United States v. L.C. Bell ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3806
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
LC B ELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 20027—Michael P. McCuskey, Chief Judge.
A RGUED S EPTEMBER 17, 2008—D ECIDED N OVEMBER 5, 2009
Before M ANION, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. After receiving information
from confidential informants indicating that LC Bell
was involved in the sale of crack cocaine, law enforce-
ment officers from the East Central Illinois Task Force
obtained and executed a warrant to search Bell’s resi-
dence. There, they found crack cocaine and two handguns.
Bell moved to suppress the evidence obtained during the
search, arguing that the warrant was not supported by
2 No. 07-3806
probable cause. The district court concluded that although
a close call, the affidavit submitted in support of the
search warrant established probable cause. We disagree.
Because the affidavit failed to establish the reliability of
the informants, and the law enforcement officers did not
sufficiently corroborate the informants’ reports, the
warrant was not supported by probable cause. Neverthe-
less, the evidence is admissible under the good faith
exception to the exclusionary rule. See United States v.
Leon, 468 U.S. 897 (1984). Therefore, we affirm the
district court’s denial of Bell’s motion to suppress. How-
ever, we order a limited remand for the district court
to determine if it would have issued a different sentence
in light of its new-found discretion under Kimbrough v.
United States, 128 S. Ct. 558 (2007).
I. BACKGROUND
For several months, Inspector Jeff Endsley and other
agents from the East Central Illinois Task Force conducted
an investigation into the sale of crack cocaine in Coles
County, Illinois. During this investigation, they arrested
several individuals, some of whom identified Bell as
someone involved in the sale and delivery of crack co-
caine. Inspector Endsley also received similar reports from
other individuals who were acting as “confidential
sources” for the task force.
Sometime later, an informant referred to as Rob Hale (an
assumed name) told Inspector Endsley that he had “just
left” Bell’s residence, where he saw an undisclosed
amount of crack cocaine in two plastic bags and a large
No. 07-3806 3
sum of cash on a table in the living room. Hale said that he
was able to identify the substance on the table because
he had seen crack cocaine before and he “was aware
of what [it] looked like.” Hale described the location of
Bell’s apartment as “the only apartment on the east end
of the building at 1601 9th street in Charleston, Illinois”
and mentioned that, on previous occasions, he had seen
crack cocaine there along with a handgun concealed
underneath the couch. Hale also stated that Bell had
threatened to physically harm others with the gun and
had loaned the gun to others to threaten people.
Inspector Endsley checked Bell’s criminal history and
verified that Bell had previous arrests and convictions
for armed robbery and for violations of the Illinois Con-
trolled Substances Act.
Shortly after speaking with Hale, Inspector Endsley
submitted an affidavit to a Coles County Circuit Court
judge containing all of the information gathered during
the investigation. The judge issued a “no knock” warrant
to search Bell’s apartment, and, on February 22, 2007,
officers from the task force (led by Inspector Endsley)
executed the search warrant for Bell’s residence. There they
recovered 36 grams of crack cocaine and two handguns.
As a result, Bell was charged with knowingly possessing
five grams or more of a mixture and substance containing
cocaine base (“crack”) with intent to distribute, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and
with unlawful possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Bell filed a
motion to suppress the evidence obtained from his apart-
ment, which the district court denied. On June 26, 2007,
4 No. 07-3806
Bell pled guilty to possession of more than five grams
of cocaine base with intent to distribute and possession of
a firearm by a felon, but reserved the suppression issue
for appeal. The district court sentenced Bell to 150
months’ imprisonment and eight years of supervised
release on the drug count, and 120 months’ imprisonment
and three years of supervised release on the firearm
count, to run concurrently. Bell now appeals the denial of
his motion to suppress the evidence seized from his
apartment.
