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USA v. Larry D. Billian, No. 09-3385.

Larry Billian pleaded guilty to two marijuana offenses and to possessing a firearm in connection with those crimes. His conditional plea reserved the right to appeal from the district court’s order denying his motion to suppress evidence seized from his home.

The seizure was authorized by a war-rant issued by a state judge. Billian contended that the affidavit Detective Teresa Smith had tendered in support of the application failed to establish probable cause and contained material falsehoods and omissions. The district court held a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and found that, although Smith’s affidavit was inaccurate in some respects, Billian “failed to demonstrate by a preponderance of the evidence that the affidavit contained deliberate lies or a reckless disregard for the truth.”

The judge concluded that the affidavit established probable cause-and that, even if it did not, suppression is inappropriate because Smith obtained a warrant in good faith. See United States v. Leon, 468 U.S. 897 (1984).

“[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts”. Illinois v. Gates, 462 U.S. 213, 236 (1983).  Billian wants us to decide the probable-cause question without regard to the fact that both a state judge and a federal district judge have found probable cause.

Appellate review, however, is deferential. After a federal district judge holds an evidentiary hearing and finds probable cause for the search, it would be almost inconceivable for a court of appeals to find probable cause so obviously lacking that the evidence must be suppressed. How could one say, as Leon requires for suppression, that any reasonable police officer must have known that the search warrant was deficient, when after an evidentiary hearing and ample time for reflection a federal judge found the warrant valid?

Billian’s answer to this question is that Smith pulled the wool over the state judge’s eyes. A warrant that rests on perjury, or false assertions made with reckless disregard of the truth, is not covered by the Leon principle. 468 U.S. at 923. One problem for this line of argument is that the federal judge concluded that the affidavit is sufficient even with some statements removed; Franks permits such a reconstruction. 438 U.S. at 171–72. Another problem is that the district judge found that Smith was neither deceitful nor reckless; errors in her affidavit were negligent, but negligence does not justify use of the exclusionary rule. See Herring v. United States, 129 S.Ct. 695 (2009).

The district judge’s findings are not clearly erroneous.

According to Billian, the search warrant rests entirely on an uncorroborated tip. “Entirely” because, in Billian’s view, something is wrong with each aspect of the way police set about checking the tipster’s report. Billian complains that Smith violated departmental procedure by taking five months after receiving the tip to write an intra-office memo memorializing the report.

Billian also thinks that Smith withheld three pieces of information from the state judge: that she did not know who owned the white Cadillac seen in the driveway, that she did not see any suspicious activity when driving past his home, and that the tipster mentioned cocaine as well as marijuana, while the trash searches turned up only marijuana. Finally, Billian submits that the results of the trash searches should be ignored, first because the amounts of marijuana were small enough to represent personal use rather than distribution, and second because (according to Billian) the trash cans were next to his garage, rather than at the curb for pickup, when the police searched them, and this invasion of the home’s curtilage was unreasonable.

The district judge thought this to be so much quibbling. The fourth amendment does not require police to follow their normal record-keeping procedures (or for that matter any state statute, see Virginia v. Moore, 553 U.S. 164 (2008).  Billian’s only substantial objection, as the district judge saw things, was the contention that officers violated the fourth amendment when searching his trash. If they did, then the contents of the trash cans could not count toward probable cause.

Although the district judge did not make a direct finding that the trash cans were at the curb when searched, he evidently believed Smith rather than Erin Billian about their location. Given the other support for the warrant, and the rule of Leon, there would be little point in a remand for explicit findings to that effect.

On to sentencing.  No more need be said about the sentencing argument that Billian’s counsel made, but a few words are in order about a potential argument that counsel overlooked. When converting the cash to a drug equivalent, the presentence report treated 1 pound as 2.2 kilograms. That’s backward: 1 kilogram is 2.2 pounds. This error, which no one noticed,  increased Billian’s relevant conduct from 370 kilograms of marijuana to 490, and his offense level from 23 to 25.

One important element of plain-error review is whether the mistake had a substantial and prejudicial effect. See United States v. Olano, 507 U.S. 725, 734–35 (1993). It is hard to know whether this mistake was prejudicial, because it affects (or might affect) a discretionary decision by the district judge. In other sentencing cases we have concluded that the best way to find out is a limited remand, which permits the district judge to tell us whether discovery of the error would have led to a lower sentence. See United States v. Taylor, 520 F.3d 746 (7th Cir. 2008); United States v. Paladino, 401 F.3d 471, 481–85 (7th Cir. 2005). That is the best way to proceed here as well.

The judgment of conviction is affirmed. We order a limited remand under the Taylor–Paladino procedure so that the district judge can tell us whether the error in converting pounds to kilograms affected the exercise of discretion in sentencing. If the judge answers yes, we will remand for a full resentencing; if the judge answers no, we will affirm Billian’s sentence.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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