United States v. Bacon, 20-1415

• Decision Date: 22 March 2021
• Docket Number: No. 20-1415,20-1415
• Citation: 991 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn BACON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

991 F.3d 835

UNITED STATES of America, Plaintiff-Appellee,

v.Shawn BACON, Defendant-Appellant.

No. 20-1415

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2021

Decided March 22, 2021

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Annice M. Kelly, Attorney, Kenosha, WI, for Defendant-Appellant.

Before Easterbrook, Wood, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

The controlled buy is a familiar law enforcement tool. In a typical case, officers enlist a confidential informant to buy drugs from a suspected dealer. To protect against informant deception, officers search the informant before and after the buy and frequently wire him so that they can listen in on the transaction. We have held that "a controlled buy, when executed properly," is generally "a reliable indicator as to the presence of illegal drug activity." United States v. Sidwell , 440 F.3d 865, 869 (7th Cir. 2006).

This case presents a novel variation on the classic controlled buy. After receiving anonymous tips that Shawn Bacon was selling drugs from his home, officers conducted two controlled buys. These controlled buys were unique in that there was a second layer of separation between the officers and Bacon: an acquaintance of the informant who acted as a middleman. At the informants’ requests, the middlemen went to Bacon's home, bought drugs from Bacon (or so they said), and then gave the drugs to the informants, who turned them over to the police. Officers kept the informants under close watch, but they did not search or wire the middlemen, who were unaware of law enforcement involvement. These middlemen were unwitting participants in the controlled buys.

Based largely on the anonymous tips and the controlled buys, officers obtained a warrant to search Bacon's home, where they found an array of drugs and weapons. Federal charges followed, and a jury convicted Bacon on all counts. On appeal, Bacon submits that the district court should have granted his motion to suppress because, in his view, the "uncontrolled" middlemen derailed probable cause for the search warrant. He also challenges the court's denial of his motion for a Franks hearing and the sufficiency of the evidence at trial. We affirm.

I. Background

Officers of the Fort Wayne Police Department submitted an affidavit to a state-court judge seeking a warrant to search Bacon's home at 1728 ½ High Street. The affidavit set forth the following facts. Officers received a tip that Shawn Bacon, living at 1728 ½ High Street, was a known drug dealer who had been arrested for selling cocaine from his home in the past. The tipster told officers that Bacon had almost killed his brother twice by supplying him with heroin. The tipster added that Bacon used silver and black Chevy Impalas to deliver drugs. Officers later observed Bacon (whose appearance they confirmed through a police database and Facebook) entering and exiting 1728 ½ High Street and using both vehicles. They ran the plates on the silver Impala, and the owner came back as Shawn Bacon residing at 1728 ½ High Street.

Eleven days after the first tip, officers received a second tip, this one stating that Shawn Bacon, a resident of the upstairs apartment at 1728 High Street (which is in fact 1728 ½ High Street), was selling large amounts of heroin, cocaine, and meth to the tipster's friends. The tipster said that Bacon was a convicted felon who had multiple guns in his residence. Officers later confirmed that Bacon had a prior felony conviction for dealing narcotics.

To further corroborate the tips, officers arranged a controlled buy. They first enlisted a confidential informant who had proven credible and reliable in past cases. The informant, in turn, reached out to an acquaintance who said he could buy cocaine, heroin, meth, and guns from Bacon. Before the buy, officers searched and wired the informant. The officers then drove with the informant to the acquaintance's house. From there, the informant and the acquaintance drove together to Bacon's apartment. Surveillance units followed separately. When they arrived at Bacon's apartment, the informant gave the acquaintance $100 to buy cocaine and told him to keep $20 for his trouble. Officers then observed the acquaintance enter the upstairs apartment. He exited 18 minutes later, got back into the car with the informant, and handed the informant the cocaine, explaining that Bacon had weighed it out at 1.5 grams. The acquaintance also told the informant that Bacon had weapons all over his apartment. (The officers heard these conversations because the informant was wearing a wire.) After parting ways with the acquaintance, the informant met the officers and gave them the cocaine. The officers again searched the informant and found no contraband.

