United States v. Sutton

742 F.3d 770, 2014 WL 503439, 2014 U.S. App. LEXIS 2499
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 10, 2014
DocketNo. 13-1298
StatusPublished
Cited by19 cases

This text of 742 F.3d 770 (United States v. Sutton) 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. Sutton, 742 F.3d 770, 2014 WL 503439, 2014 U.S. App. LEXIS 2499 (7th Cir. 2014).

Opinion

CUDAHY, Circuit Judge.

This case concerns the sufficiency of evidence for a search warrant. Defendant Todd Sutton appeals an order denying his motion to suppress the fruits of a search of his cousin’s apartment, arguing that the underlying warrant was not supported by probable cause. Agents executing that warrant found more than fifty grams of crack cocaine. Pursuant to a plea agreement, Sutton pleaded guilty, but retained the right to appeal the denial of the motion to suppress. Because the facts indicate that probable cause existed for the search warrant, we now affirm.

This investigation began when Special Agent Kristopher Lombardi of the Kan-kakee Metropolitan Enforcement Group (KAMEG) received a tip from a confidential informant (Cl) that he had seen an [772]*772individual known as “Cap” in possession of an ounce of cocaine and provided the address of an apartment where he had seen “Cap.” The CI was familiar with cocaine and its distribution because he had previously been involved in the sale of narcotics. In an effort to obtain leniency on pending drug charges, the CI was working with KAMEG. In fact, within a six month period prior to this search, he had provided information that had led to another cocaine seizure and arrest.

Acting on the Cl’s information, Lombardi searched the name “Cap” in a law enforcement database containing aliases of arrestees and suspects. Todd Sutton was listed as a match for the alias “Cap.” Lombardi then obtained a booking photo of Sutton and showed it to the CI, who confirmed that the man he identified as “Cap” was Sutton. Lombardi then drove the CI past the address where the CI claimed to have witnessed Sutton in possession of the cocaine. The CI confirmed the location. The CI further informed Lombardi that the apartment’s tenant was Nikiya Foster, whom the CI believed to be Sutton’s girlfriend. A law enforcement database confirmed that Foster was indeed the apartment’s tenant; however, Lombardi later discovered that she was actually Sutton’s cousin.

That same day, Lombardi took the CI before a Kankakee County judge when the CI signed a “John Doe” affidavit in support of a search warrant. That affidavit read in relevant part as follows:

Within the past 10 days from May 2nd, 2010 I have seen approximately one ounce of cocaine inside the residence located at 1525 West Station St. Apt. 1W, Kankakee, IL. I am familiar with cocaine and the way it is packaged for sale because I have sold cocaine in the past. I am not currently under the influence of alcohol or drugs. At this time, I am a Confidential Informant Source for KAMEG. I am using an assumed name for fear that I may receive bodily harm for the information that I have provided for KAMEG.

Lombardi filed his own affidavit in support of the warrant reiterating the Cl’s information, detailing certain corroboration and describing Lombardi’s previous experience with the CI. The county judge issued the warrant, and officers executed it that same evening. During the search, agents found: 63 grams of crack cocaine in a bedroom closet; male clothing and shoes in the same closet; a digital scale with white powder residue and other items frequently used to cook crack cocaine in the kitchen; a handwritten letter on the kitchen table referring to “Cap”; and a computer, on which agents viewed a video depicting Sutton in the apartment. Following Sutton’s arrest, agents discovered that Foster was Sutton’s cousin, not his girlfriend; that Sutton was the only person in possession of keys to the apartment besides her; and that she rarely entered the bedroom where the cocaine was found.

Sutton was indicted and subsequently filed a motion to suppress the evidence on the bases that (1) the warrant was based on stale information; (2) the Cl’s information was baseless and uncorroborated; and (3) the affidavit supporting the warrant was reckless, and contained at least one false statement. Determining that there was probable cause and that none of Sutton’s arguments warranted suppression, the district court denied the motion. Sutton then pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine. Subject to his plea agreement, Sutton retained his right to appeal the district court’s ruling on the suppression motion.

[773]*773I.

This warrant was supported by probable cause. “Probable cause is established when, considering the totality of the circumstances, there is sufficient evidence to cause a reasonably prudent person to believe that a search will uncover evidence of a crime.” United States v. Harris, 464 F.3d 733, 738 (7th Cir.2006) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). When a search is authorized by a warrant, deference is owed to the issuing judge’s conclusion that there is probable cause. United States v. Sims, 551 F.3d 640, 644 (7th Cir.2008). Courts should defer to the issuing judge’s initial probable cause finding if there is “substantial evidence in the record” that supports his decision. Id. (citing United States v. Koerth, 312 F.3d 862, 865 (7th Cir.2002)). However, a judge may not rely solely on “conclusory allegations” or a “bare bones” affidavit. Id.

When probable cause is supported by information supplied by an informant, we particularly look to several factors: (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. United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir.2011) (citing United States v. Garcia, 528 F.3d 481, 485-86 (7th Cir.2008)). It is also significant if an informant appears before the magistrate in person and files his or her own supportive affidavit; doing so affords the magistrate a greater opportunity to assess credibility. Sims, 551 F.3d at 640 (citing United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.1995)). Taken as a whole, these factors support the initial finding of probable cause by the Kankakee County judge.

Sutton challenges every prong of this analysis. However, there is no real issue regarding the Cl’s firsthand knowledge. There is no dispute that the Cl swore he had firsthand knowledge of Sutton’s possession of cocaine in Foster’s apartment, details about the amount of cocaine in Sutton’s possession, the location of the apartment and the relationship between Sutton and Foster. Every piece of relevant evidence in the affidavit came from the Cl’s firsthand knowledge.

Specificity

Likewise, Sutton’s argument regarding the second factor, specificity of the supporting affidavits, fails. The affidavits clearly establish that Sutton was in possession of an ounce of cocaine in the apartment and on a specific date.

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Cite This Page — Counsel Stack

Bluebook (online)
742 F.3d 770, 2014 WL 503439, 2014 U.S. App. LEXIS 2499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sutton-ca7-2014.