NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 4, 2010
Decided August 10, 2010
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐3919
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 08‐CR‐340
OMARR LOWE,
Defendant‐Appellant. William C. Griesbach,
Judge.
O R D E R
Police obtained a warrant to search Omarr Lowe’s home for evidence of cocaine
trafficking. During their search officers found cocaine, marijuana, crystal
methamphetamine, and assorted drug‐trafficking paraphernalia, as well as five guns, body
armor, and $22,000 in cash. Lowe moved to suppress the evidence, arguing that the
affidavit in support of the search warrant lacked probable cause. The district court denied
his motion. A jury later found Lowe guilty of conspiring to distribute cocaine, possessing
and distributing cocaine, and possessing firearms in furtherance of drug trafficking. See
21
U.S.C. §§ 846, 841(a)(1);
18 U.S.C. § 924(c)(1)(A). The district court sentenced him to a total
of 120 months’ imprisonment for the drug counts and 60 months, consecutive, for the gun
count. On appeal, Lowe challenges only the denial of his motion to suppress. We affirm.
No. 09‐3919 Page 2
On November 3, 2008, Officer Gary Lewis of the Appleton, Wisconsin, police
department obtained a search warrant for Lowe’s house. In requesting the warrant, Lewis
submitted a five‐page affidavit to a state judge, asserting that he had probable cause to
believe Lowe was trafficking cocaine from his home in Appleton. Lewis detailed a
controlled drug buy conducted that same day, in which an unnamed informant had
purchased 14.3 grams of cocaine from Lowe’s brother, Doby Lowe. In the course of the
transaction, Doby had stopped at Lowe’s house before giving the informant the drugs. In
the affidavit, Lewis recounted that the informant met with Doby in a white Mitsubishi
Montero in front of Doby’s house in Grand Chute, Wisconsin, and gave Doby $750 in
marked currency to purchase cocaine and also cover a $300 drug debt. Lewis had Doby and
the informant under surveillance when the buy money was handed over to Doby. But Doby
did not give the informant the cocaine, and, instead, he told the informant to return in 90
minutes. Lewis then followed Doby as he drove to Lowe’s house. Approximately 30
minutes later Doby exited Lowe’s house. Investigator Feucht, also working the
investigation, advised Lewis that as Doby departed he called the informant, said that
everything was “good,” and instructed the informant to meet him back at Doby’s house.
Moments later, Doby met the informant and handed over the cocaine. In the affidavit for
the warrant, Lewis also asserted that the informant had told Feucht that Omarr Lowe was
Doby’s source for cocaine. And, Lewis continued, the informant’s statements had “proven
reliable in the past.” Although the affidavit describes events occurring on November 3,
2008, and was signed and executed on the same date, the typed jurat erroneously identifies
August 3, 2008, as the date on which the affidavit was signed and sworn.
Before trial Lowe moved to suppress all physical evidence recovered from his house
on the ground that Officer Lewis’s affidavit lacked sufficient information to establish
probable cause for the search. Lowe argued, first, that the incorrect date in the jurat
rendered the affidavit insufficient on its face and, second, that the affidavit lacked sufficient
information to find the informant credible and, thus, lacked sufficient facts pointing to
Lowe as the supplier. The trial judge referred the motion to a magistrate judge who
concluded that, although “far from a model of clarity, chronological and otherwise,” the
affidavit provided sufficient information from which the issuing judge could find a fair
probability that evidence of a crime would be found at Lowe’s house. Lowe objected, and
the district court adopted the magistrate judge’s recommendation, denying the motion to
suppress. First, the district court concluded that the mistaken date in the jurat was a
scrivener’s error and was immaterial to the validity of the warrant. Next, the court
reasoned that the majority of the information in the affidavit was based not on the
informant’s statements but the observations of the officers and supported a reasonable
inference that evidence of drug trafficking would be found in Lowe’s residence. The court
No. 09‐3919 Page 3
further held that, even if the affidavit was deficient, the officers relied on the warrant in
good faith.
We review a district court’s determination that a warrant is supported by probable
cause de novo but give great deference to the issuing judge’s conclusion. United States v.
McIntyre,
516 F.3d 576, 578 (7th Cir. 2008). Here, the affidavit was the only evidence
provided to the issuing judge in support of the search warrant, so the affidavit was required
to set forth sufficient evidence to convince a reasonable person—based on the totality of the
circumstances—that a search would produce evidence of a crime. See Illinois v. Gates,
462
U.S. 213, 238‐39 (1983); United States v. Bell,
585 F.3d 1045, 1049 (7th Cir. 2009); United States
v. Peck,
317 F.3d 754, 755‐56 (7th Cir. 2003).
Lowe asserts that the affidavit is just “bare bones”and does not establish probable
cause because, he contends, much of the information is provided by an informant of
unknown reliability. As Lowe notes, Officer Lewis’s affidavit states that the informant’s
prior statements were reliable, but does not offer further explanation or disclose the details
underlying this assertion. We have repeatedly held that wholly conclusory assertions of
reliability are not entitled to any weight. United States v. Dismuke,
593 F.3d 582, 587 (7th Cir.
2010); United States v. Koerth,
312 F.3d 862, 867 (7th Cir. 2002). Thus, the informant’s
statement that Lowe was Doby’s supplier is insufficient, on its own, to establish probable
cause. See Dismuke,
593 F.3d at 587‐88. Yet even when an affiant has not sufficiently
explained his belief that an informant is reliable, the issuing court may still find probable
cause if reliability can be inferred from the totality of the circumstances. Relevant factors
include (1) the extent of police corroboration of the informant’s information, (2) whether the
informant’s information was based on personal observations, (3) the amount of detail
provided by the informant, (4) the amount of time between the events reported by the
informant and the warrant application, and (5) whether the informant personally appeared
before the issuing judge to present the affidavit or testimony.
