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United States v. Hawthorne

United States District Court, N.D. Illinois, Eastern Division

October 2, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY HAWTHORNE, Defendant.

REPORT AND RECOMMENDATION

JEFFREY COLE, Magistrate Judge.

Defendant, Gregory Hawthorne, seeks to suppress evidence seized in what he claims was an illegal search of his apartment, as well as his post-arrest statement. The evidence taken from Mr. Hawthorne's apartment on the night of March 6, 2013, was rather substantial: 69 zip-lock bags of what appeared to be marijuana, 210 tin foil packets containing a white powder suspected to be heroin, a little over $4000 in cash, and a semi-automatic pistol with eleven.40 caliber rounds and an additional two boxes of.40 caliber ammunition. It was not, however, what Officer Varchetto had in mind when he applied for the search warrant for the apartment.

His John Doe informant had told him that he had been in Mr. Hawthorne's second floor apartment in the previous 48 hours and had seen a duffel bag full of firearms and ammunition. Mr. Hawthorne, the resident of the apartment (along with his girlfriend and his three children), being a convicted felon, would have been violating 720 ILCS 5/24.11(a). Mr. Hawthorne argues that the warrant, based entirely on John Doe's information, was insufficient to support a finding of probable cause, and that the good faith exception cannot apply because Officer Varchetto acted with a reckless disregard for the truth of John Doe's story. In fact, it is claimed that Officer Varchetto knew it was false.

On March 5, Officer Varchetto submitted the following complaint for a warrant in the Circuit Court of Cook County:

On 05 Mar 13, I had occasion to speak with an individual who will now be known as John Doe. John Doe related to me that John Doe was inside the 2nd floor apartment located at 4123 W Potomac within the last 48 hours where John Doe observed a large duffel bag that contained approximately 10 firearms. John Doe further related that while inside the unit, an unknown male black entered the apartment and spoke with Gregory Hawthorne about purchasing a firearm at which time Gregory Hawthorne opened the black duffel bag and showed several firearms to the male black who was inquiring to purchase a gun from Gregory Hawthorne. John Doe observed approximately 10 firearms in total including semi automation [sic] pistols, revolvers, and long guns that were partially exposed hanging out of the duffel bag that was on the floor in the living room. John Doe did not observe the unknown male black purchase a firearm from Gregroy Hawthorne while john Doe was inside the 2nd floor apartment at 4123 W Potomac, but did observe the unknown male black leave and all of the firearms were still inside the large black duffel bag on the floor of the living room when John Doe left.

(Dkt. # 596-1). Officer Varchetto went on to explain that John Doe positively identified a photo of Gregory Hawthorne and pointed out Mr. Hawthorne's residence when Officer Varchetto drove him by there. John Doe told him the residence was an illegal conversion of a single family home and that Gregory Hawthorne lived on the second floor with his girlfriend. Officer Varchetto pointed out that Mr. Hawthorne was a convicted felon.

Officer Varchetto appeared before a Cook County Circuit Court Judge along with John Doe, who was available for questioning. None apparently occurred. See United States v. Glover, 755 F.3d 811, 817 (7th Cir. 2014)("Without any record we must assume that Doe did not testify."). The judge signed the complaint and issued the search warrant.[1] Two dozen or so police officers executed the warrant and came up with the items listed above.

When a search is authorized by a warrant, a court gives deference to the issuing judge's conclusion that probable cause was established. United States v. Sims, 551 F.3d 640, 643-44 (7th Cir.2008); United States v. Garcia, 528 F.3d 481, 485 (7th Cir.2008). But that deference is neither abject, nor "boundless." United States v. Leon, 468 U.S. 897, 923 (1984). "We defer to the issuing judge's initial probable cause finding if there is substantial evidence in the record' that supports his decision." Sims, 551 F.3d at 644. A search warrant affidavit establishes probable cause when "it sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime.'" Id.

The judge issuing the warrant must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place. Sims, 551 F.3d at 644; United States v. Koerth, 312 F.3d 862, 866 (7th Cir.2002). But, the judge "may not solely rely upon conclusory allegations' or a bare bones' affidavit when issuing a warrant." Sims, 551 F.3d at 644; United States v. Leon, 468 U.S. 897, 915 (1984).

In the case of a warrant affidavit supported by the word of an informant, the inquiry into probable cause encompasses several factors, including: (1) the extent to which the police have corroborated the informant's statements; (2) the degree to which the informant has acquired knowledge of the events through firsthand observation; (3) the amount of detail provided; and (4) the interval between the date of the events and the police officer's application for the search warrant Sims, 551 F.3d at 644; United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000). The status of the individual reporting to the police is also significant in determining the credibility of the information he provides. Identified eyewitnesses and victims are deemed reliable, Pasiewicz v. Lake County Forest Preserve Dist., 270 F.3d 520, 524 (7th Cir.2001), but an unidentified tipster like our "John Doe" here, with whom the police have had no prior involvement, stands on different footing. United States v. Hammond, 351 F.3d 765 (6th Cir.2003); Draine v. Bauman, 708 F.Supp.2d 693, 700 (N.D.Ill. 2010).

In this instance, John Doe provided a rather detailed and "fresh' account of what he saw at 4123 W Potomac. No more than 48 hours had passed since he visited the residence. He described the duffel bag and its visible contents. He paced it as being located in the living room of the apartment on the second floor. The apartment looked to him to be a conversion of a single family home into a two-unit building - a fact that might not be readily apparent to one who had not been inside. And, the location of the apartment would also not have been apparent to one who had not visited it.

Mr. Hawthorne argues that the use of the alias, "John Doe, " suggests that the information provided was false. The reason for the use of such a pseudonym in a warrant application is, as the cases recognize and as Mr. Hawthorne's brief concedes, generally to protect the informant from reprisals. Mr. Hawthorne contends that there would have been no point to that here, as Mr. Hawthorne could identify who had been at his residence in those two days before the search. The only point to a concealed identity, then, would be if the story were false. In other words, "John Doe" might have had a beef with Mr. Hawthorne or might have been a rival. See United States v. Bell, 585 F.3d 1045, 1050 (7th Cir. 2009). While both are possibilities, that is all they are - and highly tendentious ones at that.

Common sense and human experience - which always have a role to play, United States v. Montoya De Hernandez, 473 U.S. 531, 542 (1985); Greenstone v. Cambex Corp., 975 F.2d 22, 26 (1st Cir.1992) (Breyer, C.J.); Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009); Posner, How Judges Think at 116 (Harv. Univ. Press 2008) - are not in the slightest offended by the conclusion that John Doe was present while Mr. Hawthorne was selling his illegal wares out of his second floor apartment. Had Doe not been a person with a "criminal history, " [Dkt. #596, Ex. A at 3, Complaint for Search Warrant], perhaps Mr. Hawthorne's argument would be more compelling. But it is precisely because Doe had a shady past that he would be trusted in the apartment while Mr. Hawthorne was conducting "business" with a "customer" in what, for all practical purposes, was his store.

It is no doubt true that given the dubious nature of his enterprise, Mr. Hawthorne would have been selective about his clientele and those he let into his apartment. But, it is precisely because of that that it was reasonable for the Officer to use the "John Doe" designation. Concealing Doe's identity made it more difficult for Mr. Hawthorne to identify the one visitor who ratted him out. After all, the police did not know the number of visitors to the apartment. But even if there had only been two - Doe and the prospective customer - in the 48-hour period between Doe's visit and the police raid, was it not far more responsible for the police to attempt as best they could to conceal Doe's true identity, rather than taking no protective steps and simply ...


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