1

 The Honorable Mark W. Bennett, Chief Judge, United States District Court

for the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3177

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Timothy Donald Koons, *

* 

Appellant. *

___________

Submitted: May 15, 2002

Filed: August 29, 2002 

___________

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

___________

MURPHY, Circuit Judge.

Timothy Donald Koons pled guilty to possession of methamphetamine with

intent to distribute within 1,000 feet of a public playground, in violation of 21 U.S.C.

§§ 841(a) and 860(a), and to criminal forfeiture of property related to drug

trafficking, under 21 U.S.C. § 853. On his appeal Koons challenges the

constitutionality of 21 U.S.C. § 860(a) and argues that the district court1

 erred by
2

 The exact status of the relationship between Cindy Bahr and Koons at that

time is unclear. The search warrant application dated July 14, 2000 refers to Cindy

Bahr Koons. Cindy testified on November 17, 2000 that Koons was her fiancé.

Koons refers to her as his wife in his brief. 

3

 Budach later assisted defense counsel to obtain other samples of the marijuana

stems for independent testing in preparation for the suppression hearing. The

independent testing results confirmed the presence of THC in the stems.

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denying his motion to suppress and by not granting him a safety valve reduction or

downward departure at sentencing. We affirm. 

The attorney for Emmet County, Iowa received a tip on June 28, 2000 from

Albert Bahr that Koons was dealing in illegal drugs. At that time Koons was living

in the town of Estherville within 1,000 feet of Mickelson Park, which the parties

stipulated is a public park containing at least three separate apparatus intended for the

recreation of children. See 21 U.S.C. § 860(e). The county attorney passed on the

tip to the Estherville police chief, who turned the investigation over to Officer Paul

Budach. Budach happened to be a cousin of Koons, and he was informed that Albert

Bahr was the source of the tip and knew that he was the father of Cindy Bahr, the

girlfriend of Koons.2

Budach sought to corroborate the tip and did a record search on Koons which

showed that he had been convicted of marijuana possession in 1986. Budach

subsequently took two trash bags from the curb outside Koons' residence and

searched them. In one bag he discovered mail addressed to Koons, several scorched

"foilies" which are used to smoke methamphetamine, and numerous plant stems that

appeared to be marijuana. Budach performed a field test on one of these stems, using

a narcotics identification kit or NIK test. That test is designed to indicate the

probable presence of narcotics, and the stem tested positive for tetrahydrocannabinol

(THC), a chemical found in marijuana and hashish.3
-3-

Budach then prepared an application for a search warrant and a supporting

affidavit. The affidavit stated that Budach had conducted an inspection of Koons'

trash in response to a tip received by the county attorney that Koons was "dealing

illegal drugs." The affidavit further stated that the trash inspection had yielded

"numerous marijuana stems" which had "tested positive for THC content" in a NIK

test. The application requested authorization to search Koons' residence, the

outbuildings on his property, his 1996 Blazer, and his person for "illegal drugs, drug

paraphernalia, cash money, and drug transaction records." Budach did not mention

in the affidavit that the trash had also contained scorched foilies suggestive of

methamphetamine use, that Koons had been convicted of marijuana possession in

1986, that he was a cousin of Koons, or that the tip had come from Cindy Bahr's

father. 

A state magistrate reviewed the application and affidavit and issued a search

warrant. Budach testified at the suppression hearing that the magistrate asked him if

he affirmed the truth of everything in the affidavit but did not ask any other questions.

Budach also testified that he did not intentionally omit any relevant information from

the affidavit or include any untrue information in it. 

Budach and Officer Greg Van Langen waited until Koons returned to his

residence and then approached him in the driveway and told him they had a search

warrant. Koons agreed to let them in, and Budach read him the warrant and asked if

there were any illegal drugs in the residence. Koons said there was a bag of

marijuana underneath a mattress in the main bedroom. Eventually Koons produced

$310 in cash from his pockets, and Van Langen detected a lump in the top of one of

his front pockets which turned out to be a plastic bag containing 15 grams of

methamphetamine. Van Langen also felt a long skinny object in his back pocket,

which proved to be an empty pen casing which Koons admitted he used to smoke

methamphetamine.
4

 A 12 gauge shotgun and a .22 caliber rifle belonging to Koons had been

seized from his brother’s house several months before the search at his own

residence.

