NONPRECEDENTIAL DISPOSITION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
Submitted July 22, 2010*
Decided July 23, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐3627
PETER L. CRAIGG, Appeal from the United States District
Petitioner‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 09‐C‐801
UNITED STATES OF AMERICA, William C. Griesbach,
Respondent‐Appellee. Judge.
O R D E R
Peter Craigg appeals from the denial of his motion under
28 U.S.C. § 2255
challenging his conviction for maintaining drug‐involved premises,
21 U.S.C. § 856. His
principal claim is that his trial counsel rendered ineffective assistance by not moving to
suppress the crack cocaine, drug paraphernalia, and marked bills that the police found in
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09‐3627 Page 2
his apartment. The district court found that the warrant authorizing the search of the
apartment was supported by probable cause, and that any motion to suppress would have
lacked merit. We affirm.
Before securing a warrant to search Craigg’s apartment (which he shared with Joy
Ayotte), police conducted at least two “controlled buys” of crack cocaine that led them
there. The first time, a drug dealer (“K.C.”), carrying marked bills handed her by a
confidential informant, drove to Craigg’s apartment alone (but was tailed by police).
Outside the apartment, an unidentified woman got into K.C.’s car, and the pair drove off.
Police waited near the apartment until K.C. returned 10 or 15 minutes later and dropped off
the woman. The police followed K.C. to another location, where K.C. again met the
informant and gave her a substance that later tested positive for cocaine base.
The next day, the informant gave K.C. some more marked bills, and the police again
tailed K.C. to Craigg’s apartment. As before, a woman entered K.C.’s car, but this time the
police were able to identify her as Ayotte. This time the police were also able to follow
K.C.’s car around the block and back to the apartment, and thereby verify that no other
stops were made. After dropping off Ayotte, K.C. took more crack to the informant.
Police confirmed Ayotte’s identity and address, obtained a warrant to search the
apartment, and promptly executed the warrant. When the search turned up drugs, marked
bills, and a scale and safe, police arrested Craigg and Ayotte. The physical evidence,
together with statements Craigg made after the search, provided the factual basis for his
unconditional guilty plea, and the district court sentenced him to 120 months’
imprisonment. We permitted Craigg’s appellate counsel to withdraw and dismissed his
direct appeal under Anders v. California,
386 U.S. 738 (1967). See United States v. Craigg, 338
F. App’x 530 (7th Cir. 2009) (nonprecedential decision).
Craigg then filed a § 2255 motion claiming that trial counsel rendered ineffective
assistance by not challenging the sufficiency of the search warrant. He also claimed that
appellate counsel was ineffective by failing to mount a challenge based on trial counsel’s
alleged shortcomings.
The district court denied the motion. The court assumed the truth of Craigg’s
allegations about the warrant and underlying affidavit—neither of which was in the
record—and concluded that the controlled buys provided probable cause to search the
apartment for drugs and marked bills. Accordingly, explained the district court, a motion
to suppress would have lacked merit, and thus counsel’s decision not to file such a motion
did not support an ineffective‐assistance claim. Craigg’s claim regarding appellate counsel
failed, too, because that claim depended on an assumption that trial counsel was deficient.
No. 09‐3627 Page 3
On appeal Craigg maintains that the district court erred by concluding that trial
counsel did not render ineffective assistance by failing to file a motion to suppress. To
prevail, Craigg must show that such a motion would have succeeded. See Kimmelman v.
Morrison,
477 U.S. 365, 375 (1986); Ebert v. Gaetz, — F.3d —,
2010 WL 2508771, at *7 (7th Cir.
June 23, 2010). He contends that it would have because the evidence linking the controlled
buys to the apartment did not ensure that drugs and money would be found there. Given
only what police observed, he suggests, Ayotte might have stashed the drug supply and
cash at some other apartment and used their apartment merely as a meeting spot.
Yet the standard for a search warrant is not certainty, but probable cause, which
requires only a substantial likelihood that a search will uncover evidence of a crime. Illinois
v. Gates,
462 U.S. 213, 236 (1983); United States v. Dismuke,
593 F.3d 582, 586 (7th Cir. 2010);
United States v. Sidwell,
440 F.3d 865, 869 (7th Cir. 2006). We agree with the district court
that the evidence linking the controlled buys to the apartment yielded a substantial
likelihood that drugs and marked bills would be found there.
Next, Craigg asserts that his case is “wholly parallel” to Owens v. United States,
387
F.3d 607 (7th Cir. 2004), in which we vacated the denial of a § 2255 motion because trial
counsel was deficient in failing to establish that his client lived at the site of a search, and
thus had standing to suppress the evidence seized pursuant to a search warrant. In Owens,
counsel’s failure to establish standing was the real obstacle to a successful motion to
suppress, because the “barebones affidavit” alleged only that a confidential informant of
unknown reliability claimed to have bought crack three months earlier at the defendant’s
home, and thus did not provide probable cause to believe that drugs or money would still
be there. Id. at 608. But here, the warrant was executed just one day after the second drug
buy, so it was far less likely that any drugs and proceeds would have been removed from
the premises. Further, the two sales conducted over two days in the same manner
suggested the presence of an ongoing drug business, rather than “a single, isolated sale,
perhaps to a desperate acquaintance.” Id. Finally, the controlled buys and surveillance
meant that police did not need to rely on an informant’s word to show that drugs had
changed hands. Accordingly, there would have been no merit to a suppression motion.
Craigg’s trial counsel was not ineffective in failing to file such a motion, nor was appellate
counsel ineffective in not challenging trial counsel’s handling of this issue.
AFFIRMED.
