This opinion is consistent with the views expressed by Judge Floyd R. Gibson 1

at the panel's conference on March 10, 1998 following oral argument of the case.

Judge Gibson has been disabled by illness from reviewing the opinion, which is being

filed in the interest of avoiding undue delay.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-3681

_____________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Mambu Fulgham, *

*

Appellant. *

_____________

Submitted: March 10, 1998

Filed: April 30, 1998

_____________

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

1

Circuit Judges.

_____________

BOWMAN, Circuit Judge.

Mambu Fulgham entered a conditional plea of guilty to conspiring to distribute

and possess with the intent to distribute more than fifty grams of cocaine base. See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. Prior to his plea, Fulgham moved to

suppress evidence obtained in a search conducted pursuant to a search warrant. The
The Honorable Michael J. Melloy, Chief Judge, United States District Court for 2

the Northern District of Iowa.

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magistrate judge to whom the motion had been referred recommended that the motion

be denied. The District Court adopted the magistrate judge's recommendation.

2

Fulgham appeals, claiming that the search warrant was not supported by probable

cause. We affirm. 

I.

On January 2, 1996, police officer Richard Knief prepared and submitted an

affidavit in support of a search warrant for the residence located at 200 Courtland

Street in Waterloo, Iowa. In his affidavit, Knief indicated several bases to establish

probable cause. Knief first stated that Courtland Street was one of three streets in an

area where numerous drug arrests had been made within the past two years. He noted

that concerned citizens had been calling on a daily basis reporting drugs sales in the

Courtland Street area. 

Knief also stated that in mid-December of 1995, he received information from

a confidential informant that Tony, a black male originally from Chicago, was staying

at 200 Courtland Street and, along with several other black males, was selling crack

cocaine from the residence. In the affidavit, Knief said that he had spoken with this

same informant on January 2, 1996, the same day Knief submitted the affidavit, and

that the informant claimed to have been present at 200 Courtland Street within the past

forty-eight hours and to have seen Tony selling crack cocaine from the residence. In

an attachment to the affidavit, Knief indicated that he had known this confidential

informant for one year, and that the informant was a mature individual, was a person

of truthful reputation, had no motivation to falsify information, had not given false

information in the past, had supplied information in the past more than ten times, and
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had helped supply information leading to two search warrants, five arrests, and the

discovery and seizure of stolen property and drugs or other contraband. 

Knief further stated that the information given by the informant had been

corroborated. According to the affidavit, Knief had corroborated the information in two

ways. First, Knief reviewed the records of the Waterloo Police Department and

indicated in the affidavit that in August of 1995, the department received a complaint

of an assault at 200 Courtland Street. The suspect implicated in the assault was Jerome

Antonio Kirk, a black male from Chicago, and Kirk listed his address as 200 Courtland

Street. Second, Knief stated that he spoke with a second confidential informant on

January 1, 1996, and that the informant claimed to have been present at 200 Courtland

Street numerous times over the past month, including within the twenty-four hours

immediately preceding his conversation with Knief, and claimed to have witnessed a

black man named Tony selling crack cocaine from the residence. 

II.

We must determine whether, under the "totality-of-the-circumstances analysis"

set forth in Illinois v. Gates, 462 U.S. 213, 238 (1983), the issuing magistrate had a

"substantial basis" for concluding that there was probable cause. When we review the

sufficiency of an affidavit supporting a search warrant, great deference is accorded the

issuing judicial officer. See United States v. Day, 949 F.2d 973, 977 (8th Cir. 1991).

When an affidavit contains information provided by a confidential informant, a

key issue is whether that information is reliable. See United States v. Brown, 49 F.3d

1346, 1349 (8th Cir. 1995). "Information may be sufficiently reliable to support a

probable cause finding if the person providing the information has a track record of

supplying reliable information, or if it is corroborated by independent evidence."

United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing Draper v. United

States, 358 U.S. 307, 313 (1959)). In the present case, the information was shown by
Fulgham is also known as Tony and, like Jerome Antonio Kirk, is a black man 3

originally from Chicago.

Even though Jerome Antonio Kirk was apparently not residing at the house at 4

the time of the search, we examine only those facts known at the time of the warrant

application. See United States v. Williams, 917 F.2d 1088, 1090 (8th Cir. 1990).

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Knief to be reliable in both ways. Knief represented in his affidavit that past

information given by the first informant had proved to be reliable, resulting in several

arrests and the recovery of stolen property and illegal substances. In so doing, Knief

established that the first informant had a reliable track record.

Fulgham argues that the information given by the first informant was not

3

corroborated and therefore could not provide the basis upon which probable cause

could be established. We conclude, however, that the information given by the first

informant was corroborated with specific, consistent details provided by the second

informant. In fact, the two informants' tips were reciprocally corroborative, rendering

their information enough to support a finding of probable cause. See United States v.

Jackson, 67 F.3d 1359, 1365 (8th Cir. 1995) (holding that information from an

informant without a track record could be corroborated with information by an

informant with a reliable track record, thereby establishing probable cause), cert.

denied, 116 U.S. 1684 (1996). Further, the five-month-old police report described in

the affidavit appeared to corroborate the informants' claims that a man named Tony

(presumably short for Antonio), originally from Chicago, resided at 200 Courtland

Street. We agree with the District Court that the facts provided in Knief's affidavit

4

sufficiently established that the information given by the confidential informants was

reliable, and that the affidavit provided a substantial basis upon which the issuing

magistrate could conclude that probable cause existed. 

Even if probable cause were lacking, we find that the good faith exception to the

warrant requirement would apply. See United States v. Leon, 468 U.S. 897, 923
In oral argument, Fulgham's counsel conceded this error. 5

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(1984) (establishing the good faith exception). Under the good faith exception, where

probable cause is found lacking suppression will not be required if: "(1) the executing

officers relied in good faith on a search warrant signed by a neutral and detached

magistrate, and (2) the officers' reliance on the warrant was objectively reasonable."

Jackson, 67 F.3d at 1365 (citing Leon, 468 U.S. at 922-23). Therefore, absent

allegations that the magistrate was not neutral, "suppression is appropriate only if the

officers were dishonest or reckless in preparing their affidavit or could not have

harbored an objectively reasonable belief in the existence of probable cause." Leon,

468 U.S. at 926. 

Fulgham argues that Knief's statements were made in reckless disregard for the

truth because Knief relied on the August 1995 police report for corroboration. In his

brief, however, Fulgham claims that the police report was more than two-and-a-half

years old when, in fact, at the time of the warrant application the police report was just

five months old. We hold that Knief's use of the police report to corroborate the

5

informants' tips was not in reckless disregard for the truth. 

Fulgham finally argues that the affidavit contained so few indicia of probable

cause as to render Knief's reliance on the warrant unreasonable. We find this argument

to be without merit. Knief's reliance on the warrant was not unreasonable. 

III.

Under the totality-of-the-circumstances analysis, we hold that the magistrate who

issued the search warrant had a substantial basis upon which to determine probable

cause existed. Further, we hold that the Leon good-faith exception would apply in any

event. We therefore affirm the District Court's order denying Fulgham's motion to

suppress.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.