United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
Defendant Michael Radovick moves to suppress evidence obtained during the search of a house in Gary, Indiana. [DE 29]. He makes two arguments. First, the search warrant did not actually authorize the search of the house. Whoever typed up the warrant forgot to list the house as the place to be searched, so Radovick argues the warrant fails the Fourth Amendment's particularity requirement. Second, he argues the warrant affidavit failed to establish probable cause. The affidavit was based solely on the information from a recently arrested informant who Radovick argues was too untrustworthy to be believed. I held a hearing on the motion on February 14, 2014 where both sides presented their arguments. Because I agree that there was no probable cause for the search, Radovick's motion is GRANTED.
The affidavit in support of the warrant is confusing and poorly written. The description of the facts as set forth below is my best effort to fairly summarize the contents of the affidavit (DE 29-1).
At 3:29 a.m. on September 9, 2013, police dispatch sent Hammond Police Officers David Pardonek and E. Salazar to the scene of a home invasion. Once the officers arrived, the victim told them that he was in bed when he heard a noise outside. He got out of bed and went outside to investigate. When he got outside, he saw a Hispanic male opening the screen door at the back of his house and another Hispanic male opening the sliding door on the other side of the house. The victim ran back inside, got a gun, and walked over to the sliding door. The suspect at the door saw this and pointed a handgun at him. In response, the victim fired his own gun several times. The suspect fled, and the victim waited for police to arrive. He reported that the burglars had stolen a gold chain, a laptop computer, and a.38 caliber handgun.
He then told police that his house had also been broken into at 10:00 a.m. the previous day, September 8, 2013. That time, the burglars had stolen two guns and house keys. He told police that, during the September 8 burglary, his neighbor had seen an older-model gold Ford Taurus in his driveway and that the same car had left the scene after the just-completed burglary.
While they were completing their offense report, Officers Salazar and Pardonek noticed a Hispanic male, who fit the description of a suspect, skulking between houses in the neighborhood. Officer Pardonek saw the man, later identified as Jason Vasquez, walking towards a gold Mercury Sable, which was a dead-ringer for the late-model Taurus described by the neighbor. After Pardonek detained Vasquez, the victim positively identified Vasquez as the person trying to break in to his house by the sliding door.
Vasquez was taken to an interview room at the police station where, after waiving his rights, he began to tell police about the burglary. Vasquez said the burglary was committed by a man he called "Pug." According to Vasquez, Pug had told him that the victim owed him money, and Pug wanted Vasquez to help him collect. Vasquez said that he drove Pug to the house and dropped him off. Pug came back some time later with a laptop computer and a small duffel bag. They then drove to some railroad tracks where Pug got out of the car and picked up a shotgun and a pistol. Vasquez says that he drove Pug back to Pug's house. Once there, Pug took the shotgun, pistol, and duffel bag into his house and gave Vasquez the laptop as "collateral."
As I'll explain below, there is some confusion about whether Vasquez was describing what had happened on September 9th before he got caught or whether he was describing what had happened on September 8th. For now, I'll just note that, according to the affidavit, Vasquez said that "he along with Pug' were involved in this burglary." (DE 29-2 at 2) (emphasis added). The paragraph immediately preceding that sentence says that the victim identified Vasquez as the person who he saw breaking into his house at 3 a.m. on September 9th. So I read "this burglary" as referring to the September 9th incident, meaning Vasquez is describing what happened that day.
After some more questioning, Vasquez revealed that Pug's real name was Michael Radovick. An officer showed Vasquez an unidentified photograph, and Vasquez confirmed that it was a photo of the person he knew as Pug. Presumably this was a photograph of Radovick though that's not clear from the affidavit. Vasquez then accompanied an officer to point out the house where he had dropped Radovick off with the stolen items. The address was 2354 Sherman Street, Gary, Indiana.
Lieutenant Mark Detterline filled out the affidavit on September 9, 2013, asserting that probable cause existed to search the house at 2354 Sherman Street and to seize Radovick, the gold chain, laptop, keys, the.38 caliber handgun, jewelry and the fruits of instrumentalities of burglary. Judge Jeffrey A. Harkin of the Hammond City Court issued the warrant that same day at 7:00 p.m.
The search warrant itself is entirely confusing. It fails to mention the place to be searched at all. In other words, it doesn't say anything about 2354 Sherman Street. Instead, oddly, it says that the officers were authorized to "search" the items described above - i.e. the gold chain, the keys, the jewelry etc. How one goes about searching, for example, a "gold chain" is not entirely clear. Undoubtedly, this was an error. Those were the items to be seized, not searched. In any event, what is clear, is that the warrant fails to mention the Sherman Street address at all. But search it they did, and in doing so the police found the stolen handgun and some other items as well (DE 1).
Radovick makes two arguments for suppression. He argues that warrant fails the particularity requirement because it did not authorize a search of the house. I'll tackle that argument first and then turn to his other argument: ...