A few weeks later, officers conducted a second controlled buy. They enlisted a different confidential informant who had also proven credible and reliable in past cases. The informant arranged to buy drugs from an acquaintance who lived down the street from Bacon. Before the buy, officers searched and wired the informant. The officers then drove with the informant to the acquaintance's house. Once there, the informant gave the acquaintance $260 to buy cocaine and meth. The acquaintance took the money and walked toward Bacon's apartment. A surveilling officer saw the acquaintance enter Bacon's apartment and exit 17 minutes later, heading back toward his own house. When the acquaintance got home, he motioned for the informant to come inside. Once inside, the acquaintance weighed and bagged the cocaine and then gave the informant the cocaine along with a separate bag of meth. (Again, the officers heard this exchange because the informant was wearing a wire.) The informant left the acquaintance's house, got back into the officers’ car, and handed them the drugs. After the buy, the informant told the officers that the acquaintance had purchased drugs from someone named "Shawn" who had numerous weapons in his apartment.

Based on these facts, a state-court judge issued a warrant authorizing a search of 1728 ½ High Street for drugs and guns. Officers executed the warrant less than a week later. They found guns; ammunition; a bulletproof vest; suspected bombs; large quantities of meth, cocaine, and fentanyl; a digital scale; and a drug ledger. Later that day, officers stopped Bacon in his car and arrested him. They searched the car and found drugs and several guns, including two short-barreled rifles. A week later, officers searched Bacon's home again and found more meth, cocaine, and fentanyl. A federal grand jury indicted Bacon on several counts related to his armed drug dealing and possession of short-barreled rifles and explosive devices.

Before trial, Bacon moved to suppress the evidence from the initial home search on the ground that the affidavit did not supply probable cause. The district court denied his motion. After learning that both middlemen who bought drugs from him during the controlled buys were later arrested on drug charges, Bacon moved the court to reconsider its denial of his motion to suppress. The court denied the motion. Bacon also moved for a Franks hearing, arguing that the affidavit had omitted critical facts about the credibility of the middlemen. The court denied that motion too. Bacon went to trial and the jury convicted him on all counts. Bacon now appeals.

II. Discussion

A. Probable Cause

Bacon's principal contention is that there was no probable cause for the warrant to search his home. He admits that controlled buys ordinarily go a long way toward establishing probable cause, see Sidwell , 440 F.3d at 869, but he maintains that the controlled buys in this case were defective because the actual buyers were an unknown quantity—officers did not know them, search them, or wire them. In short, they were not "controlled," so these were not valid controlled buys.

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. Probable cause for issuance of a search warrant exists if there is "a fair probability that contraband or evidence of a crime will be found in a particular place."

Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This is a "practical, common-sense" inquiry based on "all the circumstances." Id. "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Id. at 238–39, 103 S.Ct. 2317 (internal quotations, citation, and alterations omitted). We review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Rees , 957 F.3d 761, 764 n.1 (7th Cir. 2020).

We begin by acknowledging that the controlled buys in this case present novel risks. "The use of an unwitting informant introduces an additional layer of uncertainty to the transaction because it leaves open the possibility that the narcotics were acquired not at the suspect residence but at the location where the confidential and unwitting informants met before and after the transaction." United States v. Artez , 389 F.3d 1106, 1112 (10th Cir. 2004). Here, officers did not search or wire the middlemen, so they could not confirm whether the middlemen obtained the drugs from Bacon or from their own stashes.

At the same time, many of the concerns about voluntary government informants are inapplicable to unwitting informants. Government cooperators merit skepticism because they often have motives to lie such as payment, leniency, or animosity toward a rival. United States v. Glover , 755 F.3d 811, 816 (7th Cir. 2014) ; United States v. Olson , 408 F.3d 366, 370–71 (7th Cir. 2005) ; United States v. Cook , 102 F.3d 249, 251 (7th Cir. 1996). Unwitting informants, by contrast, have "nothing to gain" from participating in controlled buys. United States v. Gunter , 551 F.3d 472, 480–81 (6th Cir. 2009)....