United States v. Edward White , 673 F. App'x 546 ( 2016 )

NONPRECEDENTIAL DISPOSITION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
Argued October 5, 2016
Decided December 21, 2016
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 15-3260
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 478
EDWARD WHITE,
Defendant-Appellant. Joan Humphrey Lefkow
Judge.
ORDER
Edward White pleaded guilty to possessing a firearm as a felon and possessing a
controlled substance with intent to distribute. Before entering that plea, White had
moved to suppress the evidence seized from his home—a firearm and drugs. The
district court held a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and denied
the motion, concluding that White failed to show that the police officer intentionally or
recklessly omitted material information about the informant’s criminal history from the
warrant application. The court then sentenced White to 60 months’ imprisonment. On
appeal he challenges the denial of the motion to suppress, and we affirm the judgment.
No. 15-3260 Page 2
White was living on Chicago’s southwest side when an acquaintance seeking
leniency on a pending charge tipped off police that White kept a handgun in his home.
(White was not supposed to have a handgun, having been convicted in 1998 of two
felonies.)
In an affidavit submitted with a search-warrant application, Chicago Police
Officer Michael O’Connor related that an informant—referred to as “J. Doe” and
described simply as “a citizen of Chicago”—told him that he had visited White’s home
on occasion over the past 2 months, the last time within 10 days, and there saw White
multiple times retrieve a handgun from a closet in the basement. The informant knew
that the home was White’s because each time he visited he saw White’s clothing and
personal belongings and White was the one who answered the door. To corroborate the
tip, O’Connor drove to the house with the informant, who confirmed that this was the
spot where he saw White with the gun. When O’Connor showed him White’s picture,
the informant verified that this was the man who owned the weapon.
O’Connor and Doe appeared before a state judge, and O’Connor presented the
warrant application supported by an affidavit that he and Doe both signed. The judge
issued the warrant, and in the resulting search of the home police found a 9-millimeter
pistol and ammunition, as well as bags of marijuana and cocaine. As a result, White was
charged with unlawfully possessing a firearm and ammunition as a felon, 18 U.S.C.
§ 922(g)(1), and possessing marijuana and cocaine with the intent to distribute, 21 U.S.C.
§ 841(a)(1).
On White’s motion to suppress, the district court held a hearing under Franks v.
Delaware to determine whether O’Connor had omitted material information from the
warrant affidavit “knowingly and intentionally, or with reckless disregard for the
truth.” 438 U.S. at 155–56. Omitted from the affidavit was any reference to the
informant’s arrest the day before the warrant was sought or the likelihood that the tip
was motivated by his desire for leniency. At the hearing, the government introduced
evidence of the informant’s criminal history (convictions for battery and aggravated
vehicular hijacking and numerous arrests), which also had not been mentioned in the
warrant affidavit.
The state judge who issued the warrant, Cook County Circuit Judge Gloria
Chevere, testified at the Franks hearing about her general practices for determining
whether probable cause exists for a warrant (she did not specifically recall this warrant).
She first makes sure that the prosecutor’s office has approved the warrant application;
then asks to see a file folder containing, among other things, the informant’s criminal
No. 15-3260 Page 3
history; and, after reviewing those documents, asks the informant to state his or her true
name, swear to the truth of the affidavit, and answer a few questions intended to assess
credibility. She added that she does not consider the informant’s reasons for offering
information to police to have much relevance to probable cause because informants
usually are seeking some benefit for their cooperation.
O’Connor also testified at the hearing about the meeting with Judge Chevere. He
said that he brought information about the informant’s criminal history, along with
pictures of White and the targeted residence, but could not remember if the judge
looked at the information. He recalled that he brought the informant to the meeting and
that Judge Chevere asked the informant for his real name and placed him under oath.
The district court denied the motion to suppress. In reaching its decision, the
court applied a two-part test under Franks: whether the officer omitted information
intentionally or recklessly, and if so, whether that information was material to probable
cause. See 438 U.S. at 155–56. The court concluded that White failed to prove the first
part of the test because no inference could be drawn that O’Connor was trying to
mislead Judge Chevere. The court highlighted three reasons: First, the officer “handed”
to the judge a file folder containing Doe’s criminal history, including information about
his arrest the previous day; second, he ensured that Doe appeared before the judge,
who had the opportunity to ask any question that she wished; and third, he sought and
obtained approval from the prosecutor’s office before seeking the warrant.
White eventually pleaded guilty to being a felon in possession of a firearm,
18 U.S.C. § 922(g), and possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1),
but reserved the right to appeal the denial. The court sentenced him to 60 months for
each count, to run concurrently.
On appeal White challenges the denial of his motion to suppress. He maintains
that he did prove the first part of the Franks inquiry—that O’Connor deliberately or
recklessly omitted information regarding the informant’s criminal history and motive
for cooperating. See 438 U.S. at 155–56; United States v. Gregory, 795 F.3d 735, 743 (7th
Cir. 2015). White contests the district court’s reasons for concluding that O’Connor did
not intend to mislead Judge Chevere. O’Connor’s police training, White adds, permits
the inference that he knew of the judge’s need for the omitted information to make an
informed decision.
Regarding the court’s first reason—that O’Connor brought a file folder with the
omitted information to the judge—White contends that the record shows only that
No. 15-3260 Page 4
O’Connor brought along the informant’s rap sheet, not that he actually presented the
information to the judge. But the district court credited both O’Connor’s testimony that
he brought the arrest report to the meeting and Judge Chevere’s testimony that her
general practice was to ask to see a file folder containing the informant’s criminal
history. From this testimony the district court could reasonably infer that the judge
followed her general practice and that O’Connor actually “handed” the report to the
judge, supporting the conclusion that the officer did not intend to omit material
information.
As for the second reason—that O’Connor presented Doe to the judge for
questioning—White argues that this did not belie O’Connor’s intent to mislead because
the judge did not ask Doe enough questions to evaluate his credibility. But the
substance of this questioning is irrelevant to O’Connor’s aim in securing Doe’s
testimony. The decision to present Doe “provided the issuing judge with an
opportunity to learn more about [Doe’s] status [as a recent arrestee] and credibility,”
United States v. Williams, 718 F.3d 644, 653 (7th Cir. 2013), and hardly suggests deception
on O’Connor’s part.
White attacks the district court’s third reason by contending that O’Connor’s
submission of the affidavit to the state prosecutor’s office for review does not repudiate
O’Connor’s intent to mislead. Indeed, the prosecutor’s office likely did not know about
the missing information, let alone approve of its omission. This third reason strikes us
as marginal, but the court’s other two reasons for denying the motion sufficiently
support its finding that O’Connor’s omissions did not reflect any intent to mislead the
judge.
White also argues for the first time that the district court erred in denying his
suppression motion because, even apart from any Franks violation, the absence of
probable cause to justify the search warrant was clear on the face of the warrant
affidavit. But as the government points out, we may not consider this argument because
White neither raised it in the district court nor presented good cause for failing to do so.
See FED. R. CRIM. P. 12(c)(3); United States v. Daniels, 803 F.3d 335, 351–52 (7th Cir. 2015);
United States v. Figueroa, 622 F.3d 739, 742 (7th Cir. 2010); United States v. Murdock,
491 F.3d 694, 698–99 (7th Cir. 2007). In any event, if we were to review this argument for
plain error, the affidavit did not lack probable cause; Doe’s detailed, first-hand
observations of recent events provided its factual basis, O’Connor took steps to
corroborate that information, and Doe appeared before the issuing judge.
See United States v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014).
AFFIRMED.