PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5764

LAUREN ERIC WILHELM,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Williams, Senior District Judge, sitting by designation.

(CR-94-9-MU)

Argued: December 7, 1995

Decided: April 3, 1996

Before ERVIN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Ervin wrote the

opinion, in which Judge Michael and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Edmund L. Gaines, HOMESLEY, JONES, GAINES &

FIELDS, Statesville, North Carolina, for Appellant. Harry Thomas

Church, Assistant United States Attorney, Charlotte, North Carolina,

for Appellee. ON BRIEF: Sharon D. Jumper, JUMPER & BROADWAY, Charlotte, North Carolina, for Appellant. Mark T. Calloway,

United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
OPINION

ERVIN, Circuit Judge:

Appellant Lauren Eric Wilhelm appeals the district court's denial

of his motion to suppress evidence seized under a search warrant.

State police obtained the warrant based only on a vague tip from an

anonymous, unproven informant. We conclude that the warrant was

not supported by probable cause and that the constitutionality of the

search may not be established by the good faith exception set forth

in United States v. Leon, 468 U.S. 897 (1984). Therefore, we reverse

the district court decision and remand for further proceedings.

I.

The facts of this case, as set forth in the appellant's brief and "accept[ed] and adopt[ed]" by the government, are as follows:

On March 7, 1994, Detective Sandy Proctor of the Iredell

County Sheriff's Office applied for a search warrant to

search the home of the Appellant, Lauren Eric Wilhelm. On

that same day, Proctor had received a telephone call from an

individual who stated that he or she had observed marijuana

in Wilhelm's home. In the affidavit for the warrant, Proctor

stated the following:

On 3-7-94 applicant received information from a

reliable source who is a concerned citizen, a resident of Iredell County, a mature person with personal connections with the suspects and has

projected a truthfull [sic] demeanor to this applicant. Informant stated to applicant the directions to

this residence and the directions have been confirmed to be true by the applicant through surveillance on this date. The informant described the

substance he/she believed to be marijuana and the

informants [sic] description is consistent with the

applicants [sic] knowledge of marijuana. Informant described transactions between residents and

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patrons that purchase marijuana at this residence

and his/her descriptions of these actions are consistent with applicants [sic] knowledge of how

marijuana is packaged and sold. Informant has personally observed residents selling marijuana at this

residence within the last 48 hours. Informant also

observed a quanity [sic] of un-sold marijuana at

this residence within the last 48 hours.

On the basis of this information, the [state] magistrate

approved the application and issued a search warrant permitting the search of Wilhelm's home and all outbuildings and

vehicles located on the property. The search resulted in the

discovery of the contraband which was the subject of the

indictment in this case.

At a hearing to consider a motion to suppress the evidence seized pursuant to the search warrant, two significant

additional facts concerning the application for the warrant

were revealed. First, Proctor confirmed that no additional

information other than what appeared in the application was

given to the magistrate. Thus, the warrant was issued solely

on the basis of the material contained in Proctor's affidavit.

Second, Proctor admitted that the informant was a person

that she did not know and had never met prior to the telephone call, and that she did not meet with the individual

after the call.

Wilhelm was named in a two-count indictment on April 6, 1994.

The indictment charged him with possession of marijuana with intent

to distribute in violation of 21 U.S.C. § 841(a)(1), and use and carrying of a firearm during and in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1). He moved to suppress evidence

obtained under the search warrant. The U.S. magistrate judge recommended denying this motion, and the district court adopted the magistrate judge's memorandum. Wilhelm then conditionally pled guilty to

count 1, retaining the right to appeal the adverse ruling on the suppression motion. He timely appealed to this court under 28 U.S.C.

§ 1291.

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II.

Issues of law are reviewed de novo. Bose Corp. v. Consumers

Union of the United States, Inc., 466 U.S. 485 (1984); Rawl v. United

States, 778 F.2d 1009 (4th Cir. 1985), cert. denied, 479 U.S. 814

(1986). A district court's determination of probable cause under the

Fourth Amendment is an issue of law, and is thus reviewed de novo.

United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991).

When reviewing the probable cause supporting a warrant, a reviewing court must consider only the information presented to the magistrate who issued the warrant. United States v. Blackwood, 913 F.2d

139, 142 (4th Cir. 1990).

A.

Search warrants must be supported by probable cause to satisfy the

dictates of the Fourth Amendment. United States v. Harris, 403 U.S.

