U.S. v. Johnson
| Decision Date | 14 May 2002 |
| Docket Number | No. 01-3496.,01-3496. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jesse J. JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Daniel E. May (argued), Office of the U.S. Atty., Civ. Div., App. Sec., Chicago, IL, for Plaintiff-Appellee.
Ian Brenson (argued), LaGrange, IL, for Defendant-Appellant.
Before FLAUM, Chief Judge, and POSNER and ROVNER, Circuit Judges.
A federal grand jury indicted Defendant-Appellant Jesse J. Johnson for possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Johnson initially pled not guilty and moved to quash a search warrant that led to the evidence against him. After the district court denied the motion to quash, Johnson entered into an agreement with the government, pled guilty to Count I of the indictment (possession with intent to distribute), and reserved the right to appeal the district court's denial of his motion to quash. On appeal, Johnson challenges that ruling, as well as several sentencing determinations. For the reasons stated herein, we affirm.
On February 15, 2000, Officer David Jackson of the Joliet Police Department appeared before Associate Judge Daniel Rozak of the Will County Circuit Court to apply for a warrant to search Johnson's person, residence and automobile. In his application, Officer Jackson recited his experience as a police officer and described the general nature of his job responsibilities with the Metropolitan Area Narcotics Squad ("MANS"). Officer Jackson also included information obtained from a confidential informant ("CI") to whom Jackson referred as "Pat Doe" to maintain the CI's anonymity. The CI informed Jackson that Jesse J. Johnson, a black male, was manufacturing and selling cocaine. Officer Jackson asserted that the CI had "established reliability," and then relayed the facts that the CI had provided to him:
Pat Doe knows Jessie J. Johnson, and has been inside the residence located at 505 Amhurst [sic], Lockport, Illinois. Within the past 14 days, Pat Doe observed Jessie J. Johnson to have a quantity of a white chunky substance, suspected cocaine, inside this residence. Pat Doe knows that Jesse J. Johnson. [sic] intends on selling this cocaine. Pat Doe is familiar with cocaine because Pat Doe in the past has purchased, packaged, and sold cocaine. Pat Doe is familiar with the color, texture, and smell of cocaine from previous experience. Pat Doe also knows that Jesse J. Johnson. [sic] referred to this substance as being cocaine and mentioned that he intends to sell this cocaine as soon as possible to make a financial profit.
Officer Jackson corroborated the fact that Johnson was a black male individual born on the date specified by the CI. Officer Jackson also observed Johnson operate one automobile and determined that a second vehicle parked outside the residence at 505 Amherst was registered to Johnson.1
Both Officer Jackson and the CI appeared before Judge Rozak, at which time the CI took an oath and signed an affidavit mirroring the details contained in Officer Jackson's application. Despite the CI's appearance before Judge Rozak, the record is unclear regarding whether the Judge asked the CI any questions, whether the CI testified before the court, or whether Judge Rozak observed the CI's demeanor when swearing to the facts contained in the affidavit. Based upon the facts in the affidavit, Judge Rozak found probable cause and issued a warrant authorizing law enforcement to search Johnson's person, the residence at 505 Amherst and two vehicles. On February 18, 2000, Officer Jackson and other law enforcement officials executed the search warrant and found 544 grams of cocaine, approximately 164 grams of crack cocaine, a baking dish, a scale, and a loaded semi-automatic pistol on the top shelf of a utility closet in Johnson's home.
A federal grand jury returned a three-count indictment against Johnson, who initially pled not guilty and filed a motion to quash the search warrant and the evidence that resulted from the search. Johnson argued that Judge Rozak issued the warrant despite the absence of probable cause. After briefing and argument, the district court denied John son's motion. The district court stated that the CI's first-hand observations were sufficient to support a finding of probable cause. The district court also noted that the presence of the CI before the issuing magistrate, and the opportunity to testify, were sufficient indicia of reliability to foreclose concerns regarding the veracity of the CI's information. As a result, the district court held that the CI had provided reliable information that supported a finding of probable cause. Subsequent to the district court's ruling, Johnson entered into a plea agreement with the government whereby he pled guilty to Count I of the indictment (possession with intent to distribute) and reserved his right to appeal the district court's denial of his motion to quash.2
Johnson's plea agreement stated that on "February 18, 2000, the defendant knowingly and intentionally possessed about 544 grams of cocaine, about 164 grams of `crack' cocaine, a baking dish, a scale, and a loaded semi-automatic pistol that were located on the top shelf of a utility closet in the lower floor of his residence, 505 Amherst, Lockport Illinois." At the plea hearing, the government recited the facts contained in the plea agreement, and Johnson affirmatively stated that the facts were true and that he possessed "cocaine base and cocaine powder" when the officers searched his residence on February 18, 2000. When asked by the district court about the firearm discovered during the search, Johnson admitted that "there was a gun there." As a result, the district court enhanced Johnson's offense level for possession of crack cocaine (U.S.S.G. § 2D1.1(c)), as well as for possession of a firearm during a drug crime (U.S.S.G. § 2D1.1(b)(1)).
