United States v. Garcia, Armando ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3582
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARMANDO GARCIA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 292—Rudolph T. Randa, Chief Judge.
____________
ARGUED APRIL 14, 2008—DECIDED JUNE 3, 2008
____________
Before FLAUM, EVANS, and TINDER, Circuit Judges.
EVANS, Circuit Judge. A jury convicted the defendant,
Armando Garcia, of possession with intent to distribute
500 grams or more of cocaine; he was subsequently sen-
tenced to 97 months imprisonment. Garcia now appeals
three of the district court’s rulings. His primary com-
plaint—which consumed the entire discussion at oral
argument—is that the district court should have sup-
pressed evidence seized during the execution of a
search warrant at his girlfriend’s apartment because the
warrant lacked probable cause. The magistrate judge
(Aaron E. Goodstein) agreed with Garcia and recom-
2 No. 07-3582
mended that the motion to suppress be granted. The
district judge (Rudolph T. Randa), however, found that
the warrant was supported by probable cause and, in the
alternative, even if probable cause was lacking, the “good
faith” exception to the exclusionary rule applied and
the evidence should not be suppressed.
On October 30, 2006, Milwaukee County Court Com-
missioner Barry Slagle issued a search warrant based
entirely on the affidavit of Detective David Baker. The
affidavit was of the “fill-in-the-blanks” variety (which,
we were troubled to hear, is regularly used in Milwaukee
County) and stated that a confidential informant was
inside Garcia’s residence and, within 72 hours before-
hand, observed “an off white powdery substance pack-
aged in a plastic bag in the living area of the house[.]”
Based on the informant’s past involvement in the sale
of controlled substances and personal experience, the
informant believed the white substance he saw was
cocaine. The affidavit also stated that Baker believed
that the informant was credible because he had previously
provided officers with information that led to the arrest
of “more than two” fugitives and to the arrest and con-
viction of one other person in relation to drug trafficking.
Law enforcement officers executed the search warrant the
same day it was issued. Upon breaching the door, they
found Garcia’s girlfriend, Gabriela Ordoñez, holding a
baby in the living room. They then moved to the bedroom
and found Garcia. As they entered, Garcia dove for the
bed and began reaching under the mattress. The officers
then placed Garcia in handcuffs and searched him; they
found approximately $1,000 in cash and a small quantity
of cocaine in his pockets.
No. 07-3582 3
After securing the apartment the officers began their
search. In the bedroom where they had located Garcia
they noticed a large piece of wood on the floor; the
wood was discovered to be the cover to an (open) access
panel on the wall. Inside the panel the officers found four
individually wrapped kilograms of cocaine. Under the
mattress where Garcia had been reaching they found a
loaded .38 caliber handgun. In the bedroom closet they
found a locked safe containing five bags of cocaine totaling
132 grams, approximately $25,000, a 2000-gram capacity
scale, an insurance card bearing Garcia’s name, other
papers bearing Garcia’s name, a gold bracelet with
“Garcia” printed on it, and drug notes. The officers
also found cocaine residue on a wooden bench in the
middle of the floor. Under the bench was a five-pound
capacity scale. In the hall closet the officers found a
baggie of cocaine near a pill bottle bearing Garcia’s name.
During the search Garcia told an officer that he lived
at the residence and that Ordoñez had nothing to do
with the cocaine. Later, at the police station, the officers
interviewed Garcia after advising him of his Miranda rights.
During that interview Garcia admitted to living at the
apartment with Ordoñez. He said that the $25,000 found in
the safe belonged to him but that he had earned it selling
cars. Garcia admitted that he regularly used cocaine but
did not claim ownership of the four kilograms found in the
bedroom wall.
Based on this evidence, a grand jury returned a two-
count indictment charging Garcia with possession with
intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm in furtherance of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c).
4 No. 07-3582
The district court set a deadline of November 29, 2006,
for the filing of pretrial motions. On that day, Garcia,
through his attorney, Andres Velez, filed several motions,
including a suppression motion challenging the search
warrant. On December 13, 2006, while those motions
were pending, attorney Jeffrey Jensen substituted for
Velez as defense counsel. Jensen did not file additional
motions or ask the court to extend the deadline.