II. ANALYSIS
A. No Probable Cause
An affidavit establishes probable cause to support a
search warrant when it sets forth sufficient evidence to
convince a reasonable person that a search will uncover
evidence of the alleged crime. United States v. Carmel,
548 F.3d 571, 575 (7th Cir. 2008). When, as here, the affida-
vit is the only evidence provided to the judge in support
of the search warrant, the validity of the warrant rests
solely on the strength of the affidavit. United States v.
Peck, 317 F.3d 754, 755 (7th Cir. 2003).
Further, when an informant supplies the facts in the
affidavit, the probable cause determination will also
turn on the informant’s credibility. United States v. Olson,
408 F.3d 366, 370 (7th Cir. 2005). Some of the factors to
consider in making this determination are: (1) the extent
to which police corroborated the informant’s state-
ments; (2) the degree to which the informant acquired
No. 07-3806 5
knowledge of the events through first-hand observation;
(3) the amount of detail provided; and (4) the interval
between the date of the events and the police officer’s
application for the search warrant. United States v. Koerth,
312 F.3d 862, 866 (7th Cir. 2002). We also consider
whether the informant personally appeared and testified
before the issuing judge, thus allowing the judge to assess
his credibility. United States v. Sims, 551 F.3d 640, 644 (7th
Cir. 2008). No one factor is dispositive, so a deficiency
in some areas can be compensated by a stronger showing
in others. United States v. Taylor, 471 F.3d 832, 840 (7th Cir.
2006) (citing United States v. Brack, 188 F.3d 748 (7th Cir.
1999)).
Ultimately, the issuing judge must “make a practical,
commonsense decision whether, given all the circum-
stances set forth in the affidavit before him, including
the ‘veracity’ and ‘basis of knowledge’ of persons sup-
plying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
We must afford great deference to the issuing judge’s
determination, but we review de novo the district court’s
legal conclusion that the warrant was supported by
probable cause. United States v. Millbrook, 553 F.3d 1057,
1061 (7th Cir. 2009).
Inspector Endsley’s affidavit relies heavily on Hale’s
accounts, stating, in part, that Hale saw crack cocaine on
a living room table and that he also described the
location of Bell’s apartment. Still, the affidavit fails
to provide any information to establish Hale’s reliability.
6 No. 07-3806
The affidavit did not indicate whether Hale had provided
information to law enforcement in the past, see, e.g., United
States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (noting
that although officer’s monitoring of informant during
controlled buy was imperfect, informant’s history of
providing accurate and reliable information in the past
was persuasive in determining whether informant’s
controlled buy established probable cause), nor did it
give any information about the nature of Hale’s relation-
ship with Bell. In other words, we have no idea how
Hale and Bell knew each other or what Hale was doing
at Bell’s apartment. For all we know, Hale 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.
On the other hand, with additional details, a judge
could have determined, based on the nature of their
relationship, that Hale had reason to know what was
inside Bell’s apartment, which would have provided
another indicator of reliability. See Peck, 317 F.3d at 758
(“[the informant’s] relationship with [the defendant]
may have made her story more credible because, as
someone close to [the defendant] she was more likely
to know that drugs were in the house . . . .”). Hale also
did not appear before the issuing judge, which would
have given the judge an opportunity to assess his cred-
ibility. See Sims, 551 F.3d at 644. Based on the information
provided in the affidavit, we have little reason to believe
that Hale, Inspector Endsley’s primary informant, is
reliable.
No. 07-3806 7
The amount of detail in the affidavit also leaves much to
be desired. It gave no indication of the amount of crack
cocaine in Bell’s apartment, but simply relied on Hale’s
statement that there were two “plastic baggies” on a
living room table. This could mean that Hale saw a
couple of dime bags ($10 bags of drugs, which may be
for personal use and are less likely to be found a day
later) or a much larger stash that may have been for sale.
It is also unclear how Hale was able to identify the sub-
stance on the table as crack cocaine, as all the affidavit
says is that “Hale has seen crack cocaine in the past and . . .
