IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

 §

Plaintiff, §

 § Criminal No. 3:06-CR-022-D

VS. §

 §

ANTHONY JOSEPH GRAZIOSO, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The government moves the court to reconsider its June 28, 2006

memorandum opinion and order granting defendant Anthony Joseph

Grazioso’s (“Grazioso’s”) February 23, 2006 motion to suppress.

See United States v. Grazioso, 2006 WL 1767677 (N.D. Tex. June 28,

2006) (Fitzwater, J.) (“Grazioso I”). In Grazioso I the court held

that Irving, Texas police officers had unlawfully stopped

Grazioso’s pickup truck, and it suppressed evidence seized during

subsequent searches of his truck and storage stalls as fruit of the

unlawful traffic stop. In its motion to reconsider, the government

raises for the first time the argument that the traffic stop was

lawful because the police had probable cause to believe Grazioso’s

truck contained contraband. Concluding that the government did not

waive this argument by presenting it for the first time in its

motion to reconsider, and that the traffic stop and subsequent

searches of the defendant’s truck and storage stalls were supported

by probable cause, the court grants the government’s motion,

vacates Grazioso I in part, and denies Grazioso’s February 23, 2006

 

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motion to suppress.

I

A

On March 4, 2005 Henry Biddle (“Agent Biddle”), an agent of

the Drug Enforcement Administration, contacted Brian Schutt

(“Investigator Schutt”), an investigator in the Narcotics Division

of the Irving, Texas Police Department (“IPD”). Agent Biddle

informed Investigator Schutt that a confidential informant (“CI”)

had stated that a person named “Tony,” a white male, approximately

age 43, was dealing methamphetamine from two storage stalls located

at Carl Road and State Highway 183 (“S.H. 183”) in Irving.

According to the CI, “Tony” ran a lawn service and carried 1/4- to

1/2-pound of methamphetamine in a blue or red Ford Ranger pickup

truck, the drugs were located in a toolbox in the bed of the truck,

and he took in payment for methamphetamine items stolen during

burglaries or purchased with stolen credit cards. The CI also

related that “Tony” stored the stolen items in the two storage

stalls.

Investigator Schutt and IPD Sergeant Rubealcaba believed that

“Tony” was defendant Grazioso. Investigator Schutt, who had known

of Grazioso throughout his 20-year IPD career, was aware that

Grazioso drove a blue Ford pickup truck, and both knew him to be a

methamphetamine dealer. Investigator Schutt ran Grazioso’s name

through the RMS, which showed that Grazioso owned a blue Ford

 

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Ranger.

Investigator Schutt apprised Ken Fay (“Investigator Fay”), an

IPD undercover narcotics investigator assigned to the Special

Investigation Section of the Criminal Investigation Division, of

the information that Agent Biddle had relayed to him. Later that

night, around 11:50 p.m., Investigator Fay conducted surveillance

at the Public Storage facility near the intersection of Carl Road

and S.H. 183 in Irving. He observed a blue Ford Ranger pickup

truck parked directly in front of stall K459 and Grazioso standing

near the toolbox on the driver’s side of the pickup. Grazioso was

already at the storage facility when Investigator Fay arrived.

Another vehicle was parked for a short amount of time in front of

the pickup. After about 10 minutes of surveillance, Grazioso

departed.

Investigator Fay radioed for assistance and followed him.

Grazioso traveled southbound on Carl Road toward East Grauwyler

Road. Investigator Fay noticed Grazioso acting nervously as he

drove, frequently looking around and in his rear-view mirror, which

he knew to be consistent with the conduct of someone engaged in

drug trafficking counter-surveillance. Investigator Fay followed

Grazioso to a gas station at the corner of East Grauwyler Road and

Carl Road. Grazioso exited his truck and looked at Investigator

Fay, so Investigator Fay “called it,” meaning he terminated the

surveillance due to Grazioso’s actions.