On December 21, 2006, the magistrate judge recom-
mended that the motion to suppress be granted. The
government objected. The district court ultimately denied
the motion to suppress on March 14, 2007. Three weeks
later the district court issued an order scheduling the
case for trial in July. At that point, Jensen filed a motion
to compel the government to disclose the identity of
the confidential informant. The district court denied
the motion as untimely.
At trial, Detective Baker was called as a witness. On
direct examination, Baker stated that on October 30, 2006,
he was conducting an investigation of a drug source
in Milwaukee. When the government asked Baker if he
was “able to identify who that drug source was” or “got a
name for the person [he was] investigating,” Jensen
objected on hearsay and Confrontation Clause grounds.
The court sustained the objection, and the government
rephrased its question by asking Baker, “[W]hen you
applied for that search warrant, did you have a name
that you had affiliated that location with?” Jensen ob-
jected again, but the court ruled that the question was
proper because Baker could testify as to the name on the
warrant. Baker then stated that the name on the war-
rant was “Armando Garcia.”
No. 07-3582 5
Later, Garcia testified in his own defense, contra-
dicting several of his earlier statements to the police.
He stated that he was staying with Ordoñez only occa-
sionally, not living with her. He disclaimed knowledge
of the bedroom safe, saying that the money and papers
found in it did not belong to him. He admitted that the
gold “Garcia” bracelet found in the safe was his, but he
had no explanation for how it got there. He denied know-
ing about the four kilograms of cocaine found in the
bedroom wall and opined that someone else must have
left them there. The jury returned a verdict of guilty on
count one (the drug charge) and not guilty on count
two (the firearm charge).
Because the search warrant is the primary issue in
this case, we begin with Garcia’s other two chal-
lenges, neither of which requires much discussion. Garcia
first argues that the district court should have granted
his motion to compel disclosure of the identity of the
confidential informant who provided the information
for the search warrant. We review these rulings for an
abuse of discretion. United States v. Weaver, 882 F.2d
1128, 1136 (7th Cir. 1989).
Rule 12(c) allows the district court to set deadlines for
filing pretrial motions. Fed. R. Crim. P. 12(c). A party
waives any pretrial request if it fails to abide by this
deadline; the court may, however, grant relief for “good
cause” shown. Fed. R. Crim. P. 12(e). The government
argues that Garcia has not made this showing. We agree.
In his motion to compel, Garcia made no attempt to
establish good cause for the late filing. After the district
court denied the motion as untimely, he again made
no attempt to explain the delay or request reconsideration.
On appeal, Garcia glosses over these facts and offers
two “obvious” reasons for the late filing. First, he argues
6 No. 07-3582
that he was not required to file the motion earlier be-
cause the magistrate judge had recommended that the
evidence be suppressed. But parties are not entitled to
wait and see how a court rules on one motion before
making another. Second, he argues that switching
lawyers was “cause” for the delay. But Jensen never
requested a new deadline and only filed the motion to
compel after receiving the trial date—that is, almost
4 months after substituting in as counsel. Because this is
not “good cause,” the district court did not err in denying
the motion as untimely.
