Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 04 CR 91-Sarah Evans Barker, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge
Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
This is the second appeal in the criminal prosecution of Antone Harris. Based on information provided by Detective Michael Forrest in a warrant affidavit, a magistrate judge issued a warrant to search Harris's residence for cocaine and drug contraband, and the next day they seized several firearms, cocaine base, and paraphernalia commonly used to cook and package crack cocaine. A jury convicted Harris on one count of possession with intent to distribute more than fifty grams of a mixture containing cocaine base. The first time the case was here, we held that the district court improperly denied Harris a hearing, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), when it found that the warrant affidavit contained false statements but relied on information in a supplemental affidavit to establish that probable cause existed for the warrant. We remanded the case, directing the district court to conduct a Franks hearing. See United States v. Harris, 464 F.3d 733 (7th Cir. 2006) ("Harris I"). The district court did so and found that the warrant affidavit did not contain any recklessly-made false statements which were material to the finding of probable cause and that probable cause existed for the search of Harris's residence.
Now, challenging this determination, Harris argues that the district court should not have reconsidered whether the affidavit contained false statements under the law of the case doctrine. Because the law of the case doctrine does not compel a district court to ignore evidence presented at a hearing that clarifies a prior misunderstanding, we find no error in the district court's decision to reconsider one of its findings. We also find no error in the district court's decision not to compel the government to disclose the identity of the confidential informant in this case, as the district court was entitled to credit the testimony of Detective Forrest that the confidential informant existed, and Harris has made no showing that such disclosure was essential to his defense. Therefore, we affirm the decision of the district court.
On April 19, 2004, a magistrate judge issued a warrant to search Harris's residence at 2254 N. Goodlet Avenue (the "Goodlet residence") for cocaine and drug contraband. The warrant was based on the affidavit of Detective Forrest of the Indianapolis Police Department, which stated:
This affiant bases his belief on the following information: that within the past seventy-two (72) hours of April 19, 2004 a confidential, credible and reliable informant contacted this affiant and stated that within the past seventy-two (72) hours of April 19, 2004 he/she was personally in the residence located at 2254 N. Goodlet Av., Indianapolis, Marion County, Indiana and observed in the possession of Antone Harris B/M and Trent Harris B/M, a substance said informant believed to be Cocaine, an extract of Coca. Said informant was further told by Antone Harris B/M and Trent Harris B/M that the substance they had in their possession was in fact Cocaine, and was for sale. Said informant further stated that both Antone Harris and Trent Harris told the CI that they in fact lived at the residence. This affiant had previously received an anonymous tip from the Dope Hotline that both Antone Harris and Trent Harris were selling crack from this residence. This affiant has personally conducted surveillance on the residence located at 2254 N. Goodlet Av. and have [sic] observed both Antone Harris and Trent Harris coming and going from the residence. This affiant also checked recent police reports for that residence and found that a report was made on 4-2-04 by an animal control officer reference [sic] several dogs at this house. The person the officer talked to at the residence was Antone Harris B/M DOB 7-16-79 and Antone Harris listed his address as 2254 N. Goodlet Av. A check of Antone Harris's criminal history reveals that he has a C felony conviction for Possession of Cocaine and Trent Harris has a conviction for C felony Possession of Cocaine as well as an A felony conviction for Dealing Cocaine and a conviction for Dangerous Possession of a Firearm. The CI further stated to this affiant that several handguns are inside the residence and that both Antone Harris and Trent Harris always keep a firearm close to them when inside the residence.
The police executed the warrant on April 20, 2004 (the day after it was issued) and seized cocaine base, several firearms, and paraphernalia commonly used to cook and package crack cocaine. Harris was charged with one count of possession with intent to distribute more than fifty grams of a mixture containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Before trial, Harris filed a motion to suppress the evidence seized during the search, claiming that Detective Forrest's warrant affidavit contained materially false statements. In support of his motion, Harris submitted an affidavit from an Indiana Department of Corrections official verifying that Trent Harris was incarcerated during the time Detective Forrest's affidavit stated he was at the residence, and Harris submitted his own affidavit swearing he was not present at the residence within seventy-two hours of April 19, when the warrant was issued.