Id. at 587; United States v.
Olson,
408 F.3d 366, 370 (7th Cir. 2005).
Here, in addition to the informant’s statement identifying Lowe as his supplier, the
affidavit details a controlled drug buy corroborated by police observation. Lowe’s brother
accepted the informant’s marked bills but gave no cocaine in exchange. Immediately
afterward he visited Lowe’s house, then called the informant to say “it’s all good,” and then
five minutes later delivered the cocaine to the informant. Although the informant did not
appear before the issuing judge, little time had passed between the transaction and the
immediate issuance of the warrant that same day. The details of that transaction provided
by the informant and corroborated by the police support a reasonable inference that Doby
retrieved the cocaine from Lowe’s house.
No. 09‐3919 Page 4
Lowe takes issue with the use of the transaction as support for probable cause
because, as he reads the affidavit, it is unclear whether many of the details come from police
corroboration or the informant. Lowe notes that the affidavit is silent as to whether the
informant was searched for drugs before the controlled drug buy or whether audio
surveillance was used. But based on the wording of the affidavit, the issuing judge could
reasonably infer that nearly all of the details were independently observed or heard by the
police during their surveillance of the controlled buy. Before recounting the details of the
sale, the officer states that the affidavit is based upon his personal observations as well as
those of other officers. The transaction is explained in bullet points, each beginning with the
phrase “I know.” Although there are few details about the methods of surveillance or the
procedures associated with a controlled drug buy, the officer does note at points that he
personally observed the informant’s initial meeting with Doby, Doby’s trip to Lowe’s house,
and the completion of the sale.
To the extent that the details of the transaction were provided by the informant,
Lowe contends that those details must be viewed as unreliable because the officer did not
provide sufficient explanation of the informant’s reliability. But Lowe misses the point: the
court evaluating the warrant application considers the totality of the circumstances, and the
more details an informant provides—even an informant of unknown reliability—the greater
the issuing judge’s confidence in the informant’s reliability. See Dismuke,
593 F.3d at 587
(explaining that details provide “indicia of reliability”); United States v. Sims,
551 F.3d 640,
644‐45 (7th Cir. 2008) (crediting statements of informant based in part on level of detail
provided); United States v. Taylor,
471 F.3d 832, 839 (7th Cir. 2006) (same).
Moreover, the informant’s description of the transaction and Lowe’s involvement
was largely corroborated by police surveillance. Contrary to Lowe’s assertion, the affidavit
is unlike that in Bell, where we explained that a conclusory statement from an informant of
unknown reliability cannot be bolstered with the conclusory statements of other unreliable
informants. See Bell,
585 F.3d at 1050‐51. In Bell, we concluded that probable cause was
lacking because the affidavit relied almost exclusively on accounts from informants of
unknown reliability.
Id. at 1049‐50. We similarly found no probable cause in Peck, where
the affidavit related statements from an unreliable informant but failed to disclose any
police corroboration save for a check of the defendant’s criminal record. Peck,
317 F.3d at
756‐57. But here the informant’s details of the transaction and his assertion that Lowe was
Doby’s supplier were independently supported by police surveillance of the controlled buy,
which led directly to Lowe’s house.
Lowe argues that additional investigative efforts could have been used to
corroborate the informant’s accusations against him, but we regularly reject such arguments
because what could have been done “‘does not in any way detract from what was done.’”
No. 09‐3919 Page 5
Sims,
551 F.3d at 644 (quoting United States v. Jones,
208 F.3d 603, 607 (7th Cir. 2000)). And
although Lowe cites Owens v. United States,
387 F.3d 607, 608 (7th Cir. 2004), to argue that
the affidavit was required to include specific information about the amount of cocaine in
Lowe’s house in order to support an inference that the sale was not just an isolated incident,
the affidavit in Owens was very different. We rejected the bare‐bones affidavit in Owens
because it revealed only that an informant had bought “a quantity of crack” from the
defendant’s house three months earlier. Owens,
387 F.3d at 608. Unlike the stale and vague
information provided in Owens, the affidavit here describes very recent events, explains that
the informant had a prior drug debt with Doby (indicating an ongoing sales relationship),
and recounts that Doby drove directly to Lowe’s house in between accepting payment for
the cocaine and making the delivery. The parties disagree as to whether the 14.3 grams of
cocaine received by the informant is a user‐quantity, but, regardless, the level of detail and
corroboration provided in the affidavit was sufficient to infer that the sale was not “a single,
isolated sale . . . to a desperate acquaintance,”
id., and that evidence of cocaine dealing
would be found in the house.
Finally, because we conclude that the search warrant was supported by probable
cause, we need not address the government’s alternative argument that, even if the affidavit
was deficient, the evidence seized from Lowe’s home would have been admissible under
the good‐faith exception to the exclusionary rule. See United States v. Leon,
468 U.S. 897, 922
(1984); United States v. Mitten,
592 F.3d 767, 770 (7th Cir. 2010); United States v. Farmer,
543
F.3d 363, 378 (7th Cir. 2008).
Accordingly, we AFFIRM the judgment of the district court.
