On Appeal from the United States District Court for the Eastern District of Pennsylvania Criminal Action 06-00203 District Judge: Honorable Juan R. Sanchez.
The opinion of the court was delivered by: Aldisert, Circuit Judge
Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges.
The United States Government appeals the order of the District Court for the Eastern District of Pennsylvania granting in part motions to suppress evidence in favor of Defendants Joseph Doebley, Michael Doebley and Edward Stearn.*fn1 In its memorandum and order, the District Court suppressed evidence seized pursuant to seven warrants because (1) four warrants lacked probable cause and three additional warrants were "fruits of the poisonous tree," and (2) the warrants' "bare bones" supporting affidavits rendered inapplicable the Leon exception for "good faith" reliance on a search warrant. See United States v. Leon, 468 U.S. 897, 926 (1984). Moreover, although the Government objected that each defendant lacked a legitimate expectation of privacy in some of the searches, the District Court suppressed evidence as to each defendant without resolving the Government's so-called "standing" challenges.*fn2 See Rakas v. Illinois, 439 U.S. 128, 140, 143 (1978). On appeal, the Government contends that the District Court erred in all three respects.
Except for the search of 5020 Homestead, from which no evidence was seized,*fn3 we will reverse the District Court's order in its entirety. As set forth below, the magistrate judge had a substantial basis for determining that probable cause existed to search 4049 Higbee, the apparent residence of a confirmed drug dealer, and we will uphold the search on that basis. Closer probable cause questions are presented by the searches of 5019 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead, which had discernible, but less direct connections to the defendants' alleged drug activities. Without deciding these probable cause questions, we will uphold each search under the Leon good faith exception, as each warrant was sufficiently colored in probable cause to justify the executing officers' good faith reliance. Finally, because we reject Stearn's Fourth Amendment challenge to the search of 5019 Homestead -- his only challenge to the property searches -- we also reverse the District Court's suppression of Stearn's saliva sample as "fruit of the poisonous tree," as he failed to prove a "primary" invasion of his own Fourth Amendment rights. See United States v. Smith, 522 F.3d 305, 306 n.2 (3d Cir. 2008).
Because this appeal requires a considered study of Fourth Amendment precepts -- a study driven by complicated facts involving three defendants and warrant-based searches of six residences, a garage and two motor vehicles -- our analysis, of necessity, is protracted.
On October 6, 2005, Officer Ryan, a veteran of the Philadelphia Police Department's narcotics unit, submitted an affidavit in support of search warrants for six locations in Philadelphia, Pennsylvania. Officer Ryan submitted a second affidavit on October 7, 2005, seeking search warrants for additional locations. Because no party presented evidence outside the affidavits themselves, our "factual" discussion is drawn almost entirely from the affidavits.*fn4 (App. 158-160.)
According to his October 6 affidavit, Officer Ryan received a tip from a confidential informant on September 28, 2005 that implicated Joseph Doebley, Michael Doebley and Edward Stearn in drug distribution crimes in the city of Philadelphia.*fn5 Specifically, the informant told Ryan that Joseph Doebley sells cocaine powder in weight with his brother Michael Doebley and that Edward Stearn was Joseph Doebley's supplier. (App. 88.) The informant also told Ryan that Joseph Doebley operated his cocaine business from his house on the 4000 block of Higbee Street and a garage on the 4800 block of Comly Street, which he had converted to a gym. According to the informant, Joseph Doebley operated a rust-colored Chevrolet Impala and blue-and-white pickup truck with fancy rims.
In the subsequent week, officers corroborated many details of the informant's tip through investigation and surveillance. On September 28, the day Ryan received the tip, officers located the gym at 4808 Comly and observed a blue-and-white pickup truck with fancy rims parked in the gym's side yard. Police officers additionally verified that Joseph Doebley was the listed owner of 4808 Comly and learned that Jane Betty Doebley owned 4049 Higbee. That evening, officers observed Joseph Doebley exit 4808 Comly and depart in the Chevrolet Impala. Soon thereafter, officers watched Doebley sell a 3.5-gram baggie of cocaine, in a controlled buy, from the inside of his Impala.
