United States v. Patton, No. 19-2466

• Decision Date: 22 June 2020
• Docket Number: No. 19-2466
• Citation: 962 F.3d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ryan D. PATTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

962 F.3d 972

UNITED STATES of America, Plaintiff-Appellee,

v.Ryan D. PATTON, Defendant-Appellant.

No. 19-2466

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2020

Decided June 22, 2020

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, Jennifer Lee Mathew, Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant

Before Easterbrook, Hamilton, and Brennan, Circuit Judges.

Easterbrook, Circuit Judge.

After pleading guilty to distributing methamphetamine, Ryan Patton was sentenced to 76 months’ imprisonment. The guilty plea reserved the right to contest on appeal the validity of a search warrant that led to the drug's discovery. See Fed. R. Crim. P. 11(a)(2). That is the only appellate issue.

Most details are either irrelevant or unknowable, so we can be brief. Detective Lane Mings of the Galesburg, Illinois, police asked a state judge to issue a search warrant. Mings submitted an affidavit relating that an informant had been inside Patton's home and seen him take a retail quantity of methamphetamine from his safe. The affidavit did not discuss the informant's criminal history, his likely motivation for cooperation (obtaining lenience on pending charges), or his reliability (e.g., whether earlier information had panned out). It did give a few facts that corroborated the informant's story, though many of those facts could have been learned by someone who had not been inside Patton's home. It would have been problematic to issue a warrant on the basis of such an affidavit. See, e.g., United States v. Koerth , 312 F.3d 862 (7th Cir. 2002) ; United States v. Mykytiuk , 402 F.3d 773 (7th Cir. 2005). But that's not what happened. The judge took testimony. After hearing what the informant had to say, the judge issued a warrant. The police found what they went looking for.

A federal judge who receives testimony before issuing a warrant must ensure that it is taken down by a court reporter or recorded verbatim. Fed. R. Crim. P. 41(d)(2)(C). Illinois lacks such a requirement, see Chicago v. Adams , 67 Ill. 2d 429, 10 Ill.Dec. 533, 367 N.E.2d 1299 (1977), and the informant's statements were not recorded or transcribed. After hearing evidence on Patton's motion to suppress, the federal judge concluded that the informant had testified under oath but that almost nothing else could be pinned down: the informant did not appear in federal court, and Mings had a sketchy memory of what had been said before the state judge. This is why we called details unknowable.

The federal judge proceeded as if the informant had not testified and deemed the affidavit standing alone insufficient to establish probable cause. But the judge also concluded that the police were entitled to rely on the warrant, so that the holding of United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), forecloses use of the exclusionary rule.

Patton's appellate presentation makes the same assumption as the district judge—that unrecorded testimony must be ignored—and argues that the affidavit is too skimpy. We do not consider whether the affidavit by itself would have supported the warrant, because the state judge had more. We cannot know how much more, but it is certain that there was more. And if the state judge was doing his job—something a federal court must assume in the absence of contrary evidence—then the judge would have asked for the sort of information that had been omitted from the affidavit. He would have issued a warrant only after finding that probable cause existed under the governing precedents, such as Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (overruling two decisions that had made information about an informant's record of reliable tips essential to any finding of probable cause).

The Constitution's text does not require oral testimony to be transcribed or otherwise recorded. Nor did the American legal tradition at the time of the Fourth Amendment's adoption. See William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602 – 1791 (2009) at 754–58. The Supreme Court has not required recording as a constitutional matter.

The Warrant Clause of the Fourth Amendment reads: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Only the "probable cause" part of this...