 

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On the night of March 7, 2005, at around 11:50 p.m.,

Investigator Fay again conducted surveillance at the storage

facility. He positioned himself in the same place as before and

observed Grazioso, the same blue Ford Ranger, another white male,

and a red vehicle. Investigator Fay watched Grazioso for

approximately 10 minutes before Grazioso departed. After Grazioso

stopped at a nearby gas station, he headed eastbound on S.H. 183.

Investigator Fay called for assistance and followed Grazioso

on S.H. 183, observing him from a distance of about three car

lengths. Grazioso took the Grauwyler Road exit. Investigator Fay

observed that Grazioso drove partially onto the shoulder of the

road and continued to straddle the right lane and shoulder for

about five to seven seconds while exiting the highway. Because

Investigator Fay was driving an unmarked unit, he radioed for a

marked IPD patrol unit to initiate a traffic stop based on

Grazioso’s failure to maintain a single lane of traffic. IPD

Patrol Officer Jason Rogers (“Officer Rogers”), who was patrolling

nearby and heading westbound on Grauwyler Road near S.H. 183,

responded within seconds. Officer Rogers effected the stop, and

Grazioso pulled into the parking lot of the View Pointe Apartments,

located at 2700 East Grauywler Road in Irving.

 

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1

It is undisputed that neither Investigator Fay nor Officer

Rogers was aware before the traffic stop of Grazioso’s outstanding

warrant.

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After it was determined that Grazioso had an outstanding

parole warrant for a parole violation,1 Officer Rogers decided to

place him under arrest. It was later decided that Grazioso’s truck

would be impounded. Investigator Fay and another officer conducted

an inventory of Grazioso’s truck at the IPD station between 1:00

and 1:30 a.m. on March 8. Using a key from Grazioso’s keychain to

unlock the toolbox in the truck bed, they found 191 grams of

methamphetamine, distribution baggies, and paperwork showing

Grazioso as the lessee of two storage stalls, including stall

number K459, which Investigator Fay had surveilled. Investigator

Fay also found in the toolbox an empty case for a Glock 17 gun.

Soon after the inventory search, Investigator Fay contacted

IPD Officer Ray Carmack (“Officer Carmack”) and asked him to run

his drug-detecting canine outside the K459 storage stall at the

Public Storage facility. At approximately 2:00 a.m., Officer

Carmack ran his canine along the entire row of storage stalls that

included K459. The dog alerted outside stall K459, and Officer

Carmack notified Investigator Fay.

Investigator Fay decided to seek a warrant to search both of

Grazioso’s storage stalls. He prepared a search warrant affidavit

and brought it before a county magistrate at approximately 5:30

a.m. The affidavit recounted much of the information the CI had

 

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provided Agent Biddle and that he had in turn relayed to

Investigator Schutt. The document also described Investigator

Fay’s surveillance of Grazioso at the storage stalls on March 4 and

7 and Grazioso’s conduct while under observation, the traffic stop,

the arrest, the inventory search (including the discovery of

methamphetamine, drug paraphernalia, and storage stall leases that

showed Grazioso to be the lessee), and the canine sniff.

Concerning the canine sniff, the affidavit stated, in pertinent

part: “ON 03-08-05, YOUR AFFIANT CONTACTED OFFICER R. CARMACK #764

WHO IS EMPLOYED BY THE IRVING POLICE DEPARTMENT AS A K-9 HANDLER

FOR ‘ROCKY,’ ATTACHED HERETO AS EXHIBIT ‘A’ AFFIDAVIT OF

QUALIFICATIONS; IT IS TO BE CONSIDERED AS PART OF THIS AFFIDAVIT AS

IF WRITTEN HEREIN.” D. Ex. 11. The affidavit of qualifications,

however, was not attached to the search warrant affidavit at the

time Investigator Fay submitted it to the magistrate. The

magistrate issued a search warrant for stalls K459 and M516.

