United States v. Sidwell, Gerald L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2189
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERALD L. SIDWELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 169—John C. Shabaz, Judge.
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ARGUED DECEMBER 14, 2005—DECIDED MARCH 10, 2006
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Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. On February 10, 2005, Gerald L.
Sidwell pleaded guilty to possession of a firearm by a
felon and was sentenced to 37 months’ imprisonment. See 18
U.S.C. § 922(g)(1). Prior to entering his plea, Mr.
Sidwell filed a motion to suppress evidence, specifically
drugs and weapons, found during the execution of a
warrant to search his apartment. He also moved to dis-
miss the indictment, alleging that 18 U.S.C. § 922(g) was
unconstitutional because Congress, in enacting the stat-
ute, exceeded its power to regulate interstate commerce. The
district court denied both motions.
2 No. 05-2189
On appeal, he challenges the district court’s judg-
ment, contending that there was insufficient evidence to
establish probable cause for the search warrant that led to
discovery of the contraband; he further contends that the
district court erred in finding that the search could be
upheld on the basis of good-faith reliance by the officer who
executed the warrant. Mr. Sidwell also renews his challenge
of the constitutionality of § 922(g). Because the warrant was
supported by probable cause and because we have repeat-
edly rejected challenges to the constitutionality of § 922(g),
we now affirm the judgment of the district court.
I
BACKGROUND
A. Facts
In July 2004, Officer Bryan Hasse of the Beloit Police
Department executed an affidavit in support of a search
warrant for Mr. Sidwell’s apartment unit. The affidavit
contained the following information: 1) The Beloit Police
Department had received two tips that cocaine was be-
ing sold and used in Mr. Sidwell’s apartment unit, 2)
Mr. Sidwell had twice refused consent to search his apart-
ment, 3) drug paraphernalia, such as baggie corners and
knots, had been found near the entrance to Mr. Sidwell’s
apartment, and 4) within 72 hours of when the affidavit was
prepared, a confidential informant had made a “controlled
buy” of crack cocaine from Mr. Sidwell’s apartment.
Information previously provided by this confidential
informant had proven accurate and, thus, the police be-
lieved his services to be reliable in this case as well.
The informant’s “controlled buy” occurred as follows:
Before the informant entered Mr. Sidwell’s apartment
No. 05-2189 3
building, he was searched by Officer Hasse for contraband.
He was then observed entering the building and exiting
a few minutes later. At this time, the informant turned
over to the police a substance which tested positive for
the presence of cocaine. The informant’s description of
Mr. Sidwell’s apartment unit matched Officer Hasse’s
information about the apartment.
On the basis of this information, a Circuit Court Commis-
sioner for Rock County, Wisconsin, issued a search warrant.
Officer Hasse executed this warrant at Mr. Sidwell’s apart-
ment and recovered 0.1 grams of marijuana, two finger
scales, rolling papers, 17 morphine pills, three 20-gauge
shotgun shells, two .357 magnum rounds of ammunition
and a 20-gauge Mossberg shotgun.
B. District Court Proceedings
In October 2004, Mr. Sidwell was indicted by a grand
jury sitting in the Western District of Wisconsin of one count
of being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g). Mr. Sidwell filed a motion to dismiss this indict-
ment; he contended that § 922(g) was unconstitutional
under the Commerce Clause. He next filed a motion to
suppress the evidence obtained from the search of his
apartment, asserting that the search warrant was
not supported by probable cause.
On February 4, 2005, a magistrate judge issued a report,
recommending that both motions be denied. The magistrate
judge reasoned that the controlled purchase of drugs from
Mr. Sidwell’s apartment established probable cause for the
issuance of the search warrant. Further, the judge reasoned
that, even if the warrant was not supported by probable
cause, the doctrine of good faith would justify the search.
4 No. 05-2189
The magistrate judge also recommended rejecting the
constitutional challenge to 18 U.S.C. § 922(g), noting that
this court repeatedly has upheld the statute’s constitu-
tionality.
Mr. Sidwell pleaded guilty on February 10, 2004, pre-
serving his right to appeal an adverse determination of the
motions to dismiss and suppress and filing objections to the
magistrate judge’s report and recommendation. The district
court adopted the report and recommendation and denied
both motions. Mr. Sidwell was sentenced to 37 months’
imprisonment and three years’ supervised release.
II
DISCUSSION
A. Search Warrant
1. Probable Cause
Mr. Sidwell first contends that the affidavit submitted
in support of the application for a search warrant failed
to establish probable cause that contraband would be found
in his apartment. We review the district court’s determina-
tion of probable cause de novo. United States v. Brack, 188
F.3d 748, 755 (7th Cir. 1999).
Probable cause exists when, considering all the circum-
stances, the affidavit sets forth sufficient facts to induce a
reasonably prudent person to believe that a search will
uncover contraband or evidence of a crime. United States v.
Olson, 408 F.3d 366, 370 (7th Cir. 2005); United States v. Peck,
317 F.3d 754, 756 (7th Cir. 2003). The affidavit is to be
interpreted in a practical, “common-sense manner.” United
States v. Walker, 237 F.3d 845, 850 (7th Cir. 2001) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)).
