United States v. Glover

• Decision Date: 18 June 2014
• Docket Number: No. 13–2475.,13–2475.
• Citation: 755 F.3d 811
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tyrice GLOVER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

755 F.3d 811

UNITED STATES of America, Plaintiff–Appellee,

v.Tyrice GLOVER, Defendant–Appellant.

No. 13–2475.

United States Court of Appeals,Seventh Circuit.

Argued March 31, 2014.

Decided June 18, 2014.

Mark E. Schneider, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Carol A. Brook, Rosalie L. Guimaraes, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and WILLIAMS and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Tyrice Glover appeals from his convictions for possessing heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A). Glover pled guilty but reserved his right to appeal the denial of his motion to suppress the guns, drugs, and paraphernalia seized from his home pursuant to a search warrant. He argues the warrant was not supported by probable cause. He argues further that the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should not apply.

We conclude that the affidavit provided an insufficient basis for the search warrant. It omitted all information regarding the informant's credibility. That undermined the issuing magistrate's ability to perform his role as a neutral arbiter of probable cause. Regarding the good faith exception, the question is close, but in light of our prior cases, the affidavit was not so “bare bones” that officers' good faith reliance on it was unreasonable. Nevertheless, the affidavit's omission of all information about the informant's credibility is sufficient to raise an inference of reckless disregard for the truth that could undermine the good faith exception under Leon. We reverse and remand for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

I. Factual and Procedural Background

Chicago Police Officer Jason Brown submitted to a state court a probable cause affidavit containing the following facts. On July 23, 2010, confidential informant “Doe” spoke with Officer Brown regarding a felon, known to Doe as “T.Y.,” in possession of two handguns: a black semiautomatic and a black .38–caliber revolver. T.Y. lived at 905 Kedvale in Chicago. Doe said he had seen the guns while in the house the day before and “many times over the course of the last six weeks.” Doe said T.Y. needed the guns because he had a “dope spot” (a street-level point of sale) for heroin. Doe also said T.Y. was a member of the Traveler Vice Lords gang and part of a “stick-up crew” who robbed people carrying large amounts of money or drugs.

The affidavit also described Officer Brown's corroboration of several facts. He used the address to find a photograph of Glover in police records, and Doe identified Glover as “T.Y.” Officer Brown also used police records to confirm that Glover had two felony convictions and that he had lived at 905 Kedvale as of May 2009 and January 2010. Finally, Officer Brown drove Doe to the 900 block of Kedvale Avenue, and Doe identified the red-brick home at 905 as the house where he had seen T.Y. with the guns.

Officer Brown's affidavit did not include any available information on Doe's credibility. Doe had been an informant for the Chicago police for six years. He had been affiliated with a gang. He had fourteen criminal convictions, including four for crimes committed while he was working as an informant. On two prior occasions, Doe had used aliases when questioned by police officers. Doe had also received payment for providing information to the police in the past.

Officer Brown promptly filed his probable cause affidavit and took Doe with him to appear before a state court judge. There is no record of any testimony by Doe. The judge issued the search warrant for “two handguns (one black semiautomatic handgun and one black 38 cal. Revolver), any ammunition or assorted attachments, and any documents showing or establishing proof of residency.” That evening a team of officers executed the warrant and found a nine-millimeter semiautomatic handgun, a .38–caliber revolver, an assault rifle, ammunition, fourteen grams of heroin, and drug paraphernalia. Doe was paid $450 based on the result of the search.

Glover was arrested at the time of the search and was eventually charged in federal court with drug and firearm offenses. He moved to suppress the evidence from the search and requested a Franks hearing regarding the officer's motives for omitting information about Doe from the affidavit. After the district court denied the motion to suppress and the request for a Franks hearing, Glover entered a conditional plea of guilty to charges of possessing heroin with intent to distribute and possessing a firearm for drug trafficking. He was sentenced to 90 months in prison. Glover reserved his right to bring this appeal.

