United States v. Tyrice Glover , 755 F.3d 811 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2475
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRICE GLOVER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 981-1 — John F. Grady, Judge.
____________________
ARGUED MARCH 31, 2014 — DECIDED JUNE 18, 2014
____________________
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 mo-
tion to suppress the guns, drugs, and paraphernalia seized
from his home pursuant to a search warrant. He argues the
2 No. 13-2475
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 (1984),
should not apply.
We conclude that the affidavit provided an insufficient
basis for the search warrant. It omitted all information re-
garding the informant’s credibility. That undermined the is-
suing magistrate’s ability to perform his role as a neutral ar-
biter of probable cause. Regarding the good faith exception,
the question is close, but in light of our prior cases, the affi-
davit was not so “bare bones” that officers’ good faith reli-
ance 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 (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 semiautomat-
ic 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 car-
rying large amounts of money or drugs.
No. 13-2475 3
The affidavit also described Officer Brown’s corrobora-
tion of several facts. He used the address to find a photo-
graph 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, Of-
ficer 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 in-
formation 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 in-
formant. On two prior occasions, Doe had used aliases when
questioned by police officers. Doe had also received pay-
ment 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 is-
sued the search warrant for “two handguns (one black semi-
automatic 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
4 No. 13-2475
offenses. He moved to suppress the evidence from the search
and requested a Franks hearing regarding the officer’s mo-
tives 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. Discussion
A. 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 (1983), quoting Johnson v. United States, 333 U.S. 10,
13–14 (1948). A magistrate’s determination of probable cause
is given great deference on review, and the Fourth Amend-
ment requires no more than a substantial basis for conclud-
No. 13-2475 5
ing that a search would uncover evidence of a crime. Gates,
462 U.S. at 236.
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 de-
terminations.” 462 U.S. at 238. 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. In response to the concern that the totality-of-
the-circumstances approach would limit the value of a mag-
istrate’s independent review, the Court noted that magis-
trates would have great freedom when drawing inferences
related to probable cause. Id. at 240.
For evaluating the totality of the circumstances in in-
formant 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 report-
ed 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 mini-
mal 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 ap-
peared before the issuing judge. We focus on the first conten-
tion and agree with Glover. The complete omission of infor-
mation regarding Doe’s credibility is insurmountable, and it
6 No. 13-2475
undermines the deference we would otherwise give the de-
cision 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 bi-
as is crucial. In United States v. Bell, for example, we empha-
sized that the failure to establish the informant’s reliability
raised the concern that the tip was provided to harass or re-
move 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 in-
formation from informant without 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.
No. 13-2475 7
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 le-
gal conduct. (Being a convicted felon is not itself indicative
of criminal activity.) The tip also provided little detail. For
example, while the descriptions of the firearms were fairly
specific, Doe gave no indication of where they were in the
house. Doe’s generic allegations of T.Y’s gang activity are not
problematic on their own. (The warrant was focused on the
firearms alone, not any other crimes.) When combined with
Doe’s checkered past, though, the gang allegations raise the
same concern expressed in Bell: perhaps Doe was reporting
Glover merely because of gang rivalries. Finally, Doe’s ap-
pearance before the judge bolstered the reliability of the affi-
davit, but only slightly. Without any record we must assume
that Doe did not testify.
To support the warrant in this case, the government re-
lies on United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010),
which was abrogated on other grounds, as recognized in
United States v. Miller, 721 F.3d 435, 438–39 (7th Cir. 2013). We
also find Dismuke instructive. In Dismuke, as in this case, an
informant alleged firearm possession by a felon, provided
information about the types of guns, and said the guns had
been seen firsthand and recently. And as in this case, the of-
ficer had corroborated only the defendant’s picture, address,
and criminal history. 593 F.3d at 585. The biggest problem in
Dismuke was that the affidavit included a conclusory state-
ment that the informant was “reliable” but provided no ex-
planation for that critical claim, meaning it was entitled to no
weight. Despite that shortcoming, we held that the affidavit
in Dismuke was sufficient, though it was “a close case.” Id. at
587.
