CA7: Informant hearsay once removed on a controlled buy still PC

Informant hearsay once removed was still probable cause. The CI enlisted another to go get drugs from defendant and brought them back to the CI who turned them over to the police. United States v. Bacon, 2021 U.S. App. LEXIS 8320 (7th Cir. Mar. 22, 2021):

We begin by acknowledging that the controlled buys in this case present novel risks. “The use of an unwitting informant introduces an additional layer of uncertainty to the transaction because it leaves open the possibility that the narcotics were acquired not at the suspect residence but at the location where the confidential and unwitting informants met before and after the transaction.” United States v. Artez, 389 F.3d 1106, 1112 (10th Cir. 2004). Here, officers did not search or wire the middlemen, so they could not confirm whether the middlemen obtained the drugs from Bacon or from their own stashes.

At the same time, many of the concerns about voluntary government informants are inapplicable to unwitting informants. Government cooperators merit skepticism because they often have motives to lie such as payment, leniency, or animosity toward a rival. United States v. Glover, 755 F.3d 811, 816 (7th Cir. 2014); United States v. Olson, 408 F.3d 366, 370-71 (7th Cir. 2005); United States v. Cook, 102 F.3d 249, 251 (7th Cir. 1996). Unwitting informants, by contrast, have “nothing to gain” from participating in controlled buys. United States v. Gunter, 551 F.3d 472, 480-81 (6th Cir. 2009). Officers have not promised them anything and they have no incentive to shift blame because they do not know that law enforcement is involved. To the contrary, unwitting informants have quite a bit to lose. The unwitting informants in this case exposed themselves to criminal liability by participating in illegal drug transactions. The incriminating nature of their statements and actions in the controlled buys bolsters the reliability of those statements and actions. See id. (unwitting informant’s statements were reliable because he did not know officers were recording him and he had nothing to gain from implicating the defendant in a drug deal that also implicated him); cf. Olson, 408 F.3d at 371 (an informant’s statement against penal interest “carries with it a presumption of reliability”).

On balance, we conclude that the controlled buys in this case were reliable indicators that Bacon was selling drugs from his home. See Sidwell, 440 F.3d at 869. As in other cases, the officers here did not actually see the drug sales. See, e.g., id.; United States v. McKinney, 143 F.3d 325, 329 (7th Cir. 1998). Still, they watched and listened as the confidential informants discussed the transactions with the middlemen; observed the middlemen enter and exit Bacon’s apartment; and obtained the drugs from the confidential informants immediately after the transactions. The main point of uncertainty is whether the middlemen bought the drugs at Bacon’s apartment. Bacon hypothesizes, for example, that the middlemen could have stood in his stairwell for 15 minutes, pretending to buy drugs, only to sell their own drugs to the informants with impunity. We acknowledge this theoretical possibility, but we do not find it troublesome on these facts. We have rejected similarly speculative arguments in the context of standard controlled buys. See, e.g., Sidwell, 440 F.3d at 869. Here, Bacon’s argument is particularly unpersuasive because, by all appearances, the middlemen did not know that they were participating in controlled buys. Bacon does not explain what possible motive they could have had for deceiving the confidential informants about the source of the drugs.

For these reasons, we hold that the unwitting informants did not detract from the probative value of the controlled buys. We note that several other circuits have approved of controlled buys involving unwitting informants. United States v. Washington, 775 F.3d 405, 407-08 (D.C. Cir. 2014); Artez, 389 F.3d at 1112-13 (collecting cases); see also Gunter, 551 F.3d at 480-81.

We further hold that the controlled buys, along with the other materials in the affidavit, supplied probable cause for the search warrant. Officers received two anonymous tips, close together in time, that Bacon was selling drugs from his home. The officers corroborated the tipsters’ information as to Bacon’s cars, address, and criminal record. They then conducted two controlled buys from Bacon’s residence. See McKinney, 143 F.3d at 329 (“Controlled buys add great weight to an informant’s tip.”). The middlemen who entered Bacon’s apartment not only acquired drugs; they also told the informants that Bacon, a convicted felon, had weapons all over his apartment. On these facts, the state-court judge had a substantial basis for concluding that there was a “fair probability” that officers would find evidence of illegal drug dealing activities at 1728½ High Street–even if the officers never saw Bacon himself selling drugs. See Gates, 462 U.S. at 238-39 (Probable cause exists if there is “a fair probability that contraband or evidence of a crime will be found in a particular place.”) (emphasis added).