United States v. Sims, Rico R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3798
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ICO R. S IMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07 CR 10027—Joe Billy McDade, Judge.
A RGUED O CTOBER 23, 2008—D ECIDED D ECEMBER 24, 2008
Before B AUER, W OOD , and T INDER, Circuit Judges.
B AUER, Circuit Judge. While executing a search warrant,
police discovered a firearm in possession of Rico R. Sims,
a felon, a violation of 18 U.S.C. § 922(g). Sims pleaded
guilty and reserved his right to challenge the district
court’s denial of his motion to suppress the evidence. On
appeal, Sims argues that the search warrant was improper
because material facts that diminished the informant’s
2 No. 07-3798
reliability were not presented in the affidavit to the issuing
judge. Sims also argues that the executing police officers
could not have reasonably relied on such an improper
warrant. For the following reasons, we affirm.
I. BACKGROUND
Police arrested Alicia Dean following a routine traffic
stop, uncovering 30 grams of ecstacy and 68 individually
packaged bags containing almost 200 grams of marijuana.
During an interview conducted by Peoria Police Officer
Barisch, Dean stated that she had purchased the ecstacy
days earlier from a friend in Chicago, but she refused to
identify that person. Dean also stated that she had pur-
chased the marijuana from Sims at his residence on
Hurlburt Street in Peoria that very day. Dean claimed that
she spoke regularly with Sims and was his “on-again-off-
again” girlfriend. Dean identified Sims as the seller of the
marijuana from a six-person photo lineup prepared by
Barisch. Dean could not recall Sims’s address but said that
the house where she purchased the marijuana was on
Hurlburt Street. Barisch drove toward the vicinity she
described and Dean identified the house at 1022 W.
Hurlburt Street as Sims’s.
Barisch prepared a complaint seeking a search warrant
for Sims’s residence. Throughout the complaint, Barisch
referred to Dean as “John Doe” to protect her identity. The
complaint stated that Doe had been inside Sims’s residence
at 1022 W. Hurlburt Street within the past 72 hours and
saw marijuana both in the house and on Sims. According
to the complaint, Doe also described Sims by appearance
No. 07-3798 3
and identified him by his nickname, “Southpark.” The
complaint further stated that Barisch had shown Doe a
lineup consisting of six similarly-looking black males and
that Doe identified Sims’s photograph as the person Doe
knew by the nickname “Southpark.”
Barisch also prepared an affidavit for Dean together with
the complaint. In the affidavit, Doe stated that she was
assuming the name “John Doe” in fear of retaliation for
providing information to the police. Doe also stated that
she had been in Sims’s residence within the past 72 hours
and had seen “a green leafy plant like material,” repre-
sented as marijuana, in the home and on Sims. Doe stated
that she knew Sims routinely sold marijuana from his
home and on the streets of Peoria.
Doe also confirmed that she “positively identified”
Sims’s photograph from a photo lineup of six similarly-
looking black males as the person in possession of the
marijuana. Doe also stated in her affidavit that when
Barisch had driven to 1022 W. Hurlburt, she identified
it as Sims’s residence and the place where she purchased
the marijuana. Finally, Doe swore to the accuracy of the
facts.
Later that night, Barisch and Dean met with a state court
judge to obtain a search warrant for marijuana and other
drug-related items in Sims’s residence. This meeting took
place in a police squad car on a public parking lot. In the
judge’s presence, Barisch signed the complaint and Dean
signed the affidavit. The judge asked Dean if she was
assuming the name “John Doe” in fear of retaliation and if
everything in the affidavit was true and correct. Dean
4 No. 07-3798
replied affirmatively to both questions; the judge issued
the search warrant.
The next day, the warrant was executed; the search
uncovered around 20 grams of marijuana on Sims and two
firearms, with ammunition, from the residence.
Sims was charged with being a felon in possession of a
firearm. 18 U.S.C. § 922(g). Sims filed a motion to suppress
the evidence, claiming that information not presented to
the issuing judge diminished the informant’s reliability in
securing the search warrant. After a hearing, the district
court denied the motion and held that the warrant was
supported by probable cause and that Barisch could have
reasonably relied on the warrant in good faith. The district
court concluded that the informant’s reliability was not
successfully challenged and under the totality of the
circumstances, the allegations in the affidavit and their
reasonable inferences were sufficient to show probable
cause to issue the warrant. Sims thereafter entered into a
limited plea agreement and pleaded guilty to the charged
crime, reserving the right to appeal the denial of his motion
to suppress. The court accepted the agreement and plea,
and found Sims guilty as charged. This timely appeal
followed.
II. DISCUSSION
Sims argues that the district court erred in failing to
suppress evidence obtained from the search of Sims’s
residence. Specifically, Sims asserts that the affidavit in
support of the search warrant failed to establish probable
No. 07-3798 5
cause because Dean’s statements were not a reliable basis
for the warrant. Sims also asserts that because the affidavit
was so unreliable, police officers could not have reasonably
relied on the warrant. The district court held that the
affidavit adequately demonstrated probable cause to issue
the search warrant. We agree.
In reviewing a district court’s decision to deny a motion
to suppress evidence, we review its legal conclusions de
novo and its factual findings for clear error. United States v.
