CA7: Ornelas‘s de novo review is limited to warrantless searches, but not clearly so

The Seventh Circuit holds that Ornelas‘s de novo review is limited to warrantless searches. While the question is not free from doubt, it is resolved here, on a 2-1 vote, only for consistency with Gates. United States v. McIntire, 516 F.3d 576 (7th Cir. 2008) (per Easterbrook):

Ornelas thus distinguished searches conducted without a warrant, where appellate review of the justification is non-deferential, from searches authorized by a warrant, where appellate courts must afford “great deference” to the decision of the judge who issued the warrant.

This produces a complex standard of appellate review. A district court’s findings of historical fact are reviewed for clear error, whether or not a warrant issued. Ornelas, 517 U.S. at 699. A district judge’s legal conclusions are reviewed without deference. And on the mixed question whether the facts add up to “probable cause” under the right legal standard, we give no weight to the district judge’s decision–for the right inquiry is whether the judge who issued the warrant (rarely the same as the judge who ruled on the motion to suppress) acted on the basis of probable cause. On that issue we must afford “great deference” to the issuing judge’s conclusion.

One could question this as an initial matter: why defer to the issuing judge, who acts ex parte and without time for reflection, but not to a district judge who has the benefit of adversarial presentations? But that’s what Gates and Ornelas tell us to do. Justice Scalia, who dissented in Ornelas, thought that the majority’s entire discussion of de novo review in no-warrant cases was internally contradictory, because after articulating it the majority also told appellate courts to give “due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers.” See 517 U.S. at 705 (referring to the majority’s statements, 517 U.S. at 699, immediately following the passage in the block quotation). Who is a “resident judge,” and what does “due weight” mean? That complicates our task and may account for the inconsistent treatment of the subject found in our post-Ornelas cases; still, the formula given here represents our best understanding of what the Court requires when dealing with a search supported by a warrant.

Many decisions of this court after Ornelas announce a simple “de novo appellate consideration” approach without distinguishing between warrant cases and no-warrant cases. Others announce that appellate review in warrant cases is deferential but do not distinguish between our role vis-a-vis the judge presiding in the criminal prosecution (non-deferential, except with respect to findings of fact) and our role vis-a-vis the judge who issued the warrant (“great deference”). Yet others do distinguish between the district judge and the judge who issued the warrant. These decisions do not cite each other, perhaps because counsel cited only one of the lines of decisions in their briefs. We therefore think it best to start over, restoring circuit precedent to the approach required by Gates and Ornelas. This opinion has been circulated to all active judges under Circuit Rule 40(e). A majority did not favor a hearing en banc on the question whether to adhere to the standard of review articulated above.

For what it is worth, we have checked how other circuits handle this question and found ample variability. For just a few examples, compare United States v. Grant, 490 F.3d 627, 631-32 (8th Cir. 2007) (explicitly distinguishing between the “great deference” due to the judge who issues a warrant and the non-deferential review of the federal district judge’s decision granting or denying a motion to suppress), and United States v. Jackson, 470 F.3d 299, 306-07 (6th Cir. 2006) (same), with United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (“[w]e review de novo the determination that there was probable cause to issue the warrant”), and United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (de novo review of the decision of the judge who issued the warrant). Several circuits are internally conflicted, as this circuit has been. It is unnecessary to give the full lineup. Nothing we can do will either create or eliminate a conflict, but we can and do bring this circuit’s law into line with Gates and Ornelas.