U.S. v. Skinner

• Decision Date: 10 September 1992
• Docket Number: No. 91-2910,91-2910
• Citation: 972 F.2d 171
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jarold SKINNER, a/k/a Jeff Thomas, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 171

972 F.2d 171

UNITED STATES of America, Plaintiff-Appellee, v. Jarold SKINNER, a/k/a Jeff Thomas, Defendant-Appellant.

No. 91-2910.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1992.

Decided Aug. 19, 1992.

Rehearing Denied Sept. 10, 1992.

K. Tate Chambers, Asst. U.S. Atty., Peoria, Ill., Rodger A. Heaton, Asst. U.S. Atty., Springfield, Ill. (argued), for plaintiff-appellee.

Thomas R. Iben, Peoria, Ill. (argued), for defendant-appellant.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and NOLAND, Senior District Judge. ^*

JAMES E. NOLAND, Senior District Judge.

This is a direct criminal appeal in which defendant-appellant Jarold Skinner, a/k/a Jeff Thomas (hereinafter "Skinner"), challenges the district court's rulings (both initially and on reconsideration) on his Motion to Quash and Suppress, and on his Motion requesting a Franks Hearing. We affirm.

I. BACKGROUND

On February 13, 1990, the Drug Enforcement Administration (DEA) office in Springfield, Illinois, received an anonymous three page letter which described, in detail, a marijuana distribution organization which was then operating in the Peoria, Illinois area. ¹ The letter indicated how the organization smuggled marijuana from Mexico (where it was allegedly supplied by Mexican federalies) through Tucson, Arizona, to Peoria, Illinois, and the roles of the individuals involved, and included an organizational flow chart. One of the individuals implicated in the letter was defendant-appellant Jarold Skinner (hereinafter "Skinner").

On March 12, 1990, Drug Enforcement Administration (DEA) Agent Thomas E. Kelly filed a fourteen page Application and Affidavit for Search Warrant. In the Affidavit, which contained descriptions of the three residences which Agent Kelly and the other agents sought to search and the items they sought to seize, Kelly set out the contents of the letter in separate paragraphs and described the DEA's efforts to corroborate the same. Kelly also described his experience as a law enforcement officer and his knowledge of marijuana traffickers' behavior.

On the same day, United States Magistrate Judge Robert J. Kauffman reviewed Agent Kelly's Application and Affidavit for Search Warrant(s). Magistrate Judge Kauffman issued three search warrants including the Warrant to search Skinner's residence located at 1629 Bourland Avenue, Peoria, Illinois. The Search Warrant contained a recital that the judicial officer who had issued the Warrant was satisfied that the affidavit and any recorded testimony "establish[es] probable cause to believe that the ... property so described is now concealed on the ... premises above-described and establish[es] grounds for the issuance of this warrant." The Warrant authorized Agent Kelly and any authorized officer of the United States to search for evidence, fruits and instrumentalities of illegal trafficking in controlled substances as more fully described in an attachment to the Warrant.

The address of the residence to be searched was set out in the Search Warrant. The residence was further described as follows A one-story white house with pink gables, facing east. This house has a detached one-car garage, also facing east. The garage is southwest of this house. The address '1629' is displayed on the front of the house.

On March 14, 1990, the above-described search warrants were executed. During the search of Skinner's residence, the agents discovered twenty-nine pounds of marijuana (in thirty-seven bags) and various drug paraphernalia. Skinner was questioned following the search. At that time, he admitted his involvement in the distribution of marijuana, stating that he usually dealt in five to ten pound quantities.

On August 23, 1990, Skinner was indicted by a federal grand jury. He was charged with possession with the intent to distribute marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). Skinner was arrested on September 13, 1990.