During surveillance on October 4 and 5, police officers confirmed Joseph Doebley's drug involvement and tracked his movements among several properties in the neighborhood. On October 4, a white male exited 4808 Comly, spoke with Joseph Doebley in the side yard, drove to the intersection of Cheltenham and Hegerman, and completed a sale of approximately 3.5 grams of cocaine from inside his car. The white male returned to 4808 Comly and counted out and delivered currency to Doebley, who entered 4808 Comly and departed after a brief stay. Later that evening, Doebley left 4808 Comly in the blue-and-white pickup truck, and approximately two hours later, arrived at 5038 Homestead. He remained there for two hours. After a brief stop at 4808 Comly, Doebley was next observed as he parked in a rear driveway near 4049 Higbee at approximately 11:50 p.m. He entered the rear yard of 4049 Higbee, which contained a pit bull, and entered the attached garage through a rear door. Police terminated surveillance shortly thereafter, but at 7:15 a.m. the next morning, officers observed that the pickup truck remained parked in the rear of 4049 Higbee. According to the affidavit, property records listed Ruth Nolan as the owner of 5038 Homestead, and listed 4049 Higbee as a co-owner address. The affidavit did not name the co-owner. Police also learned that the water bill for 5038 Homestead was mailed to 4049 Higbee.
The affidavit next recounts the officers' October 5 observations of Joseph and Michael Doebley as they moved among several properties on Homestead Street and the 4808 Comly gym. That afternoon, officers observed Michael Doebley leave 5019 Homestead, drive to 4808 Comly, depart with Joseph Doebley, and arrive at 5019 Homestead, which both men entered. Joseph Doebley then left 5019 Homestead, entered 5022 Homestead and returned to 4808 Comly with an unidentified white male. Joseph Doebley then drove back to Homestead Street and entered 5019 and 5017 Homestead, subsequently using keys to enter both 5022 and 5028 Homestead. Doebley then met with a white female, entered 5030 Homestead and remained there for approximately one hour. Thereafter Doebley returned to 5022 Homestead. According to real estate records, 5019 Homestead was owned by Edward Stearn, who had three prior drug distribution arrests. Michael Doebley had two prior drug distribution arrests.
Officer Ryan submitted an affidavit on October 6, alleging that the foregoing facts established probable cause to search 4049 Higbee, 4808 Comly, 5017 Homestead, 5019 Homestead, 5022 Homestead and 5038 Homestead. A judge of the Pennsylvania Court of Common Pleas reviewed the affidavit and issued each of the warrants requested. On October 6, officers executed all warrants, except for the warrant to search 5017 Homestead. (See App. 96.) The results were reported in Officer Ryan's second affidavit, the details of which follow.
On October 7, 2005, Officer Ryan submitted a second affidavit seeking warrants to search 5020 Homestead and 5034 Homestead, the rust-colored Chevrolet Impala and the blue-andwhite pickup truck. This affidavit incorporated the first affidavit, detailed the results of additional surveillance, and reported the results of the October 6 searches. (App. 95-97.)
On the morning of October 6, FBI and IRS agents raided Dangerous Curves Gentlemen's Club at Homestead Street and State Road, adjacent to the 5000 block of Homestead Street. At 3:15 p.m., a confidential informant arranged another controlled purchase from Joseph Doebley, but the purchase was not consummated. At approximately 3:30 p.m., federal agents left the Gentlemen's Club, and "[s]hortly after that," Edward Stearn, Michael Doebley, and one Chris Simon left 5019 Homestead and entered 5020 Homestead. (App. 96.) Thereafter, Michael Doebley entered and exited 5022, 5038 and 5034 Homestead in a short span of time, and he returned to 5022 Homestead. Edward Stearn then departed 5022 Homestead, entered 5019 Homestead, exited carrying clothes and a bag, and entered a black truck. At the same time, Michael Doebley left 5022 Homestead carrying white trash bags and entered a grey Jeep Cherokee. Both vehicles departed at the same time. According to the affidavit, young white males exited 5019 Homestead and 5038 Homestead, and they "fled East bound" with backpacks. (App. 96.) Shortly thereafter, highway patrol units stopped Michael Doebley's Jeep, detained him, and found large amounts of cash on his person. Officers also pursued Edward Stearn, but lost him.