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The search of the bedroom turned up a number of items specified in the

warrant. On top of a dresser Budach found a partial marijuana cigarette, a piece of

paper with marijuana scattered on it, a Tupperware bowl wrapped with green duct

tape, and a small black book containing nicknames and dollar amounts owed. In the

Tupperware bowl were three baggies containing individually wrapped quantities of

methamphetamine. In the top drawer of the same dresser Budach found a baggie

containing approximately 15 grams of marijuana and a pouch containing

approximately $3,250 in cash and more marijuana. On top of a different dresser was

a foily containing approximately one gram of methamphetamine and another small

black book containing drug notes. The amount of methamphetamine found in the

residence was later determined to be 89.95 grams.

Budach placed Koons under arrest. While they waited for another officer to

arrive, Koons looked over the search warrant and asked why Cindy's name was on it.

Budach said that he thought she lived there. Koons said she had moved out a month

earlier, and all the drugs belonged to him. Budach and Van Langen concluded their

search and found another small black book with drug notes. While Koons was being

booked at the station, he again admitted to using methamphetamine. 

Koons was indicted on charges of possession of 89.95 grams of

methamphetamine with intent to distribute within 1,000 feet of a public playground,

21 U.S.C. §§ 841(a), 860(a) (count one), possession of a firearm as a user of

controlled substances,4

 18 U.S.C. §§ 922(g)(3), 924(a)(2) (count two), and criminal

forfeiture of property related to drug trafficking, 21 U.S.C. § 853 (count three). He

moved to suppress evidence obtained from the search of his residence on the ground

that the search warrant was not supported by probable cause. He also moved
5

 The stipulated amount included 89.95 grams seized from Koons' residence,

800.88 grams reflected in the drug transaction records, 165.20 additional grams that

Koons admitted to having purchased for distribution but that was not found by police,

and drug proceeds equivalent to 198 grams. 

-5-

separately to strike all penalties for violation of 21 U.S.C. § 860(a), arguing that

Congress lacked power under the Commerce Clause to enact that statute.

A suppression hearing was held before a magistrate judge, who concluded that

Budach's affidavit was insufficient to establish probable cause, that Budach’s search

could not have been in good faith, and that the physical evidence seized and virtually

all of the incriminating statements made by Koons resulted from an illegal search.

The magistrate judge recommended that the motion to suppress be granted except for

one statement made by Koons. The United States filed objections to the magistrate

judge’s report and recommendation.

After a de novo review, the district court denied the motion to suppress except

for a statement made by Koons during the booking process before he received

Miranda warnings. The court concluded that both officers had acted in good faith in

executing the search warrant regardless of whether or not the supporting affidavit

actually showed probable cause. The court also denied the motion to strike penalties

because it concluded that 21 U.S.C. § 860(a) is constitutional.

 

Koons stipulated to possession of 1,254.03 grams of methamphetamine5

 and

pled guilty to counts one and three of the indictment. Count two, the firearms charge,

was to be dismissed. Prior to sentencing he sought a safety valve reduction, see 18

U.S.C. § 3553(f); United States Sentencing Commission Guidelines Manual [USSG]

§ 5C1.2, and he also asked for a downward departure under USSG § 5K2.0 on the

grounds that he had posed no real danger by his “proximity to a park,” as well as his

exceptional personal and family circumstances and willingness to cooperate. The

district court declined to grant a reduction or a departure and stated that it lacked
-6-

authority to depart downward on the basis of his actual danger argument “in

circumvention around the Congressional statute in 860.” The district court calculated

the sentencing range at 97 to 121 months and sentenced Koons at the low point to 97

months.

Koons argues on appeal that the search warrant lacked probable cause and that

all evidence obtained under its authority should have been suppressed. He contends

that Budach's affidavit was “bare bones,” that reliance on it was unreasonable because

it lacked indicia of probable cause, and that the magistrate who issued the search

warrant had abandoned his judicial role. Koons argues that 21 U.S.C. § 860(a) is

unconstitutional because its enactment exceeded the scope of congressional power

under the Commerce Clause. He also claims that the district court erred by denying

him a safety valve reduction, by concluding that it lacked authority to depart

downward on the basis that his location presented no added danger, and by declining

to depart on the basis that a combination of factors took his situation out of the

heartland of cases. The government responds that the district court was correct in its

rulings on these issues.

