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USA v. Tyrice Glover     No. 13-2475

Glover appeals the denial of his motion to suppress the guns, drugs, and paraphernalia seized from his home pursuant to a search warrant. He argues the warrant was not supported by probable cause. He argues further that the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984), should not apply.

We conclude that the search warrant affidavit provided an insufficient basis for the search warrant. It omitted all information regarding the informant’s credibility.  The affidavit’s omission of all information about the informant’s credibility is sufficient to raise an inference of reckless disregard for the truth that could undermine the good faith exception under Leon. We reverse and remand for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).

We review the denial of a Franks hearing for clear error, but any legal determinations that factored into the ruling are reviewed de novo. United States v. Robinson, 546 F.3d 884, 887 (7th Cir. 2008).

The essential protection of the warrant requirement of the Fourth Amendment” lies in the requirement that the usual inferences that reasonable people draw from evidence be drawn “`by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’” Illinois v. Gates, 462 U.S. 213, 240 (1983), quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948). A magistrate’s determination of probable cause is given great deference on review, and the Fourth Amendment requires no more than a substantial basis for concluding that a search would uncover evidence of a crime. Gates, 462 U.S. at 236.

For cases where the affidavit is based on an informant’s report, Gates adopted the “totality-of-the-circumstances analysis that traditionally has informed probable cause determinations.” 462 U.S. at 238. Reliability, veracity, and basis of knowledge are all “highly relevant,” but the totality-of-the-circumstances approach means “a deficiency in one may be compensated for … by some other indicia of reliability.” Id. at 230, 233.

For evaluating the totality of the circumstances in informant cases, our decisions have developed five primary factors that we consider along with other pertinent concerns: the level of detail, the extent of firsthand observation, the degree of corroboration, the time between the events reported and the warrant application, and whether the informant appeared or testified before the magistrate. See, e.g., United States v. Johnson, 655 F.3d 594, 600 (7th Cir. 2011).

In general, “no one factor necessarily dooms a search warrant.” Johnson, 655 F.3d at 600. In applying these factors, the reviewing court typically concerns itself only with the content of the affidavit to determine whether the warrant is facially valid. See, e.g., United States v. Peck, 317 F.3d 754, 755-56 (7th Cir. 2003).

Cases that test the sufficiency of affidavits for warrants obtained based on informants are highly fact-specific, but information about the informant’s credibility or potential bias is crucial.  In United States v. Bell, for example, we emphasized that the failure to establish the informant’s reliability raised the concern that the tip was provided to harass or remove a rival. 585 F.3d 1045, 1050 (7th Cir. 2009) (“For all we know, [the informant] could have been a rival drug dealer, an angry customer, or had some other beef with Bell, which is certainly a factor to consider when assessing the reliability of his statements.”); see also United States v. Koerth, 312 F.3d 862, 867 (7th Cir. 2002) (government conceded probable cause was lacking where affidavit presented conclusory information from informant without track record).

The affidavit here shows weaknesses similar to those found in Peck and Bell. As in Peck, Doe’s tip was minimally corroborated. The police confirmed only minor facts and legal conduct. (Being a convicted felon is not itself indicative of criminal activity.) The tip also provided little detail.

In this case, the omissions from the affidavit deprived the magistrate of highly relevant information that tends to undermine Doe’s credibility and thus the probable cause determination.  Because the officer’s affidavit omitted all credibility information in this case, the magistrate had no meaningful opportunity to exercise his or her discretion to draw favorable or unfavorable inferences.

The probable cause affidavit here left the magistrate unable to fulfill his role as a neutral arbiter and therefore provided an insufficient basis for finding probable cause to support the search warrant.

On remand the government may provide a satisfactory explanation for the omission of the damaging information about the informant’s credibility, but Glover is entitled to test its explanation. We therefore REVERSE the denial of defendant’s motion to suppress and REMAND for a Franks hearing.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro