UNITED STATES of America, Plaintiff-Appellee, v. Marcus D. WILLIAMS, Defendant-Appellant, 224 F.3d 530

SILER, J., delivered the opinion of the court, in which BATCHELDER, J., joined. COLE, J. (pp. 533-37), delivered a separate dissenting opinion. OPINION SILER, Circuit Judge. Following his conditional guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), defendant Marcus Williams appeals from the order of the district court denying his motion to suppress evidence. For the following reasons, we affirm. I. Lieutenant Richard Akers, a police officer for the City of Humboldt, Tennessee, began surveillance of a residence at 310 North Fourth Street in Humboldt in 1996.

During the following two months, Akers observed Williams, Keith Cole and Datril Lloyd entering and exiting the house on numerous occasions. Believing that drug trafficking was occurring on the premises, Akers sent a confidential and previously reliable informant into the residence. The informant later reported that when he was at the residence he observed Cole, the only person then present, in possession of marijuana and crack cocaine. Later, Akers discovered that the residence was rented under Cole’s name and that the utilities were also in Cole’s name.

Based on this information, Akers sought a search warrant for the residence. The affidavit in support of the search warrant read as follows: Received information from a confidential and reliable informant, who has given information in the past that has lead to arrests and convictions that, [sic] he has observed Keith Cole in possession of crack cocaine and marijuana in the residence at 410[sic] N. 4th Ave. in the past 72 hours. Furthermore, it is this affi-ant’s information that Deteril [sic] Lloyd and Marcus Williams Patterson [sic] also live at this address.

It is also known by this affiant that these individuals also sell drugs from this residence. Akers took the affidavit to a state judge and amplified upon it with testimony under oath before the judge about Akers’ knowledge of the subject residence and the activity going on there. The testimony before the state judge was not recorded, but Akers later testified during the motion to suppress that he told the state judge that the police department had the house under surveillance and that they had had numerous phone calls from residents in the neighborhood about the traffic in and out of the residence.

He also told the state judge that he had seen Williams, Cole and Lloyd at the house on numerous occasions. The state judge issued the search warrant. It was executed right away. Williams was arrested inside the residence after 24.4 grams of cocaine base and $1900.00 in cash were seized therein. Williams moved to suppress the evidence from the search on the grounds that the affidavit supporting the search warrant was an insufficient “bare bones” affidavit within the meaning of this court’s decision in United States v.

Weaver, 99 F.3d 1372 (6th Cir.1996), and, thus, there was no probable cause for the issuance of the warrant. In addition, Williams argued that the warrant was not saved by the good-faith exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The district court agreed that the affidavit was similar to that affidavit in Weaver and concluded that there was no probable cause for issuance of the warrant. Nevertheless, the court held that Akers acted in good faith and reasonably relied upon the validity of the warrant in executing the search under Leon.

Therefore, it denied the motion to suppress evidence. Thereafter, Williams entered a conditional guilty plea to the charge of possession with intent to distribute cocaine base and received a sentence of 70 months imprisonment. II. The sole issue presented by this appeal is whether the district court erred by denying the motion to suppress evidence. In reviewing a district court’s denial of a suppression motion, this court reviews the factual findings for clear error and the legal conclusions de novo. See Weaver, 99 F.3d at 1376.

In order for a judicial officer to issue a warrant, law enforcement officials must present evidence from which the magistrate judge can conclude from the totality of the circumstances, “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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

This evidence need not reflect the direct personal observations of a law enforcement official and may be based on a confidential informant’s hearsay, so long as the issuing judicial officer is reasonably assured that the informant was credible and the information reliable. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). This court is also mindful of its rule that an issuing magistrate’s discretion should only be reversed if it was arbitrarily exercised. See United States v. Swihart, 554 F.2d 264, 267-68 (6th Cir.1977).

In determining there was insufficient probable cause fob the issuance of the warrant, the district court relied upon the recent Weaver decision. Obviously, it did not have the advantage, which we have, of relying upon an even more recent case, United States v. Allen, 211 F.3d 970 (6th Cir.2000)(en banc), which explained Weaver. Based upon the decision in Allen, we find that there was probable cause for the issuance of the warrant.

Although the affidavit in Allen was longer in verbiage than the one in the case at hand, the most significant difference is that in Allen, the name of the informant was disclosed to the judge but not in the affidavit. On the other hand, in this case, the affidavit was amplified by testimony before the local judge. This additional evidence buttressed the informant’s information by showing that the police had received complaints from the neighbors about the traffic around the residence and that the police had seen Williams, Cole and Lloyd in and out of the premises.

Even though the affidavit in this case was short, it is more than a “bare bones” affidavit. For example, the informant in this affidavit appears to be more reliable than the one in Allen, where the informant had been known by the affiant officer for five years and had given him “information about individuals involved in criminal activity in the past that has proven to be reliable.” Id. at 971. The affidavit in Allen did not say that the information had led to “arrests and convictions,” as the affidavit in the case at bar did.

Likewise, this informant also appears at least as reliable as the one in Weaver, where the informant was listed as “truthful, reliable and credible” and who on previous occasions gave “information of violation of law of the state, which information thereafter was found to have been accurate and reliable.” Weaver, 99 F.3d at 1375. However, there was no mention in Weaver that the informant had provided information which had led to arrests or convictions. An example of a “bare bones” affidavit is found in Gates, 462 U.S. at 239, 103 S.Ct. 2317, where the Court, pointing to one from Nathanson v.

United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), said, “A sworn statement of an affiant that ‘he has cause to suspect and does believe that’ liquor illegally brought into the United States is located on certain premises will not do.” Another illustration was taken from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that “[a]n officer’s statement that ‘affiants have received reliable information from a credible person and believe’ that heroin is stored in a home, is likewise inadequate.” Gates, 462 U.S. at 239, 103 S.Ct. 2317.

Thus, a “bare bones” affidavit is similar to, if not the same as, a conclusory affidavit. It is “one which states ‘only the affiant’s belief that probable cause existed.’ ” United States v. Finch, 998 F.2d 349, 353 (6th Cir.1993) (quoting United States v. Ciammitti, 720 F.2d 927, 932 (6th Cir.1983)).

Allen held “that where a known person, named to the magistrate, to whose reliability an officer attests with some detail, states that he has seen a particular crime and particular evidence, in the recent past, a neutral and detached magistrate may believe that evidence of a crime will be found.” Allen, 211 F.3d at 976. As mentioned previously, the informant here was not identified. However, the additional information about the police surveillance and the heavy traffic around the residence corroborates the informer’s information sufficiently to find probable cause.

Therefore, the state judge had probable cause before him to issue the warrant and the seized evidence should not be suppressed. Because we find that the warrant was issued upon probable cause, we need not decide whether the good-faith exception from United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. However, because the dissent has raised that issue, the inquiry from Leon is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23, 104 S.Ct. 3405.

Here, it seems that if two judges are of the opinion that the warrant was based upon probable cause, then a well trained officer would have also thought that the search warrant was legal. AFFIRMED.