Investigators Fay and Schutt searched these storage stalls

pursuant to the warrant. One stall was packed with items such as

tools, lawnmowers and edgers, computer equipment, and furniture.

In stall K459, the officers found and seized firearms, including a

Glock .40 caliber pistol, a Smith & Wesson .347 Magnum revolver,

and a Mossberg 12-guage shotgun. The officers also found and

seized controlled substances, including methamphetamine.

 

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2

Section 545.060(a) provides that “[a]n operator on a roadway

divided into two or more clearly marked lanes for traffic: (1)

shall drive as nearly as practical entirely within a single lane;

and (2) may not move from the lane unless that movement can be made

safely.”

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The grand jury later indicted Grazioso for the offenses of

possession with intent to distribute methamphetamine, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); and

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A).

B

Grazioso filed a motion to suppress on February 23, 2006, in

which he moved to suppress all evidence seized on March 8, 2005,

including, but not limited to, methamphetamine, from the searches

of his pickup truck and two storage stalls. The court conducted an

evidentiary hearing on June 16 and 20, 2006. In its brief and at

the hearing, the government attempted to justify the traffic stop

and subsequent searches and seizures by arguing that Grazioso had

failed to maintain a single lane of traffic, in violation of Tex.

Transp. Code Ann. § 545.060(a) (Vernon 1999),2

 that he was lawfully

stopped for a traffic violation, that the subsequent search was a

lawful inventory search, and that the search of the stalls was

lawful under the warrant. In Grazioso I the court held that the

government had not met its burden of demonstrating by a

preponderance of the evidence that Investigator Fay and Officer

 

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Rogers had reasonable suspicion to effect the traffic stop pursuant

to a violation of § 545.060(a). See Grazioso I, 2006 WL 1767677,

at *4-*5. The court also concluded that the government had failed

to meet its burden of establishing that the evidence seized during

the subsequent searches of Grazioso’s truck and storage stalls was

not fruit of the illegal traffic stop, and the court suppressed

this evidence. See id. at *7, *10.

The government now moves the court to reconsider Grazioso I.

It asserts that it did not waive any arguments that were not

initially briefed or addressed; the police officers had probable

cause to stop and search Grazioso’s truck; and, at a minimum, the

circumstances gave rise to an objectively reasonable suspicion that

criminal activity was afoot. The government also reasserts its

position that the traffic stop was justified by Grazioso’s alleged

failure to maintain a single lane of traffic. Finally, the

government contends that the warrant for the search of the storage

units was supported by probable cause and that, regardless of the

validity of the truck search, the evidence seized from the storage

units is admissible.

II

A

The government contends anew that the police were justified in

performing the traffic stop based on a purported violation of

§ 545.060(a). In Grazioso I the court held that “the government

 

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3

In its March 23, 2006 response brief, the government did

contend that the search of the truck was supported by probable

cause. But, as the court explained in Grazioso I, the government’s

probable cause argument was offered in support of the search that

followed the stop, not the initial stop itself. See Grazioso I,

2006 WL 1767677, at *6.

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did not prove that, when Grazioso failed to stay within his lane of

traffic, his movement was not safe or was not safely made,” as

required by Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.

1998, pet. ref’d). Id. at *5. The government does not seek to

reopen the hearing to introduce any new evidence. Without evidence

that Grazioso’s movement was not safe or not made safely, it has

failed to demonstrate any basis for the court to alter its decision

in Grazioso I that Investigator Fay lacked reasonable suspicion to

effect the traffic stop based on a violation of § 545.060(a).

B

The government also maintains that the traffic stop was

justified because Investigator Fay had probable cause to believe

the truck contained contraband and, at a minimum, that he had

reasonable suspicion that criminal activity was afoot. The

government did not present these arguments at the hearing or in its

response brief to Grazioso’s suppression motion.3 Nevertheless, it

maintains that it did not waive these arguments by waiting until

its motion to reconsider to raise them.

