United States v. Currie

• Decision Date: 07 January 2014
• Docket Number: No. 12–1666.,12–1666.
• Citation: 739 F.3d 960
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tony CURRIE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

739 F.3d 960

UNITED STATES of America, Plaintiff–Appellee,

v.Tony CURRIE, Defendant–Appellant.

No. 12–1666.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 2012.

Decided Jan. 7, 2014.

Michelle P. Brady, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

John A. Goodridge, Evansville, IN, for Defendant–Appellant.

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Tony Currie pleaded guilty to charges that he conspired to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possessed a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The district court ordered him to serve a prison term of 121 months, at the low end of the range advised by the Sentencing Guidelines and just above what the court and the parties believed to be the statutory minimum prison term of ten years. Currie appeals, contending that the district court erroneously denied his motion to suppress evidence without conducting an evidentiary hearing and that its choice of sentence was premised on its mistaken understanding that the new, lower mandatory minimums specified by the Fair Sentencing Act of 2010 did not apply at Currie's sentencing. We find no error in the district court's decision to deny Currie's motion to suppress without an evidentiary hearing. As to his sentence, we order a limited remand for purposes of ascertaining whether the district court would be inclined to sentence Currie differently knowing that Currie is subject to the lower statutory minimum term of five years as provided by the FSA.

I.

Following his own arrest in February 2010 for possession of distribution-sized quantities of cocaine and crack cocaine, an unnamed individual agreed to cooperate with the authorities and lead them to his supplier, Currie. The confidential source (“CS”) proceeded to make a series of controlled, recorded purchases of crack cocaine from Currie. These purchases led to the issuance of a search warrant for Currie's residence; the ensuing search in turn produced evidence of a loaded revolver in Currie's home.

The first of the controlled buys took place on March 4, 2010. After a series of monitored phone calls to arrange the purchase of 1.5 ounces of crack cocaine from Currie, the CS met Currie at a residence in Anderson, Indiana. The CS was wired with equipment which produced a video and audio recording of the encounter. The CS followed Currie into the kitchen, where Currie presented him with a plastic bag containing roughly 91 grams of cocaine base. At Currie's request, the CS proceeded to re-cook the cocaine base; Currie then re-weighed the substance on a digital scale (it now weighed 96 grams) and repackaged it for the CS. The CS paid Currie the agreed-upon price and left the residence.

The CS subsequently engaged in two more controlled purchases of crack cocaine from Currie on March 12 and March 18, 2010. These transactions were not recorded on video, but audio recordings were made in both instances. Moreover, as with the March 4 purchase, both transactions were preceded by recorded telephone calls in which the CS arranged to make the purchases from Currie.

On May 10, 2010, the government sought and obtained a search warrant for Currie's residence in Indianapolis. The affidavit submitted in support of the warrant request noted that the government's CS had made three controlled purchases of cocaine from Currie in March. The affidavit reported the CS's prior criminal history, noted that the CS had been cooperating with the government since February 2010, and indicated that much of the information supplied by the CS had been corroborated. The CS's three transactions with Currie were then described in detail, along with the fact that the purchases were both recorded by the CS and preceded by consensually monitored telephone calls between the CS and Currie. The agent who prepared the affidavit indicated that he had reviewed the video recording of the March 4 transaction. He described the actions depicted on that video and averred, based on his training and experience, that the substance that Currie handed to the CS was, in fact, cocaine base.

The search warrant was executed on May 11, 2010. Upon entering the residence, agents found Currie in his bedroom, attempting to hide a loaded revolver in the closet. Various indicia of drug trafficking were also found in the residence.

The discovery of the gun led to the inclusion of a felon-in-possession charge along with the five narcotics-related charges in the indictment that the grand jury returned against Currie on June 8, 2010. Currie subsequently moved to suppress the results of the search on multiple grounds. As relevant here, he contended that the affidavit submitted in support of the warrant application was insufficient, absent the CS's own testimony, to establish the CS's reliability and thus to establish probable cause for the search. Currie also contended that the CS had provided misleading information to law enforcement officers which had made its way into the affidavit. Pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Currie asked the district court to conduct an evidentiary hearing on this second contention.

