DocketNumber： 89-2972
Judges： Posner, Flaum, Will
Filed Date： 11/21/1990
Status： Precedential
Modified Date： 11/4/2024
Benny McKinney was arrested on July 9, 1988, after a search of the residence located at 2238 East Laurel Street in Springfield, Illinois. Drugs and firearms were confiscated during the search and McKinney was subsequently found guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). McKinney appeals, challenging the validity of the search, the sufficiency of the evidence to support his convictions, and the appropriateness of the sentences he received. We affirm his convictions on all counts, but remand for re-sentencing.
I.
On July 8, 1988, Sergeant Kettlekamp of the Illinois State Police signed an affidavit which related that an individual named Carla Brown came to him and stated that on July 7, she was in the residence at 2238 East Laurel and observed cocaine, marijuana, drug paraphernalia, and firearms. She stated that the cocaine was located in the front bedroom and that the firearms were in the closet in the front bedroom. The affidavit also stated that Brown observed McKinney distribute one-half gram of cocaine to a female customer and, that later that day, as Brown was walking along the street, McKinney shot at her with a machine gun. A search warrant was issued by a United States Magistrate based solely on the information in the officer’s affidavit.
On July 9, the warrant was executed by agents of the Illinois State Police and the Bureau of Alcohol, Tobacco, and Firearms. After announcing their offices, the agents entered the residence and observed McKinney in the front bedroom standing next to the bed. A search of the bedroom produced a packet of white powder containing 4 grams of a cocaine/inositol mixture and a can of Right Guard deodorant with a false bottom which contained seven plastic bags of cocaine. Six firearms were also discovered; a twenty-two caliber pistol found in a dresser drawer, a .32 handgun in another dresser drawer, a twenty-two caliber pistol with a loaded ammunition clip on the shelf in the closet, a twenty-two caliber rifle in the closet, a .357 magnum in a briefcase under the bed, and a rifle and ammunition clip under the bed. Also discovered in the house were a triple beam scale, a bottle of inositol (used to cut the cocaine), and approximately forty rounds of ammunition. The defendant was subsequently arrested.
A thirteen count superseding indictment was filed on September 21, 1988, charging McKinney as follows: Count I, possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); Counts II-VII, use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and Counts VIII-XIII, unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
On November 2, 1988, the defendant filed a petition challenging the facial validity of the search warrant and moving to quash the search warrant and suppress the evidence. Specifically, McKinney contended that Brown was a confidential informant whose information should have been corroborated before the issuance of a search warrant. Furthermore, McKinney asserted, corroboration of Brown’s statements was unlikely because her reliability was suspect as she has a prior criminal record and was a drug addict. The district court, however, was persuaded that the warrant
After McKinney waived his right to a jury trial, the court found McKinney guilty of all counts as charged. The court sentenced the defendant to 121 months on Count I, the possession with intent to distribute cocaine charge, and 60 months on each of counts VIII-XIII, unlawful possession of a firearm by a convicted felony, to be served concurrently with each other and with Count I. The court also imposed independent, five-year, consecutive sentences on Counts II-VII, use of a firearm during a drug crime to be served consecutively to Count I. A six year probation period after release from prison was also ordered. McKinney appeals, and we affirm the convictions but remand for resentencing consistent with this opinion.
II.
McKinney first contests the district court’s denial of his motion to quash the search warrant and suppress the evidence. He contends, as he did in the district court, that the statements by Brown do not provide sufficient reliability to support a warrant with probable cause. The evidence seized on the basis of the warrant was therefore tainted, he asserts, and should be excluded. The district court, in denying defendant’s motion to suppress, found there was sufficient probable cause to issue a warrant to search the residence.
When reviewing a decision to issue a warrant, our task is “simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 250, 103 S.Ct. 2317, 2338, 76 L.Ed.2d 527 (1983); see also United States v. Zambrana, 841 F.2d 1320, 1332 (7th Cir.1988); United States v. Griffin, 827 F.2d 1108, 1111 (7th Cir.1987).