According to the affidavit, officers subsequently executed the warrants for 4049 Higbee, 4808 Comly, 5019 Homestead, 5022 Homestead and 5038 Homestead, but not 5017 Homestead. (App. 96.) At 4049 Higbee, officers found marijuana, packaging material, a firearm and documents in Joseph Doebley's name. At 5019 Homestead, officers found proof of residence for Edward Stearn, mail for Michael Doebley, bulk cocaine powder, marijuana, pills and U.S. currency. At 5022 Homestead, officers found marijuana and packaging, and may have also found documents for Michael Doebley.*fn6 At 5038 Homestead, officers found an estimated eight kilograms of cocaine in bricks and smaller units, approximately 15 handguns and proof of residence for Michael Doebley. Officers also executed the warrant for 4808 Comly, but nothing was found nor taken. (App. 96.)
Pending the application for the additional warrants, officers secured the premises at 5020 Homestead and 5034 Homestead and seized the blue-and-white pickup truck and the rust-colored Chevrolet Impala. (App. 96.) Just before officers secured 5034 Homestead, a white female identified herself as Sophia Beltz and told officers she was the owner. (Id.) When asked for keys to the property, Beltz stated she would not know who had keys, and she told officers that Michael Doebley was the only person inside the property. (App. 96-97.)
After reviewing Ryan's second affidavit, a Philadelphia bail commissioner issued warrants for 5020 Homestead and 5034 Homestead, the pickup truck and the Chevrolet Impala. In the ensuing searches, officers recovered marijuana and grinders from 5034 Homestead, and they found one ounce of cocaine and packaging material in the pickup truck. Nothing was found nor taken from 5020 Homestead or the Chevrolet Impala. (App. 91, 94.) Approximately one week later, Officer Ryan apparently obtained a warrant to collect blood and saliva from all three defendants. (See Appellant's Br. 18; App. 104.) Although we are not certain of the timeline, saliva was collected from Defendant Stearn sometime after his arrest.
On April 26, 2006, a federal grand jury charged Joseph Doebley, Michael Doebley and Edward Stearn with federal narcotics and weapons offenses.*fn7 Defendant Joseph Doebley filed a motion to suppress evidence seized from 4808 Comly, 4049 Higbee, 5019 Homestead, 5022 Homestead, 5034 Homestead, 5038 Homestead and the blue-and-white pickup truck. Defendant Stearn filed a motion to suppress evidence seized from 5019 Homestead and the saliva sample taken after his arrest. Michael Doebley filed a motion to join and adopt Joseph Doebley's motion to suppress. (App. 131, 153.)
In its consolidated response, the Government argued that the searches were valid under Leon because they were executed in good faith reliance on validly issued warrants. The Government additionally argued that probable cause supported each search, and that in any case, not all defendants had "standing" to challenge each of the disputed searches.*fn8 The Government conceded that Fourth Amendment challenges could be maintained by: Joseph Doebley as to 4808 Comly, 4049 Higbee and 5038 Homestead; Michael Doebley as to 5022 Homestead and 5034 Homestead; and Edward Stearn as to 5019 Homestead.*fn9 The Government maintained, however, that each Defendant lacked "standing" to challenge the search of any other premises.
At the suppression hearing on April 10, 2008, the Government reasserted its "standing" challenges, but suggested that the Court proceed "in the reverse order" and address the probable cause issue first. (App. 157.) In the Government's view, that procedure was more expedient because it would "moot any standing issues" and obviate the need for testimony or proof on "standing." (App. 157.) The District Court and the defendants agreed, and the hearing proceeded on the issues of probable cause and the Leon good faith exception. Each defendant declined the Court's invitation to present testimony or evidence outside the affidavits. (App. 158.) Once argument began, neither the parties nor the Court returned to the issue whether each defendant had a legitimate expectation of privacy in each of the properties searched. (App. 164-192.) At the close of argument, the Court took the matter under advisement.
On April 25, 2008, the District Court granted in part the defendants' motions to suppress. See United States v. Stearn, 548 F. Supp. 2d 182, 193-194 (E.D. Pa. 2008). Although the Court acknowledged its duty to accord great deference to the magistrate judge's probable cause determination, the Court demurred with respect to four of the October 5 warrants, stating:
I am unable to find sufficient evidence of probable cause within the four corners of the affidavit to support the search warrants for 4049 Higbee Street, 5022, 5019, and 5038 Homestead Street. The affidavit contains not a shred of evidence regarding the reliability of the "informant," no exchanges are witnessed in the vicinity of the houses on Homestead or Higbee streets, no buys were made from or near the houses, and no one was seen leaving any of the houses before going to a drug sale.
