U.S. v. Reddrick

• Decision Date: 25 July 1996
• Docket Number: No. 95-2965,95-2965
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lafayette REDDRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1276

90 F.3d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Lafayette REDDRICK, Defendant-Appellant.

No. 95-2965.

United States Court of Appeals Seventh Circuit.

Argued Feb. 7, 1996.

Decided July 25, 1996.

Judith A. Stewart, Joshua J. Minkler, (argued), Office of U.S. Atty., Indianapolis, IN, for Plaintiff-Appellee.

Linda M. Wagoner, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before CUMMINGS, CUDAHY, and EASTERBROOK, Circuit Judges.

PER CURIAM.

Following a jury trial, Lafayette Reddrick was convicted of possession of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), and of using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). Reddrick was sentenced to consecutive terms of 235 and 60 months, respectively, for these offenses.

Prior to trial, Reddrick moved to suppress evidence seized at his home and to suppress a statement he made to police following his arrest. The search was conducted pursuant to a search warrant, which Reddrick claimed was invalidly obtained. On appeal, Reddrick challenges the district court's denials of these motions. Reddrick also challenges the district judge's sentencing determination, presenting various arguments against the court's use of the crack guideline (rather than the guideline for powder cocaine) and complaining that the district court improperly enhanced his sentence for obstruction of justice. Finally, in a supplementary submission, Reddrick argues that his conviction for using or carrying a firearm during a drug trafficking crime must be reversed in light of the Supreme Court's recent ruling in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We vacate the firearm conviction but affirm in all other respects and remand the case to the district court for resentencing.

I. Factual Background

On April 28, 1994, police in Anderson, Indiana, obtained and executed a search warrant authorizing a search of Lafayette Reddrick's home for drugs. While the warrant was being obtained, Officer Cole watched Reddrick's house and saw someone enter at about 6:00 p.m. At about 6:30 p.m. several officers arrived at the home with the search warrant. Reddrick was arrested and the search carried out. The search uncovered a large quantity of cocaine, some of which was still cooking on the stove in a Pyrex mixing bowl, various drug paraphernalia and a number of unloaded firearms. The cocaine was later tested and government experts testified that 639.3 grams of cocaine base and 243.1 grams of cocaine hydrochloride (powder cocaine) had been recovered.

The search warrant was obtained based on information supplied by a confidential informant. The informant did not testify at the probable cause hearing or provide an affidavit. Instead, the warrant was issued based on the testimony of police officer Jeffrey Ash concerning the information obtained by the informant.

The evening Reddrick was arrested, he was interviewed at about 7:50 p.m. by police detective Faust. The parties disagree substantially about exactly what transpired during the interview. Both sides agree that Reddrick told Faust that he had used cocaine earlier that afternoon. Faust testified, however, that Reddrick did not appear to be under the influence of drugs at the time of the interview. Reddrick and the government agree that Reddrick was given a "waiver of rights" form, which he signed. Faust testified that he also read the form to Reddrick. Faust and Reddrick agree that Reddrick had some difficulty in reading the form because he did not have his glasses with him. However, Faust testified that Reddrick was apparently able to read the form without his glasses and that "[h]e did hold the document out from his face and did look at the document for several minutes. And at which time he said he was done reading the document...." Hearing Tr. at 14. After Reddrick signed the form, Faust questioned him concerning the drugs found in his house. Faust then typed up a statement, which Reddrick signed. The statement read, in part:

I am a cook, meaning that I cook powder cocaine and turn it into crack cocaine for several area people. People come to me and I cook their powder cocaine and turn it into crack and they give me money to do this. I have received anywhere from $200.00 to $2,000.00 for my services.

Reddrick App. at A-14. At the suppression hearing, though Reddrick did not deny that he cooked crack for a number of people in the area, he adamantly denied receiving money for doing so. The district court found Reddrick's testimony incredible and accepted Detective Faust's version of events.

