United States v. Finas Glenn ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2802
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FINAS J. GLENN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 18-cr-20061— James E. Shadid, Judge.
____________________
ARGUED JULY 7, 2020 — DECIDED JULY 20, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. Police investigating drug
trafficking in Vermilion County, Illinois, sent an informant to
buy two ounces of cocaine at the home of Finas Glenn. The
transaction was recorded on audio and video. About a
month later the police asked for a warrant to search Glenn’s
home. A state judge put agent Pat Alblinger under oath, took
2 No. 19-2802
his testimony (which was recorded), and issued a warrant. A
search turned up cocaine and guns.
Indicted on drug and weapons charges, Glenn moved to
suppress the evidence seized in the search. A district judge
held a hearing and concluded that the warrant was support-
ed by probable cause. 2019 U.S. Dist. LEXIS 89507 (C.D. Ill.
May 29, 2019). Glenn then pleaded guilty to one firearms
charge, see 18 U.S.C. §922(g)(1), and the prosecutor dis-
missed the remaining counts. The plea reserved Glenn’s
right to contest on appeal the denial of his motion to sup-
press. See Fed. R. Crim. P. 11(a)(2). The judge sentenced
Glenn to 102 months’ imprisonment.
A judge in a criminal prosecution must afford “great def-
erence” to the probable-cause finding by the judge who is-
sued a warrant. See Illinois v. Gates, 462 U.S. 213, 236 (1983);
United States v. McIntire, 516 F.3d 576 (7th Cir. 2008). That
norm is as applicable to warrants based on live testimony as
it is to warrants based on affidavits. See United States v.
Pa?on, 962 F.3d 972 (7th Cir. 2020).
This warrant rests on the “controlled buy” plus
Alblinger’s testimony that the informant had for more than a
decade provided reliable information. Glenn contends that
this is not enough to show probable cause, because Alblinger
did not tell the state judge whether agents had searched the
informant before the transaction, that the informant had a
long criminal record and was cooperating to earn lenience,
and that the informant’s record of providing accurate infor-
mation was with the local police as a whole rather than with
Alblinger personally. Like the district judge, we think these
omissions unfortunate. But they do not negate probable
cause, when, as Gates requires, the evidence is viewed as a
No. 19-2802 3
whole and the federal court gives the state judge great defer-
ence.
The principal reason to search an informant before a con-
trolled buy is to make sure that he does not try to trick the
investigators by providing the drugs himself and then as-
serting that he bought them from the target. It is possible that
some sleight of hand might be practiced even when a trans-
action is recorded, but the audio and visual record of this
transaction would have allowed a conviction beyond a rea-
sonable doubt. Probable cause is a lower standard. The
Fourth Amendment does not require best practices in crimi-
nal investigations. That the agents could have managed this
controlled buy to provide an even higher level of confidence
does not imply that probable cause is missing.
Given the audio and video evidence of the controlled
buy, the informant’s reliability and motivations are not ma-
terial to the existence of probable cause. Gates observed that
these considerations can be important to the total mix of in-
formation, which is why police do well to provide details to
the judge asked to issue a warrant, but the omissions do not
detract from the powerful audio and video evidence.
Glenn contends that the evidence provided by the con-
trolled buy was stale by the time the agents searched his
house. Yet the passage of time does not necessarily imply
that a retail site for drug sales has ceased to be so. See United
States v. Lamon, 930 F.2d 1183, 1187–88 (7th Cir. 1991). If the
house had been sold in the interim, or if there were some
reason to think that Glenn had changed his line of business,
then the passage of time would provide reason to doubt the
inference that a place used to distribute drugs in the recent
past is still used for that purpose. But there is no such evi-
4 No. 19-2802
dence. To the contrary, in an interview shortly before agent
Alblinger applied for the warrant, Glenn conceded that he
sold cocaine from his home—and although Glenn said that
he sold only “small quantities,” retail drug sales are retail
drug sales. Alblinger did not present this confession to the
state judge, so it does not factor into the finding of probable
cause, but it negates any possibility that Alblinger knew that
the information after the controlled buy implied that Glenn’s
house no longer contained cocaine. Alblinger told the federal
court that the delay was designed to prevent Glenn from in-
ferring the informant’s identity. That’s a good reason to wait,
and Glenn was not injured by the delay.
AFFIRMED