Nevertheless, Judge Posner’s concurrence disparages the utility and feasibility of applying the Gates standard. In its place, Judge Posner “proposes a change in the formulation of the standard of review” of probable cause determinations, and urges us to take two steps: first, to abandon the substantial basis approach and to employ instead a clearly erroneous standard when reviewing probable cause determinations in warrant cases; and second, to abandon de novo review of probable cause determinations in nonwarrant cases and to adopt the clearly erroneous standard for reviewing all probable cause determinations. To justify these bold initiatives, Judge Posner argues that the difference between the substantial basis and clearly erroneous review is a matter of semantics and is, at any rate, at odds with “a steady trend toward limiting the scope of appellate review of determinations of fact-specific issues.” Infra at 420. And lest the resistance to the tide of change prove too unyielding, Judge Posner suggests that any attempt to preserve a less deferential degree of review in warrant cases is futile, since in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 the Court decided to “scuttle” the exclusionary rule by adopting a “good faith” exception. According to Judge Posner, we might as well abandon ship.
We note initially that, as circuit judges, we must await an explicit order from our superiors before scuttling the fourth amendment. The Supreme Court has repeatedly employed the “substantial basis” standard without ever equating it to the clear error standard. See, e.g., New York v. P.J. Video, Inc., 475 U.S. 868, 876, 106 S.Ct. 1610, 1615, 89 L.Ed.2d 871 (1986) (“duty of reviewing court is simply to ensure that the magistrate had a substantial basis ... ”) (citation omitted); Leon, 468 U.S. at 915, 104 S.Ct. at 3416 (“reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause”); Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1983) (“Examined in light of Gates, [the] affidavit provides a substantial basis for issuance of the warrant.”); Gates, supra; United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2079-80, 29 L.Ed.2d 723 (1971) (“The Court of Appeals ... believed ... that there was no substantial basis for believing that the tip was truthful.”); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) (“there was a substantial basis for ... concluding] that narcotics were probably present in the apartment”). In the absence of any evidence at all that the Court employs the two standards interchangeably, one should not independently conclude that they mean the same thing. The Court has certainly not abandoned use of the “clearly erroneous” standard, see, e.g., Citibank v. Wells Fargo Asia, Ltd., — U.S. -, 110 S.Ct. 2034, 2040, 109 L.Ed.2d 677 (1990); Clemons v. Mississippi,—U.S.-, 110 S.Ct. 1441, 1459, 108 L.Ed.2d 725 (1990), and we should not presume that it is implicitly invoking “clearly erroneous” when it employs other terms to define a standard of review. Cf. Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (1975) (White, J., concurring) (“The Court showed ... that when it wanted to create a per se rule ... it knew how to do so.”). Courts of Appeals are not at liberty to treat the sub
Unlike Judge Posner, we do not read Leon to contain an implicit order to abandon close scrutiny of warrants. Indeed, in adopting the “good faith” exception, the Court explicitly disavowed that notion, stating that “[t]he good faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment.” 468 U.S. at 924, 104 S.Ct. at 3421. Moreover, the Court cautioned that “[d]eference to the magistrate ... is not boundless,” 468 U.S. at 914, 104 S.Ct. at 3416, and reiterated that “courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” Id. at 915, 104 S.Ct. at 3416 (quoting Gates, 462 U.S. at 239, 103 S.Ct. at 2332-33). Judge Posner apparently assumes that there is no need to review probable cause determinations unless exclusion of the evidence is at stake, but the Court rejected this position as well, observing that “a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances or because the form of the warrant was improper in some respect.” Id. at 915, 104 S.Ct. at 3416-17 (citation omitted); see also Gates, 462 U.S. at 223, 103 S.Ct. at 2324 (“The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”). The Court concluded that the need to resolve fourth amendment questions to provide guidance to magistrates and law enforcement officials will often prompt courts to reach the question of whether the police violated constitutional rights before deciding whether they acted in good faith. Id. at 926, 104 S.Ct. at 3422.