We review factual findings of the district court for clear error, United States v.

Reinholz, 245 F.3d 765, 773 (8th Cir. 2001), but our review is de novo for denial of

a suppression motion, United States v. Davis, 288 F.3d 359, 362 (8th Cir. 2002), for

ruling on the constitutionality of a statute, United States v. McMasters, 90 F.3d 1394,

1397 (8th Cir.1996), for interpreting or applying statutes, United States v. Auginash,

266 F.3d 781, 783 (8th Cir. 2001), or for determining whether a court has discretion

to depart on a particular basis. United States v. Beltran, 122 F.3d 1156, 1158 (8th

Cir. 1997).

The Fourth Amendment protects "the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures” and

provides that "no Warrants shall issue, but upon probable cause, supported by Oath
-7-

or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized." U.S. CONST. amend. IV. A search is supported by probable

cause if facts are shown making it likely that evidence of a crime will be found in the

place to be searched. United States v. Wells, 223 F.3d 835, 838 (8th Cir. 2000). An

informant’s tip is sufficient to support probable cause if the totality of the

circumstances shows that it is reliable. Illinois v. Gates, 462 U.S. 213, 238 (1983).

When a search warrant is not supported by probable cause, any evidence

obtained as a result is generally inadmissible, Mapp v. Ohio, 367 U.S. 643, 655-57

(1961), but there is an exception for evidence obtained by an officer who relied in

objective good faith on a search warrant. United States v. Leon, 468 U.S. 897, 922

(1984). A court may take up the issue of whether the Leon good faith exception

applies without first deciding the issue of probable cause, id. at 924-25; United States

v. Frangenberg, 15 F.3d 100, 102 (8th Cir. 1994), but the issues are not unrelated. It

is objectively unreasonable to rely on a warrant lacking indicia of probable cause or

based on an illegitimate affidavit. Leon, 468 U.S. at 923. Reliance on a warrant is

also objectively unreasonable if an officer has reason to know that the warrant was

obtained through misrepresentations or omissions, that the issuing magistrate

abandoned the judicial role in issuing it, or that the warrant is facially deficient in

particularizing the place to be searched or the things to be seized. Id. The totality of

the circumstances are considered in determining whether an officer acted in objective

good faith under Leon, id. at 922 n.23, including consideration of anything the affiant

knew but did not include in the affidavit. United States v. Frangenberg, 15 F.3d 100,

103 (8th Cir. 1994).

Koons argues that Budach’s affidavit is “bare bones” and so lacking in indicia

of probable cause as to render the officers’ reliance on it objectively unreasonable.

A bare bones affidavit is one which relies on uncorroborated tips, see Aguilar v.

Texas, 378 U.S. 108, 109 (1964), or mere suspicion, see Nathanson v. United States,

290 U.S. 41, 44 (1933), but the affidavit in this case involved a corroborated tip. The
-8-

Supreme Court has “consistently recognized the value of corroboration of details of

an informant’s tip by independent police work.” Gates, 462 U.S. at 241. An officer

“may rely upon information received through an informant...so long as the

informant’s statement is reasonably corroborated by other matters within the officer’s

knowledge,” id., quoting Jones v. United States, 362 U.S. 257, 269 (1960). Budach’s

affidavit stated that his search of Koons’ trash uncovered numerous stems of what

appeared to be marijuana and which were confirmed to be marijuana by chemical test.

The fact that numerous stems of marijuana plant material were in Koons’ trash

corroborated the tip that he was dealing drugs and increased the credibility of the

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

(corroboration of tip creates “permissible inference that the informant is reliable”).

Moreover, Budach’s investigation confirmed the occurrence of illegal activity and not

merely the occurrence of innocent activity. Cf. Gates, 462 U.S. at 243 n.13; Draper

v. United States, 358 U.S. 307, 312-13 (1959). 

Budach took the information to a magistrate who concluded it was legally

sufficient to show probable cause and who issued a search warrant. It was not

objectively unreasonable for the officers to proceed to execute the warrant in these

circumstances where there was evidence to corroborate the tip and where an

independent magistrate had found that the affidavit stated probable cause. It is also

not irrelevant on the issue of objective good faith that our court has upheld affidavits

based on tips of drug activity which have been corroborated by police work which

uncovered drug residue in a suspect’s trash. United States v. Gonzalez-Rodriguez,

239 F.3d 948, 951 (8th Cir. 2001); United States v. Hohn, 8 F.3d 1301, 1306 (8th Cir.

1993). 

