U.S. v. Taylor

• Decision Date: 20 December 2006
• Docket Number: No. 05-3819.,05-3819.
• Citation: 471 F.3d 832
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.3d 832

UNITED STATES of America, Plaintiff-Appellee, v. Richard TAYLOR, Defendant-Appellant.

No. 05-3819.

United States Court of Appeals, Seventh Circuit.

Argued September 13, 2006.

Decided December 20, 2006.

COPYRIGHT MATERIAL OMITTED

John H. Campbell, Office of the United States Attorney, Peoria, IL, Linda L. Mullen (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

George F. Taseff (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

On March 9, 2005, a jury found Richard Taylor guilty of manufacturing and possessing with the intent to manufacture more than 1000 marijuana plants. The district court judge sentenced Taylor to 120 months' imprisonment, the statutory mandatory minimum. Taylor appeals, challenging the district court's denial of his motion to suppress on the grounds that the search warrant affiant intentionally omitted information about his confidential source that impacted the issuing judge's probable cause determination. We affirm the district court's denial of Taylor's motion to suppress because even considering the omitted information, the search warrant affidavit contained sufficient information to find probable cause to search. Next, Taylor challenges his sentence by alleging that the jury's special finding that he manufactured or possessed with the intent to manufacture more than 1000 marijuana plants was based solely on inadmissible hearsay concerning the number of marijuana plants that were seized from his home and unsupported by the evidence. We vacate the jury's special finding because we conclude that the district court committed plain error in allowing the hearsay testimony regarding the number of marijuana plants, resulting in a miscarriage of justice in Taylor's sentencing. We also vacate Taylor's sentence and remand this case for resentencing.

I. BACKGROUND

A. The Procurement and Execution of the Search Warrant

On May 14, 2004, Detective John Atteberry of the Bloomington Police Department spoke with a confidential source ("CS 241") about a marijuana-growing operation run by Taylor out of his home at 909 South East Street in Bloomington, Illinois. According to CS 241, Taylor started the operation fifteen years earlier and grew 150 to 200 plants each year at a property near Quincy, Illinois, resulting in an annual cash value of $500,000. CS 241 told Detective Atteberry that Taylor was presently growing 160 plants on his property beneath a tarp next to a boat and near a six-foot high fence. CS 241 also gave the detective a physical description of Taylor and his home. Following his conversation with CS 241, Detective Atteberry conducted drive-by surveillance of the property and observed a man matching Taylor's description walk toward the front of the house. The detective also observed a boat in the back of the home covered by a white tarp. On May 24, 2004, Detective Atteberry watched CS 241 place a phone call to Taylor to confirm that the plants were still present at the property.

That same day, Detective Atteberry appeared before a McLean County judge and presented a search warrant affidavit that included the above-recited information. The judge issued a search warrant, and Detective Atteberry executed it at Taylor's home while Taylor's wife was present. During the search, another detective, Kenneth Bays, discovered marijuana plants in Taylor's backyard growing out of multiple styrofoam cups that filled four large containers, or flats, that were located between a fence and a boat. After the plants were removed from the property, Detective Bays generated a police report, stating that 1417 marijuana plants had been counted.

Taylor, who was not home during the search, was later arrested and indicted for unlawful manufacture of and possession with intent to manufacture more than 1000 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Taylor moved to quash the search warrant and suppress the evidence seized from his property on several grounds; however, only those pertinent to this appeal will be discussed in detail.¹ First, Taylor alleged that Detective Atteberry deliberately and with reckless disregard for the truth omitted information from the warrant affidavit regarding informant CS 241's criminal history, probation violations, drug usage, and cash payments from the Bloomington Police Department in exchange for providing information about Taylor's case and others. According to Taylor, these omissions created "a false and misleading impression of CS 241's credibility for the state court judge's consideration of probable cause." Second, Taylor took issue with Detective Atteberry's description of CS 241, a documented informant with the Bloomington Police Department, as a "concerned citizen." Lastly, Taylor complained that the phone call that CS 241 placed to Taylor to confirm the plants' continued presence at his home was unrecorded and not heard directly by Detective Atteberry. After a preliminary review of Taylor's motion to suppress, the district court determined that a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) was necessary to inquire into three issues concerning the warrant affidavit: (1) Detective Atteberry's use of the term "concerned citizen" to describe CS 241, (2) the detective's statement that CS 241 "has been and continues to be considered reliable," and (3) the telephone call placed by CS 241 to Taylor about the marijuana plants.²

