United States v. Langford, Christophe ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1167
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER T. LANGFORD,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:01CR00050-001—John Daniel Tinder, Judge.
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ARGUED AUGUST 6, 2002—DECIDED DECEMBER 31, 2002
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Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
POSNER, Circuit Judge. The only question raised by this
criminal appeal is the lawfulness of the search that dis-
covered the gun that led to the defendant’s conviction of
being a felon in possession of a firearm. The search is
challenged both as unsupported by probable cause and as
executed without due warning to the residents (including
the defendant) of the house that was searched.
The search was based on a warrant issued by a state
judge. The police officer’s affidavit submitted in support
of the application for the warrant identified the house
and reported that two unidentified informants had re-
2 No. 02-1167
ported that one of the residents (not Langford) was dealing
drugs from it. A lawful search of the garbage from the
house turned up evidence of marijuana use, though
not in such a quantity as to show that the defendant or
any other residents were actually dealers rather than mere-
ly consumers. The garbage contained correspondence
of Langford, but the affidavit did not mention it. Also
found in the garbage was what the affidavit described as
a “drug ledger,” consisting of a sheet of paper with the
following written on it:
Mike 500
Bills 300 11
Tyla 300 1475
PEE 150 +850
Jermery 100 2325
Room 125 +3400
$1475 $5725
3400
$4875
The right-hand column differs from the left only in the
addition of $850 apparently left out of the left-hand
column by accident (the figure “11” doubtless just indi-
cates the steps in adding 850 to 1475 of carrying 1000 from
the hundreds column, where 800 is added to 1400, to the
thousands column, where 1 becomes 2 as a result of the
carrying). Confining ourselves therefore to the left-hand
column, the only sense we can make of it is of a list of
amounts received from or owed to several people (al-
though “Bills” might refer to expenses or receivables,
“Room” might refer to rent owing or owed—several unre-
lated persons were living in the house—and “PEE” might
be an abbreviation for some category of expenses or re-
ceipts), which are added up and then for unknown rea-
sons increased by $3400.
No. 02-1167 3
The affidavit does not explain by what reasoning this
becomes revealed as a drug ledger, and as to that all the
officer could say at trial was that he found the rounding
of the numbers to the nearest $25 suspicious. No evidence
concerning similar lists found in other cases to be drug
records was introduced that might have provided a ra-
tional basis for the officer’s hunch. The district judge
said that the list was “sufficiently described as a ledger
for dealing in drugs,” but he too suggested no basis for
the characterization.
Putting the list to one side as insolubly ambiguous on
this record, we are left with a very thin case for a warrant
to search for evidence of drug dealing as opposed to
drug use. The ratio of drug users to drug dealers is very
high, so that if this warrant is lawful, the implication is
that any hostile neighbor can report a person as a drug
dealer and if the police look in his garbage and find that
he is among the several million users of “recreational”
drugs in this country the police can search his house for
evidence that he is a dealer even though they have no
reason to think that he is one. This is not a case in which
the tipster is a confidential informant, someone in whom
the police have some basis for reposing confidence, as
in United States v. Gonzalez-Rodriguez, 239 F.3d 948, 950-
51 (8th Cir. 2001), and in United States v. Le, 173 F.3d 1258,
1265-67 (10th Cir. 1999), or in which a garbage search (which
does not require probable cause) turns up evidence sug-
gestive of dealing rather than of mere use.
Mere possession of marijuana is a crime in Indiana and
the tips from the informants plus the search of the gar-
bage provided probable cause to believe that someone
in the house was committing that crime, but the govern-
ment does not seek to defend Langford’s conviction on
that basis. True, the search for drugs in the house would
have uncovered the gun, but we haven’t found cases
4 No. 02-1167
(nor does common sense suggest) that guns are typically
associated with the possession of marijuana, as distinct
from dealing in marijuana and other illegal drugs. Prop-
erty cannot be seized merely because it is visible to po-
lice conducting a lawful search; it must appear to be con-
traband or evidence of crime. Horton v. California, 496
U.S. 128, 136-37 (1990). Otherwise the police could have
carted off the entire contents of the house.