There is no evidence that Budach’s affidavit contained misrepresentations, and

the facts which Budach omitted would only have strengthened the showing of

probable cause if they had been included. Budach could have mentioned that Koons

was his cousin, that Koons had been convicted of marijuana possession in 1986, that
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his trash also contained scorched foilies suggestive of methamphetamine use, and that

the tip had come from Cindy Bahr's father. These facts would not have weakened the

showing of probable cause if they had been included, and Koons has not cited any

cases where similar types of omissions were held to violate the Fourth Amendment.

Budach himself led the search, so this is not a case where an affiant obtained a

warrant in bad faith but with the idea that others could execute it in good faith under

the Leon exception. See Leon, 468 U.S. at 923 n.24.

Koons claims the issuing magistrate abandoned the role of a judge. That can

happen if a magistrate fails to read a warrant application or affidavit, relies on an

officer's oral testimony rather than the written affidavit, approves a warrant without

specifics as to the objects of the search, fails to comply with legal formalities such as

required signatures, or otherwise acts contrary to law. United States v. Decker, 956

F.2d 773, 777 (8th Cir. 1992). None of these circumstances exist in this case. The

magistrate read the affidavit, asked Budach if he affirmed the truth and accuracy of

its contents, and issued a facially valid warrant which specified its scope with

particularity. 

 

Under Leon, evidence obtained under the authority of a facially valid search

warrant will not be suppressed if the executing officers acted in objective good faith

on the magistrate’s determination of probable cause, even if probable cause is later

found to be lacking. 468 U.S. at 922. We do not need to reach the issue of probable

cause here because we agree with the district court that both officers acted in

objective good faith. Budach conducted an independent investigation and

corroborated the informant’s tip, he knew of additional indicia of probable cause even

though he did not include them in his affidavit, the magistrate did not abandon his

judicial role and issued a facially valid warrant, and neither officer’s search exceeded

the scope of the warrant. The totality of the circumstances shows that the Leon good

faith exception applies and that the district court did not err by denying almost all of

Koons’ motion to suppress.
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Koons contends that 21 U.S.C. § 860(a) is an unconstitutional exercise of

congressional power under the Commerce Clause, U.S. CONST. art. I, § 8, cl. 3.

Section 860(a) provides that any person who violates § 841(a)(1) (drug trafficking)

or § 856 (drug manufacturing) within 1,000 feet of a school or playground shall be

subject to twice the maximum punishment authorized by § 841(b). 21 U.S.C. 860(a).

Koons argues that § 860(a) is unconstitutional just like the statute which was struck

down in United States v. Lopez, 514 U.S. 549 (1995) (statute prohibiting possession

of a firearm within 1,000 feet of a school). Congress has expressly found that

intrastate drug trafficking affects interstate commerce, 21 U.S.C. § 801(3)-(6),

however, and this court has upheld the constitutionality of statutes which are

supported by these findings. See, e.g., United States v. Patterson, 140 F.3d 767, 772

(8th Cir. 1998) (21 U.S.C. § 841(a)(1)); United States v. Brown, 72 F.3d 96, 97 (8th

Cir.1995) (per curiam) (18 U.S.C. § 924(c)). We conclude that the enactment of

§ 860(a) also does not exceed congressional power under the Commerce Clause. We

thus join the other courts of appeal which have upheld § 860(a) against Lopez

challenges. United States v. Dixon, 132 F.3d 192, 202 (5th Cir. 1997); United States

v. Jackson, 111 F.3d 101, 101-02 (11th Cir. 1997); United States v. Allen, 106 F.3d

695, 700-01 (6th Cir. 1997); United States v. Hawkins, 104 F.3d 437, 439-40 (D.C.

Cir. 1997); United States v. Ekinci, 101 F.3d 838, 844 (2d Cir. 1996); United States

v. McKinney, 98 F.3d 974, 976-80 (7th Cir. 1996); United States v. Orozco, 98 F.3d

105, 106-07 (3d Cir. 1996); United States v. Zorrilla, 93 F.3d 7, 8-9 (1st Cir. 1996).

