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United States v. Dismuke

January 27, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTHONY DISMUKE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07 CR 81-Lynn Adelman, Judge.

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

ARGUED JANUARY 6, 2009

Before KANNE, WOOD, and SYKES,Circuit Judges.

Anthony Dismuke was convicted by a jury of being a felon in possession of a firearm and sentenced to a statutorily mandated 15-year prison term based on three prior convictions the district court deemed to be "violent felonies" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On appeal he challenges both his conviction and his sentence.

Dismuke has a lengthy felony record and was found in possession of two handguns during a search of his home pursuant to a state-issued warrant. He moved to suppress the guns, but the district court denied the motion. On appeal Dismuke reiterates his claim that the guns were inadmissible because the affidavit submitted in support of the warrant application lacked sufficient corroboration of information supplied by a confidential informant. We disagree. Deferring as we must to the decision of the judge who issued the warrant, see United States v. McIntire, 516 F.3d 576, 577-78 (7th Cir. 2008), we conclude that the affidavit contained enough independent corroboration to support probable cause to search Dismuke's home. And even if it did not, there is no reason to believe that the warrant-issuing judge abandoned his neutrality or that the police did not act in good faith. Accordingly, the guns were properly admitted at trial and Dismuke's conviction is affirmed.

Dismuke also challenges his sentence, arguing that under the Supreme Court's decision in Begay v. United States, 128 S.Ct. 1581 (2008), his Wisconsin felony conviction for vehicular fleeing is not a "violent felony" under the ACCA and therefore should not have counted toward the three convictions necessary to subject him to the 15-year mandatory minimum sentence. We disagree with this contention as well. Applying Begay and reading our early post-Begay decision in United States v. Spells, 537 F.3d 743 (7th Cir. 2008), in light of the Supreme Court's later decision in Chambers v. United States,129 S.Ct. 687 (2009), we conclude that Wisconsin's vehicular-fleeing offense qualifies as a violent felony under the ACCA.

I. Background

On January 28, 2007, Milwaukee Police Officer Anthony Randazzo applied for a warrant to search the home of Anthony Dismuke for evidence of illegal fire-arms possession. The affidavit Randazzo submitted in support of the application relied primarily on information the officer had received from a confidential informant. The affidavit, however, provided no information about the informant other than the officer's assertion that he was "reliable."

Randazzo began his affidavit with the customary explanation of his law-enforcement experience: He was a 15-year veteran of the Milwaukee Police Department and had extensive training and experience working on firearms investigations and with confidential informants. He then related the following information about Dismuke: On January 27, 2007, Randazzo was contacted by a "reliable" confidential informant who reported that Dismuke, a felon, was in possession of "at least three firearms." More specifically, the informant told Randazzo that Dismuke lived at 2528 W. Locust Street in Milwaukee and that within the last week, the informant had seen Dismuke at his Locust Street home in possession of a shotgun and two handguns. Randazzo asked the informant if he could identify Dismuke from a photograph and the informant did so. Randazzo also verified that the informant could distinguish between different types of firearms.

Randazzo then consulted court records and confirmed that Dismuke had prior felony convictions; the affidavit listed the offenses, case numbers, and dates of several of the convictions. Randazzo also checked the Wisconsin Department of Transportation driver's license database, which confirmed that Dismuke lived at the address provided by the informant. Randazzo then went to the Locust Street residence and located an automobile registered to Dismuke parked behind the house. Finally, the affidavit provided a description of the house, explained the need to keep the informant's identity confidential, and requested no-knock authorization.

A Milwaukee County Court Commissioner reviewed Randazzo's affidavit that same day, found probable cause, and issued a warrant to search Dismuke's home for evidence of unlawful possession of firearms. Officers executed the warrant the next day and recovered two handguns, ammunition, and documents identifying the residence as Dismuke's. The case was referred to federal authorities, and Dismuke was indicted for possessing firearms as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the evidence from the search, arguing that Randazzo's affidavit was insufficient to support probable cause. The district court denied the motion. The court concluded first that there was probable cause to support the issuance of the warrant, and in the alternative, the search was saved by the good-faith exception articulated in United States v. Leon, 468 U.S. 897 (1984).

Dismuke was convicted following a jury trial, and his presentence report ("PSR") recommended that he be sentenced as an armed career criminal, see 18 U.S.C. § 924(e), based on three Wisconsin convictions that qualified as "violent felonies" under the ACCA. The three convictions were: (1) armed robbery; (2) burglary; and (3) vehicular fleeing from an officer. Dismuke objected to the PSR's conclusion that his conviction for fleeing was a violent felony. The district court adopted the PSR's recommendation, found that Dismuke had three violent-felony convictions, and imposed the ACCA's mandatory minimum sentence of 15 years.

II. Discussion

A. Search Warrant

Dismuke first challenges the district court's denial of his suppression motion. He argues that Randazzo's affidavit provided too little corroboration of the information from the confidential informant and was therefore insufficient to establish probable cause to search his home. Because Dismuke contests the sufficiency of the warrant affidavit, the question for us is not whether the district court got the probable-cause question right but whether the warrant-issuing judge did. "On that issue we must afford great deference to the issuing judge's conclusion." McIntire, 516 F.3d at 578 (internal quotation marks omitted). We will uphold a finding of probable cause to search "so long as the magistrate had a 'substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960) (alteration in original)).

Probable cause is a common-sense, nontechnical inquiry, and an affidavit submitted in support of a searchwarrant application will be sufficient to support a probable-cause finding if, "based on the totality of the circumstances, the affidavit sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime." United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003). Even if we conclude that the affidavit is insufficient to establish probable cause, the evidence obtained in the execution of the warrant need not be suppressed if the police relied on the warrant in good faith. See Leon, 468 U.S. at 920-21. An officer's decision to seek a warrant is prima facie evidence that the officer was acting in good faith. United States v. Watts, 535 F.3d 650, 657 (7th Cir. 2008). The good-faith exception thus applies unless the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" or the warrant-issuing judge "wholly abandoned" his neutral judicial role and "serve[d] merely as a rubber stamp for the police." Leon, 468 U.S. at 923.

Where, as here, the affidavit submitted in support of a search warrant relies on information supplied by an informant, the totality-of-the-circumstances inquiry generally focuses on the informant's reliability, veracity, and basis of knowledge. See United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005). Several factors inform the analysis, including: (1) the degree of police corroboration of the informant's information; (2) the extent to which the information is based on the informant's personal observations; (3) the amount of detail provided by the informant; (4) the interval of time between the events reported by the informant and the warrant application; and (5) whether the informant personally appeared before the warrant-issuing judge to present the affidavit or testimony. United States v. Koerth,312 F.3d 862, 866 (7th Cir. 2002). "[A] deficiency in one factor may be compensated for by a strong showing in another or by some other indication of reliability." United States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999) (citing Gates, 462 U.S. at 233).

A complication here is that Randazzo's affidavit described the confidential informant as "reliable" without offering any explanation for that assertion. We have held that a wholly conclusory statement about an informant's reliability is entitled to no weight; "information obtained from a reliable source must be treated as information obtained from an informant of unknown reliability." Koerth, 312 F.3d at 867 (internal quotation marks omitted). But an informant's "unknown reliability" is not necessarily fatal to the probable-cause determination; there may be a sufficient basis to sustain the probable-cause finding under the totality of the circumstances. See Gates, 462 U.S. at 237-38. "Statements from an informant of unknown reliability may in certain instances serve to establish probable cause if, under the totality of the circumstances, a reasonable person might consider that the statements ...


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