[knows] what [it] looks like.” This conclusory ex-
planation is not enough to instill confidence in an infor-
mant’s observations. See Peck, 317 F.3d at 757 (finding
that informant’s statements lacked sufficient detail
where informant stated that she recognized the sub-
stances as drugs based on her “personal experiences”).
As for the gun under the couch, we have no idea how
long it had been since Hale saw the firearm or when
Bell allegedly used it to threaten others. These events may
have occurred so far in the past that the information
was stale and unreliable. See United States v. Prideaux-
Wentz, 543 F.3d 954, 958 (7th Cir. 2008). As a result, the
statements in the affidavit do not provide the factual
foundation necessary to establish probable cause.
Further, we are not persuaded by the government’s
emphasis on the officers’ corroborative efforts. The affida-
vit stated that several unidentified arrestees and “confi-
dential sources” also implicated Bell as someone who
was actively involved in the sale of crack cocaine; and
8 No. 07-3806
the government seems to argue that this conclusory
statement about unnamed informants provides sufficient
corroboration to cure the omissions in Hale’s state-
ments. See Taylor, 471 F.3d at 840. We disagree. The affida-
vit provides no additional details regarding the
informants whatsoever. It does not indicate how they
obtained the information, the extent of the informants’ or
arrestees’ relationship to Bell, or even the recency of
these reports. The statement about the additional infor-
mants was only a single conclusory statement about
Bell’s drug trafficking activities that occurred at some
point in the past. It would be bootstrapping to argue that
such unreliable reports sufficiently corroborate Hale’s
statements, especially when Hale’s credibility is also in
question.
The government, nonetheless, attempts to draw com-
parisons between Inspector Endsley’s affidavit and the
affidavit in United States v. Olson, 408 F.3d 366, 372 (7th
Cir. 2005), where we found that the warrant was sup-
ported by probable cause. In Olson, the officer obtained
a warrant to search the defendant’s home based on a
report from a “concerned citizen,” the defendant’s
nephew’s admission that he witnessed and planned to
steal marijuana from the defendant’s bedroom, con-
fidential intelligence records from the State Line Area
Narcotics Team, and a criminal history check disclosing
a number of prior drug charges. Id. at 369. In assessing the
sufficiency of the affidavit, we held that although the
weight of each item was slight, together they sufficed to
corroborate the informant’s (defendant’s nephew) story.
Id. at 372.
No. 07-3806 9
There are indeed some similarities between the cor-
roborative evidence offered in Olson and Inspector
Endsley’s efforts to corroborate Hale’s statements. And,
as we recognized in Olson, we must look to the totality
of the circumstances because “the whole may be more than
the sum of the parts when assessing probable cause.”
United States v. Harris, 464 F.3d 733, 740 (7th Cir. 2006).
However, the government’s comparison is a stretch
because Hale’s statements lack the indicia of reliability
demonstrated by the primary informant in Olson. In that
case, we knew that the informant was the defendant’s
nephew. Olson, 408 F.3d at 369. We learned that he
had seen up to a pound of marijuana in the defendant’s
bedroom two days earlier and later returned to the defen-
dant’s house to steal his marijuana supply. Id. We also
knew that the informant was arrested for the assault
and armed robbery of the defendant; therefore, the ad-
mission of his motive to steal the defendant’s marijuana
was self-incriminating. Id. at 371. Here, the affidavit
only states that Rob Hale, an assumed name, observed
two bags of crack cocaine while inside Bell’s apartment
earlier that day, and that Hale had seen crack cocaine
there in the past. The “concerned citizen report,” confiden-
tial intelligence record, and criminal record check in
Olson provided sufficient corroboration because the in-
formant’s reliable statements carried much of the load.
See Taylor, 471 F.3d at 840 (“[A] deficiency in one factor
may be compensated for by a strong showing in another
or by some other indication of reliability.”) (citation
omitted). Conversely, Hale’s statements had few indica-
tors of reliability, and Inspector Endsley’s corroborative
evidence was limited to a criminal record check and
10 No. 07-3806
conclusory statements from even more questionable
informants.