8 No. 13-2475
Many elements of Glover’s case are obviously quite simi-
lar to Dismuke. But there is one critical difference here: the
complete omission of known, highly relevant, and damaging
information about Doe’s credibility—his criminal record, es-
pecially while serving as an informant; his gang activity; his
prior use of aliases to deceive police; and his expectation of
payment. The omission of that adverse information impaired
the neutral role of the magistrate deciding whether to issue
the warrant. As the government properly acknowledged at
oral argument, such information is so essential to a witness’s
credibility that the same information regarding a govern-
ment witness at trial would have to be disclosed to the de-
fense as exculpatory material under Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150(1972). See, e.g., Engel v. Buchan, 710 F.3d 698, 710 (7th Cir.
2013) (payment to witness); United States v. Young, 20 F.3d
758, 764 (7th Cir. 1994) (criminal convictions). In Dismuke,
there was no evidence that the police withheld from the
magistrate any adverse information about the informant’s
credibility. The magistrate in Dismuke made the probable
cause determination without meaningful credibility infor-
mation, but there was no evidence that such information was
available or material.
In this case, the omissions from the affidavit deprived the
magistrate of highly relevant information that tends to un-
dermine Doe’s credibility and thus the probable cause de-
termination. We have said that omission of an informant’s
criminal background and financial motive is not “necessarily
essential to the probable cause determination,” but that was
in the context of a detailed affidavit that had been extensive-
ly corroborated. United States v. Taylor, 471 F.3d 832, 840 (7th
Cir. 2006). To the extent that police have a limited privilege
No. 13-2475 9
to withhold some information to protect an informant’s iden-
tity, see United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.
1996); United States v. Bourbon, 819 F.2d 856, 859 (8th Cir.
1987), that privilege does not extend to wholesale omission
of damaging credibility information. When an affidavit pre-
sents a close question as to probable cause under the prima-
ry factor analysis, cf. Dismuke, 593 F.3d at 587, any available
credibility information is likely to be material to the magis-
trate’s decision.
Because the officer’s affidavit omitted all credibility in-
formation in this case, the magistrate had no meaningful op-
portunity to exercise his or her discretion to draw favorable
or unfavorable inferences. See Gates, 462 U.S. at 240. The
magistrate might have inferred, based on Doe’s past work as
an informant, that he was reliable despite his criminal rec-
ord, past deception of the police, and financial motives. Yet
the omitted information could also easily have supported
inferences against probable cause, and the issuing magistrate
had no indication that such information existed. “The war-
rant requirement puts primary responsibility on the magis-
trate to determine probable cause, and if the affiants repeat-
edly provide the minimum of information, magistrates
would be acting within their discretion to demand more.”
United States v. Moore, 661 F.3d 309, 314 (6th Cir. 2011). In this
case, however, the affidavit did not provide the magistrate
with even a minimum of information on credibility that
might have triggered further inquiry. We cannot defer to the
under-informed finding of probable cause.
Where information about credibility is not available, oth-
er factors such as extensive corroboration may overcome the
doubt inherent in relying on an informant without a track
10 No. 13-2475
record. See Koerth, 312 F.3d at 867–68 (finding that an affida-
vit with “mere conclusions and assertions of wrongdoing”
from an informant of unknown reliability was insufficient,
but noting that an untested informant’s tip “may in certain
instances serve to establish probable cause”). And even
where some credibility information is omitted, a strong
showing on the primary factors can salvage the warrant. See
Taylor, 471 F.3d at 840. In this case, however, the issuing
magistrate should not have been forced to rely on other fac-
tors because vital credibility information was omitted from
the affidavit. The probable cause affidavit here left the mag-
istrate unable to fulfill his role as a neutral arbiter and there-
fore provided an insufficient basis for finding probable cause
to support the search warrant.
C. Good Faith Exception
The good faith exception prevents operation of the exclu-
sionary rule if the police officer’s reliance on a search war-
rant was objectively reasonable. United States v. Leon,
468 U.S. 897, 922–23 (1984). When an officer acts within the
scope of a search warrant, “[p]enalizing the officer for the
magistrate’s error, rather than his own, cannot logically con-
tribute to the deterrence of Fourth Amendment violations.”
Id. at 921. Leon identified four situations in which the good
faith exception does not apply: when the affiant misleads the
magistrate with a reckless or knowing disregard for the
truth, when the magistrate wholly abandons the judicial
role, when the affidavit is “bare bones” or “so lacking in in-
dicia of probable cause” that reliance is unreasonable, and
when the warrant is facially deficient in that it fails to specify
the place to search or the items to seize. Id. at 923.
