N.D.Ill.: Omitting information about CI that undermined totality of evidence justified suppression of evidence

Omitting critical information about the informant undermined the claimed probable cause, and the only reasonable inference was that it was to mislead the USMJ issuing the search warrant. And, the good faith exception did not apply. United States v. Simmons, 771 F. Supp. 2d 908 (N.D. Ill. 2011):

In this case, while there is no direct evidence of Officer Murphy’s intent to mislead the issuing judge, the inferential evidence leads to the conclusion that the omissions were material because Officer Murphy had “obvious reasons” for omitting the information, and the information was “critical” to the probable cause determination. As an initial matter, Officer Murphy was clearly aware that the CI was recently arrested, had an extensive criminal history, and was untested as an informant. During the evidentiary hearing, he testified that he ran the CI’s criminal record and saw the CI’s criminal history, any gang affiliations, and that the CI had used aliases in the past. He also had never previously worked with the CI, and had no indications that the CI had provided reliable information in the past. However, the Court concludes that Officer Murphy omitted any reference to any of these facts because of their potentially adverse impact on the issuing judge’s probable cause determination. While the omission of these facts would not be “critical” in a case in which there was other evidence to support probable cause, in this case, given the weak police corroboration of the CI’s statement and the absence of any other indicia of reliability of the CI and his statement, the omission of these facts was material.

The Court easily concludes that Officer Murphy had “obvious reasons” to omit the adverse facts. The reliability and credibility of information in a warrant application are essential to a judge’s probable cause determination, and the omitted facts strongly detract from the reliability of the CI—the sole source of the inculpatory information in the complaint. It is well-established that a newly-arrested informant “merits a greater dose of skepticism when assessing his credibility.” United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005). …

Importantly, the lack of other indicia of reliability in this case makes these facts particularly “critical” to the probable cause determination. …

Here, with the inclusion of the omitted information, the totality of the circumstances establishes that there is not sufficient evidence to find that probable cause supported the warrant. First, the post-arrest context in which the CI provided his statement, his criminal history that raises significant doubts about his credibility, and the sparsely-detailed statement he provided to the officers indicate that the CI’s statement was not “worthy of credence.” Second, the officers here took only minimal steps to corroborate the innocent details of the CI’s statement. Finally, while the live testimony of a confidential informant before the issuing judge may sometimes cure these insufficient indicators of reliability, in this case, the issuing judge was not apprised of key facts pertaining to the CI, and thus was unable to adequately gauge his credibility. The Court discusses each of these factors in turn, beginning with the CI’s statement.