Moreover, the Court observed that “it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.” Leon, 468 U.S. at 925, 104 S.Ct. at 3422. Leon and Gates both made clear that exclusion remains a proper remedy when police rely on a warrant that was issued without adequate review by the magistrate; the “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained [sic] officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23; see also id. at 923, 104 S.Ct. at 3420-21 (citing examples of inadequate review); Gates, 462 U.S. at 239, 103 S.Ct. at 2333 (“In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.”). Leon itself was not a case in which a magistrate lacked a substantial basis for deciding that probable cause existed; the officer’s reliance on the warrant was reasonable because the magistrate had a substantial basis for issuing the warrant. Id. at 926, 104 S.Ct. at 3422 (“The affidavit ... provided evidence sufficient to create disagreement ... as to the existence of probable cause. Under these circumstances, the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable .... ” (emphasis supplied)); see also United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988) (“The test for reasonable reliance is whether the affidavit was sufficient to ‘create disagreement among thoughtful and competent judges as to the existence of probable cause.’ ”) (quoting Leon, at 926, 104 S.Ct. at 3422). Clearly, then, Leon did not obviate the need for reviewing courts to determine whether there was a substantial basis in the affidavit for granting a warrant.
More generally, we take issue with the view that our Circuit’s law regarding appellate review of probable cause determina
This is particularly true when constitutional rights are at stake. The Supreme Court manifested its reluctance to abrogate the role of appellate courts in defining the law of probable cause required for warrants by incorporating an approach less deferential than clearly erroneous review. Judge Posner infers from the adoption of a clearly erroneous standard in some fact-intensive contexts that clearly erroneous is an appropriate standard for all such contexts.
Judge Posner cites “the dramatic increases in federal judicial workloads” as additional justification for restricting the scope of appellate review of fourth amendment issues to the clearly erroneous standard, but this factor should actually counsel against adopting a clearly erroneous standard, since, under the pressures of mounting caseloads, magistrates and district judges would not be better positioned to conduct thorough reviews of warrant applications. Goals — like achieving uniformity and efficiency — that inform the allocation of responsibility between trial and appellate courts have diminished import when weighed against the need to safeguard constitutional rights; expediency is a weak substitute for meaningful appellate review of alleged fourth amendment violations. In Malley v. Briggs, 475 U.S. 335, 345-46, 106 S.Ct. 1092, 1098-99, 89 L.Ed.2d 271 (1986), the Court cited the same pressures as justification for resisting erosion of fourth amendment rights. Justice White, who also authored Leon, stated:
It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.
Gates and Leon, then, clearly cannot be read as signals for us to curtail the exercise of our own reasonable professional judgment.
In making the case for clarity and uniformity, Judge Posner blurs our law by failing to distinguish warrant and nonwar-rant cases, and by claiming that we review probable cause determinations in both de novo.
Once this distinction is clarified, it is easy to see why we review probable cause determinations underlying warrants less intensively than those made in nonwarrant cases. The fourth amendment prohibits unreasonable searches, and the Supreme Court has long acknowledged that, as a general rule, warrantless searches are “presumptively unreasonable.” Leon, 468 U.S. at 960, 104 S.Ct. at 3446 (Stevens, J., concurring in part); see also United States v. Ross, 456 U.S. 798, 807, 102 S.Ct. 2157, 2163-64, 72 L.Ed.2d 572 (1982) (“ ‘In cases where the securing of a warrant is reasonably practicable, it must be used.’ ”) (quoting Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1924)); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (“Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”). When the search is conducted with a warrant, however, the intrusion is less egregious because the warrant assures “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977)). Moreover, police action “without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.” Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Consequently, we apply a higher level of review in nonwarrant cases than in warrant cases. The mitigating effect of a warrant has even prompted the Court to suggest that the probable cause standard itself is stricter in nonwarrant cases, noting that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” Leon, 468 U.S. at 914, 104 S.Ct. at 3416 (quoting United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 (1965)); see also Jones, 362 U.S. at 270, 80 S.Ct. at 736 (“when the officer does not have clearly convincing evidence of the immediate need
Our decision in Llaguno v. Mingey, 763 F.2d 1560 (7th Cir.1985) (en banc) is not inconsistent with our approach to probable cause determinations made by judges and magistrates. In Mingey, we held that, in damages trials for alleged civil rights violations involving the fourth amendment, probable cause is a jury question subject to the clearly erroneous standard. Again, the context in which the probable cause determination was made is critical. At trial, a jury .cannot find probable cause unless the jurors agree unanimously that the preponderance of the evidence establishes it. This degree of review compensates for a lesser degree of appellate review — and ensures an adequate degree of certainty about the probable cause determination— but only in the context of civil cases; we do not allow juries to make probable cause determinations in criminal trials. Indeed, we do not always allow juries to make them in civil trials. See, e.g., Gramenos v. Jewel Cos., 797 F.2d 432, 438-39 (7th Cir.1986) (Easterbrook, J., joined by Posner and Campbell, JJ.) (affirming summary judgment on issue of probable cause while noting that a jury’s determination that a warrantless arrest was unreasonable would not preclude court’s legal determination that police had probable cause). Our willingness to treat probable cause as an issue of fact turns on our willingness to merge the concepts of probable cause and reasonableness.
