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United States v. Thomas

United States Court of Appeals, Seventh Circuit

August 29, 2016

United States of America, Plaintiff-Appellee,
William Thomas, Defendant-Appellant.

          Argued May 24, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 832 - Amy J. St. Eve, Judge.

          Before WOOD, Chief Judge, and Easterbrook and Kanne, Circuit Judges.

          WOOD, Chief Judge

         William 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.


         On June 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.

         Thomas 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.

         Thomas 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).

         The 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.

         In 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.

         Eleven 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.

         The 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 ...

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