Thin as the basis of the warrant to search for evidence
of drug dealing was, it was not so thin as to defeat the
rule that evidence obtained in a search is not to be ex-
cluded at trial if the search was pursuant to a warrant is-
sued by an authorized judicial officer, provided that in
executing the warrant the police were not acting in bad
faith, United States v. Leon, 468 U.S. 897, 923 (1984), which
they would have been here if for example they had known
that the affidavit submitted in support of the application
for a warrant contained material falsehoods. Id.; United
States v. McAllister, 18 F.3d 1412, 1416 (7th Cir. 1994). Of
that there is no indication. Police are not legal experts
and are entitled to rely upon a warrant duly issued by a
judicial officer on the basis of an affidavit that so far as
the police know is accurate and complete, so that the
only issue is its legal sufficiency, a matter for the judicial
officer to determine. See United States v. Koons, 300 F.3d
985, 991-92 (8th Cir. 2002), a factually similar case to this
case.
The defendant argues that in any event the police broke
down the door of the house without complying with the
rule that in the absence of an emergency police execut-
ing a search or arrest warrant must knock and announce
their purpose and identity and give the occupant a reason-
able chance to open the door before they enter forcibly. 18
U.S.C. § 3109; United States v. Ramirez, 523 U.S. 65, 73
No. 02-1167 5
(1998); United States v. Espinoza, 256 F.3d 718, 722 n. 3,
723 (7th Cir. 2001). Whether the police complied with the
rule in this case is in dispute, but the dispute need not
be resolved because we hold that violation of the rule
does not authorize exclusion of evidence seized pursuant
to the ensuing search. As we said in United States v. Jones,
149 F.3d 715, 716-17 (7th Cir. 1998), and now elevate to
a holding, “it is hard to understand how the discovery
of evidence inside a house could be anything but ‘inevi-
table’ once the police arrive with a warrant.” See also
United States v. Folks, 236 F.3d 384, 388 (7th Cir. 2001);
United States v. Jones, 214 F.3d 836, 837-38 (7th Cir. 2000);
People v. Stevens, 597 N.W.2d 53, 64 (Mich. 1999). There
are contrary decisions. See United States v. Banks, 282
F.3d 699, 703 (9th Cir. 2002); United States v. Dice, 200 F.3d
978, 986-87 (6th Cir. 2000); United States v. Marts, 986 F.2d
1216, 1219-20 (8th Cir. 1993); Mazepink v. State, 987 S.W.2d
648, 656-58 (Ark. 1999). (The Justice Department has pe-
titioned for certiorari in the Banks case.) The concern
that animates those decisions is that unless evidence ob-
tained in a search that violates the knock-and-announce
rule is excluded, there will be no deterrent to such viola-
tions. But that is not true now that 42 U.S.C. § 1983 and
the Bivens doctrine have made tort damages an effective
remedy for constitutional violations by federal or state law
enforcement officers.
The fruits of an unlawful search are not excludable if
it is clear that the police would have discovered those
fruits had they obeyed the law. That is the “inevitable dis-
covery” rule, which the Supreme Court adopted in Nix
v. Williams, 467 U.S. 431, 448 (1984); without it the exclu-
sionary remedy would overdeter; and it is fully applicable
here. Armed with a valid search warrant, the police in our
case would have discovered the defendant’s gun even
6 No. 02-1167
if they had given him enough time to answer their knock
before they broke the front door down.
Another route to the same conclusion is to observe
that the knock-and-announce rule is not intended to pro-
tect people against being subjected to searches or to limit
the obtaining of evidence by means of searches; it is not
a rule that, like the Fourth Amendment itself, is intended
to provide a privilege to withhold evidence. Therefore
there is no logic to using it to exclude evidence obtained
by a search. Of course in some cases the delay in enter-
ing the premises to be searched that the rule entails would
enable a defendant to secrete evidence; but in such cases
the rule is waived. 18 U.S.C. § 3109; United States v.
Ramirez, supra, 523 U.S. at 71, 73; United States v. Dice, supra,200 F.3d at 983.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-31-02