With all due respect, we also question the premise of Judge Posner’s desire to minimize the number of legal formulas to be applied by judges. He urges, in the name of simplicity and uniformity, that we abandon the substantial basis standard in favor of the clearly erroneous standard. We agree, of course, that uniformity and simplicity are desirable goals. We suggest, however, that it is with appropriate intermediate appellate review that uniformity in magistrate’s probable cause decisions can best be achieved. Judge Posner correctly notes that facts presented in a particular case will never recur exactly. Nonetheless, the nature of the conduct in cases may be sufficiently similar so that less deferential probable cause determinations by this Court will provide meaningful guidance to the. district courts.
Judge Posner apparently acknowledges that judges can, and must, give varying degrees of scrutiny depending on the type of case before them, for he maintains that the clearly erroneous standard can, and should, be applied with varying degrees of rigor. It seems, then, that his quarrel is not so much with the proposition that probable cause determinations require more appellate scrutiny but rather with the feasibility of applying the levels of review mandated by the Court.
Based on these principles, we hold that "a magistrate's determination of probable cause is to be given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." Griffin, 827 F.2d at 1111 (7th Cir.1987) (quoting United States v. Pritchard, 745 F.2d 1112, 1120 (7th Cir.1984)). An affidavit has made a proper showing of probable cause when it sets forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of crime. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040 (1967). In conducting this review, our duty is to ensure that the "magistrate had a substantial basis for concluding that a search would uncover evidence of wrorigdoing." Griffin, 827 F.2d at 1111 (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331).
Considering the magistrate's decision in this case, we note that the affidavit Officer Kettlekamp presented to the magistrate contained personal observations of a citizen who promptly reported to the police details of specific evidence of criminality that were located inside the residence at 2238 East Laurel. The informant also asserted that she was the victim of a violent crime committed by the defendant. The magistrate was thus presented with specific details of a crime; neither Brown's drug addiction nor criminal record warranted disregarding her report. Although an informant's reliability is a factor to be considered by a court, it is just one relevant consideration in the totality of the circumstances analysis. Gates, 462 U.S. at 234, 103 S.Ct. at 2330. As the Supreme Court stated in Gates, "even if we entertain some doubt as to an informant's motives, [her] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first hand, entitles [her] tip to greater weight than might oth
III.
McKinney’s next contention on appeal is that the evidence presented was not sufficient to prove him guilty beyond a reasonable doubt. “In evaluating the defendant’s sufficiency of the evidence challenge, we note that he bears a heavy burden .... The test is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of crime beyond a reasonable doubt.” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (emphasis in original) (citations omitted). In fact, only when the record contains no evidence from which the trier of fact could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict. Id.
We conclude that the district court was presented with evidence from which it could conclude the defendant was guilty beyond a reasonable doubt. There was testimony presented at trial that McKinney was the actual owner and resident of the residence at 2238 East Laurel where the weapons and cocaine were found. His fingerprint was found on one of the weapons seized from the bedroom and various witnesses testified that he had a firearm present during a drug transaction. The evidence also demonstrated that McKinney possessed the cocaine with the intent to distribute it. We conclude that viewing the evidence in the light most favorable to the government, a rational trier of fact could have found that the defendant was guilty beyond a reasonable doubt on all counts.
