United States v. Stephen Leonard ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1924
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHEN ONWARKIAL LEONARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 15-cr-40065 — Sara Darrow, Judge.
____________________
ARGUED FEBRUARY 15, 2018 — DECIDED MARCH 8, 2018
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. Stephen Leonard pleaded guilty to
possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Police discovered the gun after obtaining a
warrant to search his home on suspicion that his wife was
dealing drugs from the residence. Leonard appeals the denial
of his motion to suppress the gun as well as the district court’s
decision not to require the government to reveal the identity
2 No. 17-1924
of a tipster who told police about the drug activity. For the
reasons set forth below, we affirm.
I. Background
A confidential source alerted Rock Island, Illinois, police
that Courtney Watson was selling illegal drugs from the home
she shared with her husband, defendant Stephen Leonard.
Based on the tip, officers on two occasions one week apart
searched sealed trash bags left in a public alley outside the
home. Both times the trash bags contained indicia of resi-
dency and tested positive for cannabis. Officers also discov-
ered that Watson had been previously convicted of obstruc-
tion of justice and arrested (although not charged) for aggra-
vated battery. Two days after the second positive test, officers
presented this information to a state judge and obtained a
warrant to search the residence.
Police executed the warrant the next day, but not without
issue. The supervising officer who had a copy of the warrant
had to leave the scene before Watson arrived home with her
father to meet with the officers. So when Watson asked to see
the warrant, one of the remaining officers had to run back to
the police station to get another copy. Alas, the copy of the
warrant eventually shown to Watson apparently was not the
correct one. In any event, officers executed the warrant and,
in addition to drugs, found a semi-automatic handgun. Leon-
ard admitted he owned the gun. Because he had been previ-
ously convicted of a felony, he was charged with violating 18
U.S.C. § 922(g)(1).
Leonard moved to suppress the gun and to require the
government to disclose the identity of the tipster. The district
court denied both motions. On the suppression motion, the
No. 17-1924 3
court held that (1) the mistake in warrant presentation did not
affect the validity of the warrant; and (2) even though the in-
formant was probably unreliable, the two positive cannabis
tests were enough, standing alone, to support the warrant.
The court then refused to require disclosure of the tipster’s
identity because his or her identity was irrelevant to Leon-
ard’s case. Having lost his motions, Leonard conditionally
pleaded guilty and was sentenced to four years’ imprison-
ment. He timely appealed.
II. Analysis
Leonard argues that the district court erred in denying his
motions to suppress the gun and require the government to
disclose the identity of its confidential source. We will take
these arguments in turn.
A. Suppression Motion
In appealing the denial of his motion to suppress, Leonard
argues both that the search was invalid because police did not
present the proper warrant to Watson before the search and
that the warrant that did exist was not supported by probable
cause. We disagree on both counts.
1. Warrant Presentation
Leonard first suggests that the warrant was defective be-
cause the copy the police showed Watson failed to name him,
his address, or anyone who lived in his house. As he puts it,
“[i]f an actual warrant existed for the place and person to be
searched and/or seized it needed to be presented before the
agents forced entry into the house and began their search.”
Appellant’s Opening Brief at 12. The government concedes
4 No. 17-1924
some mix-up with the presentation of the warrant, but argues
it should have no effect on the search’s validity.
The government has the better of the argument. We have
recognized that “nothing in the [Fourth Amendment] re-
quires that the warrant be shown to the person whose prem-
ises are to be searched.” United States v. Sims, 553 F.3d 580, 584
(7th Cir. 2009). Indeed, police officers “are not required to wait
until someone is at home to conduct the search.” Id. If warrant
presentation isn’t required at all, it follows that, so long as a
valid warrant exists, inadvertent presentation of the wrong
warrant isn’t fatal to the search. Therefore, we reject Leon-
ard’s presentation argument.
2. Probable Cause
The heart of Leonard’s argument is that the warrant was
not issued upon probable cause. He contends that the war-
rant’s supporting affidavit was insufficient in several respects,
including that it failed to explain why the tipster was a credi-
ble source and failed to connect Watson’s criminal history
with the accusation of drug dealing. Given those failings,
Leonard submits that only the two positive trash tests can
support the warrant. He says those tests are not enough,
standing alone, to support probable cause.
“On the mixed question whether the facts add up to prob-
able cause, we give no weight to the district judge’s decision,
but ‘great deference’ to the conclusion of the judge who ini-
tially issued the warrant.” 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 state judge’s decision
to issue the warrant so long as “there is ‘substantial evidence
in the record’ that supports [the state judge’s] decision.”
No. 17-1924 5
United States v. Curry, 538 F.3d 718, 729 (7th Cir. 2008) (quot-
ing United States v. Koerth, 312 F.3d 862, 865 (7th Cir. 2002)).
That substantial evidence must support the conclusion that
“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 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The
state judge “‘is entitled to draw reasonable inferences about
where evidence is likely to be kept,’ and he ‘need only con-
clude that it would be reasonable to seek the evidence in the
place indicated in the affidavit.’” Curry, 538 F.3d at 729 (quot-
ing United States v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995)).
Assuming arguendo that the tipster was not credible and
Watson’s criminal history was irrelevant, we nevertheless
agree with the district court that the warrant was issued upon
probable cause. As a threshold matter, individuals lack a rea-
sonable expectation of privacy in garbage placed in a public
alley or on a curbside. California v. Greenwood, 486 U.S. 35, 39–
40 (1988). Thus, even if the tipster were entirely incredible, the
garbage searches required no independent Fourth Amend-
ment justification.
That leaves the question whether the trash pulls standing
alone were sufficient to establish probable cause. The closest
we’ve come to these facts has been Molina ex rel. Molina v.
