United States v. Harris, Antone C. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1315
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTONE C. H ARRIS,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 04 CR 91—Sarah Evans Barker, Judge.
____________
A RGUED D ECEMBER 5, 2007— D ECIDED JULY 1, 2008
____________
Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This is the second appeal in
the criminal prosecution of Antone Harris. Based on
information provided by Detective Michael Forrest in a
warrant affidavit, a magistrate judge issued a warrant to
search Harris’s residence for cocaine and drug contraband,
and the next day they seized several firearms, cocaine
base, and paraphernalia commonly used to cook and
package crack cocaine. A jury convicted Harris on one
count of possession with intent to distribute more than
fifty grams of a mixture containing cocaine base. The
first time the case was here, we held that the district court
2 No. 07-1315
improperly denied Harris a hearing, pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), when it found that the
warrant affidavit contained false statements but relied on
information in a supplemental affidavit to establish that
probable cause existed for the warrant. We remanded
the case, directing the district court to conduct a Franks
hearing. See United States v. Harris, 464 F.3d 733 (7th Cir.
2006) (“Harris I”). The district court did so and found that
the warrant affidavit did not contain any recklessly-made
false statements which were material to the finding of
probable cause and that probable cause existed for the
search of Harris’s residence.
Now, challenging this determination, Harris argues
that the district court should not have reconsidered
whether the affidavit contained false statements under
the law of the case doctrine. Because the law of the case
doctrine does not compel a district court to ignore evid-
ence presented at a hearing that clarifies a prior misunder-
standing, we find no error in the district court’s decision
to reconsider one of its findings. We also find no error
in the district court’s decision not to compel the govern-
ment to disclose the identity of the confidential informant
in this case, as the district court was entitled to credit
the testimony of Detective Forrest that the confidential
informant existed, and Harris has made no showing that
such disclosure was essential to his defense. Therefore,
we affirm the decision of the district court.
I. BACKGROUND
On April 19, 2004, a magistrate judge issued a warrant to
search Harris’s residence at 2254 N. Goodlet Avenue (the
“Goodlet residence”) for cocaine and drug contraband. The
No. 07-1315 3
warrant was based on the affidavit of Detective Forrest
of the Indianapolis Police Department, which stated:
This affiant bases his belief on the following infor-
mation: that within the past seventy-two (72) hours
of April 19, 2004 a confidential, credible and reli-
able informant contacted this affiant and stated
that within the past seventy-two (72) hours of
April 19, 2004 he/she was personally in the resi-
dence located at 2254 N. Goodlet Av., Indianapolis,
Marion County, Indiana and observed in the
possession of Antone Harris B/M and Trent
Harris B/M, a substance said informant believed
to be Cocaine, an extract of Coca. Said informant
was further told by Antone Harris B/M and Trent
Harris B/M that the substance they had in their
possession was in fact Cocaine, and was for sale.
Said informant further stated that both Antone
Harris and Trent Harris told the CI that they in
fact lived at the residence. This affiant had previ-
ously received an anonymous tip from the Dope
Hotline that both Antone Harris and Trent Harris
were selling crack from this residence. This affiant
has personally conducted surveillance on the
residence located at 2254 N. Goodlet Av. and have
[sic] observed both Antone Harris and Trent Harris
coming and going from the residence. This affiant
also checked recent police reports for that resi-
dence and found that a report was made on 4-2-04
by an animal control officer reference [sic] several
dogs at this house. The person the officer talked to
at the residence was Antone Harris B/M DOB 7-16-
79 and Antone Harris listed his address as 2254
N. Goodlet Av. A check of Antone Harris’s crimi-
4 No. 07-1315
nal history reveals that he has a C felony conviction
for Possession of Cocaine and Trent Harris has a
conviction for C felony Possession of Cocaine as
well as an A felony conviction for Dealing Cocaine
and a conviction for Dangerous Possession of a
Firearm. The CI further stated to this affiant that
several handguns are inside the residence and that
both Antone Harris and Trent Harris always keep
a firearm close to them when inside the residence.