Section 3553(f) provides that a safety valve reduction may be granted to an

offender convicted under the following statutes: 21 U.S.C. §§ 841, 844, 846, 960 or

963. 18 U.S.C. § 3553(f). See also USSG § 5C1.2. A defendant may be sentenced

below a statutory minimum sentence under § 3553(f) if five requirements are met,

including full disclosure of information concerning the defendant’s drug trafficking.

18 U.S.C. § 3553(f)(5). Koons argues that the district court erred in concluding that

he was not eligible for such a reduction. The government responds that § 3553(f)

does not by its terms apply to offenses under § 860, but that even if it did, Koons
6

 Koons does not argue that the district court had authority to depart downward

under USSG § 5K2.11 for conduct that “may not cause or threaten the harm or evil

sought to be prevented by the law proscribing the offense at issue.” That is no doubt

because such an argument would be unavailing in the circumstances of his offense

conduct. Section 860 was passed to keep areas adjacent to schools and public

playgrounds free of drugs and the dangerous incidents of drug trafficking. Possessing

large amounts of methamphetamine with intent to distribute in such an area does not

come within the § 5K2.11 policy statement. One of the two examples given in the

guidelines to illustrate the type of conduct that might warrant a departure is a teacher

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failed to disclose all information concerning his drug activities. Congress specified

particular offenses for which a § 3553(f) reduction may be considered, and § 860 is

not listed as one of them. We conclude that such a reduction is not available as a

matter of law to someone convicted under § 860. Other circuits agree. United States

v. Kakatin, 214 F.3d 1049, 1052 (9th Cir. 2000); United States v. Anderson, 200 F.3d

1344, 1347 (11th Cir. 2000); United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir.

1996). Koons attempts to argue against the clear text of the statute on the basis that

he is the type of low level offender for whom the reduction was intended, but this

argument is unconvincing.

Koons claims that the district court erred in concluding that it lacked authority

to depart downward on the basis that his proximity to a public playground posed no

added danger. He sought a departure under USSG § 5K2.0 for a combination of

factors, including “lack of any real danger to children caused by (his) proximity.” A

conviction under § 860(a) does not require that the offense actually involve children

or pose any real danger to children, however. "Nothing in the statute requires that

school be in session or that children be near or around the school [or playground] at

the time of the offense," Hohn, 8 F.3d at 1307, and a defendant need not know that

he distributed drugs within the 1,000 foot zone to be convicted. United States v.

Haynes, 881 F.2d 586, 590 (8th Cir. 1989). The district court did not err in

concluding that it lacked authority under USSG § 5K2.0 to depart downward on this

ground.6
possessing drugs in a § 860 zone “for display in a drug education program.” Koons’

offense conduct was entirely different. 

-12-

Finally, Koons argues that a discretionary downward departure was warranted

by his twenty year record of continuous employment, the economic privation that his

dependents will suffer, his minimal criminal history, and his willingness to cooperate.

The district court acknowledged its authority to depart for mitigating circumstances

under USSG § 5K2.0, but it found that no departure was warranted in this case. A

district court's discretionary refusal to depart is not reviewable. United States v.

Fellers, 285 F.3d 721, 726 (8th Cir. 2002). Moreover, the factors identified by Koons

are not so special or unusual as to take his case out of the heartland. See Koon v.

United States, 518 U.S. 81, 95 (1996). 

For these reasons, we affirm the judgment of the district court.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. In my view, the district court erred when it denied

Koons’s motion to suppress because Budach’s discovery of marijuana stems did not

provide information sufficient to conclude that evidence of drug dealing would be

found in Koons’s residence. Moreover, because Budach failed to conduct a sufficient

investigation to corroborate the tip, his reliance on the facially deficient warrant was

not reasonable. 

In this case, the informant’s “tip,” as presented in the affidavit, was not entitled

to any weight. “When an affidavit contains information provided by a confidential

informant, a key issue is whether that information is reliable.” United States v.

Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (citation omitted). “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
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corroborated by independent evidence.” Id. (citations omitted). Here, Budach’s

affidavit failed to contain any information to suggest that the informant’s tip was

reliable. Budach’s affidavit failed to indicate: (1) whether the informant was reliable;

(2) how the informant obtained his information; (3) whether the informant provided

any details to support his accusation; (4) the identity of the informant; or (5) the

informant’s relationship to the defendant. The informant’s tip thus amounted to

nothing more than an unsupported accusation.

