United States v. Samuel Yarber

In the
United States Court of Appeals
For the Seventh Circuit
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No. 18-1469
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL J. YARBER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:17-cr-20007 — Colin S. Bruce, Judge.
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ARGUED JANUARY 24, 2019 — DECIDED FEBRUARY 13, 2019
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Before MANION, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Police in Champaign, Illinois
obtained warrants to search two apartments connected to
Samuel Yarber. The searches turned up drugs and handguns
and ultimately led to Yarber’s convictions for federal narcotics
and firearms offenses. Along the way, Yarber challenged the
warrant to search one of the apartments as unsupported by
probable cause. While the warrant affidavit fell short in one
respect—it did not establish that Yarber lived at the apartment
2 No. 18-1469
and thus could not support an inference that evidence of his
drug-dealing would be kept there—it nonetheless contained
other facts sufficient to establish probable cause. And in any
event the police relied in good faith upon the warrant. On this
record, then, we affirm.
I
Law enforcement undertook an investigation after
receiving information from a confidential source that Yarber
was selling drugs in the Champaign-Urbana area. The
confidential source bought cocaine from Yarber on four
separate occasions near the same intersection in Champaign.
The police observed Yarber before and after each transaction.
And each time, Yarber drove a white Dodge Charger, which
was registered to his girlfriend. Immediately following two of
the controlled buys, Yarber drove to his girlfriend’s apartment
in Champaign. The police surveilled the apartment on three
additional occasions, and all three times saw the white Dodge
Charger parked in front. On one occasion they saw Yarber exit
the Dodge Charger and go inside the apartment.
All of this information was set forth in an affidavit pre-
sented to a Champaign County Circuit Court judge in support
of the police’s request for a search warrant. The attesting of-
ficer also stated that, based on his training and experience,
drug dealers often use vehicles registered to someone else to
evade detection by law enforcement. The Champaign County
judge found that these facts established the requisite probable
cause to search the Champaign apartment and issued the war-
rant. By its terms, the warrant authorized the police to search
for, among other things, drugs, drug paraphernalia, and sus-
pected proceeds from drug transactions.
No. 18-1469 3
The primary issue in this appeal turns on what the affida-
vit did not say. Nowhere did the affidavit state that Yarber
lived at the Champaign apartment or even that he stayed
there overnight. To the contrary, it referred to an altogether
different apartment—located in Urbana, Illinois—as Yarber’s
“residence.” Yarber seized on this omission and moved to
suppress the evidence discovered during the search of the
Champaign apartment. He argued that, by establishing no
nexus between the drug dealing activities and the apartment,
the affidavit failed to establish probable cause.
The district court thought otherwise. The court’s primary
reason for finding probable cause was that the police con-
nected Yarber and the white Dodge Charger to the apartment
and saw him drive there immediately after two of the four
controlled buys. The district court further observed that the
Champaign County judge who issued the search warrant
could have inferred that Yarber kept evidence of his drug
dealing in his girlfriend’s apartment to reduce the possibility
of connecting him to illegal activity. Alternatively, the district
court determined that the exception of United States v. Leon
would apply because the police acted in good faith when
seeking and executing the warrant. See 468 U.S. 897, 920–22
(1984).
After the court denied his motion to suppress, Yarber
pleaded guilty to drug possession with the intent to distrib-
ute, 21 U.S.C. § 841(a)(1) & (b)(1)(C), and to possession of a
firearm by a felon, 18 U.S.C. § 922(g). He proceeded to trial on
the remaining charge of possession of a firearm in furtherance
of a drug trafficking offense, 18 U.S.C. § 924(c), and was con-
victed by a jury. The district court imposed a sentence of 420
months’ imprisonment.
4 No. 18-1469
II
A
In determining the sufficiency of a warrant affidavit, we
focus on the totality of the information presented to the
Champaign County judge. See United States v. Peck, 317 F.3d
754, 756 (7th Cir. 2003). We afford “great deference” to the
probable cause finding made by the judge who evaluated the
warrant application in the first instance and will uphold that
determination so long as there is a “substantial basis” for con-
cluding “that a search would uncover evidence of wrongdo-
ing.” Illinois v. Gates, 462 U.S. 213, 236 (1983). So, too, have we
consistently held that “probable cause ‘does not require direct
evidence linking a crime to a particular place.’” United States
v. Zamudio, 909 F.3d 172, 175 (7th Cir. 2018) (quoting United
States v. Anderson, 450 F.3d 294, 303 (7th Cir. 2006)). Rather, a
warrant affidavit “need only contain facts that, given the na-
ture of the evidence sought and the crime alleged, allow for a
reasonable inference that there is a fair probability that evi-
dence will be found in a particular place.” Id. at 176 (quoting
United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010)).
