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United States v. White

United States District Court, Seventh Circuit

June 25, 2013

UNITED STATES OF AMERICA Plaintiff,
v.
EDWARD WHITE, Defendant.

MEMORANDUM OPINION AND ORDER

JOAN HUMPHREY LEFKOW, District Judge.

Edward White has been charged in a four-count indictment with being a felon in possession of a firearm, a felon in possession of ammunition, and possessing narcotics with the intent to distribute in violation of 18 U.S.C. ยงยง 922(g)(1) and 841(a)(1). The charges stem from a search conducted by Chicago police officers that uncovered a firearm and narcotics at White's residence. White moved for an evidentiary hearing to determine whether the complaining police officer's omission of information from the complaint in support of the search was material to the issuing judge's finding of probable cause supporting the warrant.[1] See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The court granted the motion and a hearing was held on May 10, 2013, at which Chicago Police Officer Michael O'Connor and Cook County Circuit Court Judge Gloria Chevere testified.

Based on the evidence received, the court makes the following findings of fact and reaches the conclusion that White has failed to meet his burden of proof to demonstrate that Officer O'Connor intentionally or recklessly omitted information from Judge Chevere.

BACKGROUND[2]

I. Doe's Arrest

On August 5, 2010, Chicago Police Officer Michael O'Connor and his partner, Officer Robert Gallas, arrested one "John Doe" (a name signifying an arrestee giving information who has not previously cooperated with the police) for unlawful use of a weapon and for being a felon in possession of a firearm. After the arrest, Officer O'Connor learned that Doe had a criminal record. In 1997, Doe was convicted of aggravated vehicular hijacking and sentenced to serve ten years in the Illinois Department of Corrections. In 2005 he was convicted of battery and received a sentence of probation. Between 2004 and 2010, Doe was arrested an additional twelve times for numerous offenses, including driving on a revoked license, criminal trespass to a vehicle, driving on a suspended license, disobeying traffic signals, not wearing a seatbelt, and resisting and obstructing a peace officer in making an arrest.

II. Doe's Information Regarding White

After arresting him, Officer O'Connor asked Doe whether he had information about drugs or guns, advising Doe that he would convey the fact of Doe's cooperation to the State's Attorney, which could be a basis for leniency. Doe gave Officer O'Connor information that O'Connor included in a complaint to support an application for the search warrant, as follows:

I, PO Michael O'Connor #8342, am a police officer of the City of Chicago and have been for the past 5 years. I am currently assigned to the Area 1 Gang Enforcement Unit 311. During this time I have conducted numerous weapons investigations and made numerous weapon arrests. I, and a citizen of Chicago, whom I will refer to as J. Doe in this affidavit, state the following:
J. Doe has stated that while visiting White, Edward... at the residence of [XXXX] W. Columbus Ave observed White, Edward... in possession of (1).45 caliber semi automatic handgun blue steel in color on multiple occasions within the last two months, the last time being within the last ten days. J. Doe further states that White, Edward... always goes to the walk in closet in the basement and retrieves the said handgun from the closet. J. Doe has been to residence at [XXXX] W. Columbus numerous times over the last (2) months at different times during the day and evening hours for recreational purposes and knows White, Edward... resides at [XXXX] W. Columbus Ave. due to the fact that every time J. Doe has been in the residence White, Edward... has been in the address and has seen articles of White, Edward personal belongings and clothing around the address located at [XXXX] W. Columbus. J. Doe further states that he gains access to the address located at [XXXX] W. Columbus Ave through the front entrance. J. Doe knocks on the front door and is allowed entry by White, Edward... J. Doe further states that White, Edward... told J. Doe that he keeps the gun for protection. J. Doe has seen White, Edward... load the handgun, has experience with weapons in the past, and knows that the weapon that White, Edward... had in his possession was a real handgun.
On 6 Aug 10, I, PO Michael O'Connor #8342 accompanied by J. Doe relocated to the address at [XXXX] W. Columbus Ave Chicago IL 60652 and J. Doe pointed out the residence where J. Doe observed White, Edward... in possession of the handgun. I, PO Michael O'Connor #8342 observed the residence located at [XXXX] W. Columbus Ave to have visible numbers [XXXX] affixed to the front and further pointed out the address as the residence of White, Edward... I, PO Michael O'Connor #8342 showed J. Doe a [CLEAR[3] system photo... in which J. Doe identified White, Edward... as a male black 34 years of age, 5'10", 210 lbs, as the person J. Doe observed in the possession of the weapon. White, Edward... is a convicted felon with his most recent conviction being case #97CR0564801 for possession of a controlled substance.
Based on the information, the affiant believes that there are sufficient facts for the issuance of a search warrant for White, Edward... 34 years of age, 5'10", 210 lbs. and the residence located at [XXXX] W. Columbus Ave a single residence Chicago IL 60652.

Significantly here, the complaint did not reveal Doe's criminal history, that he was then under arrest, or that he was cooperating with law enforcement in providing the information recited in the complaint.

Officer O'Connor showed the complaint to Doe, who was still in custody, and Doe confirmed that the information was accurate. Officer O'Connor then faxed the complaint to an Assistant Cook County State's Attorney, who approved the complaint and faxed the document back with ...


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