*

The Honorable Sandra S. Beckwith, 

the Southern District of Ohio, sitting by 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

GARNETT L. TUTTLE and

LARRY SETTLE,

Defendants-Appellees.

Appeal from the United St

for the Eastern District of K

No. 97-00020—Jennifer B. Co

Argued: Decembe

Decided and Filed: Ja

Before: MERRITT and SIL

BECKWITH,

*

 Dis
2 United States v. Tuttle, et al. No. 98-5575

1A second superseding indictment was ultimately returned which

added several counts to the original indictment, including one conspiracycount in violation of 18 U.S.C. § 371, fourteen counts of possession withintent to dispose of motor vehicles and parts with altered VINs inviolation of 18 U.S.C. § 2321, fourteen counts of altering or removingVINs from motor vehicles or parts in violation of 18 U.S.C. § 511(a), andtwo counts of possession of drugs in violation of 21 U.S.C. § 844(a).

_________________

COUNSEL

ARGUED: David Bunning, OFFICE OF THE U.S.ATTORNEY, Covington, Kentucky, for Appellant. David A.Tapp, Somerset, Kentucky, Thomas L. Jensen, London,Kentucky, for Appellees. ON BRIEF: David Bunning,OFFICE OF THE U.S. ATTORNEY, Covington, Kentucky,for Appellant. David A. Tapp, Somerset, Kentucky, ThomasL. Jensen, London, Kentucky, for Appellees.

_________________

OPINION

_________________

MERRITT, Circuit Judge. In this criminal case in which

the defendants were indicted for operating an auto “chopshop” in violation of 18 U.S.C. § 2322,1 the government

appeals the district court’s grant of the motion of the twodefendants to suppress evidence seized under three searchwarrants found by the district court to lack probable cause. Inadopting the report and recommendation of the magistratejudge, the district court held that the first warrant was basedupon a “bare bones” affidavit that relied on insufficientindependent police investigation and an anonymousconfidential informant whose reliability was not established.The second warrant was likewise held by the district court tobe factually deficient, and the second and third warrants wereheld to be tainted under the “fruit of the poisonous treedoctrine” because each warrant relied on information acquiredduring the first, but subsequently invalidated, search. We do
6 United States v. Tuttle, et al. No. 98-5575

Supervised Release for Interstate Transportation of StolenMotor Vehicles. 

Accordingly, for the foregoing reasons, the judgment of the

district court invalidating the three search warrants andsuppressing the seized evidence is REVERSED and the caseremanded for further proceedings consistent with this opinion.

No. 98-5575 United Snot agree with these rulings becausby the confidential informant winformation which together waprobable cause under the Fourth A

* * *

On March 7, 1999, Kentucky S

Riley inspected a rebuilt pickup trufrom an auto sales store in Londonlong experience in investigating inspection revealed to him a truck Detective Riley then learned from truck had been rebuilt for it by co-

Detective Riley immediately c

investigation that included an intpolice officer who had receiveunidentified confidential informansales shop was currently selling cwith stolen parts by Tuttle at a gproperty owned by co-defendant Lsaid that Tuttle’s work was ongoinusing the same place to rebuild oparts. The London city police offihe had received information withinformant’s information was still c

Detective Riley memorialized th

an affidavit submitted to a Kentucissued a search warrant on March Kentucky State Police to search a property owned by Settle and leasefound that probable cause existed was being used to house an illegaoperation. While executing the wathe state police found and seized nbe stolen property or evidence oautos, auto parts, VIN plates, boxand small amounts of marijuana and as contraband in plain view of the 
4 United States v. Tuttle, et al. No. 98-5575

Based in part upon information obtained during the earlier

search, the state court issued a second search warrant laterthat same day authorizing the search of a gray garage ownedand controlled solely by Settle located on the same propertynear the white garage. Although nothing was seized from thegray garage, the state police observed a pickup truck withsuspicious parts. Finally, several days later, a third and lastsearch warrant was issued authorizing a search of both thewhite and gray garages. The state police found and seizedadditional auto parts, as well as other items believed to bestolen property and evidence of crimes. 

The magistrate’s report relied on by the district court to

suppress the seized evidence characterized the affidavit insupport of the first search warrant as lacking probable causebecause there was nothing in the first paragraph of theaffidavit that linked the white garage with any criminalactivity or contraband. The paragraph only indicated that theseized truck was suspected of containing stolen parts and thatit had been rebuilt by Tuttle. Furthermore, the magistratefound the second paragraph of the affidavit to be “fatallyflawed” because it failed to establish the credibility of theconfidential informant relied upon by the state police, as wellas failed to provide any independent corroboration of theinformation relayed by the informant. The magistrateapparently believed that the affidavit for the warrant wasinsufficient under the rule of Illinois v. Gates, 462 U.S. 213

(1983), that an uncorroborated tip of an anonymous informantis insufficient to establish probable cause. 

* * *

We have previously held that information received from an

informant whose reliability is not established may besufficient to create probable cause when there is someindependent corroboration by the police of the informant’sinformation. See United States v. Weaver, 99 F.3d 1372,

1377 (6th Cir. 1996); United States v. Leake, 998 F.2d 1359,

1365 (6th Cir. 1993). The error made by the magistrate in thiscase was in concluding that probable cause for the search did

No. 98-5575 United Snot exist because the basis for tinformation provided by the anoreliability was questionable. The inin Detective Riley’s affidavit rebuilding cars with stolen parts in were in fact corroborated. Prior Detective Riley had independenLondon auto sales shop on March 7 with what appeared to be stolassembled for the shop by Tuttle. within Detective Riley’s knowindependent corroboration of information the informant relayed rebuilding trucks with stolen partSettle. The information from the ingarage to the seized truck was not clearly stated that, as of the previofrom the informant was that the wongoing.

In light of the above discussion fi

was valid, the second and third sconstitutional scrutiny because ansubsequent warrants can no longer the poisonous tree.” The court bheld that the affidavit in support of lacked a sufficient factual basis to First, the second affidavit indicatpoliceman observed Settle leavinproperty (where numerous auto pwere found and seized) immediatefirst search warrant. Second, brelating to the purchase of auto paTuttle’s business records seized by garage. Third, the affidavit indiowned the white garage and had a garage was within several feet of thsame property. Fourth, the affidprior federal conviction and w