The police executed the warrant on April 20, 2004 (the
day after it was issued) and seized cocaine base, several
firearms, and paraphernalia commonly used to cook and
package crack cocaine. Harris was charged with one count
of possession with intent to distribute more than fifty
grams of a mixture containing cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Before trial,
Harris filed a motion to suppress the evidence seized
during the search, claiming that Detective Forrest’s war-
rant affidavit contained materially false statements. In
support of his motion, Harris submitted an affidavit from
an Indiana Department of Corrections official verifying
that Trent Harris was incarcerated during the time Detec-
tive Forrest’s affidavit stated he was at the residence, and
Harris submitted his own affidavit swearing he was not
present at the residence within seventy-two hours of
April 19, when the warrant was issued.
In light of this information, the district court ordered
the government to respond to the alleged misstatements
in the warrant affidavit by filing a supplemental affidavit
from Detective Forrest regarding his surveillance of the
Harris residence. The supplemental affidavit was drafted
sloppily and appears to have created even more con-
fusion (more on this below) regarding the information
No. 07-1315 5
in the warrant affidavit. Based on this supplemental
affidavit, in which Detective Forrest made statements that
appeared to be inconsistent with the warrant affidavit, the
district court found that Detective Forrest’s warrant
affidavit contained three false and misleading statements
and omissions: (1) the warrant affidavit erroneously
identified Trent Harris as the second individual with
Antone Harris; (2) the warrant contained misleading
information regarding the date of the confidential infor-
mant’s (“CI”) conversations with Antone Harris because
the CI had only visited the Goodlet residence on April 12;
and (3) the warrant failed to include the dates of the “Dope
Hotline” tip and Detective Forrest’s surveillance of the
residence. Harris I, 464 F.3d at 736-37. The court also found
those statements were made either intentionally or reck-
lessly. Nevertheless, the district court determined that
Harris was not entitled to a hearing because it con-
cluded that the misstatements in the warrant affidavit
were not material to the magistrate’s finding of probable
cause. In making this determination, the district court
relied on information in the supplemental affidavit to
bolster a finding of probable cause.
On appeal, we held that allowing the government to
bolster the magistrate’s probable cause determination
through post-hoc findings does not satisfy the Fourth
Amendment concerns addressed in Franks. Id. at 739.
Having excised the information that the district court
found to be false in Detective Forrest’s warrant affidavit,
we found that the affidavit lacked a “temporal guidepost”
that would prevent the CI’s observation that Harris and
his brother were selling crack at the Goodlet residence
from being stale. Id. In other words, there was nothing
to suggest that there was ongoing criminal activity at
6 No. 07-1315
Harris’s residence at the time the warrant was issued. So
we remanded the case to the district court and instructed
the court to hold a Franks hearing to determine whether
the search warrant was unconstitutional.
Before holding the Franks hearing the district court
raised the issue of whether the court should start at square
one or apply law of the case principles. After hearing
arguments from both sides, the district court declared
it would start at square one to give Harris a full chance
to challenge the evidence supporting probable cause, but
to the extent that the evidence did not conflict with the
court’s prior rulings, the court would apply law of the
case principles. However, if new evidence cast a different
light on the court’s findings, it stated it would reconsider
those findings.
At the hearing, Detective Forrest was the sole witness
and was cross-examined by Harris’s counsel. Forrest
testified that in March 2004, he was assigned to investigate
the Goodlet residence based on an anonymous tip made to
the Indianapolis “Dope Hotline.” He surveilled the resi-
dence through March and April 2004 and observed Antone
Harris and another individual (whom he believed to be
Trent Harris, the brother of Antone Harris) coming and
going from the residence.1 On April 9, Forrest was con-
tacted by a CI about an unrelated investigation. Detective
Forrest asked if he knew about the Goodlet residence
and the CI said he was familiar with Antone and Trent
1
There appears to be no dispute that this second individual
was not, in fact, Trent Harris since he was in jail at the time of
the surveillance. The government submits that Detective For-
rest misidentified the second individual and that the misiden-
tification was inadvertent.