The questions surrounding Hale’s reliability are best
answered with specifics (i.e., How does he know Mr. Bell?
What was he doing at the apartment? How did he
know the substance was crack cocaine? How long ago
were his previous visits when he saw the handgun
and crack cocaine?) or independent corroboration of the
facts that Hale disclosed—and not with additional
conclusory statements from unnamed sources. A few
unreliable informants are not much better than one.
Based on the totality of the circumstances, including the
veracity and bases of knowledge of the informants, the
issuing judge did not have a substantial basis for finding
that the affidavit established probable cause.
B. Good Faith Standard Met
It is well settled that “suppression of evidence seized
pursuant to a search warrant that is later declared invalid
is inappropriate if the officers who executed the warrant
relied in good faith on the issuing judge’s finding of
probable cause.” United States v. Watts, 535 F.3d 650, 656-
57 (7th Cir. 2008) (citing United States v. Leon, 468 U.S. 897,
920 (1984)). An officer’s decision to obtain a warrant is
prima facie evidence that he was acting in good faith.
Leon, 468 U.S. at 921 n.21. A defendant may rebut this
evidence by demonstrating that the issuing judge failed
to perform his neutral and detached function and served
as a rubber stamp for the police; that the officer was
dishonest or reckless in preparing the affidavit; or that
No. 07-3806 11
the affidavit was so lacking in probable cause that no
officer could have reasonably relied on it. United States v.
Garcia, 528 F.3d 481, 487 (7th Cir. 2008).
Furthermore, police officers are “charged with a knowl-
edge of well-established legal principles as well as an
ability to apply the facts of a particular situation to these
principles.” Koerth, 312 F.3d at 869. And “if a local drug
task force routinely works with the federal government,
it has a responsibility to learn and follow applicable
legal precedent.” United States v. Mykytiuk, 402 F.3d 773,
777-78 (7th Cir. 2005). So, it follows that where courts
have held that materially similar affidavits lacked
probable cause and the facts are materially indistinguish-
able from those of the present case, the executing officers
could not have reasonably believed the warrant was
valid and the good faith exception does not apply. Koerth,
312 F.3d at 869. We review de novo the district court’s
determination that an officer executed a warrant in
good faith. United States v. Woolsey, 535 F.3d 540, 546-47
(7th Cir. 2008).
Bell does not allege, and we do not believe, that the
issuing judge failed to perform his neutral detached role.
Nor do we have any reason to question Inspector
Endsley’s motives in preparing this affidavit. Rather,
Bell relies on our case law, arguing that the officers
could not have reasonably relied on the warrant in
good faith because the present affidavit is materially
indistinguishable from those found to be deficient in
United States v. Peck, 317 F.3d 754 (7th Cir. 2003) and
United States v. Koerth, 312 F.3d 862 (7th Cir. 2002). The
12 No. 07-3806
government, on the other hand, maintains that this case
is materially distinguishable from Koerth and Peck, such
that reliance on the warrant was not so unreasonable as
to amount to a lack of good faith.
In Koerth, a previously unknown informant stated that
he was at the defendant’s residence and witnessed 150-
200 pounds of marijuana among other things. Koerth, 312
F.3d at 867. The informant also stated that he had pur-
chased from the defendant in the past. Id. The govern-
ment admitted that the affidavit did not establish
probable cause and we readily accepted the govern-
ment’s concession because we found that the affidavit
lacked an adequate factual foundation. Id. We noted that
the affidavit did not explain the extent to which the
informant had previously provided information to
officers; the officer did not present the informant to
testify before the warrant-issuing judge; and the officer
did not take any steps to corroborate the informant’s
statements. Id. at 867-68. Nonetheless, we applied the
good faith exception because, at the time, we could not
point to any case holding that a materially similar
affidavit based on conclusory statements from a named
informant failed to establish probable cause. Id. at 870.