573, 577 (1971). The Supreme Court addressed "the application of the

Fourth Amendment to a magistrate's issuance of a search warrant on

the basis of a partially corroborated anonymous informant's tip" in

Illinois v. Gates, 462 U.S. 213, 217 (1983). An Illinois police department received an anonymous letter alleging that a Bloomington couple was involved in drug dealing; the letter specifically detailed how

the couple travelled to Florida to buy drugs. Id . at 225. The police surveilled the couple and substantially corroborated the information in

the letter. Id. at 225-27.

The Supreme Court agreed with the Illinois Supreme Court that the

letter standing alone could not provide probable cause to believe that

drugs could be found in the couple's car and home:"The letter provides virtually nothing from which one might conclude that its author

is either honest or his information reliable; likewise, the letter gives

absolutely no indication of the basis for the writer's predictions

regarding the Gateses' criminal activities." Id. at 227; see also United

States v. Miller, 925 F.2d 695, 698 (4th Cir.) ("An informant's tip is

rarely adequate on its own to support a finding of probable cause."),

cert. denied, 502 U.S. 833 (1991).

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The Court then adopted a "totality-of-the-circumstances" test to

determine whether probable cause supported a search warrant. Id. at

238. Two factors are key to this analysis: the informant's "veracity"

or "reliability" and his or her "basis of knowledge." Id. at 233. Appellate courts should pay "great deference" to magistrates' findings of

probable cause. Id. at 236. But this does not mean that warrants based

on conclusory allegations should be upheld: "Sufficient information

must be presented to the magistrate to allow that official to determine

probable cause; his action cannot be a mere ratification of the bare

conclusions of others." Id. at 239.

In Alabama v. White the Supreme Court suggested how an anonymous tip might be corroborated sufficiently to provide the "reasonable

suspicion" necessary for an investigatory stop.* 496 U.S. 325 (1990).

The police received a call stating that a woman would leave a specified address in a particular car, go to a particular motel, and have with

her about an ounce of cocaine in a brown briefcase. Id. at 327. As in

Gates, the Court noted that the tip standing alone would not provide

a reasonable suspicion because it gave no indication of the caller's

reliability or the source for his or her information. Id. at 329. The

Court concluded, however, that by the time the officers stopped the

suspect, they had corroborated the tip sufficiently to provide reasonable suspicion. They had observed the woman leave the specified

address within the timeframe predicted by the tipster, and watched her

drive away in the specified vehicle, following the most direct route

to the destination named by the caller, although they stopped her

before she actually reached that destination. Id . at 331. The Court

credited the tip's inclusion of a "range of details relating not just to

easily obtained facts and conditions existing at the time of the tip, but

to future actions of third parties ordinarily not easily predicted." Id.

at 332 (quoting Gates, 462 U.S. at 245).

_________________________________________________________________

*As reasonable suspicion implies a lower threshold than probable

cause, Terry v. Ohio, 392 U.S. 1, 31 (1968), somewhat less corroboration

of an anonymous tip in the context of an investigatory stop might be

required than in the case of a search warrant. In this case, however, the

standard for reasonable suspicion was not even met, so the White case is

relevant to our analysis.

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The Fourth Circuit has explained that in evaluating whether an

informant's tip establishes probable cause, the degree to which the

report is corroborated is an important consideration. United States v.

Lalor, 996 F.2d 1578, 1581 (4th Cir.), cert. denied, ___ U.S. ___, 126

L. Ed. 2d 436 (1993). In the Lalor case, the court found an informant's tip reliable when the police corroborated the suspect's address,

vehicle, and alias, and determined that he had been arrested for drug

possession just a few days before the warrant was issued, confirming

his involvement in drug activity. Id. at 1581; see also United States

v. Miller, 925 F.2d 695 (4th Cir.) (upholding warrantless arrest based

on informant's tip, which police substantially corroborated by observing the suspect), cert. denied, 502 U.S. 833 (1991); United States v.

Blackwood, 913 F.2d 139, 142 (4th Cir. 1990) (upholding search warrant based on anonymous tip corroborated by a previously reliable

informant's purchase of crack cocaine from the suspect).

The affidavit in this case did not adequately support the magistrate's finding of probable cause. It depended on information from an

unnamed informant, and provided no indication of that informant's

truthfulness or reliability. Proctor included conclusory descriptions

apparently designed to establish the informant's trustworthiness. We

are particularly concerned with Proctor's statements that the informant was a "concerned citizen," and "a mature person with personal

connections with the suspects," who "projected a truthfull [sic]

demeanor." See 1 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 3.4(a) at 738 (2d ed. 1987) ("[I]t should

not be deemed sufficient that the police have alleged in a rather conclusory fashion that the person was `a responsible citizen of utmost

character and integrity' or `a reputable member of the community.'").