No. 07-1315 7
Harris. Detective Forrest asked the CI to see if anything
was happening at the Goodlet residence. On April 12,
the CI contacted Detective Forrest and told him that he
(the CI) had been to the Goodlet residence and had ob-
served large amounts of cocaine, crack, and guns. The CI
also said they (referring to Antone and a person the CI
believed to be Trent Harris) were “slinging dope.” Detec-
tive Forrest understood this to mean they were selling
crack. Detective Forrest ran the criminal histories of the
Harris brothers and discovered that Antone Harris had a
prior conviction for possession of cocaine. On April 18, the
CI informed Detective Forrest that he had been back to
the Goodlet residence and again had observed that the
Harris brothers were selling cocaine. On April 19, Detec-
tive Forrest prepared an affidavit in support of an ap-
plication for a warrant to search the Goodlet residence
and, the next morning, the police conducted the search.
Based on Detective Forrest’s testimony, the district
court found that Harris had not met his burden of demon-
strating that the evidence in the warrant affidavit was
insufficient to establish probable cause and held that the
search of the Goodlet residence was constitutional. The
district court explained that the testimony elicited at the
Franks hearing clarified the sequence of events described
in the warrant affidavit and demonstrated that the CI
had visited the Goodlet residence and observed criminal
activity on April 18, just one day prior to when Detective
Forrest applied for a warrant. There was evidence the
CI had acquired knowledge of the events he reported
firsthand and provided credible detail. That, combined
with the relatively short period of time between the CI’s
observation of the events and Detective Forrest’s applica-
tion for the search warrant, and the extent to which the
8 No. 07-1315
police corroborated the CI’s statements, supported a
finding of probable cause at the time the warrant was
issued. In light of this, the court found that the re-
maining misstatements and omissions in the warrant
affidavit (the misidentification of the second man as
being Trent Harris and the omission of the dates of the
hotline tip and Detective Forrest’s surveillance activities)
were “minor” and denied Harris’s motion to suppress.
The district court also denied Harris’s request to com-
pel disclosure of the CI’s identity, stating that none of
the evidence introduced at the hearing led the court to
doubt that the contacts between the CI and Harris had
occurred, and that its finding of probable cause could be
reached without knowing the identity of the CI.
II. ANALYSIS
On appeal, Harris raises two issues regarding the Franks
hearing. First, he argues that the district court should not
have reconsidered its earlier ruling that the warrant
affidavit contained misleading information regarding the
date of the CI’s conversations and contacts with Antone
Harris and the second individual. Second, he contends
that the district court abused its discretion in refusing to
conduct an ex parte hearing to verify the existence of the
CI. We address each issue in turn.
A. Law of the Case Doctrine
In Franks, the Supreme Court held that the Fourth
Amendment entitles a defendant to a hearing upon re-
quest “where the defendant makes a substantial prelimi-
nary showing that a false statement knowingly and inten-
No. 07-1315 9
tionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if
the allegedly false statement is necessary to the finding
of probable cause.” 438 U.S. at 155-56. At a Franks hearing,
to successfully demonstrate that a search warrant was
unconstitutional such that the fruits of the search pursu-
ant to the warrant must be suppressed, a defendant
must show by preponderance of the evidence that: (1) the
search warrant affidavit contained a false material state-
ment or omitted a material fact; (2) the affiant omitted
the material fact or made the false statement intentionally,
or with reckless disregard for the truth; and (3) the false
statement is material to the finding of probable cause.
United States v. Lowe, 516 F.3d 580, 584 (7th Cir. 2008).
