United States v. Ryan Patton ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2466
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RYAN D. PATTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 18-cr-40027-001 — Sara Darrow, Chief Judge.
____________________
ARGUED MAY 27, 2020 — DECIDED JUNE 22, 2020
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
EASTERBROOK, Circuit Judge. After pleading guilty to dis-
tributing methamphetamine, Ryan PaWon was sentenced to
76 months’ imprisonment. The guilty plea reserved the right
to contest on appeal the validity of a search warrant that led
to the drug’s discovery. See Fed. R. Crim. P. 11(a)(2). That is
the only appellate issue.
2 No. 19-2466
Most details are either irrelevant or unknowable, so we
can be brief. Detective Lane Mings of the Galesburg, Illinois,
police asked a state judge to issue a search warrant. Mings
submiWed an affidavit relating that an informant had been
inside PaWon’s home and seen him take a retail quantity of
methamphetamine from his safe. The affidavit did not dis-
cuss the informant’s criminal history, his likely motivation
for cooperation (obtaining lenience on pending charges), or
his reliability (e.g., whether earlier information had panned
out). It did give a few facts that corroborated the informant’s
story, though many of those facts could have been learned
by someone who had not been inside PaWon’s home. It
would have been problematic to issue a warrant on the basis
of such an affidavit. See, e.g., United States v. Koerth, 312 F.3d
862 (7th Cir. 2002); United States v. Mykytiuk, 402 F.3d 773
(7th Cir. 2005). But that’s not what happened. The judge took
testimony. After hearing what the informant had to say, the
judge issued a warrant. The police found what they went
looking for.
A federal judge who receives testimony before issuing a
warrant must ensure that it is taken down by a court report-
er or recorded verbatim. Fed. R. Crim. P. 41(d)(2)(C). Illinois
lacks such a requirement, see Chicago v. Adams, 67 Ill. 2d 429
(1977), and the informant’s statements were not recorded or
transcribed. After hearing evidence on PaWon’s motion to
suppress, the federal judge concluded that the informant
had testified under oath but that almost nothing else could
be pinned down: the informant did not appear in federal
court, and Mings had a sketchy memory of what had been
said before the state judge. This is why we called details un-
knowable.
No. 19-2466 3
The federal judge proceeded as if the informant had not
testified and deemed the affidavit standing alone insufficient
to establish probable cause. But the judge also concluded
that the police were entitled to rely on the warrant, so that
the holding of United States v. Leon, 468 U.S. 897 (1984), fore-
closes use of the exclusionary rule.
PaWon’s appellate presentation makes the same assump-
tion as the district judge—that unrecorded testimony must
be ignored—and argues that the affidavit is too skimpy. We
do not consider whether the affidavit by itself would have
supported the warrant, because the state judge had more.
We cannot know how much more, but it is certain that there
was more. And if the state judge was doing his job—
something a federal court must assume in the absence of
contrary evidence—then the judge would have asked for the
sort of information that had been omiWed from the affidavit.
He would have issued a warrant only after finding that
probable cause existed under the governing precedents, such
as Illinois v. Gates, 462 U.S. 213 (1983) (overruling two deci-
sions that had made information about an informant’s rec-
ord of reliable tips essential to any finding of probable
cause).
The Constitution’s text does not require oral testimony to
be transcribed or otherwise recorded. Nor did the American
legal tradition at the time of the Fourth Amendment’s adop-
tion. See William J. Cuddihy, The Fourth Amendment: Origins
and Original Meaning 602 – 1791 (2009) at 754–58. The Su-
preme Court has not required recording as a constitutional
maWer.
The Warrant Clause of the Fourth Amendment reads: “no
Warrants shall issue, but upon probable cause, supported by
4 No. 19-2466
Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” Only
the “probable cause” part of this formulation is contested,
and if the record does not definitively establish the presence
of probable cause, neither does it definitively establish its
absence. This leads us to consult tiebreakers.
One tiebreaker is the rule that a reviewing court must ac-
cord “great deference” to the decision of the judge who is-
sued the warrant. See, e.g., Gates, 462 U.S. at 236; United
States v. McIntire, 516 F.3d 576 (7th Cir. 2008) (discussing the
history of this approach). Like the district judge, PaWon as-
sumes that the federal court will make a de novo (which is to
say, independent) decision about probable cause. If so, the
absence of a transcript would be a serious problem. But the
judge in a criminal prosecution is not supposed to make an
independent decision.
One goal of the Fourth Amendment is to induce police to
obtain judicial approval before searching a home. When the
police turn to a judge, the principal protector of privacy is
that judge. After the search has occurred, suppressing evi-
dence does not restore privacy. Police who take the subject
to a judge have done what they should, and the issuing
judge’s decision deserves respect from later actors.
The other tiebreaker is the rule of Leon, which holds that
the exclusionary rule does not apply to evidence “obtained
by officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate but ultimately
found to be unsupported by probable cause.” 468 U.S. at 900.
PaWon insists that it was not “reasonable” for Detective
Mings to rely on the warrant issued by the state judge. But in
making that argument PaWon again assumes that the affida-
No. 19-2466 5
vit was its only support. Mings may not have a clear recol-
lection of what happened before the state judge, but he re-
members that the informant testified and answered the
judge’s questions. We think it reasonable for an officer in
that position to believe that the judge has done everything
required by law.
Leon wrapped up:
In the absence of an allegation that the magistrate abandoned his
detached and neutral role, suppression is appropriate only if the
officers were dishonest or reckless in preparing their affidavit or
could not have harbored an objectively reasonable belief in the
existence of probable cause.
468 U.S. at 926. The text of the affidavit is not the end-all
when the state judge hears testimony (and, anyway, Mings
was not “dishonest or reckless”). We do not think that it
would have been impossible for an officer to have “an objec-
tively reasonable belief in the existence of probable cause.”
Nor would every reasonable officer believe that unrecorded
oral presentations to a state judge must be ignored. It fol-
lows that the district judge did not err in denying PaWon’s
motion to suppress the evidence.
AFFIRMED