Cooper, 325 F.3d 963 (7th Cir. 2003). There, we sustained a war-
rant issued upon a field test of garbage revealing the probable
presence of cocaine and corroborating the statement of a
known and “sufficiently reliable” informant that drugs were
sold from the premises. Id. at 970–71. But the presence of the
reliable informant in Molina makes that case so distinct from
this one that it doesn’t inform the result today. No Seventh
6 No. 17-1924
Circuit case has addressed whether trash pulls by themselves
may establish probable cause to search a residence.
Case law in other circuits, however, provides some helpful
guidance. In United States v. Briscoe, 317 F.3d 906 (8th Cir.
2003), the Eighth Circuit sustained a warrant issued based
solely on the presence of “marijuana seeds and stems” in one
garbage pull. The court noted that “not only does the presence
of discarded marijuana stems and seeds reasonably suggest
that ongoing marijuana consumption or trafficking is occur-
ring within the premises, but the simple possession of mari-
juana seeds is itself a crime under both federal and state law.”
Id. at 908. On the other hand, the Sixth Circuit in United States
v. Abernathy, 843 F.3d 243 (6th Cir. 2016), held that a single
trash pull containing marijuana paraphernalia was insuffi-
cient to establish probable cause to search a home. The court
reasoned that “the connection between the small quantity of
marijuana paraphernalia recovered from Defendant’s gar-
bage and his residence is too logically attenuated to create a
fair probability that more drugs were inside the residence.”
Id. at 255. Additionally, the court thought that it was impossi-
ble for anyone, with only one garbage search, to know when
the drugs were placed in the garbage. The Sixth Circuit dis-
tinguished Briscoe because it involved “[a] large quantity of
drug refuse,” which “suggests repeated and ongoing drug ac-
tivity in the residence and therefore creates a fair probability
that more drugs remain in the home.” Id.
Both Briscoe and Abernathy support the assertion of proba-
ble cause in this case. While one search turning up marijuana
in the trash might be a fluke, two indicate a trend. Whether it
be a particularly large quantity of drugs, as in Briscoe, or mul-
tiple positive tests of different trash pulls within a fairly short
No. 17-1924 7
time, both tend to “suggest[] repeated and ongoing drug ac-
tivity in the residence,” Abernathy, 843 F.3d at 255, and “cre-
ate[] a fair probability that more drugs remain in the home[,]”
id. So long as the drugs were contained in trash bags bearing
sufficient indicia of residency, this is all that is necessary to
establish probable cause and obtain a search warrant. 1 We
conclude that two trash pulls taken a week apart, both testing
positive for cannabis, are sufficient standing alone to establish
probable cause for a search warrant. 2 Therefore, we affirm the
judgment below denying Leonard’s motion to suppress the
gun discovered in the search.
1 Leonard emphasized, particularly at oral argument, that the amount
of drugs found in the trash was insufficient to support an inference that
Watson was dealing drugs. But that is irrelevant. “[P]robable cause requires
only ‘facts sufficient to induce a reasonably prudent person to believe that
a search ... will uncover evidence of a crime.’” United States v. Featherly,
846 F.3d 237, 240 (7th Cir. 2017) (quoting United States v. Gregory, 795 F.3d
735, 741 (7th Cir. 2015)). Possession of marijuana is illegal under federal
and Illinois law (and there has been no showing that Watson was one of
the individuals Illinois permits to possess marijuana for medical pur-
poses). Thus, evidence of the presence of marijuana in the home is suffi-
cient to establish probable cause.
2 In his dissent in Abernathy, Judge Kethledge argued that even the
one trash pull in that case should have been sufficient for probable cause.
He wrote that the marijuana paraphernalia, combined with trash indicat-
ing the home’s address, “is reason enough to think the roaches and bag-
gies came from that same house” and thus “created a fair probability that
the officers would find contraband or evidence of a drug crime in the
house.” Id. at 258 (Kethledge, J., dissenting). Because of the second search
in our case, we need not resolve the question the panel disputed in Aber-
nathy. We leave that for another day.
8 No. 17-1924
B. Motion to Require Disclosure of Tipster’s Identity
Finally, Leonard argues that the district court should have
required the government to disclose the identity of the tipster
who alerted police that his wife was dealing drugs. The dis-
trict court denied his motion. We review that denial for abuse
of discretion and will “affirm if any reasonable person could
agree with the district court’s decision.” United States v. Har-
ris, 531 F.3d 507, 514 (7th Cir. 2008).
“The government has a limited privilege to withhold the
identity of a confidential informant from a criminal defend-
ant.” Id. “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 determination
of a cause.’” Id. (quoting Roviaro v. United States, 353 U.S. 53,
59–60 (1957)).
We agree with the district court that the identity of the in-
formant is irrelevant to Leonard’s case and not essential to the
fair determination of any case. As we held in Harris, “[w]hen
the confidential informant 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 warrant—rather than a ‘transactional witness’ who
participated in the crime charged against the defendant or
witnessed the event in question, disclosure will not be re-
quired.” Id. at 515 (citing United States v. Jefferson, 252 F.3d 937,
942 (7th Cir. 2001)). That is the case here, especially given that
we have upheld the issuance of the warrant without respect
to the informant’s reliability. While Leonard might have a
personal interest in obtaining the informant’s identity, he
does not have a legal right to do so. Thus, we affirm the dis-
trict court’s denial of this motion.
No. 17-1924 9
III. Conclusion
We conclude that two searches, a week apart, of garbage
in sealed containers with indicia of residency, both testing
positive for the presence of cannabis, are sufficient standing
alone to establish probable cause to search a residence. We
further hold that the district court did not abuse its discretion
in denying Stephen Leonard’s motion to reveal the identity of
the government’s tipster. The judgment below is AFFIRMED.