CA7: Threat to get SW had PC; Applies GFE analysis to officer’s PC without warrant

In a case after remand, the Seventh Circuit decides that an officer had probable cause when he made a threat to get a search warrant. In the process, the court applies the same standard that it would apply to the good faith exception saving a search warrant on the margins since that would have been the standard applied if a magistrate reviewed all that the officer had. Here, the officer was in the process of gathering information for the warrant, including visiting the house to get a description to put in the affidavit and warrant when they decided to proceed without one. The consent was valid, too. United States v. Hicks, 650 F.3d 1058 (7th Cir. 2011):

This successive appeal picks up where we left off in United States v. Hicks, 539 F.3d 566, 571-72 & n.1 (7th Cir. 2008) (Hicks I). Did Milwaukee Police Detective Donald Brown base his threat to obtain a search warrant on “a legitimate belief” that police could obtain a warrant, or was it a pretextual threat potentially rendering the subsequent consent involuntary? In Hicks I, we instructed the district court to determine the factual basis supporting Detective Brown’s statement to Samella Smith—who initially resisted consenting to her home’s search—that if she did not consent police would simply obtain a warrant. Id. at 572. Once the court answered that question, it was to reassess the totality of the circumstances to determine the voluntariness of Smith’s consent. Id. at 572 n.1.

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Hicks next argues that nothing inherent about guns supports an inference of continuing possession because guns are by their nature easily transferrable. See United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (noting that the “[p]assage of time could affect reasonableness” for Fourth Amendment purposes, “especially for search warrants that authorize the police to hunt for items that are portable (or consumable)”). Hicks charges that presuming that the suspect’s alleged gun possession continued for months would amount to armchair empiricism, citing United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (“But it is an embarrassment to the law when judges base decisions of consequence on conjectures . . . .”), rev’d, 555 U.S. 122 (2009).

The conclusion that Hicks (or Stevens) kept the weapon is not mere conjecture or armchair empiricism. Multiple sources supported Detective Armon’s basis for believing either Hicks or Stevens kept the weapon as a sort of modus operandi. Although handguns are quite mobile, markets exist for their sale, and they could be disposed of, Detective Armon had a sufficient factual basis for believing that Hicks and Stevens were associated with this particular weapon, perhaps even infamously. And we have recognized that, depending on the circumstances, evidence of the sighting of a gun (or related items) does not automatically grow stale as time passes. See United States v. Harju, 466 F.3d 602, 608 (7th Cir. 2006) (holding that even though three weeks passed between the gun’s sighting by a CI and the warrant’s execution, reliance on the CI was not undermined because unlike a small amount of drugs or cash, “the gun was not likely to have been sold (or consumed) during that period”); [citations omitted]

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We hold that the district court did not clearly err in finding that Detective Armon had a reasonable factual basis to conclude that he had probable cause for a search warrant. We do not address whether in fact there was probable cause but we are satisfied that Detective Armon had a reasonable factual basis for probable cause and took actions consistent with the mindset of someone who believed he could, if necessary, get a search warrant. Thus, consistent with Hicks I, 539 F.3d at 571, we also hold that the district court did not clearly err in finding that Smith “freely” consented to the search of her home.