IV.
McKinney’s final challenge on appeal concerns the appropriateness of the sentences he received for unlawful possession of a firearm by a convicted felon and use of a firearm during and in relation to a drug trafficking crime. He received 5 years on each of the six firearm possession counts to run concurrently with each other and with the drug charge. He also received 5 years on each of the six use of a weapon counts to run consecutively to each other and consecutively to the underlying cocaine and firearm possession sentences. McKinney argues that the court should have imposed sentence on either the charge of possession of a weapon or use of a weapon, but not both. He alleges that sentencing him under both violates the double jeopardy clause of the fifth amendment, or in the alternative that the multiple sentences received in each count violates that clause.
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court devised a test for determining whether two statutory violations constitute two offenses for purposes of the double jeopardy clause. The Court held that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. A reading of the two applicable statutes makes it clear that these two offenses consist of separate elements, and therefore, the defendant could receive separate sentences for each offense. Section 922(g) provides:
It shall be unlawful for any person—*417 (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Section 924(c)(1) provides:
Whoever during and in violation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall....
As the Ninth Circuit determined in United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989), “[i]t is obvious that conviction of the offense under Section 924(c)(1) requires proof of elements not required for conviction under 922(g)(1), and vice versa.” Section 924(c)(1) is a penalty for a felon who possesses a firearm, while section 924(g)(1) addresses Congress’ concern with the more heinous crime of drug trafficking with a firearm. Therefore, the two charges satisfy the Blockburger test.
McKinney’s contention concerning the multiple sentences he received for each of the firearm offenses holds more weight. He argues that he should not receive multiple punishment for what is in effect one offense. We agree. In the context of multiple punishments imposed in a single prosecution, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Grady v. Corbin—U.S.-, 110 S.Ct. 2084, 2091, 109 L.Ed.2d 548 (1990) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983)). McKinney was convicted of one narcotics transaction in which he used, and as a convicted felon, possessed a firearm. Yet he was sentenced on six counts of each crime for the six weapons seized. There is nothing in the statutes from which we can conclude that Congress considered the situation we are faced with today and intended such extreme sentencing by the piling up of charges. “[I]n the absence of express Congressional intent to ‘fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses_” McFarland v. Pickett, 469 F.2d 1277, 1278 (7th Cir.1972) (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622-23, 99 L.Ed. 905 (1955)).
In United States v. Baugh, 787 F.2d 1131, 1132 (7th Cir.1986), we applied what has been termed the McFarland/Calhoun reasoning and determined that Baugh’s sentences on five counts of unlawful receipt of a firearm in violation of 18 U.S.C.
These cases are directly on point and we conclude that McKinney cannot receive separate sentences for the firearms charges. Sections 924(c)(1) and 922(g)(1), under these facts, are only punishable as single offenses. The government did not demonstrate that the guns were stored or obtained in different locations or used in carrying out different drug trafficking crimes. All the guns were recovered from one location, the bedroom of the residence at 2238 East Laurel and only one had-the defendant's fingerprint. Furthermore, the defendant was convicted for use of a firearm in one narcotics transaction, not six. A firearm was only connected by witnesses to this one transaction and we are not presented with proof that a gun was used on six different occasions. Therefore, under Baugh, there can be only one possession and one use offense.
V.
For the above stated reasons, we Affirm McKinney’s convictions on all counts. We Remand for resentencing on the firearms charges consistent with this opinion.
. The government concedes that there was testimony at trial that the defendant actually owned the residence. Therefore, the defendant does have a fourth amendment interest and standing to challenge the search warrant, contrary to the government's assertion.