 

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4

The government squandered two prime opportunities to assert

probable cause as a justification for the traffic stop: in its

response brief to Grazioso’s motion to suppress and at the

suppression hearing. Only after the court, in a 26-page memorandum

opinion and order, detailed exactly how the government’s initial

arguments failed did the government present an alternative argument

to support the traffic stop. Consequently, the court has expended

its resources preparing opinions on the merits of the suppression

motion and on a motion to reconsider that would not have both been

necessary had the government been fully prepared on the suppression

motion.

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1

Despite the government’s failure to raise the probable cause

argument until its motion to reconsider,4

 circuit precedent makes

clear that the court is free at this pretrial stage to revisit its

earlier pretrial ruling on the suppression motion. See United

States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997) (“District

courts hearing criminal cases may revisit pretrial issues, such as

suppression motions, upon which they have previously ruled.”

(citing United States v. Mentos, 421 F.2d 215, 220 (5th Cir.

1970)); United States v. Acosta, 669 F.2d 292, 293 (Former 5th Cir.

1982) (per curiam) (“[T]he district court has broad power to

reconsider the correctness of its interlocutory rulings.” (citing

Lord v. Kelley, 334 F.2d 742, 746 (1st Cir. 1964)); United States

v. Jones, 608 F.2d 386, 390 (9th Cir. 1979) (noting that, within

time for government’s interlocutory appeal of suppression order,

district court has plenary power to revisit its decision on

suppression motion).

 

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To support its argument of non-waiver, the government relies

on United States v. Hassan, 83 F.3d 693 (5th Cir. 1996) (per

curiam). In Hassan the district court had granted the defendants’

motion to suppress, concluding that the police officer’s

warrantless search violated the Fourth Amendment. Id. at 695. The

government filed a motion for reconsideration, raising for the

first time the ground that the independent source doctrine applied.

Id. The district court denied the motion to reconsider, and the

government appealed. Id. On appeal, the defendants argued that

the government had waived its independent source argument by not

raising it in the district court until the motion for

reconsideration. Id. at 696. The Hassan panel held that the

government had not waived its argument:

We decline to conclude that the Government

waived the independent source argument by not

raising it until the motion for

reconsideration. . . . The Government . . .

presented the independent source issue at a

time when the district court possessed the

ability to rule on it. Clearly, the

Government did not waive its argument on

appeal by waiting until the motion for

reconsideration to advance it.

 

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5

The Hassan panel alluded to the district court’s discretion

concerning whether to reopen the hearing to allow the government to

present additional evidence on the independent source argument.

Hassan, 83 F.3d at 696. The panel noted that, in reviewing for

abuse of discretion this portion of the district court’s decision,

it could consider that the government failed to raise the

independent source doctrine until the motion to reconsider. Id.

But here the government does not seek to reopen the hearing to

introduce additional evidence.

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Id.5 Based on Hassan, the court will reach the merits of the

government’s probable cause argument, because it concludes that the

government has not waived it by waiting until the motion to

reconsider to present it.

2

The government contends the warrantless stop and search of

Grazioso’s truck were justified because Investigator Fay had

probable cause to believe the pickup contained contraband.

“Probable cause is determined by an objective test: it cannot

be established simply by showing that the police subjectively

believed that probable cause existed; likewise, the subjective

belief of the police that they did not have probable cause does not

preclude the government’s showing that there was.” United States

v. Cooper, 949 F.2d 737, 744-45 (5th Cir. 1991) (citing Florida v.

Royer, 460 U.S. 491 (1983)); see also Devenpeck v. Alford, 543 U.S.

146, 153 (2004) (“[A]n arresting officer’s state of mind (except

for the facts that he knows) is irrelevant to the existence of

probable cause.” (citing Whren v. United States, 517 U.S. 806, 812-

13 (1996); Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam)).

 

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“Probable cause to search an automobile exists when ‘trustworthy

facts and circumstances within the officer’s personal knowledge

would cause a reasonably prudent man to believe that the vehicle

contains contraband.’” Cooper, 949 F.2d at 745 (quoting United

States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983)).