Id. at 192. The Court expressed serious concerns about the informant's credibility, finding that "the affidavit provides no assertion the officers believed the confidential informant, no history of past cooperation by the informant, no drug buys by the informant, and no inside information supplied by the informant." Id. at 190. Because the affidavit failed to establish meaningful corroboration, the informant's tip did not support probable cause that Joseph Doebley, Michael Doebley and Edward Stearn were drug dealers. Id. at 190, 192.
In addition, Joseph Doebley's documented drug transactions afforded probable cause to search the 4808 Comly gym and the two vehicles, but not 4049 Higbee, 5019 Homestead, 5022 Homestead or 5038 Homestead. Id. at 192-195. The Court observed that because the "only two drug sales documented in the affidavits had . . . a . . . nexus to 4808 Comly Street," the affidavit established probable cause to search that location. Id. at 193. Likewise, Doebley's drug sales established probable cause to search the blue-and-white pickup truck because, according to the affidavit, officers observed him driving that vehicle. Id.
By contrast, the Court ruled that probable cause did not exist to search the Higbee or Homestead properties because the affidavit failed to connect any of those locations with drug activity. Id. at 192. In so ruling, the Court rejected the Government's argument that probable cause was established through Whitner and its progeny, which permit a magistrate to infer that a drug dealer is likely to use his home as a "stash house." Id. at 191 (citing United States v. Whitner, 219 F.3d 289, 292 (3d Cir. 2000)).*fn10 In the Court's view, that inference was available only where the affidavit suggested large-scale operations or described drug sales in the immediate vicinity of a dealer's home. Id. (citing Burton, 288 F.3d at 105; Hodge 246 F.3d at 306; Whitner, 219 F.3d at 292). Because Ryan's affidavit detailed only small drug transactions and revealed no drug sales in the immediate vicinity of the Higbee or Homestead properties, Whitner and its progeny did not support a finding of probable cause. Id.
Because it found the affidavit's defects so severe, the Court perfunctorily declined to apply the Leon "good faith" exception to the exclusionary rule. Id. n.5 (citing Leon, 468 U.S. at 922). In a three-sentence footnote, the Court ruled Leon inapplicable because "the defects in this case were in the affidavits to establish probable cause," and because those affidavits were "bare bones." Id.
The Court then excluded as fruits of the poisonous tree all evidence seized pursuant to the September 6 warrants for 5020 Homestead, 5034 Homestead and Stearn's saliva sample. Id. at 193-195. All told, the District Court suppressed the evidence seized from 4049 Higbee, 5019 Homestead, 5020 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead, as well as Stearn's saliva sample. (App. 22, 25.) Id. The Court denied suppression only of the evidence found at 4808 Comly and in the blue-and-white pickup truck. Id.
Significantly, the Court did not limit its suppression order to those defendants possessing legitimate expectations of privacy in each property, nor did it mention the Government's so-called "standing" challenges. See id. at 194. Consequently, evidence from all seven searches was suppressed against Joseph Doebley, even though the Government raised serious concerns about his "standing" to challenge the searches of 5019 Homestead, 5022 Homestead, and 5034 Homestead. Further, although Michael Doebley merely joined in Joseph Doebley's motion to suppress without specifically alleging his own expectation of privacy in the searched properties, evidence from all seven searches was suppressed as to him. In addition, evidence from all seven searches was suppressed as to Edward Stearn, even though he challenged only the warrants for 5019 Homestead and his saliva sample.
The Government moved for reconsideration of the issues of probable cause, good faith and "standing," but was rebuffed on all three grounds. See United States v. Stearn, No. 06-203, 2008 WL 2550582, at *1 (E.D. Pa. June 26, 2008). In its order of June 26, 2008, the Court reaffirmed its rejection of the Government's good faith and probable cause arguments, essentially for the reasons given in its original order. Id. Moreover, although the Court addressed the Government's "standing" objections, it dismissed them in a three-sentence footnote, stating:
The Government also seeks in its brief for reconsideration to argue standing as to each of the Defendants. At oral argument, the Government conceded the standing issue was subservient to the issue of probable cause. Because I find the searches were unreasonable, ...