Garcia’s other more minor complaint is that the district
court should have sustained his objection to Baker’s
testimony that the name appearing on the face of the
search warrant was Garcia’s. He claims that Baker’s
testimony was hearsay, violated his rights under the
Confrontation Clause, and went to the heart of his de-
fense that he was not sufficiently connected to the apart-
ment and therefore didn’t know about the four kilograms
of cocaine. Even if the jury was exposed to evidence
that was not properly before it, however, a defendant is
not automatically entitled to relief. United States v. Gonzalez,
319 F.3d 291, 297 (7th Cir. 2003). A new trial is mandated
only where there is a reasonable possibility that the
evidence had a prejudicial effect—that is, where the
error is not harmless. Id.We can save the constitutional inquiry and decide this
issue on harmless error grounds. Garcia was found in
the bedroom of the apartment with four kilograms of
cocaine in plain view. In the same room, the officers found
a safe containing five bags of cocaine, approximately
$25,000, a 2000-gram capacity scale, an insurance card
bearing Garcia’s name, other papers bearing Garcia’s
No. 07-3582 7
name, a gold bracelet with “Garcia” printed on it, and
drug notes. The officers also found cocaine residue on a
wooden bench in the middle of the floor; under the
bench was a five-pound capacity scale. On top of that,
Garcia told the officers that he lived at the residence, that
the $25,000 found in the safe belonged to him, and that
Ordoñez had nothing to do with the cocaine. This evid-
ence overwhelmingly ties Garcia to the apartment and
renders the jury’s exposure to the name on the search
warrant, even if improper, harmless beyond any reason-
able doubt.
We now turn to Garcia’s primary argument that the
district court should have suppressed the evidence
seized at the apartment because the search warrant was
not supported by probable cause. Recently, in United
States v. McIntire, 516 F.3d 576 (7th Cir. 2008), we clarified
our complex standard of review on this issue. A district
court’s findings of historical fact are reviewed for
clear error, but its legal conclusions are reviewed without
deference. On the mixed question whether the facts add
up to probable cause, we give no weight to the district
judge’s decision but “great deference” to the conclusion
of the judge who initially issued the warrant. Id. at 578.
Here, the district court made no findings of fact, so the
appropriate inquiry is whether, with the benefit of “great
deference,” the issuing judge acted on the basis of prob-
able cause.
Probable cause is established when, based on the
totality of the circumstances, the affidavit sets forth suffi-
cient evidence to induce a reasonably prudent person to
believe that a search will uncover evidence of a crime. See
Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v.
Jones, 208 F.3d 603, 608 (7th Cir. 2000). Where probable
8 No. 07-3582
cause is based on information supplied by an informant,
we consider several factors: “(1) the extent to which the
police have corroborated 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 police officer’s application for the search
warrant.” United States v. Koerth, 312 F.3d 862, 866 (7th Cir.
2002).
On balance, we agree that a sensible judge could find
that the affidavit here set forth sufficient facts to estab-
lish probable cause. The information obtained from the
informant was based on firsthand observations. The
affidavit specifically stated that the informant had been
inside the apartment and had observed a substance he
believed to be cocaine, packaged in a plastic baggie, in
the living room. The affidavit also explained that the
informant believed the substance was cocaine because he
had been involved in selling cocaine in the past. The time
lapse between the officers acquiring of the information
and their application for the warrant—no more than
72 hours—was short. And the affidavit provided infor-
mation to establish the credibility of the informant: the
informant had previously provided information leading
to the arrest of at least three other individuals.
Nevertheless, we hesitate for two reasons. First, as the
government concedes, the affidavit lacks much detail from
the informant. It does not state, for example, how the
informant came to be inside the apartment, who was in
the apartment at the time, or how much cocaine he saw. We
agree with the government that, under a totality-of-the-
circumstances analysis, this information is not required
to establish probable cause, but it certainly would
No. 07-3582 9
have helped. We also recognize that the disclosure of
details surrounding the informant’s presence at a loca-
tion makes the identity of the informant more likely to
be discovered. But surely some of this information
could have been provided without compromising the
informant’s safety.
Our second cause for concern is that the affidavit was, as
we said, on a “fill-in-the-blanks” form. Although “[an]
affidavit is [not] invalid to support a search warrant
simply because it ha[s] a preprinted format,” United
States v. Romo, 914 F.2d 889, 898 (7th Cir. 1990), a
pre-prepared affidavit leads to errors and omissions.
For example, paragraph 9 of Baker’s affidavit states,
“[A]ffiant believes, based upon affiant’s conversation
with informant, affiant’s personal observation of the
appearance of the substance, and the manner in which
the substance was packaged, that the aforementioned
substance is cocaine.” As we pointed out at oral argument,
this statement seems to indicate that Baker (the affiant)
saw the cocaine, when in fact it was the informant. We
understand why officers may wish to employ a short-
cut when applying for warrants. But we caution that
this practice may ultimately result in evidence sup-
pression at trial. Thus, it is with some reservation that
we conclude that the state court commissioner did not
err in issuing the warrant in this case.