A number of non-Fourth Circuit cases have addressed affidavits

similar to the one at issue here. For instance, the Eighth Circuit

addressed a similar factual situation in United States v. Gibson. 928

F.2d 250 (8th Cir. 1991). The police received an anonymous tip that

a man and his wife were dealing drugs from a particular address. The

caller provided a number of details, claiming that he had been inside

the house and had seen the drugs in the basement, a new shipment of

cocaine was expected in a few days, there was a pitbull outside the

house and a doberman inside, and three particular vehicles were

parked at the house. Id. at 252. The police drove by the house and

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confirmed that the vehicles were as described, observed a pitbull, and

noted that the house probably had a basement. Id . Using utilities

records, the officer discovered the name of the account-holder for that

address. Id. The Eighth Circuit held that this information did not

amount to probable cause to issue a search warrant. Id. at 253. The

court explained that the police had only corroborated "innocuous

details" from the information given by the anonymous tipster, and

"[t]here was neither surveillance nor observation of unusual civilian

or vehicular traffic at the address, nor were there very short visits

characteristic of drug trafficking." Id.; see also United States v.

Mendonsa, 989 F.2d 366, 369 (9th Cir. 1993) ("[M]ere confirmation

of innocent static details is insufficient to support an anonymous tip.

The fact that a suspect lives at a particular location or drives a particular car does not provide any indication of criminal activity."); but see

United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993)

("Corroboration of apparently innocent details of an informant's

report tends to indicate that other aspects of the report are also correct.").

In this case, the magistrate judge found sufficient indicia of reliability in the affidavit by simply accepting the unsupported conclusions of the affidavit, and overstating the substance of the information

provided in that affidavit. For instance, he found"no internal inconsistencies in the affidavit itself which would lead a reader to question

the informant's reliability." He noted that "a citizen-informer is presumptively reliable," and that in contrast to"vague or sketchy" information, where the information is "specific and based upon personal

observation, showing a first-hand basis of knowledge, this supports a

determination that the informant is reliable." The magistrate judge

noted that the state magistrate had before him Detective Proctor's "affirmations as to the informant's maturity and veracity." The district

court adopted the magistrate judge's recommendations wholesale.

We conclude that this affidavit fell far short of providing probable

cause for a search warrant. Upholding this warrant would ratify police

use of an unknown, unproven informant--with little or no

corroboration--to justify searching someone's home. The right to privacy in one's home is a most important interest protected by the

Fourth Amendment and a continuing theme in constitutional jurisprudence. See, e.g., Payton v. New York, 445 U.S. 573, 585 (1980)

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("`physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed'" (quoting United States v.

United States Dist. Court, 407 U.S. 297, 313 (1972))); United States

v. Martinez-Fuerte, 428 U.S. 543, 561 (1976) (the right to "sanctity

of private dwellings," has been held to be the right "ordinarily

afforded the most stringent Fourth Amendment protection");

Silverman v. United States, 365 U.S. 505, 511 (1961) ("At the very

core [of the Fourth Amendment] stands the right of a man to retreat

into his own home and there be free from unreasonable governmental

intrusion.").

The minimal corroboration provided in this case simply was insufficient. The conclusion that an informant is reliable and mature based

only on brief telephone conversations is dubious, and the affidavit

does not disclose any basis for Proctor's conclusion that her tipster

was a "concerned citizen." Moreover, the only corroboration Proctor

provided was that the informant's directions to Wilhelm's home were

correct. Almost anyone can give directions to a particular house without knowing anything of substance about what goes on inside that

house, and anyone who occasionally watches the evening news can

make generalizations about what marijuana looks like and how it is

packaged and sold.

Because we conclude that the search warrant in this case was

unsupported by probable cause as required by federal law, we need

not reach Wilhelm's alternative argument that "the evidence in question must be suppressed because it was seized in contravention of

North Carolina law by state agents."

B.

