USA v. Sidney Thompson

Filing

Filed opinion of the court PER CURIAM. AFFIRMED. Daniel A. Manion, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6691800-1] [6691800] [14-3262]

Case: 14-3262

Document: 26

Filed: 09/11/2015

Pages: 7

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3262
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SIDNEY THOMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13-cr-10086 — James E. Shadid, Chief Judge.

____________________
ARGUED JUNE 10, 2015 — DECIDED SEPTEMBER 11, 2015
____________________
Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.
PER CURIAM. Sidney Thompson challenges the denial of a
motion to suppress evidence that was seized from his house
during execution of a state search warrant. The affidavit underlying that warrant, Thompson argued, does not establish
probable cause. The district court disagreed with this contention and, alternatively, concluded that the police relied on the
warrant in good faith. We conclude that, even if the affidavit
does not include sufficient facts to establish probable cause,

Case: 14-3262

2

Document: 26

Filed: 09/11/2015

Pages: 7

No. 14-3262

the evidence was admissible under the good-faith exception
to the exclusionary rule.
In July 2013 a circuit judge in Peoria County, Illinois, issued a warrant to search Thompson and his house in Peoria
for evidence that cocaine was being sold and used. The judge
issued the warrant based exclusively on the affidavit of Peoria
police officer Matthew Lane, who averred that an informant
had told him that “a black male” named Sidney “routinely
sells cocaine” from his house in Peoria. According to Officer
Lane’s affidavit, the informant had recounted going to Sidney’s house twice within the past 30 days (most recently
within 72 hours) and both times observing “cocaine in and
about the premises” and seeing Sidney with “a quantity of an
off white like rock substance that was represented to be cocaine.” Officer Lane attested that the informant had provided
Thompson’s address and his physical description.
Officer Lane explained in the affidavit that he had corroborated some of the informant’s information. He knew from
prior investigations that Thompson matched the physical description given by the informant, and the informant had
picked Thompson from a photo array as “Sidney.” Officer
Lane also had checked Thompson’s criminal history and
found 14 arrests involving drugs and 4 convictions. A state
database gave Thompson’s address as the one provided by
the informant, and Officer Lane had conducted surveillance
and seen Thompson enter and exit the side door of the house.
As for the informant’s reliability, Officer Lane stated in the
affidavit that one time previously the informant had made a
controlled buy of marijuana and another time had given information which led to a search warrant and the suspect’s arrest for possessing a controlled substance.

Case: 14-3262

No. 14-3262

Document: 26

Filed: 09/11/2015

Pages: 7

3

Police officers executed the search warrant for Thompson
and his house the same day it was issued. They found about
17 grams of cocaine in the house, and a federal grand jury
charged Thompson with possessing the drugs with intent to
distribute. See 21 U.S.C. § 841(a)(1). Thompson moved to suppress the cocaine, arguing that Officer Lane’s affidavit does
not establish probable cause. According to Thompson, the affidavit provides “nothing more than mere conclusions and assertions of wrongdoing.” The affidavit, he said, omits details—e.g., the amount of drugs seen by the informant, how
the informant knew that the powder was cocaine, and
whether other people were at the house—and the informant
did not appear before the state judge. Moreover, Thompson
argued, the good-faith exception of United States v. Leon, 468
U.S. 897, 919–23 (1984), could not salvage the search because,
in his view, the affidavit is so facially deficient that no officer
reasonably could have believed that it supplies probable
cause.
At a hearing on the motion, Thompson repeated his argument that the affidavit’s accusation of drug sales is “summary
in nature” and provides “no information” about “how the
confidential informant [drew] these conclusions.” In response
the district judge initially declined to decide if Officer Lane’s
affidavit establishes probable cause. Rather, the judge concluded from the bench that, although the affidavit “does lack
some detail,” the good-faith exception of Leon “would make
this a valid search warrant.” It was significant, the judge
thought, that the informant had been in Thompson’s house
within 72 hours, that the informant had described Thompson
in detail, and that Officer Lane had corroborated some of the
informant’s information. After the hearing, though, the judge
issued a written order concluding that Officer Lane’s affidavit

Case: 14-3262

4

Document: 26

Filed: 09/11/2015

Pages: 7

No. 14-3262

indeed establishes probable cause. And as he had said at the
hearing, the judge added that, probable cause or no, the cocaine would be admissible because the warrant was obtained
and executed in good faith. Thompson then entered a conditional guilty plea, reserving for appeal his challenge to the district court’s ruling.
In this court Thompson renews his argument that the affidavit does not supply probable cause. Where, as here, the district judge made no factual findings and simply examined the
affidavit submitted to the state judge who issued the search
warrant, we evaluate, giving “great deference” to the issuing
judge’s conclusion, whether that judge acted on the basis of
probable cause. United States v. Aleshire, 787 F.3d 1178, 1179
(7th Cir. 2015); see United States v. McIntire, 516 F.3d 576, 578
(7th Cir. 2008). Probable cause exists when, based on the totality of the circumstances, there is a fair probability that a
search will uncover contraband or evidence of a crime. Illinois
v. Gates, 462 U.S. 213, 238 (1983); see United States v. Sutton, 742
F.3d 770, 773 (7th Cir. 2014). When a finding of probable cause
incorporates information from an informant, we consider “(1)
the degree to which the informant has acquired knowledge of
the events through firsthand observation, (2) the amount of
detail provided, (3) the extent to which the police have corroborated the informant’s statements, and (4) the interval between the date of the events and the police officer’s application for the search warrant.” Sutton, 742 F.3d at 773; see United
States v. Garcia, 528 F.3d 481, 486 (7th Cir. 2008). Under this
totality-of-the-circumstances inquiry, no single factor controls, and a weakness in one may be overcome by other factors
or by other indicia of reliability. See United States v. Searcy, 664
F.3d 1119, 1122 (7th Cir. 2011).