No. 13-2475 11
Glover argues that the good faith exception should not
apply because (1) the affidavit was so “bare bones” that reli-
ance on the warrant was unreasonable, and (2) the officer
acted with reckless disregard for the truth by omitting from
the affidavit important information about the informant’s
credibility. We disagree with the first point but find that
Glover is entitled to a hearing on the second.
1. Facial Sufficiency
First, the probable cause determination in this case was
undermined by the withholding of credibility information,
but the affidavit was not otherwise lacking in factual detail
to the point that reliance was unreasonable. A defendant es-
tablishes unreasonable reliance if “courts have clearly held
that a materially similar affidavit previously failed to estab-
lish probable cause” or the affidavit is “plainly deficient.”
United States v. Woolsey, 535 F.3d 540, 548 (7th Cir. 2008) (ap-
plying good faith exception), quoting Koerth, 312 F.3d at 869.
In Owens v. United States, 387 F.3d 607 (7th Cir. 2004), we ex-
amined a residential search warrant supported by an affida-
vit that alleged only that an unknown quantity of cocaine
had been sold at the residence one time some three months
before, with no indication of the amount sold or the reliabil-
ity of the informant. Id. at 608. We held that the affidavit was
“so inadequate” that the good faith exception did not apply.
Id. (granting habeas corpus relief under 28 U.S.C. § 2255based on ineffective assistance of trial counsel on a failed
motion to suppress). While a complete lack of information
on the informant’s reliability is also an issue in this case, the
remainder of the affidavit here is not as deficient as the affi-
davit in Owens. And given the close similarity of the affidavit
here to the affidavit held sufficient in Dismuke, see 593 F.3d
12 No. 13-2475
at 587, a reasonable officer acting in the wake of that decision
could not be expected to know that the warrant here was not
supported by probable cause.
Glover argues that the officer’s affidavit here is compara-
ble to the deficient affidavits in United States v. Wilhelm,
80 F.3d 116 (4th Cir. 1996), and United States v. Leake, 998 F.2d
1359 (6th Cir. 1993). In Wilhelm, the affidavit resulted from an
anonymous tip and provided no detail beyond stating that
the informant had provided various descriptions of marijua-
na “consistent with the applicant[’s] knowledge.” 80 F.3d at
118. Here, the officer’s affidavit provided some factual detail
rather than merely asserting conduct supposedly in con-
formity with criminal activity, and it resulted from an in-
person informant who appeared before the issuing judge.
The Leake decision is less relevant—the good faith exception
did not apply because the officer failed to corroborate an
anonymous tip in a meaningful way, but the court rejected
Leake’s argument that the affidavit was “bare bones.”
998 F.2d at 1367.
2. Deliberate or Reckless Disregard of Truth
Glover’s second argument is more persuasive. The gov-
ernment’s response to Glover’s motion to suppress revealed
Doe’s history as an informant, his multiple convictions, his
prior gang affiliation, his use of aliases, and his interest in
being paid for useful information. Glover renewed his re-
quest for a hearing under Franks v. Delaware, 438 U.S. 154(1978), to determine whether the officer acted with reckless
disregard for the truth by omitting the credibility infor-
mation from the probable cause affidavit. To obtain a Franks
hearing, the defendant must make a “substantial prelimi-
nary showing” of (1) a material falsity or omission that
No. 13-2475 13
would alter the probable cause determination, and (2) a de-
liberate or reckless disregard for the truth. See United
States v. McMurtrey, 704 F.3d 502, 508 (7th Cir. 2013). This is a
burden of production. Proof by a preponderance of the evi-
dence is not required until the Franks hearing itself. Id. at
509.
In this case, the omitted credibility information was clear-
ly material for the reasons laid out above. Its omission un-
dermined the issuing magistrate’s role in the probable cause
determination. Only the inquiry into the officer’s state of
mind remains. To meet his burden on that element, the de-
fendant must offer direct evidence of the affiant’s state of
mind or circumstantial evidence that the affiant had a sub-
jective intent to deceive based on the nature of the omissions.
See United States v. McNeese, 901 F.2d 585, 594 (7th Cir. 1990),
overruled on other grounds, as recognized by United States v.
Westmoreland, 240 F.3d 618, 632–33 (7th Cir. 2001); United
States v. A Residence Located at 218 Third Street, 805 F.2d 256,
258 (7th Cir. 1986).
In denying Glover’s request for a Franks hearing, the dis-
trict court made two errors. It found “no evidence that Of-
ficer Brown recklessly omitted any information he believed
was material to the question of probable cause.” United
States v. Glover, 2013 WL 788081, at *4 (N.D. Ill. Mar. 1, 2013).
