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United States v. Mitten

January 20, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TERASENCE STEVEN MITTEN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 08-CR-40049-Michael M. Mihm, Judge.

The opinion of the court was delivered by: Griesbach, District Judge

ARGUED NOVEMBER 13, 2009

Before KANNE and TINDER, Circuit Judges, and GRIESBACH, District Judge.*fn1

On July 1, 2008, police officers executed a search warrant on Apartment H14 of the Maple Ridge apartment complex in Rock Island, Illinois. The apartment was leased by the girlfriend of defendant Terasence Mitten, and when the officers knocked on the door and announced their purpose for being there, Mitten attempted to barricade the door. The officers gained entry and found approximately 20 grams of crack cocaine and a loaded handgun.

Mitten was charged in a two-count indictment with possession of five grams or more of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and unlawful possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). After unsuccessfully moving to suppress the evidence seized from the apartment, Mitten entered a conditional guilty plea to the drug charge, reserving his right to appeal the district court's order denying his motion to suppress, and proceeded to trial on the firearm charge. A jury found him guilty, and the district court sentenced him to a total of fifteen years in prison-120 months on the drug charge and 60 months, consecutive, on the firearm charge. On appeal, Mitten contends that (1) the district court erred in denying his motion to suppress; (2) the evidence was insufficient to support his conviction on the firearms charge; and (3) the district court erred in imposing a consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A). We reject all three challenges and affirm both his conviction and the sentence.

I.

Mitten first claims that the district court erred in denying his motion to suppress the evidence seized in his girlfriend's apartment. In its decision denying the motion, the district court agreed with Mitten that the affidavit submitted in support of the warrant was insufficient to establish probable cause and therefore held the warrant invalid, a holding the government does not here contest. The district court went on to conclude, however, that the evidence seized by police was admissible under the good faith exception to the exclusionary rule adopted by the Supreme Court in United States v. Leon, 468 U.S. 897 (1984). Mitten argues that the evidence obtained under the invalid warrant should have been excluded and that the district court erred in concluding that the good faith exception applied under the facts of this case.

The exclusionary rule is intended to vindicate rights guaranteed by the Fourth Amendment by excluding consideration at trial of illegally obtained evidence. The exclusion of relevant and highly probative evidence, however, interferes with the criminal justice system's truth-finding function, and thus application of the rule can permit guilty defendants to go free. Stone v. Powell, 428 U.S. 465, 490 (1976). In light of the substantial societal costs of the rule, and recognizing that the primary, if not sole, justification for the exclusionary rule is the deterrence of police misconduct, the Supreme Court held in Leon that suppression of evidence is not an appropriate remedy when the officers who obtained the evidence did so in good faith reliance upon a facially valid warrant issued by a magistrate or judge. 468 U.S. at 922 ("We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion."). It is that exception that the district court found applicable here. It concluded that even though the warrant was invalid, the officers acted in good faith reliance upon its validity.

This Court reviews the district court's ultimate legal conclusion that the officer reasonably relied upon a warrant later found to be invalid under the de novo standard of review. United States v. Koerth, 312 F.3d 862, 865 (7th Cir. 2002). In deciding whether an officer was acting in good faith, the fact that the officer sought to obtain a warrant is prima facie evidence that he was acting in good faith. United States v. Bell, 585 F.3d 1045, 1052 (7th Cir. 2009) (citing Leon, 468 U.S. at 921 n. 21). The presumption of good faith that thereby arises, how-ever, can be rebutted if the defendant shows that "(1) the judge issuing the warrant abandoned his detached and neutral role; (2) the officer was dishonest or reckless in preparing the affidavit; or (3) the warrant was so lacking in probable cause that the officer's belief in its existence was entirely unreasonable." United States v. Garcia, 528 F.3d 481, 487 (7th Cir. 2008).

Mitten does not argue that the issuing judge abandoned his detached and neutral role and merely rubber-stamped the warrant; nor does he argue that Officer Eddie Connelly, the officer who obtained the warrant, was reckless or dishonest in preparing the supporting affidavit. Instead, he argues that Officer Connelly's affidavit was so clearly deficient that no officer could reasonably rely upon it as authorization to search Apartment H14.*fn2 Mitten contends that the affidavit was essentially "bare bones" and rested upon conclusory, uncorroborated, and stale accounts of criminal activity from two confidential informants whose reliability was never established. "Bare bones" affidavits such as Officer Connelly's, Mitten argues, "should not be protected by the good faith exception." Brief of Defendant-Appellant at 27.

Though not a model of clarity or draftsmanship, we do not accept Mitten's characterization of Officer Connelly's six-and-a-half-page affidavit as "bare bones." Nor is it based solely upon stale accounts from confidential informants lacking all indicia of reliability. Officer Connelly's recitation of the facts supporting his application for a search warrant for the apartment of Mitten's girlfriend begins with a traffic stop on November 19, 2007, more than seven months before the search. Mitten and Robert J. White were arrested after small amounts of marijuana, powder cocaine and five individually wrapped crack cocaine rocks were found in a car they were driving. The car was owned by a local auto dealer, and Mitten had placed $1,000 cash down on the car sometime earlier. Mitten took responsibility for the drugs and was subsequently placed on probation. At that time, Mitten claimed that both he and White lived with Mitten's mother in Moline, Illinois.

The affidavit next recites that Officer Connelly was told by a confidential source (CS-1), who admitted that he had been dealing crack cocaine for approximately three months, that he purchases all of his crack cocaine from the same drug dealer at Apartment H14 of the Maple Ridge apartment complex. CS-1 told Officer Connelly that the drug dealer drove a tan Buick Park Avenue, which matched the description of one of the vehicles Mitten had been seen driving by surveillance officers. When shown a picture of Mitten, CS-1 positively identified him as the person from whom he had been buying crack at the Maple Ridge apartment. Officer Connelly noted that Krystal Phillips was listed as the renter of Apartment H14, and the utilities for that address were billed to her name.

A second confidential source (CS-2), who admitted he had been dealing narcotics for over ten years, told police that in May 2008 he purchased a distribution amount of crack cocaine in an apartment located in the H building of the Maple Ridge apartment complex where a black female known as Krystal lives. CS-2, whom Officer Connelly stated had provided truthful and accurate information that led to at least one additional arrest in the past, also stated that White was present during the transaction.

Officer Connelly's affidavit goes on to recount that Mitten and White were again stopped by police on May 29, 2008, while driving a tan 1994 Buick Park Avenue, which Mitten claimed to own. White was arrested on an outstanding warrant for Aggravated Fleeing and Eluding, and in a search of the vehicle incident to the arrest, police found a small amount of cannabis and $13,235 in U.S. currency, most of which was found under the front passenger seat, but $2,315 of which was found in Mitten's possession. Police found twenty to thirty mini "zip-loc" baggies on White. Mitten claimed he was on his way to Chicago, but was headed toward the Maple Ridge apartments because he intended to stop and say goodbye to his girlfriend Krystal Phillips first. Mitten acknowledged that the small amount of cannabis was his and subsequently admitted that he sold cannabis. Mitten and White claimed that the mini "zip-loc" baggies found on White were for the sale of nickel bags, or non-felony amounts, of cannabis. With respect to the large amount of money found under the passenger seat, Mitten stated that White placed it there when he got in the vehicle, but Mitten apparently denied any further knowledge about where the money came from because it was "none of his business." White was apparently unaware of the total amount of money found in the vehicle, and stated he received $4,000 from his father and $4,500 from his mother to buy a ...


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