The majority argues, however, that the presence of the stems corroborated the

informant’s assertion that Koons was dealing drugs, thereby giving the police

probable cause to search his house. The majority fails to explain why the discovery

of marijuana stems in an individual’s trash suggests that they are “dealing” drugs. At

most, the marijuana stems showed that someone possessed or smoked marijuana

within Koons’s residence within a few days prior to Budach’s search. The stems

alone, however, did not provide probable cause that Koons was dealing marijuana.

Moreover, the presence of marijuana stems alone was not sufficient to provide

probable cause that marijuana was present inside the house at the time of the search.

See United States v. Elliot, 576 F. Supp. 1579, 1581 (S.D. Ohio 1979) (holding that

the discovery of discarded marijuana waste amongst garbage, standing alone, is

insufficient to support a determination of probable cause). In this respect, I agree

with the reasoning of Elliot. Budach’s affidavit:

[D]oes not indicate a large quantity of discarded contraband which

might indicate its continued presence in the house. Instead, all we can

ascertain is that . . . [an unspecified number] of stems had left the home

at some point in time. 

. . . 

Furthermore, the nature of the evidence is not such that its continued

presence in the home is probable. To the contrary, this refuse is merely

the waste product of past marijuana use. Moreover, it is unclear when

that past use occurred, when the garbage was removed from the house
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or even when it was scheduled to be picked up. Even assuming weekly

garbage collection, the contraband may well have been evidence of

marijuana use five days prior to the examination of the garbage.

Without corroboration, we cannot say that this supports a conclusion of

the probable presence of contraband on the day of the search. . . . The

waste products of marijuana use do not, of themselves, indicate any

continuing presence of [marijuana] in the home.

Id.

I also disagree with the district court’s conclusion that the good faith exception

applied to Budach’s search because he held an objectively reasonable belief that there

was probable cause to search Koons’s home. In United States v. Leon, 468 U.S. 897,

922 (1984), the Supreme Court recognized an exception to the exclusionary rule in

those cases where a police officer conducts a search “in objectively reasonable

reliance on a subsequently invalidated search warrant.” The Court outlined four

situations in which an officer’s reliance on a warrant would be unreasonable:

(1) the affiant included information in the affidavit that he “knew was

false or would have known was false except for his reckless disregard

of the truth” and that information misled the issuing judicial officer;

(2) the issuing judge abandoned his neutral judicial role;

(3) the warrant was based on an affidavit with so few indicia of

probable cause that an official belief in its validity would be

unreasonable; and

(4) the warrant itself was so facially deficient that the executing

officers could not reasonably rely on its validity.

Id. at 923.

To assess the good faith of an officer executing a search warrant issued upon

an affidavit he had prepared, a court must look at the totality of the circumstances.
-15-

See U.S. v. Chambers, 987 F.2d 1331, 1335 (8th Cir. 1993). Here, it may said that

the underlying affidavit supporting the search was “so lacking in indicia of probable

cause as to render official belief in [its] existence entirely unreasonable.” Id. at 923.

The affidavit was barren of information about the informant, and the tip itself was not

corroborated by any evidence of drug dealing. 

Moreover, Budach could not have been acting in good faith because he

prepared the affidavit upon which the search was based, knowing that the information

contained therein could have easily been corroborated further with some additional

investigation. For example, Budach could have attempted to make a controlled

substance purchase, conducted surveillance of Koons’s residence, or conducted a

subsequent trash pull to try to find evidence of drug dealing, such as baggies, scales,

or ledgers. Budach could have also interviewed the informant to determine whether

his tip was reliable. However, Budach did not do any of these things.

In sum, Budach should have known that the information contained within his

affidavit was not sufficient to provide probable cause that Koons was dealing drugs.

Budach failed to include any information to show that the informant’s tip was

reliable, and the marijuana stems merely suggested that someone in Koons’s

residence had smoked marijuana during the week or so prior to the search. Moreover,

Budach obtained the warrant knowing that it was based upon tenuous evidence, when

it would have been easy for him to sufficiently corroborate the informant’s tip.

Therefore, the issuance and the execution of this warrant was not supported by the

“good faith” doctrine, and the results of the warranted search should be suppressed.

A true copy.

Attest:

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