The district court also noted a lack of evidence that the of-
ficer even prepared the affidavit—“in our experience it is the
assistant state’s attorney who prepares the affidavit, not the
police officer.” Id.The district court did not show that it considered wheth-
er the credibility omissions themselves, even in the absence
of more direct evidence of the officer’s state of mind, provide
14 No. 13-2475
sufficient circumstantial evidence to support a reasonable
and thus permissible inference of reckless disregard for the
truth. We hold that they do. Although we credit the officer
for having Doe appear at the probable cause hearing, that
fact does not undermine the inference of recklessness arising
from the withheld information. To hold otherwise would
place a substantial burden on magistrates to double-check
the availability or lack of all relevant information every time
an informant appears. An officer’s omission from the proba-
ble cause affidavit of known and substantial adverse infor-
mation about the informant’s credibility is sufficient to sup-
port a reasonable inference of recklessness, requiring that
Glover’s request for a Franks hearing be granted.
The district court’s observation that the officer may not
have actually prepared the affidavit also put an improper
burden on Glover, for two reasons. First, the identity of the
preparer does not change the good faith analysis in this case.
No matter who drafted the affidavit, the officer signed it un-
der oath. He is responsible for its contents, and a misrepre-
sentation made by one government agent (as opposed to a
non-governmental informant) is not cleansed by another
government agent’s sworn signature on the affidavit. See
United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir. 1994).
The same reasoning applies to a deceptive omission.
Second, to obtain a Franks hearing, the defendant need
not overcome the court’s speculation regarding an innocent
explanation for the falsity or omission. While reasonable ex-
planations for the omission of the information might well
exist, the defendant need not disprove them before the
Franks hearing itself. See McMurtrey, 704 F.3d at 509. If a de-
fendant falls short of the showing required for a Franks hear-
No. 13-2475 15
ing, the district court has discretion to hold a “pre-Franks
hearing” for the defendant to supplement his submissions.
The government’s explanation of discrepancies raised by the
defense must wait for the Franks hearing itself, however,
where the defendant has the opportunity for full cross-
examination. Id. The district court erred here by offering its
own explanation for the omissions and relying on that ex-
planation to deny a Franks hearing.
The government argues that the good faith exception
should apply here based on United States v. Taylor, 471 F.3d
832 (7th Cir. 2006), and United States v. Williams, 718 F.3d 644(7th Cir. 2013). In Taylor, the attesting officer described the
informant as a “concerned citizen” and referred to his assis-
tance in past investigations, but the officer omitted the in-
formant’s criminal background and receipt of cash pay-
ments. 471 F.3d at 840. The district court found that the of-
ficer did not intend to mislead the issuing judge, and we af-
firmed. Id. at 836, 840. In Williams, we affirmed a finding that
a police officer did not recklessly deceive the warrant-
issuing judge when he described the informant’s recent crim-
inal activity but did not mention that he was under arrest
when he provided the information. 718 F.3d at 653.
We agree that Officer Brown’s omission of information
about Doe’s credibility was similar to the omissions of in-
formation in both Taylor and Williams. But both cases are
readily distinguishable from Glover’s case because the find-
ings in both cases were made after the Franks hearings, which
were needed because the defendants came forward with evi-
dence sufficient to permit an inference of deliberate or reck-
less omission. See Williams, 718 F.3d at 653; Taylor, 471 F.3d at
836. The findings in those cases received deference because
16 No. 13-2475
the district courts properly held the required Franks hear-
ings.
Finally, the government argues that the officer might
have omitted the information to protect Doe’s identity. Such
an explanation may be offered at a Franks hearing, but the
mere assertion of that rationale is not enough to avoid the
hearing. See McMurtrey, 704 F.3d at 509. The government
later provided the information about Doe to Glover in its re-
sponse to his motion to suppress in the trial court. This later
disclosure tends to suggest that withholding the information
was not necessary to protect Doe’s identity, or perhaps that
the other details in the affidavit had already been sufficient
to identify him. But these are matters to be tested in a Franks
hearing based on evidence, not resolved on appeal by our
speculation.
On remand the government may provide a satisfactory
explanation for the omission of the damaging information
about the informant’s credibility, but Glover is entitled to test
its explanation. We therefore REVERSE the denial of defend-
ant’s motion to suppress and REMAND for a Franks hearing.