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United States v. Sims

December 24, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICO R. SIMS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 07 CR 10027-Joe, Billy McDade, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED OCTOBER 23, 2008

Before BAUER, WOOD, and TINDER,Circuit Judges.

While executing a search warrant, police discovered a firearm in possession of Rico R. Sims, a felon, a violation of 18 U.S.C. § 922(g). Sims pleaded guilty and reserved his right to challenge the district court's denial of his motion to suppress the evidence. On appeal, Sims argues that the search warrant was improper because material facts that diminished the informant's reliability were not presented in the affidavit to the issuing judge. Sims also argues that the executing police officers could not have reasonably relied on such an improper warrant. For the following reasons, we affirm.

I. BACKGROUND

Police arrested Alicia Dean following a routine traffic stop, uncovering 30 grams of ecstacy and 68 individually packaged bags containing almost 200 grams of marijuana. During an interview conducted by Peoria Police Officer Barisch, Dean stated that she had purchased the ecstacy days earlier from a friend in Chicago, but she refused to identify that person. Dean also stated that she had pur-chased the marijuana from Sims at his residence on Hurlburt Street in Peoria that very day. Dean claimed that she spoke regularly with Sims and was his "on-again-off-again" girlfriend. Dean identified Sims as the seller of the marijuana from a six-person photo lineup prepared by Barisch. Dean could not recall Sims's address but said that the house where she purchased the marijuana was on Hurlburt Street. Barisch drove toward the vicinity she described and Dean identified the house at 1022 W. Hurlburt Street as Sims's.

Barisch prepared a complaint seeking a search warrant for Sims's residence. Throughout the complaint, Barisch referred to Dean as "John Doe" to protect her identity. The complaint stated that Doe had been inside Sims's residence at 1022 W. Hurlburt Street within the past 72 hours and saw marijuana both in the house and on Sims. According to the complaint, Doe also described Sims by appearance and identified him by his nickname, "Southpark." The complaint further stated that Barisch had shown Doe a lineup consisting of six similarly-looking black males and that Doe identified Sims's photograph as the person Doe knew by the nickname "Southpark."

Barisch also prepared an affidavit for Dean together with the complaint. In the affidavit, Doe stated that she was assuming the name "John Doe" in fear of retaliation for providing information to the police. Doe also stated that she had been in Sims's residence within the past 72 hours and had seen "a green leafy plant like material," represented as marijuana, in the home and on Sims. Doe stated that she knew Sims routinely sold marijuana from his home and on the streets of Peoria.

Doe also confirmed that she "positively identified" Sims's photograph from a photo lineup of six similarly-looking black males as the person in possession of the marijuana. Doe also stated in her affidavit that when Barisch had driven to 1022 W. Hurlburt, she identified it as Sims's residence and the place where she purchased the marijuana. Finally, Doe swore to the accuracy of the facts.

Later that night, Barisch and Dean met with a state court judge to obtain a search warrant for marijuana and other drug-related items in Sims's residence. This meeting took place in a police squad car on a public parking lot. In the judge's presence, Barisch signed the complaint and Dean signed the affidavit. The judge asked Dean if she was assuming the name "John Doe" in fear of retaliation and if everything in the affidavit was true and correct. Dean replied affirmatively to both questions; the judge issued the search warrant.

The next day, the warrant was executed; the search uncovered around 20 grams of marijuana on Sims and two firearms, with ammunition, from the residence.

Sims was charged with being a felon in possession of a firearm. 18 U.S.C. § 922(g). Sims filed a motion to suppress the evidence, claiming that information not presented to the issuing judge diminished the informant's reliability in securing the search warrant. After a hearing, the district court denied the motion and held that the warrant was supported by probable cause and that Barisch could have reasonably relied on the warrant in good faith. The district court concluded that the informant's reliability was not successfully challenged and under the totality of the circumstances, the allegations in the affidavit and their reasonable inferences were sufficient to show probable cause to issue the warrant. Sims thereafter entered into a limited plea agreement and pleaded guilty to the charged crime, reserving the right to appeal the denial of his motion to suppress. The court accepted the agreement and plea, and found Sims guilty as charged. This timely appeal followed.

II. DISCUSSION

Sims argues that the district court erred in failing to suppress evidence obtained from the search of Sims's residence. Specifically, Sims asserts that the affidavit in support of the search warrant failed to establish probable cause because Dean's statements were not a reliable basis for the warrant. Sims also asserts that because the affidavit was so unreliable, police officers could not have reasonably relied on the warrant. The ...


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