In light of this information, the district court ordered the government to respond to the alleged misstatements in the warrant affidavit by filing a supplemental affidavit from Detective Forrest regarding his surveillance of the Harris residence. The supplemental affidavit was drafted sloppily and appears to have created even more confusion (more on this below) regarding the information in the warrant affidavit. Based on this supplemental affidavit, in which Detective Forrest made statements that appeared to be inconsistent with the warrant affidavit, the district court found that Detective Forrest's warrant affidavit contained three false and misleading statements and omissions: (1) the warrant affidavit erroneously identified Trent Harris as the second individual with Antone Harris; (2) the warrant contained misleading information regarding the date of the confidential informant's ("CI") conversations with Antone Harris because the CI had only visited the Goodlet residence on April 12; and (3) the warrant failed to include the dates of the "Dope Hotline" tip and Detective Forrest's surveillance of the residence. Harris I, 464 F.3d at 736-37. The court also found those statements were made either intentionally or recklessly. Nevertheless, the district court determined that Harris was not entitled to a hearing because it concluded that the misstatements in the warrant affidavit were not material to the magistrate's finding of probable cause. In making this determination, the district court relied on information in the supplemental affidavit to bolster a finding of probable cause.
On appeal, we held that allowing the government to bolster the magistrate's probable cause determination through post-hoc findings does not satisfy the Fourth Amendment concerns addressed in Franks. Id. at 739. Having excised the information that the district court found to be false in Detective Forrest's warrant affidavit, we found that the affidavit lacked a "temporal guidepost" that would prevent the CI's observation that Harris and his brother were selling crack at the Goodlet residence from being stale. Id. In other words, there was nothing to suggest that there was ongoing criminal activity at Harris's residence at the time the warrant was issued. So we remanded the case to the district court and instructed the court to hold a Franks hearing to determine whether the search warrant was unconstitutional.
Before holding the Franks hearing the district court raised the issue of whether the court should start at square one or apply law of the case principles. After hearing arguments from both sides, the district court declared it would start at square one to give Harris a full chance to challenge the evidence supporting probable cause, but to the extent that the evidence did not conflict with the court's prior rulings, the court would apply law of the case principles. However, if new evidence cast a different light on the court's findings, it stated it would reconsider those findings.
At the hearing, Detective Forrest was the sole witness and was cross-examined by Harris's counsel. Forrest testified that in March 2004, he was assigned to investigate the Goodlet residence based on an anonymous tip made to the Indianapolis "Dope Hotline." He surveilled the residence through March and April 2004 and observed Antone Harris and another individual (whom he believed to be Trent Harris, the brother of Antone Harris) coming and going from the residence.*fn1 On April 9, Forrest was contacted by a CI about an unrelated investigation. Detective Forrest asked if he knew about the Goodlet residence and the CI said he was familiar with Antone and Trent Harris. Detective Forrest asked the CI to see if anything was happening at the Goodlet residence. On April 12, the CI contacted Detective Forrest and told him that he (the CI) had been to the Goodlet residence and had observed large amounts of cocaine, crack, and guns. The CI also said they (referring to Antone and a person the CI believed to be Trent Harris) were "slinging dope." Detective Forrest understood this to mean they were selling crack. Detective Forrest ran the criminal histories of the Harris brothers and discovered that Antone Harris had a prior conviction for possession of cocaine. On April 18, the CI informed Detective Forrest that he had been back to the Goodlet residence and again had observed that the Harris brothers were selling cocaine. On April 19, Detective Forrest prepared an affidavit in support of an application for a warrant to search the Goodlet residence and, the next morning, the police conducted the search.
Based on Detective Forrest's testimony, the district court found that Harris had not met his burden of demonstrating that the evidence in the warrant affidavit was insufficient to establish probable cause and held that the search of the Goodlet residence was constitutional. The district court explained that the testimony elicited at the Franks hearing clarified the sequence of events described in the warrant affidavit and demonstrated that the CI had visited the Goodlet residence and observed criminal activity on April 18, just one day prior to when Detective Forrest applied for a warrant. There was evidence the CI had acquired knowledge of the events he reported firsthand and provided credible detail. That, combined with the relatively short period of time between the CI's observation of the events and Detective Forrest's application for the search warrant, and the extent to which the police corroborated the CI's statements, supported a finding of probable cause at the time the warrant was issued. In light of this, the court found that the ...