Harris contends that the district court was bound by
the law of the case doctrine to its initial finding that
the warrant affidavit intentionally or recklessly mis-
stated the date of the CI’s conversations with Antone
Harris and the second individual about purchasing co-
caine. Had the court not reconsidered this finding, it
likely would not have been able to determine that there
was probable cause for the search warrant and Harris’s
motion to suppress would have been granted. Under the
law of the case doctrine, a court generally should not
reopen issues decided in earlier stages of the same litiga-
tion. Agostini v. Felton, 521 U.S. 203, 236 (1997). However,
the doctrine “authorizes such reconsideration [of a previ-
ous ruling in the same litigation] if there is a compelling
reason, such as a change in, or clarification of, law that
makes clear that the earlier ruling was erroneous.”
Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th
Cir. 2006). We have reiterated that the law of the case
doctrine is a discretionary doctrine that does not limit the
10 No. 07-1315
district court’s power to reopen what already has been
decided. See Menzer v. United States, 200 F.3d 1000, 1004
(7th Cir. 2000) (law of the case doctrine does not bar a
trial court from revisiting its own evidentiary rulings);
Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th
Cir. 1995) (the doctrine of the law of the case is “no
more than a presumption, one whose strength varies
with the circumstances; it is not a straitjacket.”).
Here, the district court did precisely what we had
directed it to do, which was conduct a Franks hearing
and determine whether Harris could demonstrate, by a
preponderance of the evidence, that the search warrant
must be voided. It concluded that he could not. As part
of its probable cause analysis, the district court con-
sidered whether the CI’s information regarding the activi-
ties in the Goodlet residence was stale at the time the
warrant was issued. Harris I, 464 F.3d at 739 (emphasizing
the need for a temporal guidepost allowing us to deter-
mine whether the CI’s information was stale). Detective
Forrest’s testimony that the CI visited the Goodlet resi-
dence on April 18 and observed guns inside the residence,
as well as Antone Harris and a second individual con-
tinuing to sell cocaine, provided the requisite timeframe
that we found lacking in the first appeal. The district
court found this weighed in favor of a determination that
there was probable cause for the search warrant.
The court did have to reconsider one of its prior
findings in order to reach this conclusion. Initially (prior
to Harris’s first appeal) the court found that the warrant
affidavit intentionally or recklessly misstated the date of
the CI’s conversations with Harris about purchasing
cocaine. That finding was based on an apparent discrep-
ancy between the information in the warrant affidavit,
No. 07-1315 11
which states that the CI observed criminal activity at the
Goodlet residence within seventy-two hours of April 19,
2004, and information in Detective Forrest’s supple-
mental affidavit which stated that the CI observed crim-
inal activity on April 12.2 In other words, the district
court misunderstood the sequence of events and believed
the CI had made only one visit to the Goodlet residence,
on April 12, 2004. Based on this, the court erroneously
found the warrant affidavit to be false as to the timing of
the CI’s visit to the Goodlet residence. However, once the
court heard the testimony of Detective Forrest (which
clarified the information in his warrant affidavit and
included an explanation for why his supplemental af-
fidavit did not jibe with his warrant affidavit), the court
reasonably found that the statement in the warrant af-
fidavit regarding the date of the CI’s conversations with
Harris was not misleading.3
Harris contends that the district court should have
been bound by its initial determination that the warrant
2
The court initially read the supplemental affidavit to imply
that the CI had spoken to Antone Harris about purchasing drugs
only on April 12, 2004, and “merely confirmed Antone Harris
was continuing to sell narcotics at the Goodlet Avenue resi-
dence” on April 18, 2004. United States v. Harris, No. IP 04-91-CR-
01 B/F, 2005 WL 82152, at *3 n.3 (S.D. Ind. Jan. 4, 2005). Accord-
ing to the district court, the supplemental affidavit was “dis-
turbingly vague” and muddied the water as to the dates the
CI visited the Goodlet residence and observed criminal activity.
3
It is worth noting as well that the district court did not rely
on any additional information in the supplemental affidavit
because Detective Forrest’s testimony clarified the warrant
affidavit.