However, even if probable cause was lacking, the
evidence here still survives under the good faith exception
of United States v. Leon, 468 U.S. 897 (1984). In Leon, the
Supreme Court held that evidence seized pursuant to a
subsequently invalidated search warrant need not be
suppressed if the officers relied in good faith on the judge’s
decision to issue the warrant. Id. at 924. An officer’s
10 No. 07-3582
decision to obtain a warrant is prima facie evidence that
he was acting in good faith. United States v. Otero, 495
F.3d 393, 398 (7th Cir. 2007), cert. denied, 128 S. Ct. 425(2007). A defendant can rebut this presumption by
showing that (1) the judge issuing the warrant aban-
doned his detached and neutral role; (2) the officer
was dishonest or reckless in preparing the affidavit; or
(3) the warrant was so lacking in probable cause that
the officer’s belief in its existence was entirely unreason-
able. Id.; see also Leon, 468 U.S. at 923.
Garcia focuses on the third method, arguing that the
officers could not have held an objectively reasonable
belief that there was probable cause to search the apart-
ment. In support of his theory, however, Garcia merely
lists a series of “routine” questions, the answers to
which, he contends, should have been included in the
affidavit. He claims that because the affidavit “was
nothing more than a sentence or two of non-boilerplate
information,” the officers executing the warrant could not
have been acting in good faith. Only in his reply brief
does Garcia attempt to bolster his argument by citing to
case law or analyzing similar affidavits. Accordingly,
he has fallen well short of meeting his burden to show
that the officers could not have reasonably relied on the
warrant in good faith.
Moreover, our case law indicates that the officers did
act in good faith. In United States v. Peck, 317 F.3d 754(7th Cir. 2003), for example, we found that the affidavit
was not sufficient to establish probable cause, but the
good faith exception applied. There, the affiant was an
informant who had never worked with the police and
wanted the defendant arrested because he was not
paying for their child’s diapers. Because her reliability
No. 07-3582 11
had not been established, she appeared in person to
sign her affidavit, alleging that she saw the defendant
with a “large” amount of crack cocaine and marijuana
2 days earlier. We concluded that the officers acted in
good faith even though the informant provided minimal
detail.
Our case is similar to, if not stronger than, Peck. In both
cases, the warrants contained very timely information
about the presence of drugs. But, unlike in Peck, there
was no reason here to question the informant’s reliability
or motives. And the informant in our case explained
how he was able to identify the substance as cocaine
(he had been involved in drug sales in the past), unlike
the informant in Peck. The informant here did not allege
seeing a “large” amount of drugs at the apartment—which
decreases the likelihood that they would still be on
the premises a few days later—but this, standing alone,
does not make the warrant plainly deficient.
In Owens v. United States, 387 F.3d 607 (7th Cir. 2004),
however, we found that the warrant was so plainly defi-
cient that even Leon could not save the search. There,
the warrant was based on a “barebones” affidavit that
stated that, 3 months earlier, an informant had bought
“a quantity of crack” from the defendant at a house
believed to be his residence. Notably, there was no in-
dication of either the quantity of crack or the reliability
of the informant.
Owens is distinguishable from our case. The information
there was stale (3 months old), while the information
here was fresh (3 days old); thus, it was more likely in
our case that even a small quantity of drugs would still
be on the premises when the search was conducted.
And, as we previously mentioned, the reliability of the
12 No. 07-3582
informant in our case was established, unlike in Owens.
These two major differences make Owens inapposite.
Accordingly, even if probable cause was lacking, Garcia
is not entitled to relief because the officers who con-
ducted the search relied on the warrant in good faith.
For the foregoing reasons, the judgment of the dis-
trict court is AFFIRMED.
USCA-02-C-0072—6-3-08