. By contrast, we owe no particular deference to the district court’s review; whether a substantial basis existed for finding probable cause is a question of law that we review de novo. United States v. Matin, 908 F.2d 163, 165 (7th Cir.1990). "The Gates standard of review applies to each court that is required to assess the validity of a search warrant. Thus, under Gates we must review the magistrate’s determination of probable cause to issue a search warrant independently of the conclusion reached by the district court.” United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir.1988); see also Matter of Trinity Indus., 898 F.2d 1049, 1050 (5th Cir.1989). We recently confirmed this distinction in United States v. Barnes, 909 F.2d 1059, 1068-69 (7th Cir.1990), where we reviewed the district court de novo and made an independent determination as to whether the magistrate had a substantial basis for his decision.
. Judge Posner also suggests that, by defending the Court’s substantial basis approach, we are "spitting in the wind.” Our efforts, however, are merely a measured response to the far reaching proposal Judge Posner sets forth in his concurrence. Judge Posner is not content to chide our unwillingness to "innovate” away the degree of scrutiny prescribed by the Supreme Court; he also challenges accepted standards of review in several other fact-intensive contexts. Our objections, then, are not confined to his views about the appropriate standard in warrant cases, and we find it somewhat uncharitable to be portrayed as "spitting in the wind" by the source of the gale.
.We respectfully suggest, instead, that it is primarily an initiative of two very learned and, in this instance, overly innovative, jurists displeased with the state of the law. See United States v. Malin, 908 F.2d 163, 169-70 (Easter-brook, J., joined by Posner, J., concurring). The “landmarks” cited in the Malin concurrence hardly herald a sweeping tide of change in the law. In Icicle Seafoods v. Worthington, for example, the Court remanded the case only because the Court of Appeals had independently reviewed the record to determine an historical fact — whether the respondent’s employment was predominantly related to maritime work. See 475 U.S. at 713-14, 106 S.Ct. at 1529-30. The Court did not, however, criticize the Court of Appeals for its decision to "apply a de novo standard of review to the application of the exemption to the facts and [to] review the facts under a clearly erroneous standard.” 475 U.S. 709, 713, 106 S.Ct. 1527, 1529, 89 L.Ed.2d 739 (1986). Similarly, in Pullman Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), the Court was addressing "a pure question of fact,” "not a mixed question of law and fact.” 456 U.S. at 287-88, 102 S.Ct. at 1789. Consider also Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). The Court opted to review awards of attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), under an abuse of discretion standard. Justice Scalia noted, however, that in most cases the proper standard of review is provided by reference to "a long history of appellate practice.” 487 U.S. at 558, 108 S.Ct. at 2546. It was to longstanding appellate practice that Justice Rehnquist looked in Gates when he pronounced the substantial basis standard for reviewing probable cause determinations in warrant cases. See Gates, 462 U.S. at 236, 103 S.Ct. at 2331 ("the traditional standard for review of an issuing magistrate’s probable-cause determination has been ... [whether] the magistrate had a 'substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing”). Moreover, Justice Scalia recognized that the potential liability of a party at trial informs the calculus used to determine the proper standard of appellate review when neither history nor statute provides a guide. 487 U.S. at 563, 108 S.Ct. at 2549. Any attempt to further restrict review of fourth amendment protections in criminal cases, therefore, would be inappropriate, particularly when the Court has considered the issue several times and has consistently utilized a different, and less deferential, standard. Accordingly, our use of the Gates standard does not "buck" any trend; it merely acknowledges the standard of review mandated by the Supreme Court.
. And also brings to mind Justice Holmes' observation that "[t]he life of the law has not been logic: it has been experience.”
. Judge Posner makes his argument even while acknowledging that the Supreme Court has stubbornly refused to yield to his logic. See Malin, 908 F.2d at 169 (Easterbrook, J., joined by Posner, J., concurring) (ruling the Court’s— and this Circuit’s — continued use of a de novo standard when reviewing the voluntariness of confessions); Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986) (Posner, J.) (recognizing that, for some constitutional issues, fact-intensive inquiries receive a less-deferential standard of review).
. We note, for example, that review of a trial court’s determination that police acted in good faith for the purposes of determining whether evidence should be excluded is conducted de novo. See, e.g., United States v. Tedford, 875 F.2d 446, 448 (5th Cir.1989); United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988).