12 No. 07-1315
affidavit contained misleading information as to the date
of the CI’s conversations about purchasing cocaine with
Antone Harris and the second individual in the
Goodlet Avenue residence. But this would have forced
the court to ignore evidence adduced at the hearing, a
result that is neither necessary nor justified. “The only
sensible thing for a trial court to do is to set itself right as
soon as possible when convinced that the law of the case
is erroneous.” Champaign-Urbana News Agency, Inc. v. J. L.
Cummins News Co., Inc., 632 F.2d 680, 683 (7th Cir. 1980).
Having been directed to conduct a Franks hearing, it
was well within the district court’s power to start fresh
and consider whether the warrant affidavit contained
false statements in light of Detective Forrest’s testimony,
even if that meant reconsidering its prior findings based
on what the evidence at the hearing revealed. So the
district court did not abuse its discretion when it deter-
mined that it was not bound by the law of the case doc-
trine from reconsidering whether the statements in the
warrant affidavit were materially false.
B. Disclosure of the Confidential Informant
Harris moved the district court to compel the govern-
ment to disclose the identity of and produce the CI,
asserting that there is, in fact, no CI and that Detective
Forrest fabricated the CI’s existence. Because the CI’s
observations provided the basis for probable cause,
Harris argues that the district court abused its discretion
in refusing to conduct an in camera, ex parte hearing to
determine whether the CI actually existed. We review a
district court’s denial of a motion for disclosure of the
identify of a confidential informant for abuse of discre-
tion and will affirm if any reasonable person could agree
No. 07-1315 13
with the district court’s decision. United States v. Jefferson,
252 F.3d 937, 940 (7th Cir. 2001).
The government has a limited privilege to withhold
the identity of a confidential informant from a criminal
defendant. Roviaro v. United States, 353 U.S. 53, 59-60 (1957).
This privilege gives way if the defendant proves that the
disclosure of the informant’s identity “is relevant and
helpful” to his defense “or is essential to a fair determina-
tion of a cause.” Id. at 60-61; Jefferson, 252 F.3d at 941. To
determine whether the government is required to dis-
close the identity of the informant, the court must balance
“the public interest in protecting the flow of information
against the individual’s right to prepare his defense.”
Roviaro, 353 U.S. at 62. This depends “on the particular
circumstances of each case, taking into consideration the
crime charged, the possible defenses, the possible sig-
nificance of the informer’s testimony, and other relevant
factors.” Id.
We have held that the role of the confidential informant
is an important factor to consider when determining
whether that informant’s identity need be disclosed.
See Jefferson, 252 F.3d at 942; United States v. Bender, 5
F.3d 267, 270 (7th Cir. 1993). When the confidential infor-
mant is a mere “tipster”—someone whose only role was
to provide the police with the relevant information that
served as the foundation for obtaining a search war-
rant—rather than a “transactional witness” who partici-
pated in the crime charged against the defendant or
witnessed the event in question, disclosure will not be
required. See Jefferson, 252 F.3d at 942 (affirming denial
of motion for disclosure when confidential informant
was a tipster who provided information that led to a
search warrant but was not present when the warrant
14 No. 07-1315
was executed); Bender, 5 F.3d at 270 (same); United States
v. Andrus, 775 F.2d 825, 842 (7th Cir. 1985) (“When the
informant is a mere ‘tipster,’ rather than a participant or
an eyewitness to the event in question, disclosure will
not be required.”). In Roviaro, disclosure was required
where the confidential informant was the sole partic-
ipant, other than the defendant, in the transaction charged
against the defendant. 353 U.S. at 64. The informant’s
testimony was found to be “highly relevant” because he
not only was nearest to the defendant during the alleged
criminal transaction, but he also had helped to set up the
criminal occurrence and played a prominent part in it.
Id. at 63-64.