In Peck, the informant, who claimed to be the defendant’s
girlfriend, told police that while inside the defendant’s
residence, she witnessed crack cocaine and marijuana
wrapped in individual packages. Peck, 317 F.3d at 755.
The police brought the informant to the station to swear
under oath that her statements were true, and also con-
ducted a criminal record check on the defendant. Id.
No. 07-3806 13
Based on these facts, we found that the affidavit did not
establish probable cause. Id. at 757. Our primary concerns
were the lack of specific detail in the affidavit and the
police’s failure to corroborate the informant’s state-
ments beyond a mere criminal record check. Id.
Similarly, in Mykytiuk, an informant claimed that he
and the defendant stole materials to manufacture metham-
phetamine and that the defendant kept the materials
in vehicles parked at his residence. Mykytiuk, 402 F.3d at
775. We found that the informant’s first-hand reports
against his penal interest were not enough to establish
probable cause because the officers had not presented
any evidence that he was a reliable witness and the af-
fidavit provided only one detail to support the accuracy
of the informant’s statements. Id. at 776. Again, we
applied the good faith exception because, unlike prior
cases, the officers provided some minimal corrobora-
tion— they found methamphetamine produ ction
materials at the informant’s residence, and the
informant provided some details about where the defen-
dant stored the contraband. Id. at 777. Therefore, while
the affidavit did not establish probable cause, it was still
sufficiently distinguishable from previous cases to
warrant a good faith exception.
Bell correctly points out that Inspector Endsley’s affida-
vit contains some of the same infirmities we found in
prior affidavits, namely, its reliance on conclusory state-
ments from an informant of unknown reliability. How-
ever, the affidavit in this case also cites corroborating
statements from a number of other informants—a factor
14 No. 07-3806
missing from Koerth, Peck and Mykytiuk. In addition to the
details provided by Hale concerning the location of the
crack cocaine, “several” arrestees and “numerous” confi-
dential sources for the task force made accusations that
were consistent with Hale’s accounts. Also, a criminal
record check revealed that Bell had been convicted previ-
ously for a drug-related crime. Although these additional
sources fell short of establishing probable cause, they
sufficiently distinguish this affidavit from those in
prior cases, such that reliance on the issuing judge’s
ruling was not unreasonable. Cf. United States v. Pless,
982 F.2d 1118, 1125 (7th Cir. 1992) (finding that an anony-
mous caller’s tip was substantially corroborated by infor-
mation from other informants and the defendant’s
criminal record). In fact, the only case to which either
party cites with similar corroborative evidence is United
States v. Olson, 408 F.3d 366 (7th Cir. 2005), which
provides little guidance because there we found that
the warrant was supported by probable cause.
To be clear, the corroboration offered by Inspector
Endsley was insufficient. If an officer cannot demonstrate
that an informant is reliable, then citing additional anony-
mous informants of unknown reliability does little to
establish the factual foundation that we found lacking
in Koerth. Nonetheless, the affidavit does contain some
evidence that Bell possessed crack cocaine in his apart-
ment. Furthermore, at the time Inspector Endsley
executed the warrant, our case law did not provide much
guidance to assess the corroborative weight of the addi-
tional reports from arrestees and confidential sources.
Under these circumstances, Inspector Endsley’s failure
No. 07-3806 15
to recognize that the warrant did not establish probable
cause does not amount to a lack of good faith and the
exclusionary rule is not the appropriate remedy.
C. Resentencing in Light of Kimbrough
After oral argument, we asked both parties to file
statements of position to address whether this case
should be remanded for resentencing in light of the
Supreme Court’s decision in Kimbrough v. United States,
128 S. Ct. 558 (2007). In Kimbrough, the Supreme Court
held that a district court judge may take the crack/cocaine
powder disparity into consideration in imposing a below-
guidelines sentence, abrogating our prior case law to the
contrary. Id. at 575. As a result, we found that a defendant
who was sentenced before Kimbrough and did not object
to the crack/powder disparity was entitled to a limited
remand to allow the sentencing judge to inform us
“whether [he] would be inclined to reduce [the defen-
dant’s] sentence under the dispensation granted sentencing
judges by Kimbrough.” United States v. Taylor, 520 F.3d
746, 748-49 (7th Cir. 2008).
