May 24, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 CR 832 - Amy
J. St. Eve, Judge.
WOOD, Chief Judge, and Easterbrook and Kanne, Circuit Judges.
Thomas pleaded guilty to all charges of a three-count
indictment: being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1); possession of heroin with intent to
distribute, 21 U.S.C. § 841(a)(1); and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c). He reserved the right, however, to appeal the
district court's refusal to suppress the gun and heroin
that prompted his indictment. See Fed. R. Crim. P.
11(a)(2). He has now done so. He relies principally on
Brady v. Maryland, 373 U.S. 83 (1963), contending
that the government violated his due process rights by
refusing to turn over information about the confidential
informant whose testimony formed the basis for the search
warrant on which the police relied. Even if Brady
applies to pretrial motions to suppress, Thomas cannot
prevail. The warrant was supported by probable cause, and
thus the information he seeks is not material. We therefore
affirm the district court's judgment.
4, 2013, officers from the Chicago Police Department executed
a search warrant at the basement apartment of 905 North
Kedvale Avenue, in the Humboldt Park neighborhood of Chicago.
The search revealed a nine-millimeter Glock semi-automatic
pistol loaded with ten rounds of ammunition, a "BB"
gun pistol, a plastic baggie containing roughly 17 grams of
heroin, and a digital scale. The officers also discovered
documents in Thomas's name. Thomas was arrested and
indicted on October 17, 2013, on the charges mentioned above.
promptly moved to suppress the evidence seized during the
search. He argued that the warrant authorizing the search was
deficient on its face because it was supported by a
confidential informant "of unknown background and
unknown reliability." According to Thomas, the issuing
judge did not know whether the informant
was under arrest at the time of his statements, whether
information was exchanged for favorable treatment, whether he
was a paid informant, how he knew [defendant], whether he
used aliases, whether he was a rival gang member, whether he
was on probation at the time, his criminal history, and his
track record as an informant.
argued that these purported holes in the record vitiated the
issuing judge's finding of probable cause. He also
contended that the officer proffering the probable-cause
affidavit acted with reckless disregard for the truth, and
that the good-faith exception should therefore not apply. He
requested an evidentiary hearing under Franks v.
Delaware, 438 U.S. 154 (1978).
warrant supporting the search of Thomas's apartment was
based on an affidavit signed by Chicago Police Detective
Gregory Jacobson. Jacobson's affidavit summarized
information provided by a confidential informant. It stated
that the informant told Jacobson that he or she had visited
the basement apartment of a man nicknamed "Burpy"
on May 23, 2013. The informant gave a detailed physical
description of Burpy, the approximate location of Burpy's
apartment, and identified Burpy as a member of the "Four
Corner Hustler" gang. While Burpy and the informant were
in Thomas's apartment discussing recent gang conflicts,
Burpy took two .40-cal-iber handguns out of the pockets of
some clothing hanging on a rack inside the apartment: one was
a blue steel pistol, and another a smaller blue and gray
steel "baby" model. Holding the pistols, Burpy
said, "I am ready for any of those niggas [sic]
who try and take what's mine." He then returned the
firearms to the pockets of the clothing on the rack. The
informant, who told Jacobson that he or she was experienced
with firearms, stated that the ones Burpy had handled were
real and noted that both had magazines inserted.
order to identify Burpy and corroborate the informant's
information, the affidavit said, Jacobson queried a law
enforcement database for a Burpy living near the location
identified by the informant. He showed the informant several
police photographs, including one of Thomas. The informant
positively identified Thomas as Burpy. Jacobson then reviewed
Thomas's criminal history, which included a felony
conviction for aggravated vehicular hijacking. He noted that
several arrest reports listed Thomas's nickname as
"Burpy" or "Burpee." He later drove the
informant to the area where he or she had described the
conversation as having taken place. The informant identified
904 North Kedvale Avenue as the building where Burpy's
basement apartment was located. This address matched
Thomas's most recent arrest report.
days after their first meeting, Jacobson and the informant
appeared before Cook County Circuit Judge Sandra G. Ramos.
The informant swore to the contents of the affidavit, and the
judge was told about the informant's detailed criminal
history and the circumstances under which the informant came
to cooperate with law enforcement. Judge Ramos found probable
cause for a search of Thomas's residence, and issued a
search warrant. The police performed the search the next day.
district court denied Thomas's motion to suppress. It
found that the search warrant was supported by probable cause
and that Thomas had not made the showing necessary for a
Franks hearing. Thomas then ...