On October 24, 1990, Skinner's trial counsel (now his appellate counsel), filed a Motion to Quash and Suppress. Skinner alleged in the Motion that the Search Warrant should be quashed and the evidence obtained during the search suppressed because the Warrant was insufficient on its face, neither the search of the residence nor his arrest were supported by probable cause, and the Warrant was otherwise violative of his Constitutional rights. On November 2, 1990, Skinner filed his "Memorandum Re: Affidavit for Warrant." On November 5, 1990, District Judge Michael M. Mihm conducted a hearing on Skinner's Motion. During the hearing, the parties based their arguments regarding probable cause on Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Judge Mihm denied Skinner's Motion the same day finding that while it was "very close," Agent Kelly's affidavit presented sufficient facts for the Magistrate Judge to issue the Warrant based upon his conclusion that probable cause existed.

On November 26, 1990, Skinner filed his Joint Motion to Reconsider the denial of his Motion to Quash and Suppress, and his "Motion to Suppress--Franks." In his "Motion to Suppress--Franks," Skinner drew the district court's attention to information contained in the Search Warrant which he alleged was erroneous. He urged the Court to conduct a Franks hearing to determine whether Agent Kelly's affidavit contained false information. In his Joint Motion to Reconsider, Skinner made reference to the United States Supreme Court's decision in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), which was handed down on June 11, 1990, following the issuance of the Search Warrant. The government responded to the Motion to Reconsider in due course.

On December 14, 1990, the Court conducted a second hearing, at the conclusion of which it denied both of Skinner's motions. Citing the United States Supreme Court's recent decision in Alabama v. White, Judge Mihm vacated his previous probable cause ruling and found that although probable cause did not exist, the officers reasonably and in good faith relied upon the Warrant which had been issued by the Magistrate Judge. Judge Mihm vacated his previous probable cause ruling because he interpreted Alabama v. White as requiring that anonymous tipsters must do more than provide facts which are subsequently corroborated by law enforcement officers--they must accurately predict future behavior that is not generally observable by members of the public.

Judge Mihm's conclusion with respect to good faith was based upon his conclusion that the law was in a "state of flux" under the test set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), at the time that Agent Kelly applied for the Search Warrant. Judge Mihm thus found that Agent Kelly had acted in good faith in relying upon Magistrate Judge Kauffman's decision to issue the Warrant.

At the same time, Judge Mihm denied Skinner's request for a Franks hearing. On this point, Judge Mihm found that Skinner had failed to make a sufficient showing to warrant such a hearing. On January 11, 1991, Skinner filed his Motion to Reconsider. His Motion was denied on January 30, 1991.

On March 13, 1991, Skinner entered a conditional plea of guilty, pursuant to the parties' written "Conditional Plea Agreement," to possession of marijuana with the intent to distribute the same. See 21 U.S.C. § 841(a)(1). Skinner's conditional plea preserved his right to appeal the issues he had raised under Leon and Franks. At the conclusion of his change of plea hearing, the United States Probation Office was directed to prepare a presentence investigation report.

On August 2, 1991, Judge Mihm accepted the parties' plea agreement and sentenced Skinner to a ninety-six (96) month term of imprisonment to be followed by a four (4) year term of supervised release. Skinner filed his Notice of Appeal on August 12, 1991.

II. ANALYSIS

Skinner argues that (1) application of the Leon good faith exception is not justified in this case, and (2) the district court judge erred in denying his request to hold a Franks hearing given the fact that the affidavit filed in support of the Search Warrant's issuance contained misinformation. We have jurisdiction over the present dispute by virtue of 28 U.S.C. §§ 1291, and 1294(1) (1992), and Rule 11(a)(2) ² of the Federal Rules of Criminal Procedure.

A. Leon Good Faith Exception

The first issue which this Court must resolve is whether the law enforcement officers who searched Skinner's residence pursuant to the Search Warrant are entitled to the benefit of the Leon good faith exception. The parties agree that the Warrant was not supported by the existence of probable cause.

The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend IV. "Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." United States v. Chapman, 954 F.2d 1352, 1357 (7th Cir.1992) (quoting Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925))).

In Illinois v. Gates, supra, 462 U.S. at 233, 103 S.Ct. at 2329, the United States Supreme Court "abandoned the 'two-pronged test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89...