Here, Bell’s advisory guideline range for the drug count
was 120 to 150 months, with a statutory mandatory
minimum term of 120 months, and the district court
judge sentenced Bell (before Kimbrough was decided) to
150 months’ imprisonment—the top of the guideline
range. The government argues that a remand is unneces-
sary because, it maintains, Kimbrough is only applicable
when a sentencing court is considering a sentence
outside the advisory guideline range, and the mandatory
16 No. 07-3806
minimum of 120 months prevented the district court
judge from issuing a below-guideline sentence.
According to the government, nothing in this court’s
precedent before Kimbrough forbade consideration of the
disparity in fixing the appropriate sentence within the
guideline range, and the decision in Kimbrough, therefore,
has no impact on Bell’s sentence.
We disagree with the government’s interpretation of
our precedent. Prior to Kimbrough, we held that district
court judges were required to implement the 100-to-1
ratio, and could not impose a below-guidelines sentence
based on disagreements with the crack/powder disparity
because it was created by legislative decision. See United
States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006), abrogated
by Kimbrough v. United States, 128 S. Ct. 558 (2007). This
ruling essentially made a disagreement with the
crack/powder disparity an improper factor for any sen-
tencing decision, whether within or below the guidelines,
on the grounds that it would amount to a rejection
of congressional policy. There is no reason why a dis-
agreement with congressional legislation would be imper-
missible when issuing a below-guidelines sentence but
permissible when sentencing within the guidelines range.
Kimbrough clarified that a policy disagreement with the
crack/powder disparity was not an impermissible
factor, and this clarification is relevant to courts
issuing below and within-guidelines sentences alike. Cf.
United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008) (re-
manding for resentencing in light of Kimbrough where the
sentencing judge issued an above-guideline sentence); see
No. 07-3806 17
also United States v. Dunn, 281 Fed. Appx. 603, 605 (7th
Cir. 2008) (recognizing that a defendant could argue
that the sentencing court should have taken Kimbrough
into account when it issued a sentence within the
guideline range but 10 months longer than the statutory
minimum). From the sentencing hearing transcripts, it is
unclear whether the district court judge would have
imposed the same sentence or a sentence on the lower
end of the guidelines range if he were able to consider
the crack/powder disparity when applying the 18 U.S.C.
§ 3553(a) factors. Accordingly, a limited remand is ap-
propriate to allow the sentencing judge to inform us
whether he would resentence Bell in light of Kimbrough.1
1
The government also argues that Bell failed to raise the
Kimbrough issue in his briefs, and arguments raised for the first
time in oral argument or in supplemental filings are waived.
United States v. Conley, 291 F.3d 464, 468 n.3 (7th Cir. 2002).
However, we maintain the discretion to notice errors on our
own initiative, even when unassigned by either party. See, e.g.,
United States v. Olano, 507 U.S. 725, 736 (1993) (“[I]n criminal
cases, where life, or . . . the liberty, of the defendant is at stake,
the courts of the United States, in the exercise of a sound
discretion, may notice [forfeited error].”); United States v.
Schnell, 988 F.2d 216, 219 (7th Cir. 1992). We requested the
parties to file supplemental briefs on the issue, and, in light of
the lengthy sentences at stake, we address it on the merits, as
we did in United States v. Harris, 536 F.3d 798, 812 (7th Cir. 2008).
18 No. 07-3806
III. CONCLUSION
For these reasons, we A FFIRM the district court’s ruling
and we issue a L IMITED R EMAND to allow the district court
to determine whether it would have issued a different
sentence light of Kimbrough.
11-5-09