While this case is far from open and shut, we conclude that
the affidavit provided a sufficient basis for a finding of
probable cause to search the Champaign apartment. Yarber
used his girlfriend’s white Dodge Charger for each of the four
controlled buys. Surveillance also established that the Dodge
Charger was parked outside the apartment on three
occasions, and that Yarber exited the car and entered the
apartment on one of those occasions. Finally—and most
significantly—Yarber drove directly to the apartment after
two of the four controlled buys. This was sufficient to search
the apartment for the proceeds of those transactions. The
No. 18-1469 5
Champaign County judge was entitled to draw the reasonable
inference that an experienced drug dealer might maintain
cash proceeds from drug sales within the apartment he visited
immediately after the sales—an apartment rented to his
girlfriend and tied to the car he used to conduct his drug
sales—rather than on his person or in a car.
For its part, the government urges us to rely on a line of
cases that permit an inference that “evidence of drug dealing
is likely to be found where the dealer lives.” United States v.
Scott, 731 F.3d 659, 665 (7th Cir. 2013) (citing United States v.
Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997)). Yarber lived at
the Champaign apartment, the government’s argument runs,
and therefore it was reasonable to infer that evidence of
Yarber’s drug dealing was likely to be found there. This
argument misfires on both the facts and law.
As Yarber’s counsel rightly (and very ably) emphasizes,
nothing within the affidavit itself gave any indication that
Yarber lived in the Champaign apartment. Indeed, the
opposite is true: the affidavit expressly referred to another
property, in Urbana, as “[Yarber’s] residence.” The
government’s argument—premised on Yarber’s later
assertion that he lived at the Champaign apartment—
disregards the well-established tenet that “[w]here, as here,
an affidavit is all that was presented to the issuing judge, the
warrant's validity rests on the strength of the affidavit.”
Anderson, 450 F.3d at 302–03 (citing Peck, 317 F.3d at 755). Put
differently, the fact that Yarber may have lived both in an
apartment in Urbana and at other times with his girlfriend in
her Champaign apartment was not before the Champaign
County judge. On this record, then, the inference that drug
6 No. 18-1469
dealers keep evidence of drug dealing where they live was
unavailable to the police.
Instead, our conclusion that probable cause existed relies
on a combination of other facts: the search warrant expressly
authorized a search for the proceeds of drug sales, Yarber
went directly to his girlfriend’s apartment after two of the
controlled buys, and additional surveillance tied Yarber to his
girlfriend’s apartment and car.
In no way does this mean that any place to which a sus-
pected drug dealer travels after a drug sale is subject to a
search. But there is much more here than an isolated visit to
some random apartment after a drug sale. Yarber used his
girlfriend’s vehicle to sell drugs on four separate occasions,
and surveillance placed the vehicle at her apartment multiple
times. When combined with the fact that Yarber went directly
to the apartment after two of the controlled buys, the facts
were sufficient to support a finding of probable cause to
search the apartment for drug proceeds.
B
In any event, the suppression of the evidence obtained
during the search is not warranted because Leon’s good-faith
exception applies here. Under this exception, the fruits of a
search based on an invalid warrant may be admitted if the of-
ficers who executed the search relied upon the warrant in
good faith. See United States v. Orozco, 576 F.3d 745, 750 (7th
Cir. 2009). And an officer’s decision to obtain a warrant cre-
ates a presumption that the officer acted in good faith. See id.Yarber attempts to rebut this presumption by contending
that the officers should have known that the affidavit was de-
ficient because it established no connection between the
No. 18-1469 7
alleged illegal conduct and the location to be searched. We
disagree. Although silent with respect to whether Yarber lived
(at least some of the time) at the Champaign residence—and
lacking in that particular respect—the affidavit otherwise pre-
sented sufficient facts to tie his drug-dealing activities to the
apartment. The warrant on the whole was not so deficient in
establishing probable cause as to preclude reasonable, good-
faith reliance on it by the police. See Leon, 468 U.S. at 899.
III
We owe a final observation in response to Yarber’s argu-
ment that his drug-trafficking count and felon-in-possession
count should have been grouped for the purposes of compu-
ting his advisory sentencing range under the Sentencing
Guidelines. See U.S.S.G. § 3D1.2(c). He acknowledges that his
position is foreclosed by United States v. Sinclair, which held
that a drug-distribution count and a felon-in-possession count
cannot be grouped when a conviction under 18 U.S.C. § 924(c)
is also present, but seeks to preserve it for en banc review or
an appeal to the Supreme Court. See 770 F.3d 1148, 1159 (7th
Cir. 2014). Yarber may consider his argument preserved.
Accordingly, we AFFIRM.