673 F.3d 688 (7th Cir. 2012), 11-1038, United States v. Miller

Docket Nº:11-1038.
Citation:673 F.3d 688
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Shariff MILLER, Defendant-Appellant.
Attorney:Samuel B. Cole (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee. Peter B. Allport (argued), Joshua T. Buchman, Attorneys, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before EASTERBROOK, Chief Judge, HAMILTON, Circuit Judge, and MYERSCOUGH, District Judge.[*]
Case Date:March 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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673 F.3d 688 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Shariff MILLER, Defendant-Appellant.

No. 11-1038.

United States Court of Appeals, Seventh Circuit.

March 12, 2012

Argued Oct. 25, 2011.

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Samuel B. Cole (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Peter B. Allport (argued), Joshua T. Buchman, Attorneys, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, HAMILTON, Circuit Judge, and MYERSCOUGH, District Judge.[*]

HAMILTON, Circuit Judge.

In April 2008, acting on a tip from a confidential informant, police obtained a search warrant and then raided a home where defendant Shariff Miller and several other people were staying. After apprehending Miller on his way out the side door, police searched the house and found several guns and a quantity of crack cocaine. The cocaine and a pistol were

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found close to some of Miller's personal effects in a room where he was alleged to be staying. Miller was tried and convicted of three offenses: possessing more than five grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug crime in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced to a total of twenty years in prison.

Miller appeals his convictions and raises three issues. First, he asserts that the search warrant was issued without probable cause because it was based on only uncorroborated, bare-bones information from an informant of unknown reliability. We pass over the issue of probable cause itself and conclude that the district court did not err by denying Miller's motion to suppress. The officers could rely in good faith on the judge's issuance of the search warrant. Second, Miller objects to the introduction at trial of evidence of his possession, two months earlier, of the same pistol the police found in the search. The district court did not abuse its discretion under Federal Rule of Evidence 404(b) by admitting this evidence of Miller's recent prior possession of the same pistol he was charged with possessing.

The third issue, however, requires reversal of two of Miller's convictions and a remand for re-sentencing on the third. At trial, the prosecution used Rule 404(b) to admit evidence that Miller had been convicted in 2000 of felony possession of cocaine with intent to distribute it. We conclude that admission of the details of Miller's prior drug conviction violated the character evidence prohibition of Rule 404(b) and was an abuse of discretion. In light of Miller's defense, details about his prior conviction could have served only to suggest to the jury that Miller possessed drugs with intent to distribute in 2008 because he had possessed drugs with intent to distribute in 2000. Use of a prior drug distribution conviction to prove intent to distribute is often a disguised use for impermissible propensity purposes, and was so here. We have often warned about the dangers of applying the exceptions in Federal Rule of Evidence 404(b) too loosely to admit prior bad acts, especially in drug cases, without paying close attention to both the legitimacy of the purpose for which the evidence is to be used and the need for it. See, e.g., United States v. Beasley, 809 F.2d 1273, 1277-80 (7th Cir.1987). Those admonitions bear repeating here, as we explain in the third part of this opinion. We reverse Miller's conviction on the charge of possessing crack cocaine with intent to distribute and on the related charge of possessing a firearm in furtherance of a drug trafficking crime. Miller's conviction for being a felon in possession of firearms is affirmed because it was supported by separate evidence and was not tainted by the impermissible propensity evidence. We remand for a new trial on the drug-related charges and for re-sentencing on the felon-in-possession charge.

I. The Search Warrant

Miller first argues that the warrant to search him and the house was not supported by probable cause, so that none of the evidence later used against him was lawfully obtained. When a judge receives an application for a search warrant, the judge's task is to make a practical, common-sense decision about whether the evidence in the record shows a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Curry, 538 F.3d 718, 729 (7th Cir.2008); see generally Illinois v. Gates, 462 U.S. 213, 240-41, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A court reviewing an

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initial finding of probable cause to support the search warrant does not decide the question of probable cause de novo but gives " great deference" to the issuing judge's determination so long as the judge had a " substantial basis" for the finding. Gates, 462 U.S. at 236, 103 S.Ct. 2317; accord, United States v. McIntire, 516 F.3d 576, 578 (7th Cir.2008). We do not defer to the district court's application of the same standard of review to the issuance of the warrant. McIntire, 516 F.3d at 578.