B. The Franks Hearing

Detective Atteberry, the affiant of the search warrant complaint, was the only witness to testify at the Franks hearing. There, he stated that when he first met with CS 241 about Taylor's case, he knew CS 241 was a documented informant for the Bloomington Police Department. Detective Atteberry explained that he had described CS 241 as a "concerned citizen" in a report attached to the warrant affidavit because it was his department's practice to refer to a confidential source as a "concerned citizen" in first interview reports to hide the source's identity. The detective then stated that he did not intend to influence the judge issuing the search warrant by his use of the phrase "concerned citizen" and that he did not use the reference in the actual warrant affidavit.

Detective Atteberry also explained his reasons for calling CS 241 reliable by detailing CS 241's involvement in past police investigations. Specifically, in 1998, when CS 241 began working with the Bloomington Police Department, his participation in an investigation led to eight arrests and convictions in a cannabis trafficking scheme; in 2003, CS 241 helped in a marijuana sales case that led to one guilty plea and two pending matters; and in 2004, CS 241 assisted in a cocaine investigation which led to an eight-year prison term for the defendant in that case. When asked by Taylor's defense counsel why he did not include this information in the search warrant affidavit, Detective Atteberry responded that he had never included an informant's track record in an interview report. Detective Atteberry then testified that he personally ascertained CS 241's reliability by corroborating the informant's statements about Taylor. The detective confirmed that Taylor resided at the address by reviewing the water and tax bills for the property and Taylor's prior arrest records. Detective Atteberry also stated that he drove by the property and observed the wooden fence, boat, and tarp described by CS 241.

Finally, Detective Atteberry testified that he had CS 241 place a phone call to Taylor to confirm that the plants were still at the property. He explained that he did not record the phone conversation because he believed to do so would have been against state law. He then testified that he heard the informant's side of the conversation and could hear that the informant was talking to a male. Once the conversation ended, according to Atteberry, the informant told him that Taylor stated the plants were still located at his home.

At the conclusion of the Franks hearing, the district court denied Taylor's motion to suppress. In doing so, the court acknowledged that Detective Atteberry erred in referring to the informant as a "concerned citizen" and admonished the Bloomington Police Department to stop using the term altogether in future affidavits. The court found, however, that the detective did not use the misnomer in an attempt to "mislead" the issuing judge and that reading the affidavit in its totality would not leave the impression that a "concerned citizen" from the community was providing the information to the detective. The court also found the warrant affidavit's statement that CS 241 "has been used on multiple investigations in the past by the Bloomington Police Department Vice Unit and has been and continues to be considered reliable" to be lacking in detail and conclusory. However, the court speculated that if the issuing judge had heard Detective Atteberry's testimony about CS 241's assistance in past investigations "it would have made arguably an ironclad application as opposed to pointing away from probable cause, which certainly could sometimes be the case." The court also thought the case presented an "unusual amount of corroboration" further buttressing the probable cause determination. Lastly, the court did not find Detective Atteberry's failure to listen in on the informant's phone conversation with Taylor to be "fatal to the situation."

C. Taylor's Trial and Post-Trial Motions

Taylor's trial commenced on March 7, 2005. The government's case-in-chief included testimony by Detectives Atteberry and Bays regarding the discovery of the marijuana plants and their methodology for counting them: Detective Bays found the plants in Taylor's yard located next to a privacy fence, surrounded by boards and other debris, and...