United States v. Steven Hecke , 329 F. App'x 676 ( 2009 )

NONPRECEDENTIAL DISPOSITION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 29, 2009
Decided July 30, 2009
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08-3128
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
1:07-CR-18-TS
STEVEN J. HECKE,
Defendant-Appellant. Theresa L. Springmann,
Judge.
ORDER
A warrant was issued to search Steven Hecke’s residence, where agents found guns
and drugs. The district court denied Hecke’s motion to suppress the evidence and he later
pleaded guilty to one count of possessing cocaine, see 21 U.S.C. § 841(a)(1), and one count of
possessing a firearm to further a drug offense, see 18 U.S.C. § 924(c). In his plea agreement
Hecke waived his right to appeal the convictions and sentence except for claims relating to
the validity of the search warrant. He was sentenced to 60 months’ imprisonment on each
count to run consecutively. He filed a notice of appeal, but his appointed lawyer now seeks
to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a
nonfrivolous issue to pursue. Counsel’s supporting brief is facially adequate, and Hecke
No. 08-3128 Page 2
has filed a response opposing counsel’s submission. See Cir. R. 51(b). We limit our review
to the potential issue identified in counsel’s brief and Hecke’s response. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel considers only in general terms whether Hecke could make a nonfrivolous
argument that the district court erred by denying his motion to suppress the guns and
drugs seized during the search. Hecke develops this potential argument further,
contending that the affidavit (of a federal narcotics agent) supporting the search warrant
was suspect because it was based entirely on information from a confidential informant of
unproven dependability (and with a felony conviction) who alleged that Hecke had sold
him guns and drugs. According to Hecke, this information was too unreliable to be used to
identify him. Hecke would further argue that the “controlled buys” that the agent
arranged were similarly unreliable because the agent did not mention whether he searched
the confidential informant for drugs before the buys occurred.
These arguments would be frivolous because the agent did not rely on the
confidential informant for most of the incriminating evidence. The agent personally saw
Hecke sell drugs, and he recorded and electronically monitored conversations in which
Hecke sold drugs and guns from his residence. In any event, tips from a confidential
informant of unproven reliability may support a finding of probable cause as long as the
affiant’s investigation substantially corroborates the informant’s credibility. See United
States v. Olsen, 408 F.3d 366, 370 (7th Cir. 2005); United States v. Rosario, 234 F.3d 347, 350-51
(7th Cir. 2000). The agent here substantially corroborated the informant’s credibility by
repeatedly observing drug deals being carried out by the man whom the informant
identified as Hecke. And even if the agent could have gathered more information about
Hecke or more explicitly described his preparation for the controlled buys, the absence of
such information does not detract from the significance of the agent’s opportunity to
personally observe Hecke selling drugs and guns from his residence. See United States v.
Roth, 201 F.3d 888, 892 (7th Cir. 2000); United States v. McKinney, 143 F.3d 325, 329 (7th Cir.
1998).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.