The district court denied the motion to suppress without a hearing. The court described Currie's attack on the sufficiency of the warrant affidavit vis-à-vis the CS's credibility as “a nonstarter,” given that the CS's transactions with Currie had been both monitored and recorded, and the agent who prepared the affidavit described the steps taken in that regard as well as what he saw and heard in reviewing the recordings. R. 73 at 7. Consequently, “[t]here was no reliance placed on the CS's independent, unilateral, unsupervised actions or statements,” and no need for additional information (or live testimony from the CS) to document the CS's reliability and to establish probable cause for the search warrant. R. 73 at 7. “We find the Affidavit to be both detailed and thorough, with no critical omissions or unsubstantiated, unreliable averments.” R. 73 at 8. The court saw no need for an evidentiary hearing on Currie's additional claim that the affidavit contained misleading information. “There is no evidence that [the agent] ‘knowingly, intentionally, or with a reckless disregard for the truth, made false statements in the warrant affidavit and that the false statements were necessary for the judicial officer to conclude that probable cause existed.’ ” R. 73 at 9 (quoting United States v. Norris, 640 F.3d 295, 300–01 (7th Cir.2011)).

Currie subsequently decided to change his plea while reserving his right to appeal the adverse ruling on his motion to suppress. As we indicated at the outset, Currie pleaded guilty to the narcotics conspiracy and felon-in-possession charges. Although Currie was sentenced after the enactment of the Fair Sentencing Act of 2010, 124 Stat. 2372 (the “FSA”), the parties, the probation officer, and the district court, in accord with this court's decision in United States v. Fisher, 635 F.3d 336 (7th Cir.), reh'g en banc denied,646 F.3d 429 (7th Cir.2011), vacated & remanded sub nom. Dorsey v. United States, ––– U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), assumed that the more favorable statutory penalties specified by the FSA did not apply at Currie's sentencing because his offenses were complete before the FSA took effect; therefore they assumed that Currie was subject to a minimum statutory prison term of ten years. The court ordered Currie to serve a term of 121 months, a sentence at the low end of the range advised by the Sentencing Guidelines and one month above what the court believed was the statutory minimum.

II.

Currie's contention that the affidavit is on its face inadequate is, as the district court observed, going nowhere. The contents of a warrant affidavit will establish probable cause to search if, based on the totality of the circumstances, the affidavit presents evidence supporting a reasonable belief that the search of the subject premises will produce evidence of a crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Currie's attack on the sufficiency of the affidavit focuses on the credibility of the CS: Currie maintains that the affidavit does not supply enough information to establish the CS's reliability as an informant. See, e.g., United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir.2011) (outlining factors which inform assessment of informant's credibility). But in this case, the key information set forth in the affidavit had to do with the three controlled purchases of cocaine from Currie. Those transactions were both monitored and recorded by the authorities, so the story as to what occurred did not rest on the CS's account alone. Indeed, the agent who prepared the affidavit had reviewed the audiovisual recording of the first of the sales and described what the recording showed: that Currie handed a bag of what appeared to be crack cocaine to the CS, had the CS re-cook it, and then repackaged the cocaine for the CS. That recording, and the audio recordings of the other two sales, supplied all the corroboration of the CS that was necessary. The affidavit was therefore sufficient on its face, and there was no need for the magistrate judge who issued the search warrant to hear testimony from the CS before determining that probable cause existed to search Currie's residence.

Nor was it necessary for the court to convene a Franks hearing based on Currie's assertion that the warrant affidavit repeated false or misleading information supplied by the CS. A court must convene a Franks hearing when the defendant makes a substantial preliminary showing that authorities deliberately or recklessly made material misrepresentations in the affidavit used to procure the search warrant. 438 U.S. at 155–56, 98 S.Ct. at 2676...