The final issue at sentencing concerned the probation officer's recommendation that the district court sentence Johnson based upon a Criminal History of IV and a total offense level of 33 points. Despite a plea agreement to the contrary, the probation officer suggested the addition of three points to Johnson's criminal history because Johnson received traffic supervision for driving on a revoked license (adding one point), and because Johnson committed the present offense while on traffic supervision (adding two more points). Johnson argued before the district court that the three-point adjustment overstated his criminal history, and he urged the district court to depart downward. The district court refused to do so, noting that driving on a revoked license was a "serious" charge. The district court stated:
I don't think it overstates the seriousness of the offense to say that someone who has violated the driving laws and lost their license and then is caught driving receives a term of supervised release, and therefore, that is a criminal justice sentence of sorts, and one of the conditions, at least in terms of federal law, is that if you commit a crime while under that sentence, you are going to be held responsible for that as if you were under supervision for some other offense.
The district court sentenced Johnson to 188 months in prison, which reflects the low end of the sentencing range, and Johnson appeals.
Johnson first argues that the district court should have granted his motion to quash because Judge Rozak issued the search warrant despite the absence of probable cause. Specifically, Johnson contends that the government was unable to establish the reliability or veracity of the CI because (1) the CI provided few details surrounding his interaction with the defendant, (2) the government corroborated only obvious details of the CI's information that did not support the court's finding of reliability, and (3) although the CI appeared before the issuing magistrate, there is no evidence in the record to suggest that Judge Rozak actually questioned the CI.
We review determinations of probable cause de novo. Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, we take great care "to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. In doing so, we are mindful that probable cause is not a precise legal concept, but rather a "commonsense, nontechnical" standard that deals with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). It is an inquiry that requires us to examine the "totality of the circumstances," Ornelas, 517 U.S. at 696, 116 S.Ct. 1657; Gates, 462 U.S. 213, 230-39, 103 S.Ct. 2317, 76 L.Ed.2d 527, and to recognize that a "search warrant affidavit establishes probable cause only when it `sets forth facts sufficient to induce a reasonable prudent person to believe that a search thereof will uncover evidence of a crime.'" United States v. Jones, 208 F.3d 603, 608 (7th Cir.2000) (quoting United States v. McNeese, 901 F.2d 585, 592 (7th Cir.1990)).
Examining a finding of probable cause based upon information provided by a CI presents unique challenges, such as determining whether the government has established the CI's reliability, veracity and basis of knowledge. When the credibility of a CI is at issue, our prior cases instruct us...
To continue reading
Request your trial
-
Jennings v. U.S.
...with respect to the issue of whether the substance Jennings was convicted of distributing was crack cocaine. See United States v. Johnson, 289 F.3d 1034, 1041 (7th Cir.2002) (a defendant's admissions in a plea agreement and his statements during several status hearings provided an "ample ba......
-
People v. Kornegay
...before the issuance of the warrant, even if no evidence was presented that the informant was actually questioned. United States v. Johnson, 289 F.3d 1034, 1037 (7th Cir.2002).¶ 31 In Johnson, a police officer and a confidential informant appeared in court before the judge who issued the sea......
-
People v. Wise
...before its issuance, even though no evidence was presented that the informant was actually questioned. United States v. Johnson , 289 F.3d 1034, 1037 (7th Cir. 2002). The informant "took an oath and signed an affidavit mirroring the details" in the police officer's application for the warra......
-
Cooper v. United States
...and degree of detail, as well as the ability of the police to corroborate the information." Id. (citing United States v. Johnson, 289 F.3d 1034, 1038-39 (7th Cir. 2002)). "In determining whether there is a probable cause to search, law enforcement officers may draw reasonable inferences fro......