Without deciding whether that " great deference" is enough to save the finding of probable cause here, we hold that the district court properly denied Miller's motion to suppress because the officers executed the warrant in good-faith reliance on its issuance by the state court. See United States v. Peck, 317 F.3d 754, 757-58 (7th Cir.2003), citing United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We review de novo a district court's finding that the good-faith exception of Leon applies to a particular warrant. E.g., United States v. Bell, 585 F.3d 1045, 1052 (7th Cir.2009).

In Leon, the Supreme Court held that even if a search warrant was invalid because the supporting affidavit failed to support a finding of probable cause, evidence seized in executing the warrant should not be suppressed if the police officers relied in good faith on the judge's decision to issue the warrant. 468 U.S. at 922-23, 104 S.Ct. 3405. A police officer's decision to obtain a warrant is treated as prima facie evidence that the officer was acting in good faith. United States v. Garcia, 528 F.3d 481, 487 (7th Cir.2008). A defendant can defeat the good-faith exception to the exclusionary rule by showing (1) that the issuing judge abandoned the detached and neutral judicial role; (2) that the officer was dishonest or reckless in preparing the affidavit; or (3) that the warrant was so lacking in probable cause that the officer could not reasonably rely on the judge's issuance of it. Id.; see also Leon, 468 U.S. at 923, 104 S.Ct. 3405. There is no indication here that the issuing judge merely rubber-stamped the affidavit or that the officer preparing the affidavit was dishonest or reckless. The question of good faith here turns on whether the warrant was so facially deficient that an officer could not reasonably rely on it.

In applying Leon here, it is useful to compare the affidavit supporting this warrant to the affidavits in dispute in Garcia and Peck, which were based on similar information from confidential informants. In Peck, the informant said that she had been in the defendant's apartment in the past two days and had seen " large amounts" of substances wrapped for sale, and that the defendant had told her the packages contained crack cocaine and marijuana he planned to sell. The informant told the police that she wanted to punish the defendant because he was not paying for diapers for their child and because he was dealing drugs. 317 F.3d at 755. The affidavit provided no details about where the drugs were hidden, quantities, how often the defendant sold drugs, or even the defendant's appearance. Nor did it explain how the informant knew the substances were drugs or why she should be deemed reliable, and the police did virtually nothing to corroborate her information. Id. at 756-57. Like the informant in Miller's case, the informant in Peck also appeared before the issuing judge to swear that the affidavit was true but did not provide any additional testimony. We found in Peck that the affidavit failed to establish probable cause for the search warrant.

In Garcia, an informant told police that he had been inside the defendant's apartment

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in the last 72 hours and had seen a substance he believed was cocaine in a plastic bag in the living room. The affidavit explained that the informant recognized cocaine because he had sold it in the past, and the informant had provided reliable information to police in the past. 528 F.3d at 486. The affidavit lacked many other details that might be expected, and it used a printed form that included mistakes and omitted other information. We concluded " with some reservation" that the affidavit was sufficient, given the great deference shown to the issuing judge's decision. Id.

The affidavit supporting the search of Miller's house here said that the informant (1) had been in the residence within the 72 hours; (2) had seen four " larger plastic bags containing several smaller plastic baggies each with an amount of a white rock-like substance" ; (3) knew that the substance seen was consistent with the " look, packaging and texture of Cocaine" ; (4) had seen cocaine over a hundred times before; and (5) had seen cocaine in the same residence on a few occasions over the last month. Although the affidavit identified and generally described Miller, it left some ambiguity about whether that identification was made by the informant or through other means. There...

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