United States v. Hubbard, Quincy D. , 247 F. App'x 18 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 18, 2007
Decided July 20, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-3839
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Western Division.
v.
No. 05 CR 50055-1
QUINCY D. HUBBARD,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
Quincy Hubbard pleaded guilty to possessing crack with intent to distribute,
21 U.S.C. § 841(a)(1), and possessing a firearm after a felony conviction, 18 U.S.C. §
922(g)(1). In his written plea agreement, Hubbard reserved the right to challenge
on appeal the denial of his motion to suppress the crack and the gun, both seized
from his home in Rockford, Illinois. The district court calculated a guidelines
imprisonment range of 292 to 365 months and sentenced Hubbard to a total of 294
months followed by five years’ supervised release. Hubbard appeals, but his
appointed lawyer has moved to withdraw under Anders v. California, 386 U.S. 738(1967), because he cannot discern any nonfrivolous arguments to pursue. Hubbard
No. 06-3839 Page 2
declined our invitation to respond to counsel’s facially adequate brief, see Cir. R.
51(b), but moved for substitute counsel instead.
The facts relevant to the suppression motion are not in dispute. On February
10, 2005, an informant told Douglas Pann, a detective with the Rockford Police
Department, that he had purchased crack numerous times from a black man he
knew only as “J.” The most recent purchase, the informant said, was earlier that
month. According to the informant, J was selling the crack from a house at 721 8th
Avenue in Rockford, where he lived with his brother “Q.” The informant said that
Q was the supplier and that the brothers kept a large amount of crack at the house.
On March 8, 2005, Pann and two other detectives used the informant to
make a controlled buy at the house on 8th Avenue. After searching the informant
to ensure that he was not carrying drugs, they gave him money and dropped him off
near the house. They watched him enter the front door, exit five minutes later, and
return to their unmarked police car. The informant handed the detectives a plastic
bag containing crack and told them that he bought it from Q.
Detective Pann put this information in an affidavit and on March 11, 2005,
applied to a state judge for a warrant to search the house. At 11:29 a.m. the judge
issued the warrant, which states that it was to be executed “not later than 96 hours
after the time of issuance.” Police executed the warrant on March 15 at 6:00 a.m.,
approximately 90.5 hours after the warrant was issued. They recovered 537 grams
of crack and a .357 handgun.
The matter was referred to federal authorities, and after Hubbard was
charged, he moved to suppress on the ground that the warrant was stale by the
time it was executed. The district court denied the motion without an evidentiary
hearing, holding that Pann’s affidavit established that probable cause still existed
at the time of the search because there was ongoing drug activity at the house. The
court ruled in the alternative that suppression was unwarranted because the
officers relied on the warrant in good faith.
In his Anders submission, counsel considers whether Hubbard could
challenge the suppression ruling. Counsel recognizes that the warrant was issued
on the basis of probable cause, but he questions whether Hubbard might renew his
argument that the warrant was stale when executed. But as counsel correctly
notes, the passage of time is less significant when ongoing criminal activity is
suspected, as was the case here. See United States v. Watzman, 486 F.3d 1004,
1008 (7th Cir. 2007); United States v. Gibson, 123 F.3d 1121, 1125 (8th Cir. 1997)
(holding that a four-day delay in execution did not render warrant stale given
evidence of continuing criminal activity); United States v. Allen, 960 F.2d 1055,
1057 (D.C. Cir. 1992) (holding that ten-day delay in executing warrant did not
No. 06-3839 Page 3
render warrant stale given evidence of continuing drug activity). And the kinds of
evidence identified in the warrant—scales, cell phones, mixing devices, etc.—are not
likely to disappear in less than a week.
In any event, even if the delay in execution was significant, it would be
frivolous to challenge the district court’s alternative ruling that the good-faith
exception applied. Hubbard needed to demonstrate that the police officers could not
reasonably have believed that the warrant was still valid when they executed it.
See United States v. Leon 468 U.S. 897, 922-23 (1984); United States v. Harris, 255
F.3d 288, 293-94 (6th Cir. 2001) (noting that a reasonable officer would believe
probable cause existed four days after warrant issued given evidence of ongoing
drug activity). And it would be frivolous to argue that the officers could not
reasonably rely on the state judge’s determination that probable cause would exist
for 96 hours. See United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 1499 (2006)
(“[T]he magistrate’s determination that there is probable cause for the search
amounts to a prediction that the item will still be there when the warrant is
executed.”).
Counsel also addresses whether Hubbard could challenge the voluntariness
of his guilty pleas. But counsel reports that Hubbard wishes to have his pleas
vacated only if he succeeds in overturning the adverse suppression ruling. Because
counsel correctly concludes that any suppression argument would be frivolous, he
properly refrains from addressing other contentions about the guilty pleas. See
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Finally, counsel considers whether Hubbard could challenge the
reasonableness of his overall prison term but properly concludes that such a
challenge would be frivolous. The district court adopted the guidelines calculations
Hubbard stipulated to in his plea agreement, and imposed a total period of
imprisonment only two months higher than the low end of the guidelines range. We
would presume that term to be reasonable, see United States v. Rita, No. 06-5754,
2007 WL 1772146, at *6 (U.S. Jun. 21, 2007); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005), and counsel has been unable to identify any factor that
could rebut the presumption.
We therefore GRANT counsel’s motion to withdraw, DENY Hubbard’s motion
for the appointment of substitute counsel, and DISMISS the appeal.