Because probable cause in this case arose from a CI’s tip, the

court’s probable cause evaluation is guided by Illinois v. Gates,

462 U.S. 213 (1983). See United States v. Cisneros-Mireles, 739

F.2d 1000, 1002-03 (5th Cir. 1984) (citing United States v.

Mendoza, 722 F.2d 96, 100 (5th Cir. 1983)). Evaluating whether a

CI’s tip was sufficient to establish probable cause involves a

flexible, totality-of-the-circumstances determination of whether

there was a fair probability that contraband would be found in a

particular place. See Gates, 462 U.S. at 238. The court considers

the CI’s veracity and reliability and the basis of the CI’s

knowledge. See id.; United States v. McWaine, 243 F.3d 871, 874

(5th Cir. 2001). A deficiency in one factor “may be compensated

for, in determining the overall reliability of a tip, by a strong

showing as to the other, or by some other indicia of reliability.”

United States v. Marbury, 732 F.2d 390, 395 (5th Cir. 1984)

(quoting Gates, 462 U.S. at 233). A CI’s tip that otherwise would

not constitute probable cause may nonetheless do so if details of

the tip are corroborated by independent police work. See Gates,

462 U.S. at 241-42. Corroboration may be sufficient even if the

 

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police corroborate only innocent activity in the tip. See id. at

243 n.13. “In making a determination of probable cause the

relevant inquiry is not whether particular conduct is ‘innocent’ or

‘guilty,’ but the degree of suspicion that attaches to particular

types of non-criminal acts.” Id.

Examining objectively the totality of the circumstances, the

court concludes that Investigator Fay had probable cause to believe

that contraband would be found in Grazioso’s truck. At the

hearing, the government did not present evidence that Investigator

Fay knew any facts about the CI’s veracity or reliability or the

basis of the CI’s knowledge, or even that he knew who the CI was.

Nevertheless, Investigator Fay and other IPD officers sufficiently

corroborated information the CI provided. The CI’s tip indicated

that an individual named “Tony,” who drove a blue or red pickup

truck, was dealing methamphetamine out of two storage stalls at

Carl Road and S.H. 183 in Irving. The CI also said that Grazioso

kept methamphetamine in the locked toolbox in his pickup’s bed.

Investigator Schutt, believing “Tony” to be Grazioso, verified that

Grazioso indeed drove a blue pickup truck. With this information,

Investigator Fay surveilled the Public Storage facility that the CI

described, where at nearly midnight he observed Grazioso, his blue

Ford Ranger, and another vehicle. Investigator Fay followed

Grazioso as he left the storage facility and observed him acting

nervously and engaging in activity Investigator Fay knew to be

 

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consistent with drug trafficking counter-surveillance. Three

nights later, shortly before midnight, Investigator Fay again

witnessed Grazioso at the same storage stall, in the presence of

his blue Ford Ranger and accompanied by another individual.

Although none of the activity Investigator Fay witnessed was

per se unlawful, Grazioso’s conduct was suspicious. His presence

at a storage facility around midnight on two separate nights with

other individuals was unusual and was consistent with the CI’s

report of methamphetamine dealing, as was his appearance of being

nervous and looking in his mirrors frequently after leaving the

storage facility.

IPD officers corroborated several facts in the CI’s tip and

did not find any of the CI’s allegations to be inaccurate.

Verifying that the CI was correct about several facts greatly

increased the probability that the CI was also accurate concerning

the presence of methamphetamine in the toolbox of Grazioso’s pickup

truck. See id. at 244 (“‘[B]ecause an informant is right about

some things, he is more probably right about other

facts’——including the claim regarding the . . . illegal activity.”

(alteration in original) (citation omitted) (quoting Spinelli v.

United States, 393 U.S. 410, 427 (1969))). The facts known to

Investigator Fay before the traffic stop, including the

corroboration of the CI’s tip, objectively gave rise to a fair

probability that contraband would be found in Grazioso’s truck.