II. Validity of the Search Warrant

Prior to trial, Reddrick moved to suppress the evidence obtained during the search of his residence and requested an evidentiary hearing on the matter. The motion alleged that the warrant was granted on the basis of insufficiently reliable information and that the information provided in support of the warrant contained knowingly false statements or statements made with reckless disregard for the truth.

A. Sufficiency of the Evidence of Probable Cause

The hearing to determine probable cause for the search warrant was quite brief. No affidavits were presented and the information supporting the warrant was provided only through the testimony of Officer Jeffrey Ash. The colloquy regarding probable cause proceeded as follows:

Prosecutor: Now are you familiar with the facts of which to support probable cause for this search warrant?

Ash: Yes sir.

Prosecutor: And is this a case that has been actively worked by you or by members of your department?

Ash: Yes sir it is.

Prosecutor: Would you please relate to Judge Phillipe just the facts that you believe support the probable cause?

Ash: I have, for the past couple off [sic] months, been working an investigation concerning a residence of this house of Lafayette Reddrick a/k/a Sonny. Three (3) purchases have been made from him, A felony amounts, and today the confidential informant, known to myself, who has been used and been reliable in the past, called at about 3:30 today and said that they had seen about 13 kilos of cocaine inside of the residence. They had been at the person's all evening and had just left there. We now have an officer sitting on the house and he hasn't seen another person leave and as far as I know he's still sitting there.

Prosecutor: You mentioned a confidential informant.

Ash: Yes sir.

Prosecutor: You say that you've used him in the past, can you give us some idea of how many times he's been used and whether or not he's in every case been reliable?

Ash: We've used the CI about 3 times that he's been involved with this guy right here.

Prosecutor: Okay.

Ash: All three times they've made a purchase from this gentleman.

Prosecutor: So all the information he's ever given you has been reliable?

Ash: Yes sir. Yes sir.

Reddrick App. at A-24-25.

The district court designated Magistrate Judge Kennard Foster to make a recommendation regarding the motion to suppress the seizure. Magistrate Judge Foster found that Ash's testimony adequately proved probable cause when assessed by evaluating the "totality of the circumstances" indicating that the informant's information is reliable. R. 25 at 11-12. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under Gates, "[a]n affidavit [of probable cause] must provide the magistrate with a substantial basis for determining the existence of probable cause, and [a] wholly conclusory statement ... fail[s] to meet this requirement." Id. at 239, 103 S.Ct. at 2332. Magistrate Foster based his reliability finding on: (1) the fact that the informant based his information on personal observation; (2) the fact that the informant identified the type and quantity of controlled substance observed and the location of the residence and (3) the informant's prior cooperation in three controlled buys from Reddrick. Thus, the magistrate concluded that "the level of detail provided by the informant--identification of the substance, the amount, his basis of knowledge, and the location--while minimal, is sufficient to supply probable cause." R. 25 at 14. The district court later adopted the magistrate's report and recommendation in its entirety. R. 29 at 5.

The task of an appellate court in reviewing the probable cause basis for issuance of a search warrant is "to determine whether there is substantial evidence in the record supporting the judge's decision to issue the warrant." United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir.1995). In Lloyd we recently reviewed some of the factors which suggest that an informant's information is sufficiently reliable to support the issuance of a warrant. These include: (1) firsthand observation by the informant; (2) degree of detail provided; (3) corroboration of the informant's information by an officer's independent investigation and (4) the fact that the informant testified at the probable cause hearing.

Here the evidence of reliability of the informant's information was sparse. While Officer Ash's testimony does report a firsthand observation of the drugs by the confidential informant, the informant apparently provided little detail regarding the drugs allegedly present in the house except for their quantity (which, in the event, turned out to be thirteen times too high). ¹ There was, of course, no corroboration of the informant's information, nor did the informant testify at the probable cause hearing. Magistrate Foster correctly noted that "[t]o the extent that Officer Ash states that the informant provided reliable information in the past, it is an unsupported conclusion which does not demonstrate probable cause," R. 24 at 13.

The sparse evidence in this case contrasts with the evidence of probable cause available in other cases in which we have held that a search warrant properly issued. In Lloyd, for example, which involved a...