. The concurrence’s citation to United States v. DAntoni, 856 F.2d 975 (7th Cir.1988) further obscures our case law and fails to plumb the foundations of that case; it cannot support the weight heaped upon it. The DAntoni court was reviewing ordinary fact — whether the defendant’s arrest was pretextual. The broad language in the opinion_"motions to suppress evidence will be affirmed on appeal unless ... clearly erroneous” — -is not supported by any authority. The court cited United States v. Binder as general authority for the proposition, but Binder said only that ”[t]he credibility of witnesses at a suppression hearing is a matter for the trial judge to determine, and his credibility findings will not be reversed unless they are clearly erroneous.” 794 F.2d 1195, at 1199. (7th Cir.1986) Neither Binder, DAntoni, nor subsequent cases citing DAntoni, holds, or offers any rationale, argument, or precedent to support the broad proposition that a constitutional ruling made during the course of a suppression hearing should be reviewed for clear error only.
.Judge Posner's concurrence claims that in Ma-tin and Rambis we applied a de novo standard in warrant cases. In neither of those cases.
. The authority Judge Posner cited in Mingey for the proposition that probable cause is a fact question in civil cases supports that position only in contexts where reasonableness is treated as a question of fact. Those cases state only that the jury should resolve "a difference of opinion" as to the facts on which the probable cause determination is based; the probable cause determination itself is a legal question. See, e.g., Garris v. Rowland, 678 F.2d 1264, 1270 (5th Cir.), cert. denied, 459 U.S. 864, 103 S.Ct. 143, 74 L.Ed.2d 121 (1982) ("Where there is no conflict in evidence, the court may make its own legal determination of probable cause. See, e.g. Banish v. Locks, 414 F.2d 638 (7th Cir.1969). But where facts relied upon to show probable cause in a § 1983 action are controverted, they must be resolved by the jury before controlling legal principles can be applied.”)
. See Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 940 (7th Cir.1989) (Flaum, J., dissenting, joined by Bauer, C.J., and Wood and Cudahy, JJ.) (de novo review of Rule 11 will add uniformity to district court decisions).
. Applying the substantial basis test should not be as difficult as Judge Posner asserts. Although not subject to a bright-line test, it should be no more difficult to apply than the initial
. The Supreme Court recently modified the Blockburger test for some applications of the double jeopardy clause in Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that case, the Court was asked to decide whether the subsequent prosecution of a defendant for homicide exposed the defendant to double jeopardy when the defendant was already convicted of driving while intoxicated and failing to keep to the right of the median. The Court refashioned the double jeopardy analysis to be undertaken because of its concern that Blockburger did not appropriately give effect to the double jeopardy clause's proscription against “a second prosecution for the same offense." Grady, 110 S.Ct. at 2090. In this respect, the Court applied a two part test. First, offenses must satisfy the Blockburger test. Id. 110 S.Ct. at 2090. If the offenses do not have identical statutory elements and one is not the lesser included offense of the other, thus satisfying Blockburger, then the next level of the analysis must be applied. Id. 110 S.Ct. at 2093. At this newly added step, “the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. 110 S.Ct. at 2087. Under this second level of analysis, the Court determined that the successive prosecution for homicide would require the government to prove the entirety of the conduct of driving while intoxicated and failing to keep to the right of the median for which the defendant was already convicted. Accordingly, the Court held the subsequent prosecution was barred by the double jeopardy clause.
By its own terms, Grady only applies to subsequent prosecutions. Grady, 110 S.Ct. at 2087, 2090, 2093-94. We are not faced with the evils of a subsequent prosecution which the Supreme Court was addressing in Grady; both firearms charges against McKinney were brought in the same trial. Accordingly, Grady is inapplicable and we need only apply the Blockburger analysis which we find does not bar McKinney from receiving sentences for both crimes.
. We do not mean to suggest by our decision that multiple sentences are never proper. Such sentencing is lawful when the government establishes that the defendant received or stored the firearms in separate locations or used them in separate drug transactions.