C.D.Ill.: Prior judicial complaints of thin PC from officer go unheeded, but this SW survives GFE anyway

The district court once chided the officer here for a lackadaisical attitude toward showing probable cause with thin facts. The Seventh Circuit concurred but upheld it. And, the officer does it again. Commenting on the past, the court finds it just barely gets over the bar for probable cause or the good faith exception would apply. [One would think the prior warning would undermine the good faith argument, but it didn’t.] United States v. Ware, 2019 U.S. Dist. LEXIS 126862 (C.D. Ill. July 30, 2019)*:

Six years ago, Lane submitted an application for a search warrant to search a house in Peoria for evidence of cocaine trafficking based upon information from an anonymous informant. United States v. Thompson, 801 F.3d 845, 846-47 (7th Cir. 2015) (per curiam). Although the Seventh Circuit “share[d] the district court’s initial instinct about the weakness of th[e] affidavit” and noted it was “growing weary of thin affidavits that suffer from the same omissions which provoked [its] criticisms in the past,” it held the search of the residence in that case survived a motion to suppress under the good-faith exception. Id. at 848. Still, the Seventh Circuit ended its opinion with a warning: “The government would be well advised … not to confuse this decision with an endorsement of Officer Lane’s affidavit.” Id. at 849. That warning was not heeded. The application for a search warrant Lane submitted in this case bears similar hallmarks of insufficiency to those identified in Thompson, suggesting Lane may not have recognized the jeopardy in which he places cases by submitting shoddy affidavits. Like the Seventh Circuit, this Court is not inclined to let the errors slide.

Nonetheless, the good-faith exception will salvage this case, just as it did Thompson. On a motion to quash a search warrant and suppress evidence obtained therefrom, to prevent the application of the good-faith exception through an argument that the warrant lacked sufficient indicia of probable cause for reasonable reliance, a defendant must demonstrate either that a materially similar warrant was found deficient or that the warrant is plainly deficient. Glover, 755 F.3d at 819. Defendant advances the latter theory here. (Doc. 21 at 8).

In its consideration, the Court will set aside the threadbare, potentially eight-month-old tip from an unknown tipster who did not appear before the issuing magistrate and may not have even furnished firsthand knowledge of the matters contained in the tip, and consider whether there are sufficient indicia of probable cause to support good-faith reliance elsewhere in the warrant application. The Court will also not consider Lane’s unsupported assertion that based on his training and experience there would be more cocaine inside 1103 S. Warren. While an officer may raise his training and experience in a warrant application, the officer should explain what his training and experience is and how it affects his judgment of the facts before him. See United States v. Scott, 901 F.3d 842, 844-46 (7th Cir. 2018). Here, it is unclear whether Lane is drawing his conclusion that cocaine would be in the house from his observation of Defendant’s activity on February 6 or from the stop in May 2018 (the facts directly preceding the assertion) or whether he simply has no basis beyond a hunch.

However, the Court cannot say Lane’s affidavit “was so lacking in indicia of probable cause as to make entirely unreasonable a belief that probable cause existed.” United States v. Elst, 579 F.3d 740, 746 (7th Cir. 2009). The affidavit explains officers observed Defendant commit what appeared to be a drug transaction and return to 1103 S. Warren. When he departed again, officers stopped his car and found a small quantity of cocaine and a large quantity of cash. Although not much, this is enough that an officer could reasonably believe the warrant was issued on probable cause. After all, the circumstances described in the affidavit could allow the conclusion that what occurred on Millman Street was a drug deal. That Defendant was found with cocaine and a significant amount of cash and that he was on parole for a prior drug trafficking offense could give rise to the inference that he was the dealer, not the buyer, in the interaction on Millman Street. And the activity of touching base at 1103 S. Warren could seem to a reasonable officer to allow for the conclusion Defendant was storing his cocaine there.

That being said, this warrant application was done without the due care that ought to accompany the process of obtaining a search warrant. An application to invade the privacies protected by the Fourth Amendment of our Constitution is not the place to cut corners. The preparation and review of an application for a search warrant is rather a trust the public has placed in government officials to protect fundamental rights. See Carpenter v. United States, 138 S. Ct. 2206, 2213, 201 L. Ed. 2d 507 (2018) (stating the purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”) (quoting Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)). It may not have been in Thompson and it may not be in this case, but if Lane continues this slipshod approach to seeking search warrants, unconstitutional invasions of privacy and exclusion of evidence will eventually occur.