Berkos, 543 F.3d 392, 396 (7th Cir. 2008). When a search is
authorized by a warrant, we give “great deference” to the
issuing judge’s conclusion that probable cause has been
established. United States v. Garcia, 528 F.3d 481, 485 (7th
Cir. 2008) (quoting United States v. McIntire, 516 F.3d 576,
578 (7th Cir. 2008)). We defer to the issuing judge’s initial
probable cause finding if there is “substantial evidence in
the record” that supports his decision. United States v.
Koerth, 312 F.3d 862, 865 (7th Cir. 2002). A search warrant
affidavit establishes probable cause when “it sets forth
sufficient evidence to induce a reasonably prudent person
to believe that a search will uncover evidence of a crime.”
United States v. Mykytiuk, 402 F.3d 773, 776 (7th Cir. 2005)
(internal quotations omitted). “[T]he task of the issuing
magistrate is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Koerth, 312 F.3d at 866. The judge,
however, may not solely rely upon “conclusory allega-
tions” or a “bare bones” affidavit when issuing a warrant.
Id. at 877.
6 No. 07-3798
Where the affidavit is supported by an informant’s tip,
we examine the totality of the circumstances to determine
probable cause. This inquiry encompasses several factors,
including: (1) the extent to which the police have corrobo-
rated the informant’s statements; (2) the degree to which
the informant has acquired knowledge of the events
through firsthand 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. Jones, 208 F.3d 603, 609 (7th Cir.
2000). Significantly, we also consider whether the infor-
mant personally appeared and presented an affidavit or
testified before the magistrate, thus allowing the judge to
evaluate the informant’s knowledge, demeanor, and
sincerity. United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.
1995).
On appeal, Sims argues that because Dean’s arrest was
not disclosed to the issuing judge, the judge could not have
properly found Dean reliable as an informant. Sims claims
that the judge should have been told that Dean was
recently arrested for possession of large, distributable
amounts of marijuana and that she resisted arrest. Sims
also argues that the affidavit lacked detail as it failed to
include: interior details of the residence to be searched,
Dean and Sims’s romantic status, and the amount of
marijuana in Sims’s residence. Because of these missing
facts, Sims argues that Dean was not reliable to serve as the
basis for the search warrant, and no corroborating evidence
existed to cure her unreliability. We disagree; the evidence
presented in Dean’s affidavit clearly supported a determi-
nation of probable cause.
No. 07-3798 7
The affidavit for the search warrant alleged that Dean
knew Sims sold marijuana out of his home and on the
street; Dean had recently seen marijuana on Sims and in his
residence within 72 hours; Dean had given a physical
description of Sims and the exterior of the house where the
drugs were located; Dean identified the home where she
saw the drugs and Sims, which turned out to be Sims’s
residence; and Dean identified Sims from a photo lineup as
the person at the Hurlburt Street home who had the drugs
in his possession. Although Sims argues that other investi-
gative methods could have further corroborated Dean’s
statements, simply because these methods “could have
been done but were not does not in any way detract from
what was done.” Jones, 208 F.3d at 607. Here, the issuing
judge was presented with an affidavit reflecting believable
and corroborated evidence, enough to find probable cause.
Importantly, Dean was also presented to and questioned
by the issuing judge. The judge asked Dean whether:
(1) she was submitting her affidavit as “John Doe” in fear
of Sims retaliating against her; and (2) whether all informa-
tion provided in the affidavit was true and correct. Al-
though Sims argues that the questions do nothing to
bolster Dean’s reliability, we conclude that the judge was
able to personally assess Dean’s truthfulness by the
confrontation; under a totality of the circumstances, the
reasonable inferences taken from the meeting further
supported the issuing judge’s finding of probable cause for
the warrant.
However, the law allows a challenge of affidavits on the
ground that material facts were omitted and that the
8 No. 07-3798
omission was made intentionally or with reckless disregard
for the truth. United States v. Williams, 737 F.2d 594, 604 (7th
Cir. 1984); United States v. McNeese, 901 F.2d 585, 594 (7th
Cir. 1990). Sims argues that, had the omissions of fact
surrounding Dean’s arrest been included in the affidavit,
no judge would have found Dean reliable and probable
cause would not have been found.
We disagree; we find that the omission does not even rise
to a level of negligence because there was already a
sufficient amount in the affidavit to establish probable
cause. As previously discussed, Dean’s statements in the
affidavit established that there was a high probability that
Sims possessed marijuana on his person and in his home;
we do not believe that the omission of Dean’s arrest was
made knowingly or with reckless disregard for the truth.
More importantly, such information did not reach the
level of constitutional materiality to a probable cause
determination; had the arrest been disclosed, there is not a
reasonable probability that the results of the proceeding
would have been different. Probable cause was properly
found by the issuing judge based on the information before
him. United States v. Danovaro, 877 F.2d 583, 587-88 (7th Cir.
1989) (validity of warrant upheld based upon affidavit that
deliberately withheld details for the protection of the
informant, as long as the information excised was not
essential to support the warrant). Our review of the
affidavit reveals that the issuing judge had a substantial
basis for concluding that probable cause existed, and the
omission of Dean’s arrest does not detract from this
finding.
No. 07-3798 9
III. CONCLUSION
The district court properly denied Sims’s motion to
suppress. Accordingly, we A FFIRM his conviction.
12-24-08