In United States v. Leon, the Supreme Court held that evidence

obtained by "officers reasonably relying on a warrant issued by a

detached and neutral magistrate" is admissible. 468 U.S. 897, 913

(1984). The officers--and the Court emphasized that "officers"

should be read broadly to include those who obtain the warrant as

well as those who conduct the search--must act based on an "objectively reasonable" reliance; "in some circumstances the officer will

have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-23 & n.24. In footnote 24, the Court noted that

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its Leon opinion should not be read to suggest that "an officer could

obtain a warrant on the basis of a `bare bones' affidavit and then rely

on colleagues who are ignorant of the circumstances under which the

warrant was obtained to conduct the search." 468 U.S. at 923 n.24.

The good-faith exception does not apply in four situations: first,

when the warrant is based on an affidavit containing"knowing or

reckless falsity"; second, when the magistrate has simply acted as a

"rubber stamp" for the police; third, when the affidavit does not "provide the magistrate with a substantial basis for determining the existence of probable cause"; and finally, when the warrant is so "facially

deficient" that an officer could not reasonably rely on it. Id. at 923.

We find that the good-faith exception to the exclusionary rule

should not apply in this case due to the "bare bones" nature of the

affidavit, and because the state magistrate could not have acted as

other than a "rubber stamp" in approving such an affidavit. See United

States v. Laury, 985 F.2d 1293, 1311 n.23 (5th Cir. 1993) (defining

"bare bones affidavit" as one that contains"wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause"). Proctor's use of

phrases such as "concerned citizen," "mature person" and "truthful

demeanor" to describe someone with whom she had had only limited

telephone conversations and no face-to-face contact cannot transform

this into anything other than a bare bones affidavit. This conclusion

is buttressed by her failure to provide any meaningful corroboration.

Although the United States argues that Proctor in fact took a number

of steps to corroborate the information in the tip, the Government

conceded at oral argument that because the only evidence presented

to the state magistrate was contained in Proctor's affidavit, Proctor's

additional efforts at corroboration--such as checking motor vehicles

records and using the Police Information Network to determine Wilhelm's prior drug activity--were irrelevant.

We follow the lead of two other Courts of Appeals in holding that

the Leon good-faith exception does not apply in the case of a bare

bones affidavit. In United States v. Leake, the Sixth Circuit, after finding that a warrant based only on an anonymous tip with scanty police

corroboration was unsupported by probable cause, declined to rely on

the good faith exception to the exclusionary rule. 998 F.2d 1359, 1367

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(6th Cir. 1993). The court found that the detective who sought the

search warrant did not act in good faith, because he knew that he

needed to provide corroboration of the tip, but did not. Id. The court

held that "[j]udged on objective criteria, a reasonably well-trained

officer `would have known that the search was illegal despite the

magistrate's authorization.'" Id.; see also United States v. Baxter, 889

F.2d 731, 734 (6th Cir. 1989) (refusing to apply the good faith exception where "the officer involved . . . had to realize that the source of

the information against defendant was an unknown party who was

unavailable and could not be demonstrated to be`reliable'").

The Fifth Circuit similarly found that Leon did not save a bare

bones affidavit unsupported by probable cause. United States v.

Barrington, 806 F.2d 529, 532 (5th Cir. 1986). A Mississippi police

officer obtained a search warrant by using an affidavit stating that he

had "received information from a confidential informant," known to

him, who had "provided information in the past that . . . led to arrest

and convictions." Id. at 531. The court found this warrant defective

because it failed to provide sufficient information to allow a neutral

determination of probable cause, and the police officer "had no good

faith reason to believe the magistrate had made a probable cause

determination." Id. at 532. The Fifth Circuit cited Leon's footnote 24,

and noted that "[i]f one cannot use a bare bones affidavit and then rely

on an ignorant colleague to conduct the search, he cannot himself

conduct the search based on his own bare bones affidavit." Id.; see

also United States v. Jackson, 818 F.2d 345, 350 n.8 (5th Cir. 1987)

(noting that although in that particular case the government offered no

evidence of police officers' good faith, "the good-faith exception to

the exclusionary rule is not available" in the case of a bare bones affidavit).

United States v. Edwards, 798 F.2d 686 (4th Cir. 1986), where we

applied the good-faith exception, is not to the contrary. The affidavit

in Edwards provided:

On Jan 21, 1985 an informant told Tony Dimeo and Jack

Elkins that he had been in the residence of Donald Leo

Edwards located near Gulf, N.C. within 24 hrs. of 1-21-85

and had seen a large quanity [sic] of a vegetable substance

know [sic] to him as marijuana. He has the ability to recon-

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gonnize [sic] marijuana from past experience. The informant

indicated that the marijuana may be moved by 4;00[sic]

AM on the [sic] 1-22-85 because the subject Donald Leo

Edwards is planning a trip. The informant stated that Donald

Leo Edwards has rent [sic] a vehicle bearing license # RE5549 a chevrolet Monte Carlo Green in color for this trip out

of state.