No. 05-2189 5
We believe, as did the magistrate judge and the dis-
trict court, that the existence of probable cause in this
case turns primarily on the “controlled buy” of cocaine
that the confidential informant made from Mr. Sidwell’s
apartment. Generally, a controlled buy, when executed
properly, is a reliable indicator as to the presence of illegal
drug activity.1 The district court correctly determined that
the controlled buy was adequate to support such a con-
clusion in this case: the confidential informant entered the
building without contraband; exiting moments later, he
produced cocaine, indicating the probable—if not
likely—presence of illegal drug activity in the apartment.
Mr. Sidwell, however, submits that the buy was not
actually “controlled” because the police were unable to
see the confidential informant after he entered the apart-
ment building. Therefore, he submits, the informant
could have purchased the cocaine from any person in
any unit in that building. This scenario is theoretically
possible. Nevertheless, it does not negate the existence of
probable cause. Cf. United States v. Garcia, 983 F.2d 1160,
1167 (1st Cir. 1993) (rejecting the defendant’s contention that
“the informant [who made the controlled buy] might have
stashed cocaine elsewhere in the building out of the sight of
the detective” as “strain[ing] credulity on a common-sense
reading”). Probable cause requires only a probability or
1
For courts recognizing this proposition, see United States v.
Pennington, 287 F.3d 739, 742-43 (8th Cir. 2002); United States v.
McKinney, 143 F.3d 325, 329 (7th Cir. 1998); United States v.
Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996); United States v. Smith,
63 F.3d 956, 961 (10th Cir. 1995), vacated on other grounds, 516
U.S. 1105 (1995); United States v. Garcia, 983 F.2d 1160, 1167 (1st
Cir. 1993).
6 No. 05-2189
substantial chance that evidence may be found; it does not,
by contrast, require absolute certainty. Brack, 188 F.3d at 755
(citing Gates, 462 U.S. at 243 n.13). Although we recognize
that Officer Hasse’s monitoring of the informant during the
controlled buy may have been imperfect, we ultimately find
persuasive the fact that the informant had completed
numerous other controlled buys in the past and provided,
on those occasions, accurate and reliable information.
Furthermore, the informant provided a description of the
interior of Mr. Sidwell’s apartment that matched Officer
Hasse’s understanding of the apartment, thereby indicating
that the informant did enter the unit. The controls in place
at the buy in this case therefore were sufficient to establish
probable cause that contraband would be found in Mr.
Sidwell’s apartment.
2. Doctrine of Good Faith
Even if we were to conclude that the information in the
affidavit does not demonstrate probable cause that con-
traband would be found in Mr. Sidwell’s apartment,
suppression would be appropriate only if the officer
lacked good faith in relying on an invalidated search
warrant. See United States v. Leon, 468 U.S. 897, 920-22 (1984).
We review de novo the district court’s legal conclusion that
the officer in this case reasonably, and therefore in good
faith, relied upon the search warrant. Peck, 317 F.3d at 757.
Officer Hasse’s decision to seek a warrant is prima
facie evidence that he was acting in good faith. Id. A
defendant may rebut this prima facie evidence only by
establishing that the warrant issuer “wholly abandoned
his judicial role” or that the affidavit was “so lacking in
indicia of probable cause as to render official belief in its
No. 05-2189 7
existence entirely unreasonable.” Olson, 408 F.3d at 372(quotation marks omitted).
Mr. Sidwell does not allege that the Rock County Com-
missioner who issued the warrant abandoned his judicial
role. Instead, he submits that the affidavit was patently
lacking in indicia of probable cause and, because Officer
Hasse swore out the affidavit, he should have known that
he could not rely on the warrant. We cannot accept this
submission. As explained above, the controlled buy, the
informant’s description of Mr. Sidwell’s apartment unit and
the drug paraphernalia in the hallway outside of
Mr. Sidwell’s apartment provided Officer Hasse with, at
a minimum, indicia of illegal drug dealing in that apart-
ment. The officers’ reliance on the warrant was therefore
in good faith.
B. 18 U.S.C. § 922(g)
Lastly, Mr. Sidwell submits that 18 U.S.C. § 922(g) is
unconstitutional because, in enacting this statute, Con-
gress exceeded its power under the Commerce Clause.
We review rulings regarding the constitutionality of a
federal statute de novo. United States v. Schaffner, 258 F.3d
675, 678 (7th Cir. 2001).
We have rejected, on numerous occasions, Commerce
Clause challenges to § 922(g), noting that the “jurisdictional
element of § 922(g) provides the required nexus with
interstate commerce.”2 United States v. Hemmings, 258 F.3d
2
See, e.g., United States v. Olson, 408 F.3d 366, 372-73 (7th Cir.
2005); United States v. Thompson, 359 F.3d 470, 480 (7th Cir. 2004);
(continued...)
8 No. 05-2189
587, 594 (7th Cir. 2001). Mr. Sidwell nevertheless asks us
to re-examine our decisions upholding the constitution-
ality of 18 U.S.C. § 922(g), contending that they are inconsis-
tent with the Supreme Court’s decision in United States v.
Morrison, 529 U.S. 598 (2000). This argument also has been
previously rejected, and we do not find a compelling reason
to reconsider these rulings in this case. See United States v.
Mitchell, 299 F.3d 632, 635 (7th Cir. 2002) (holding that
Morrison does not implicate the constitutionality of §
922(g)); United States v. Wesela, 223 F.3d 656, 660 (7th Cir.
2000).
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
(...continued)
United States v. Lemons, 302 F.3d 769, 772 (7th Cir. 2002); United
States v. Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000).
No. 05-2189 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-10-06