United States v. Benny McKinney

919 F.2d 405, 1990 WL 174769
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 21, 1990
Docket89-2972
StatusPublished
Cited by83 cases

This text of 919 F.2d 405 (United States v. Benny McKinney) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Benny McKinney, 919 F.2d 405, 1990 WL 174769 (7th Cir. 1990).

Opinions

FLAUM, Circuit Judge.

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 [408]*408was adequately supported by the affidavit and that the information was sufficient under the totality of the circumstances test of Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). In this respect, the court stated, “Brown claimed to have witnessed and been victim of criminal acts, see United States v. Wilson, 479 F.2d 936, 940 (7th Cir.1973), ... Brown’s name was included in the affidavit, see United States v. Spach, 518 F.2d 866, 870 (7th Cir.1975), and the fact that Brown provided highly detailed and specific, as opposed to general information was sufficient reliability for the affidavit.” Accordingly, the district judge determined the issuing magistrate had a substantial basis from which to conclude that probable cause existed and denied McKinney’s petition.

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.1

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).2 In Gates, the Supreme Court rejected the rigid two-pronged “Aguilar-Spinelli ” test for probable cause, adopting in its stead a “totality of the circumstances” test. At the same time, the Court concluded that adoption of “the flexible, common-sense standard” embodied in the totality of the circumstances approach required a more deferential standard of appellate review than a de novo standard of appellate review, recognizing that “[a] grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant....” 462 U.S. at 236, 103 S.Ct. at 2331. The Court observed that, “so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth [409]

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Bluebook (online)
919 F.2d 405, 1990 WL 174769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-benny-mckinney-ca7-1990.