 

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Investigator Fay thus had probable cause to initiate the traffic

stop.

C

After Grazioso’s arrest for the parole violation warrant,

Officer Rogers impounded Grazioso’s truck even though it was

lawfully parked in the apartment complex where Grazioso resided.

The truck was towed to the IPD station, where Investigator Fay

conducted an inventory search. In the initial motion to suppress

and at the hearing, the parties vigorously contested the legality

of the impoundment and inventory search. The government attempted

to justify the search as valid under the inventory exception to the

warrant requirement, whereas Grazioso contended that the

impoundment and inventory search were merely part of a ruse to

search the truck for contraband. Although Grazioso has raised

plausible concerns regarding whether the impoundment and inventory

search were in fact undertaken as community caretaking functions or

were merely part of a ruse to search the truck for contraband, the

court need not decide whether the search falls within the inventory

exception. This is because, as the court has already held, the

police had probable cause to believe Grazioso’s truck contained

contraband, and the warrantless search was valid under the

automobile exception to the warrant requirement.

The automobile exception permits the police to conduct a

warrantless search of a vehicle if it “is readily mobile and

 

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probable cause exists to believe it contains contraband.”

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam). If

probable cause to search an automobile exists at the scene where it

was stopped, the police may decide to search it later at the

station without a warrant. See Texas v. White, 423 U.S. 67, 68

(1975) (per curiam) (“[P]olice officers with probable cause to

search an automobile on the scene where it was stopped [may]

constitutionally do so later at the station house without first

obtaining a warrant.” (citing Chambers v. Maroney, 399 U.S. 42, 52

(1970))). Because the police had probable cause to believe

Grazioso’s truck contained contraband, it was not unreasonable for

them to take it to the police station and search it without a

warrant.

“If supported by probable cause, every part of a vehicle which

may conceal the object of the search may be searched.” United

States v. Zucco, 71 F.3d 188, 191-92 (5th Cir. 1995) (citing United

States v. Ross, 456 U.S. 798 (1982); United States v. McSween, 53

F.3d 684 (5th Cir. 1995)). The officers were therefore justified

in conducting a warrantless search of the locked toolbox in the bed

of Grazioso’s truck.

 

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D

The court concludes that the traffic stop comported with the

Fourth Amendment’s reasonableness requirement because Investigator

Fay objectively had probable cause to believe Grazioso’s truck

contained contraband. Moreover, the subsequent warrantless search

of the truck, including the locked toolbox, at the police station

was valid under the automobile exception.

III

The court turns next to the search of Grazioso’s storage

stalls. The search of the storage stalls was conducted pursuant to

a warrant issued by a magistrate.

A

In reviewing a search pursuant to a warrant, the court engages

in a two-step inquiry. United States v. Payne, 341 F.3d 393, 399

(5th Cir. 2003). First, the court determines whether the goodfaith exception to the exclusionary rule applies. Id. (citing

United States v. Pena-Rodriguez, 110 F.3d 1120, 1129-30 (5th Cir.

1997)). If the good-faith exception applies, the court “need not

reach the question of probable cause for the warrant unless it

presents a ‘novel question of law,’ resolution of which is

‘necessary to guide future action by law enforcement officers and

magistrates.’” Id. (citing Pena-Rodriguez, 110 F.3d at 1129-30).

If the good-faith exception does not apply, the court proceeds to

a determination of whether “the magistrate had a substantial basis

 

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for . . . concluding that probable cause existed.” United States

v. Lampton, 158 F.3d 251, 258 (5th Cir. 1998) (omission in

original) (quoting Pena-Rodriguez, 110 F.3d at 1129-30).

“Under the good-faith exception, evidence obtained during the

execution of a warrant later determined to be deficient is

admissible nonetheless, so long as the executing officers’ reliance

on the warrant was objectively reasonable and in good faith.”

Payne, 341 F.3d at 399 (citing United States v. Leon, 468 U.S. 897,

921-25 (1984)). 

The good faith exception cannot apply if one

of four circumstances is present: “(1) If the

issuing magistrate/judge was misled by

information in an affidavit that the affiant

knew was false or would have known except for

reckless disregard of the truth; (2) where the

issuing magistrate/judge wholly abandoned his

or her judicial role; (3) where the warrant is

based on an affidavit so lacking in indicia of

probable cause as to render official belief in

its existence entirely unreasonable; and (4)

where the warrant is so facially deficient in

failing to particularize the place to be

searched or the things to be seized that the

executing officers cannot reasonably presume

it to be valid.”

Id. (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th

Cir. 1992) (per curiam)).

B

In his initial suppression motion, Grazioso contended that the

good-faith exception did not apply to the search of the storage

stalls because the search warrant affiant——Investigator

Fay——knowingly and intentionally, or with reckless disregard for

 

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6

In Grazioso I the court concluded that this detail tainted

the search warrant affidavit, since the initial traffic stop was

unlawful. Grazioso I, 2006 WL 1767677, at *8-*9. Because the

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the truth, included false statements in the affidavit in support of

the warrant. It is true that the search warrant affidavit

contained a false statement. To support the search warrant, the

affidavit averred that Officer Carmack’s canine alerted outside

Grazioso’s storage stall. The affidavit falsely stated that the

canine’s affidavit of qualifications was attached to the search

warrant affidavit, when in fact it was not. But the court need not

examine Investigator Fay’s state of mind——whether he made the false

statement knowingly or with reckless disregard for the

truth——because, even excluding the information about the canine

sniff, the search warrant affidavit contained sufficient true facts

giving the magistrate a substantial basis for concluding that

probable cause existed.

The search warrant affidavit recounted the details of the CI’s

tip and many of Investigator Schutt’s and Investigator Fay’s

efforts to corroborate them. As the court explains supra at

§ II(B)(2), the CI’s tip had been sufficiently corroborated to give

the police probable cause to believe Grazioso’s truck contained

contraband. The search warrant affidavit included additional

corroboration. It described the search of Grazioso’s truck, which

corroborated the CI’s allegation that Grazioso kept methamphetamine

in the toolbox in the bed of his truck.6 Thus even absent the

 

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government had not proved that an exception to the fruit of the

poisonous tree doctrine applied, the court suppressed evidence

seized pursuant to the search warrant. Id. But the concern

regarding taint no longer arises because the government has now

established the validity of the initial traffic stop and search of

the truck. Because the search was lawful, it can be used to

corroborate the CI’s tip.

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canine sniff, the substantial corroboration of the CI’s tip gave

the magistrate reason to believe that other details of the tip,

including that Grazioso was dealing methamphetamine out of his

storage stalls, were correct. See Gates, 462 U.S. at 244

(“‘[B]ecause an informant is right about some things, he is more

probably right about other facts’——including the claim regarding

the . . . illegal activity.” (alteration in original) (citation

omitted) (quoting Spinelli, 393 U.S. at 427)). The magistrate

therefore had a substantial basis for concluding that probable

cause existed to believe that contraband or evidence of illegal

activity would be found in the storage stalls. Consequently, the

search of Grazioso’s storage stalls pursuant to the search warrant

was valid. See id. at 238-39 (“[T]he duty of a reviewing court is

simply to ensure that the magistrate had a ‘substantial basis for

. . . [concluding]’ that probable cause existed.” (omission and

second alteration in original) (quoting Jones v. United States, 362

U.S. 257, 271 (1960))).

 

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* * *

For the reasons stated, the court grants the government’s July

10, 2006 motion to reconsider, vacates Grazioso I in part, and

denies Grazioso’s February 23, 2006 motion to suppress. The court

restores this case to the trial docket and sets it for trial on

Monday, September 11, 2006.

SO ORDERED.

August 9, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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