so brief, a
common-sense conclusion is that the location was known to these men, and
that they went there for a specific purpose that could be fulfilled
quickly. Such behavior is consistent with the sale of
narcotics. Moreover, very shortly after leaving 2135 Spencer Street, Mr.
Ricketts was holding what appeared to be small plastic vials and was then
stopped by officers who found a pipe and drugs on him, making it probable
that he procured at least some of these drugs in 2135 Spencer.
Consideration of the totality of the circumstances surrounding the
surveillance leads to the conclusion that there was a substantial basis
for the bail commissioner to issue the warrant on March 11, 1999.
Mr. Dixon also attacks the March 11 affidavit on the grounds that the
allegations of complaints of drug sales are unsupported and that Mr.
Ricketts stated that he did not purchase drugs from anyone at 2135
Spencer on March 10. While the bald statement that the affiant had
received complaints regarding drug sales from unidentified sources would
not, standing alone, be a sufficient basis for a warrant, when added to
the affiant's observations during the surveillance, the complaints lend
further support to the bail commissioner's conclusion that there was
probable cause to believe that drugs were present in 2135 Spencer Street.
Mr. Dixon's contention that Mr. Ricketts' denial renders the affidavit
insufficient is intertwined with his contention that the evidence should
be suppressed under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978), because the affidavit contains a material omission.
This issue is addressed in full in the section discussing Franks, supra.
With regard to the April 21, 1999, affidavit, the confidential
informant's controlled buy of drugs from 2135 Spencer Street and the
report of drug sales provided a basis for the issuing authority to
conclude that there was probable cause. See United States v.
Khounsavanh, 113 F.3d 279, 285-87 (1st Cir. 1997) (holding that
informant's tip of drug sales at a location and informant's controlled
buy of drugs from that location provided a basis for probable cause);
United States v. Butler, No. 99-536-01, 2000 WL 19541, at *2 (E.D.Pa.
Jan. 13, 2000) (same). Mr. Dixon argues that the affidavit was
insufficient because it did not provide a basis for which the magistrate
could conclude that the confidential informant was reliable. Admittedly,
the affidavit contains only a bare recitation of the informant's past
reliability, without any details of the nature of this assistance. The
affidavit, however, provides another basis for assessing the confidential
informant's reliability. See United States v. Williams, 3 F.3d 69, 72 (3d
Cir. 1993) (noting the importance of an informant's past reliability
where information was uncorroborated; also noting that informant's past
behavior is not the only means to establish his or her reliability). The
affidavit states that the officers checked the confidential informant for
drugs, paraphernalia, and money before the informant entered the house.
Upon returning from the house only a minute later, the confidential
informant possessed a clear plastic vial containing a substance that
field-tested positive for cocaine base. The informant's entry and exit
from the house was observed by officers. Thus, the confidential
informant's statement that he or she bought drugs in the house was
corroborated by independent evidence, the cocaine base that he or she
procured while in the house. Considering the totality of the circumstance
presented to the issuing authority — including the report from an
unidentified source or sources that drugs were being sold at 2135
Spencer, and the controlled buy — there was a substantial basis for
a finding of probable cause for the April 21, 1999, warrant.
B. Franks Issues
Mr. Dixon also argues that Officer Brunswick's affidavits were made
with a reckless disregard for the truth. In Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court
where a defendant makes a substantial preliminary
showing that a false statement knowingly and
with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that
a hearing be held at the defendant's request.
Id. at 155-56, 98 S.Ct. 2674. If a Franks hearing is held and the
defendant demonstrates by a preponderance of the evidence that material
statements in the affidavit are either recklessly or intentionally
untruthful, "the fruits of the search must be excluded unless the
remaining content of the warrant is sufficient to establish probable
cause." See United States v. Brown, 3 F.3d 673, 676 (3d Cir. 1993); see
also United States v. Frost, 999 F.2d 737, 742-43 (3d Cir. 1993); id. at
743 n. 2 (noting that the Franks test has been applied to omissions as
well as misstatements).
Mr. Dixon alleges that Officer Brunswick's statements in both
affidavits that there had been complaints of drug sales at 2135 Spencer
Street were false and that the officer was reckless in stating that the
confidential informant made a controlled buy from 2135 Spencer in support
of the second warrant. As noted, Mr. Dixon also appears to allege that
the evidence seized pursuant to the first warrant should be suppressed
under Franks, because Mr. Ricketts stated that he did not buy drugs from
2135 Spencer on March 10, 1999. The source for this contention is Mr.
Ricketts' testimony before the grand jury.
The government argues that Mr. Dixon has not even made a preliminary
showing in support of his first two contentions to warrant a Franks
hearing, and the court agrees. The Supreme Court cautioned that, in order
to mandate an evidentiary hearing on the validity of the affidavit, "the
challenger's attach must be more than conclusory and must be supported by
more than a mere desire to cross-examine." Id.. 438 U.S. at 171, 98
S.Ct. 2674. Rather,
[t]here must be allegations of deliberate falsehood or
of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof.
They should point out specifically the portion of the
warrant affidavit that is claimed to be false; and
they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or otherwise
reliable statements of witnesses should be furnished,
or their absence satisfactorily explained.