United States v. Huskisson, 060519 FED7, 18-1335

Docket Nº:18-1335
Opinion Judge:BRENNAN, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Paul Huskisson, Defendant-Appellant.
Judge Panel:Before Wood, Chief Judge, and Brennan and St. Eve, Circuit Judges.
Case Date:June 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Paul Huskisson, Defendant-Appellant.

No. 18-1335

United States Court of Appeals, Seventh Circuit

June 5, 2019

Argued January 14, 2019

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. l:16CR00048-001 - Sarah Evans Barker, Judge.

Before Wood, Chief Judge, and Brennan and St. Eve, Circuit Judges.

BRENNAN, CIRCUIT JUDGE.

Paul Huskisson appeals his conviction for possession with intent to distribute methampheta-mine. He argues government agents illegally obtained the drug evidence used to convict him when they raided his house without a warrant and saw drugs in his kitchen. The government concedes the illegal entry, but counters that a later-issued search warrant rendered the drug evidence admissible. We consider whether after the illegal entry the exclusionary rule applies to the methamphetamine found in Huskisson's house.

I. Background

A. The Search and Seizure

On February 5, 2016, Drug Enforcement Administration (DEA) agents arrested Anthony Hardy on drug conspiracy charges and related offenses. Seeking to cut a deal, Hardy immediately admitted his role in the conspiracy, led DEA agents to his drugs and guns, and rolled over on two local drug dealers. One of those dealers was Paul Huskisson. Huskisson was previously unknown to the Indianapolis DEA task force, but Hardy provided plenty of intelligence on his dealings with Huskisson, including that: • Hardy purchased varying quantities of methamphetamine from Huskisson six times over the preceding five months, for $8, 000 per pound.

• Hardy bought methamphetamine both at Huskisson's house and at a car lot Huskisson owned.

• Huskisson told Hardy that Huskisson's source expected a shipment of ten to twelve pounds of methamphetamine the next day, February 6. Hardy believed he could buy some or all of that methamphetamine from Huskisson.

As further proof of Huskisson's involvement in the drug conspiracy, Hardy called Huskisson that day. DEA agents, including Special Agent Michael Cline, listened to and recorded that conversation with Hardy's consent. On the call, Huskis-son agreed to deliver ten to twelve pounds of methampheta-mine to Hardy.1

The next day, Hardy and Huskisson arranged the details of the transaction through a series of telephone calls (again, recorded by the DEA with Hardy's consent). In all, Cline listened in on nine phone calls between the two. Huskisson and Hardy agreed the drug deal would occur at Huskisson's home that night. At that point, the DEA agents did not apply for a search warrant, believing they needed to corroborate that there was methamphetamine at Huskisson's residence before filing the application.

Hardy stayed with Cline until around 5:30 p.m., when Hardy left for Huskisson's house. Cline tailed Hardy's car until it arrived at Huskisson's house about ten minutes later. Cline waited in his car and watched Hardy enter the house, with an entry team on standby. This entry team comprised DEA agents and local law enforcement, including Indiana State Police detective Noel Kinney.

At 6:15 p.m., Cline saw a car pull into the house's driveway. Two men (later identified as Jezzar Terrazas-Zamarron and Fredi Aragon) got out of the car with a cooler, approached the house, and entered. Ten minutes later, Hardy walked outside and gave a prearranged signal to indicate he had seen methamphetamine in the house.

Once Hardy gave the signal, Cline ordered the entry team to enter Huskisson's house and secure the scene. At the time, no search warrant had been issued. The entry team entered the house and arrested Terrazas, Aragon, and Huskisson, who refused to consent to a search of his residence. Upon entry, officers saw in plain sight in the kitchen an open cooler with ten saran-wrapped packages of a substance which field tested positive for methamphetamine. The three men were taken into custody. Meanwhile, Cline remained outside, pretending to arrest Hardy to disguise his role as an informant. Cline then left with Hardy to prepare applications for search warrants for Huskisson's house and his workplace.

Later that night, DEA agents filed the warrant application for Huskisson's house. The application detailed Hardy's history of drug deals with Huskisson, as well as the many phone calls between Hardy and Huskisson in the last twenty-four hours. The application also included Hardy's description of what transpired while he was inside Huskisson's house: when Hardy arrived, Huskisson called his suppliers and told Hardy they would arrive shortly. Two minutes later, Terrazas came to the door and explained he had five pounds of methamphetamine, only half of what Huskisson had expected. After speaking with Huskisson, Terrazas placed a phone call and Aragon walked in with a cooler. Aragon took ten saran-wrapped packages out of the cooler that appeared to Hardy to be methamphetamine. Hardy then went outside to signal Cline.

In addition to this information, the warrant application contained the following two sentences that underlie this appeal: "The law enforcement officers observed an open cooler with ten saran wrapped packages that contained suspected methamphetamine. The suspected methamphetamine later field tested positive for the presence of methamphetamine." The magistrate judge issued a search warrant for Huskisson's house around 10:30 p.m. the night of Huskisson's arrest, about four...

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