In contrast, the CI here played no part in the transac-
tion charged against Harris. Though the CI’s reports that
Harris was selling cocaine in the Goodlet residence and
that there were guns in the residence led to the acquisi-
tion of a search warrant for the home, those activities
were not part of the charges against Harris, which were
based on his possession of crack cocaine on April 20, 2004.
See, e.g., Bender, 5 F.3d at 270 (noting that the criminal
activity the informant witnessed did not form the basis of
the charges against defendant). Furthermore, the CI
did not actively participate in the investigation by, for
example, purchasing cocaine from Harris, and the CI was
not present when the warrant was executed. Because
the CI’s only role was to provide information that served
as the basis for obtaining the search warrant, there is no
reason to believe that the CI would testify at trial in such
a way that would refute or cast doubt on whether Harris
was in possession of crack cocaine on April 20, 2004. The
CI is therefore a “tipster” whose identity need not be
disclosed.
No. 07-1315 15
Although disclosure of the CI might have been helpful
to Harris at the Franks hearing (rather than at trial), Harris
has not demonstrated that he possessed a “genuine need
of informant disclosure that outweighs the public’s inter-
est [in protecting the free flow of information].” Id. Ac-
cording to Harris, disclosure of the CI’s identity—or lack
thereof—would have proven that Detective Forrest was
lying in his warrant affidavit. That is, if the court had
summoned the CI, the CI would not have appeared,
which would have proven that Detective Forrest lied in
his warrant affidavit when he stated that he relied on
the information provided by the CI. But Harris was given
the opportunity to suggest that Detective Forrest was
lying at the Franks hearing, when Detective Forrest was
subject to cross-examination, and the district court found
no reason to question his credibility. Cf. id. at 269-70
(confidential informant’s testimony had no particular
significance to defendant’s case because there were
other available witnesses who could have corroborated
defendant’s story). Furthermore, though he was not
compelled to do so, Harris could have chosen to testify on
his own behalf at the Franks hearing to dispute the infor-
mation in the warrant affidavit.
Assuming Harris is correct that the CI does not exist,
nothing would demonstrate that better than if the gov-
ernment were unable to produce the CI to the district
court. Furthermore, there is some merit to Harris’s argu-
ment that an in camera hearing (where the CI’s identity
would have been disclosed only to the court) would
have served both the interests of the government, by
preserving the CI’s anonymity, as well as the interests
of Harris in receiving a fair hearing. Indeed, the district
court would have been justified in conducting such a
16 No. 07-1315
hearing. However, a district court is not compelled to
hold such a hearing, especially when, as here, the court,
having heard the evidence, saw no reason to doubt that
the CI existed. Our inquiry asks not how we would have
ruled had we been considering the case in the first
place but rather whether any reasonable person could
agree with the district court. Id. at 269. In addition, there
are policy reasons that counsel against compelling dis-
closure of the CI here. It is reasonable to assume that a
CI might be reluctant to appear before a district court
judge and discuss his interactions with an alleged drug
dealer, notwithstanding any assertions by the court or
the officer regarding the informant’s immunity. This
reluctance might prevent the CI from participating in
future investigations. We have recognized this to be a
compelling reason to avoid disclosure unless necessary.
See id. at 270 (noting that not many people want to be-
come police informants and that disclosure can compro-
mise an informant’s safety as well as other investigations).
Therefore, even if disclosure of the CI would have been
helpful to Harris at the Franks hearing, Harris has not
demonstrated that such disclosure was so necessary
that this presumption must give way. The district court
did not abuse its discretion in denying Harris’s motion
for disclosure and production of the CI.
We note further that because Harris’s sentence of 240
months reflects the statutory mandatory minimum, there
is no need to remand this case to the district court pursu-
ant to Kimbrough v. United States, 128 S. Ct. 558 (2007).
Compare United States v. Taylor, ___ F.3d ___, 2008 WL
782739, at *2 (7th Cir. Mar. 26, 2008).
No. 07-1315 17
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is A FFIRMED.
USCA-02-C-0072—7-1-08