798 F.2d at 688. This affidavit is certainly not rich in detail. Although

we declined to determine its sufficiency, we did note that it contained

more than a bare bones recital of conclusory statements, and found

that the officer could reasonably rely on the warrant based on the evidence he had seen in investigating the case. Id . at 691.

In fact, minimal as it is, the Edwards affidavit contains far more

valuable information than the affidavit at issue here. Significantly, the

affidavit in Edwards, unlike that here, states that the informant had

indicated that the contraband "may be moved by 4:00 A.M." on the

next day because the suspect "was planning a trip" and the affidavit

stated the make, model, color, and license plate number of the car the

accused had rented to make "this trip out of state." Thus, the affidavit

in Edwards "provided the magistrate with a substantial basis for

determining the existence of probable cause," Leon, 468 U.S. at 923,

in a way that the affidavit at issue here does not. Indeed, the affidavit

in Edwards provided the magistrate with evidence that the suspect

might abscond with the contraband in the very near future and so

avoid punishment if the warrant was not issued. Nothing approaching

this information is provided in the present affidavit. At oral argument,

the government conceded that any affidavit less informative than that

in Edwards would not be entitled to the Leon good faith rule. The

affidavit here clearly is less informative than that in Edwards.

Moreover, and just as significantly, in Edwards the investigating

officers had presented information other than the affidavit to the

magistrate--information that the court found would have "without

question" established probable cause had it been included in the affidavit. Id. at 689-91. Of course, in the case at hand, Officer Proctor

provided no additional information of any kind, let alone information

that would in itself have provided probable cause, to the state magistrate.

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Other circuits have chosen to apply the good faith exception in

similar cases. For instance, the Eighth Circuit upheld the trial court's

determination--reviewed under a "clearly erroneous" standard--that

Leon's good faith exception applied. United States v. Gibson, 928

F.2d 250, 253 (8th Cir. 1991). That court held that suppression would

be appropriate if the officer issuing the warrant was misled by the

applicant's misrepresentation or knowing disregard for the truth. Id.

at 254. In other words, "[e]vidence should be suppressed only if the

affiant-officer could not have harbored an objectively reasonable

belief in the existence of probable cause." Id.; see also United States

v. Mendonsa, 989 F.2d 366, 369-70 (9th Cir. 1993) (officer who

"sought advice from county attorneys concerning the substantive

completeness of the affidavit" before submitting it to the magistrate

relied on the warrant's validity in good faith).

We believe, however, that Leon's rationale compels us to apply the

exclusionary rule in this case. The Leon Court crafted the good faith

exception because it believed that excluding evidence obtained when

a magistrate or judge errs in issuing a search warrant would have no

deterrent effect on those who issue warrants. 468 U.S. at 916. Moreover, the Court explained, the exclusionary rule"cannot be expected,

and should not be applied, to deter objectively reasonable law

enforcement activity." Id. at 919.

We believe that this is not a case of "objectively reasonable law

enforcement activity." Proctor could not reasonably rely on an

unknown, unavailable informant without significant corroboration.

Because Proctor presented to the magistrate nothing more than this

unreasonable reliance, the Supreme Court's third exception to Leon

applies: the affidavit here did not "provide the magistrate with a substantial basis for determining the existence of probable cause." While

perhaps not undertaken with deliberate bad faith, Proctor's use of

phrases such as "concerned citizen," "mature" and "truthful demeanor" strike this court as attempts to endue the affidavit with the

appearance of genuine substance; this tactic suggests that Proctor herself knew that probable cause was lacking, and thus that reliance on

the resulting warrant was not reasonable. In addition, the state magistrate appears to have acted as a rubber stamp in finding this affidavit

sufficient to establish probable cause. Therefore, the search warrant

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unsupported by probable cause is not saved by the Leon good-faith

exception.

III.

This search was unconstitutional because it was based upon a warrant unsupported by probable cause, and the police could not have

acted in good faith in relying on that warrant. We therefore reverse

the ruling of the court below denying Wilhelm's motion to suppress

and remand this matter to the district court for further proceedings

consistent with this opinion.

REVERSED AND REMANDED

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