Case: 14-3262

No. 14-3262

Document: 26

Filed: 09/11/2015

Pages: 7

5

We share the district court’s initial instinct about the
weakness of this affidavit. Like other affidavits that we have
criticized, this one falls short of what we would expect to see
in a case brought by federal prosecutors. We are growing
weary of thin affidavits that suffer from the same omissions
which provoked our criticism in the past. We recognize that
law enforcement officers have a legitimate interest in minimizing some details about an informant’s presence at the location to protect the informant’s identity. See United States v.
Glover, 755 F.3d 811, 818 (7th Cir. 2014); Garcia, 528 F.3d at 486;
United States v. Hicks, 575 F.3d 130, 138 (1st Cir. 2009). But still
there must be enough factual content in an affidavit to establish probable cause. Here, for example, the affidavit omits an
estimate of the amount of drugs seen by the informant (instead stating only that cocaine was routinely sold at the residence). Too much precision, of course, might unmask the informant if the specific amount was present only briefly while
the informant was in the house. Yet we said in Owens v. United
States, 387 F.3d 607, 608 (7th Cir. 2004), that an estimate of the
drug quantity seen at the premises gives the issuing judge
reason to conclude that some of the drugs or other evidence
would still be present at the location. See also Garcia, 528 F.3d
at 487; United States v. Matthews, 753 F.3d 1321, 1325 (D.C. Cir.
2014). And it seems easy enough to explain how the informant
knew (besides being told) that the substance was cocaine. See
United States v. Peck, 317 F.3d 754, 755, 757 (7th Cir. 2003) (noting that informant’s unstated “personal experiences” and
what she had been told about wrapped packages by suspect
did little to shore up informant’s assertion that packages at
suspect’s house contained cocaine and marijuana). Disclosing
that the informant has used or sold a particular drug in the
past is one common way of establishing the reliability of an

Case: 14-3262

6

Document: 26

Filed: 09/11/2015

Pages: 7

No. 14-3262

informant’s representation that the substance was present in
the location to be searched. See, e.g., Sutton, 742 F.3d at 772;
United States v. Sims, 551 F.3d 640, 644 (7th Cir. 2008); Garcia,
528 F.3d at 486; United States v. Johnson, 289 F.3d 1034, 1036
(7th Cir. 2002); United States v. Jones, 208 F.3d 603, 606 (7th Cir.
2000). These details would strengthen an affidavit, and the
government has not suggested that including them would
risk compromising an informant’s identity.
All that said, we need not decide whether the state judge
who issued the warrant had a basis for finding probable
cause, since the search of Thompson’s residence survives a
motion to suppress under the good-faith exception of Leon,
468 U.S. at 919–23. Officer Lane’s decision to obtain a warrant
is prima facie evidence that he was acting in good faith.
See Searcy, 664 F.3d at 1124. Thompson challenges that presumption by arguing that a police officer could not reasonably rely on a search warrant which, he insists, rests on less
detail than the affidavit in Garcia, a case in which we saw reason to ”hesitate” before finally deciding that a “sensible
judge” could have found that the challenged affidavit included enough information to establish probable cause. 528
F.3d at 486. It is true that the affidavit in this case lacks many
of the same details missing from the affidavit in Garcia, but
we reject Thompson’s suggestion that Officer Lane’s affidavit
is materially inferior. As we’ve noted, Officer Lane corroborated some of the information supplied by the informant in
this case, unlike the police officer in Garcia who corroborated
none of the informant’s information. Id. at 483; see also United
States v. Harju, 466 F.3d 602, 609 (7th Cir. 2006) (explaining
that police officer’s effort to corroborate informant’s information was reason to apply good-faith exception despite affidavit’s lack of detail).

Case: 14-3262

No. 14-3262

Document: 26

Filed: 09/11/2015

Pages: 7

7

Thompson maintains that Officer Lane’s affidavit does not
go far enough in establishing the informant’s credibility because, according to Thompson, even someone with almost no
knowledge of drug trafficking could purchase marijuana in
the area of Peoria where the informant made the controlled
buy. And, Thompsons continues, the affidavit does not say
whether the information supplied on the other occasion led to
an arrest for possessing cocaine, the drug involved in this case.
We don’t understand Thompson’s point; both times authorities trusted the informant to provide information and even
engage in a drug buy on their behalf. This court and others
have applied the good-faith exception where the police relied
on the issuing judge’s conclusion that a history of supplying
information leading to controlled buys, arrests, or convictions
sufficiently demonstrated an informant’s credibility.
See Searcy, 664 F.3d at 1123; Garcia, 528 F.3d at 483, 487; United
States v. Thomas, 605 F.3d 300, 308, 311 (6th Cir. 2010); United
States v. Quezada-Enriquez, 567 F.3d 1228, 1231, 1235 (10th Cir.
2009); United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002).
Accordingly, even if probable cause was lacking, the evidence properly was admitted under the good-faith exception.
The government would be well advised, however, not to confuse this decision with an endorsement of Officer Lane’s affidavit.
AFFIRMED.