II. DiscussionA. Standard of Review

On appeal from the denial of a motion to suppress, we review legal conclusions de novo and factual findings for clear error. United States v. McGee, 280 F.3d 803, 805 (7th Cir.2002). Similarly, we review the denial of a Franks hearing for clear error, but any legal determinations that factored into the ruling are reviewed de novo. United States v. Robinson, 546 F.3d 884, 887 (7th Cir.2008).

B. Probable Cause for the Search Warrant

“The essential protection of the warrant requirement of the Fourth Amendment” lies in the requirement that the usual inferences that reasonable people draw from evidence be drawn “ ‘by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ ” Illinois v. Gates, 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoting Johnson v. United States, 333 U.S. 10, 13–14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). A magistrate's determination of probable cause is given great deference on review, and the Fourth Amendment requires no more than a substantial basis for concluding that a search would uncover evidence of a crime. Gates, 462 U.S. at 236, 103 S.Ct. 2317.

For cases where the affidavit is based on an informant's report, Gates adopted the “totality-of-the-circumstances analysis that traditionally has informed probable cause determinations.” 462 U.S. at 238, 103 S.Ct. 2317. Reliability, veracity, and basis of knowledge are all “highly relevant,” but the totality-of-the-circumstances approach means “a deficiency in one may be compensated for ... by some other indicia of reliability.” Id. at 230, 233, 103 S.Ct. 2317. In response to the concern that the totality-of-the-circumstances approach would limit the value of a magistrate's independent review, the Court noted that magistrates would have great freedom when drawing inferences related to probable cause. Id. at 240, 103 S.Ct. 2317.

For evaluating the totality of the circumstances in informant cases, our decisions have developed five primary factors that we consider along with other pertinent concerns: the level of detail, the extent of firsthand observation, the degree of corroboration, the time between the events reported and the warrant application, and whether the informant appeared or testified before the magistrate. See, e.g., United States v. Johnson, 655 F.3d 594, 600 (7th Cir.2011).

Glover argues that Officer Brown's affidavit provided an insufficient basis for the search warrant because it (1) said nothing about the informant's credibility, (2) showed minimal corroboration, (3) lacked detail, (4) provided no basis of knowledge for the alleged drug crimes and robberies, and (5) was not supplemented with testimony when Doe appeared before the issuing judge. We focus on the first contention and agree with Glover. The complete omission of information regarding Doe's credibility is insurmountable, and it undermines the deference we would otherwise give the decision of the magistrate to issue the search warrant.

In general, “no one factor necessarily dooms a search warrant.” Johnson, 655 F.3d at 600. In applying these factors, the reviewing court typically concerns itself only with the content of the affidavit to determine whether the warrant is facially valid. See, e.g., United States v. Peck, 317 F.3d 754, 755–56 (7th Cir.2003). In Peck, the affidavit was insufficient to establish probable cause. The only corroboration of the informant's tip was a search of the defendant's record, and the affidavit lacked detail even though the informant claimed to be the defendant's girlfriend. Id. at 757.

Cases that test the sufficiency of affidavits for warrants obtained based on informants are highly fact-specific, but information about the informant's credibility or potential bias is crucial. In United States v. Bell, for example, we emphasized that the failure to establish the informant's reliability raised the concern that the tip was provided to harass or remove a rival. 585 F.3d 1045, 1050 (7th Cir.2009) (“For all we know, [the informant] could have been a rival drug dealer, an angry customer, or had some other beef with Bell, which is certainly a factor to consider when assessing the reliability of his statements.”); see also United States v. Koerth, 312 F.3d 862, 867 (7th Cir.2002) (government conceded probable cause was lacking where affidavit presented conclusory information from informantwithout track record). In contrast, in United States v. Searcy, 664 F.3d 1119, 1123 (7th Cir.2011), we found probable cause despite limited detail where the affidavit showed that the informant had provided reliable information before, which also suggested the report was not motivated by animus against the defendant.

The affidavit here shows weaknesses similar to those found in Peck and Bell. As in Peck, Doe's tip was minimally corroborated. The police confirmed only minor facts and legal conduct. (Being a convicted felon is not itself indicative of criminal activity.) The tip also...