U.S. v. Bell

• Decision Date: 05 November 2009
• Docket Number: No. 07-3806.,07-3806.
• Citation: 585 F.3d 1045
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. LC BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

585 F.3d 1045

UNITED STATES of America, Plaintiff-Appellee, v. LC BELL, Defendant-Appellant.

No. 07-3806.

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2008.

Decided November 5, 2009.

Timothy A. Bass, Attorney, Office of the United States Attorney, Springfield, IL, Richard N. Cox (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee.

Robert A. Alvarado, Attorney, Andrew J. McGowan, Attorney (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before MANION, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

After receiving information from confidential informants indicating that LC Bell was involved in the sale of crack cocaine, law enforcement officers from the East Central Illinois Task Force obtained and executed a warrant to search Bell's residence. There, they found crack cocaine and two handguns. Bell moved to suppress the evidence obtained during the search, arguing that the warrant was not supported by probable cause. The district court concluded that although a close call, the affidavit submitted in support of the search warrant established probable cause. We disagree. Because the affidavit failed to establish the reliability of the informants, and the law enforcement officers did not sufficiently corroborate the informants' reports, the warrant was not supported by probable cause. Nevertheless, the evidence is admissible under the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Therefore, we affirm the district court's denial of Bell's motion to suppress. However, we order a limited remand for the district court to determine if it would have issued a different sentence in light of its new-found discretion under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

I. BACKGROUND

For several months, Inspector Jeff Endsley and other agents from the East Central Illinois Task Force conducted an investigation into the sale of crack cocaine in Coles County, Illinois. During this investigation, they arrested several individuals, some of whom identified Bell as someone involved in the sale and delivery of crack cocaine. Inspector Endsley also received similar reports from other individuals who were acting as "confidential sources" for the task force.

Sometime later, an informant referred to as Rob Hale (an assumed name) told Inspector Endsley that he had "just left" Bell's residence, where he saw an undisclosed amount of crack cocaine in two plastic bags and a large sum of cash on a table in the living room. Hale said that he was able to identify the substance on the table because he had seen crack cocaine before and he "was aware of what [it] looked like." Hale described the location of Bell's apartment as "the only apartment on the east end of the building at 1601 9th street in Charleston, Illinois" and mentioned that, on previous occasions, he had seen crack cocaine there along with a handgun concealed underneath the couch. Hale also stated that Bell had threatened to physically harm others with the gun and had loaned the gun to others to threaten people. Inspector Endsley checked Bell's criminal history and verified that Bell had previous arrests and convictions for armed robbery and for violations of the Illinois Controlled Substances Act.

Shortly after speaking with Hale, Inspector Endsley submitted an affidavit to a Coles County Circuit Court judge containing all of the information gathered during the investigation. The judge issued a "no knock" warrant to search Bell's apartment and, on February 22, 2007, officers from the task force (led by Inspector Endsley) executed the search warrant for Bell's residence. There they recovered 36 grams of crack cocaine and two handguns. As a result, Bell was charged with knowingly possessing five grams or more of a mixture and substance containing cocaine base ("crack") with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and with unlawful possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Bell filed a motion to suppress the evidence obtained from his apartment, which the district court denied. On June 26, 2007, Bell pled guilty to possession of more than five grams of cocaine base with intent to distribute and possession of a firearm by a felon, but reserved the suppression issue for appeal. The district court sentenced Bell to 150 months' imprisonment and eight years of supervised release on the drug count, and 120 months' imprisonment and three years of supervised release on the firearm count, to run concurrently. Bell now appeals the denial of his motion to suppress the evidence seized from his apartment.

II. ANALYSIS

A. No Probable Cause

An affidavit establishes probable cause to support a search warrant when it sets forth sufficient evidence to convince a reasonable person that a search will uncover evidence of the alleged crime. United States v. Carmel, 548 F.3d 571, 575 (7th Cir.2008). When, as here, the affidavit is the only evidence provided to the judge in support of the search warrant, the validity of the warrant rests solely on the strength of the affidavit. United States v. Peck, 317 F.3d 754, 755 (7th Cir.2003).

Further, when an informant supplies the facts in the affidavit, the probable cause determination will also turn on the informant's credibility. United States v. Olson, 408 F.3d 366, 370 (7th Cir.2005). Some of the factors to consider in making this determination are: (1) the extent to which police corroborated the informant's statements; (2) the degree to which the informant acquired knowledge of the events through first-hand observation; (3) the amount of detail provided; and (4) the interval between the date of the events and the police officer's application for the search warrant. United States v. Koerth, 312 F.3d 862, 866 (7th Cir.2002). We also consider whether the informant personally appeared and testified before the issuing judge, thus allowing the judge to assess his credibility. United States v. Sims, 551 F.3d 640, 644 (7th Cir.2008). No one factor is dispositive, so a deficiency in some areas can be compensated by a stronger showing in others. United States v. Taylor, 471 F.3d 832, 840 (7th Cir.2006) (citing United States v. Brack, 188 F.3d 748 (7th Cir.1999)).

Ultimately, the issuing judge must "make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We must afford great deference to the issuing judge's determination, but we review de novo the district court's legal conclusion that the warrant was supported by probable cause. United States v. Millbrook, 553 F.3d 1057, 1061 (7th Cir. 2009).

Inspector Endsley's affidavit relies heavily on Hale's accounts, stating, in part that Hale saw crack cocaine on a living room table and that he also described the location of Bell's apartment. Still, the affidavit fails to provide any information to establish Hale's reliability. The affidavit did not indicate whether Hale had provided information to law enforcement in the past, see, e.g., United States v. Sidwell, 440 F.3d 865, 869 (7th Cir.2006) (noting that although officer's monitoring of informant during controlled buy was imperfect, informant's history of providing accurate and reliable information in the past was persuasive in determining whether informant's controlled buy established probable cause), nor did it give any information about the nature of Hale's relationship with Bell. In other words, we have no idea how Hale and Bell knew each other or what Hale was doing at Bell's apartment. For all we know, Hale could have been a rival drug dealer, an angry customer, or had some other beef with Bell, which is certainly a factor to consider when assessing the reliability of his statements. On the other hand, with additional details, a judge could have determined, based on the nature of their relationship, that Hale had reason to know what was inside Bell's apartment, which would have provided another indicator of reliability. See Peck, 317 F.3d at 758 ("[the informant's] relationship with [the defendant] may have made her story more credible because, as someone close to [the defendant] she was more likely to know that drugs were in the house. . . ."). Hale also did not appear before the issuing judge, which would have given the judge an opportunity to assess his credibility. See Sims, 551 F.3d at 644. Based on the information provided in the affidavit, we have little reason to believe that Hale, Inspector Endsley's primary informant, is reliable.

The amount of detail in the affidavit also leaves much to be desired. It gave no indication of the amount of crack cocaine in Bell's apartment, but simply relied on Hale's statement that there were two "plastic baggies" on a living room table. This could mean that Hale saw a couple of dime bags ($10 bags of drugs, which may be for personal use and are less likely to be found a day later) or a much larger stash that may have been for sale. It is also unclear how Hale was able to identify the substance on the table as crack cocaine, as all the affidavit says is that "Hale has seen crack cocaine in the past and . . . [knows] what [it] looks like." This conclusory explanation is not enough to instill confidence in an informant's observations. See Peck, 317 F.3d at 757 (finding that informant's statements lacked sufficient detail where informant stated that she recognized the substances as drugs based on her "personal experiences"). As for the gun under the couch, we have no idea...