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Search & Seizure – Affidavit – Informant Reliability – Good Faith Exception

Although defendant contends a search warrant affidavit did not establish probable cause because it did not demonstrate the reliability of a confidential informant, a Roanoke U.S. District Court denies the motion to suppress drug evidence under the Leon good faith exception.

Defendant claims there is nothing to corroborate the CI’s alleged statement against his penal interest, there was no testing of the alleged cocaine seized from the CI, and only the suspect’s statement, not the CI’s observation, supports the belief that cocaine would be found inside the residence.

This court concludes the question of probable cause is a close one, but only as it relates to the credibility of the CI, and a close question as to whether a warrant is based on probable cause is not grist for the exclusionary rule.

The CI claimed to have purchased from an occupant inside the residence within the past 72 hours a substance the CI identified as cocaine. The informant is not an anonymous tipster but a person known to police. The informant’s statements are ostensibly against the informant’s penal interest, an important consideration in judging his credibility. The magistrate had before him facts he could have considered substantial and important in concluding the supporting affidavit established the credibility of the informant. There is nothing to suggest the issuing magistrate wholly abandoned his judicial role, as defendant contends.

Also, the circumstances supporting the court’s conclusion that the magistrate did not abandon his judicial role also support the conclusion that the warrant is not so lacking in indicia of probable cause to render official belief in its existence unreasonable.

The court denies the motion to suppress.

U.S. v. Hurdle (Wilson, J.) No. 7:08cr00018, Aug. 14, 2008; USDC at Roanoke, Va. VLW 008-3-312, 7 pp.

VLW 008-3-312

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