In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3385
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY D. B ILLIAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:08-CR-31—William C. Lee, Judge.
A RGUED M ARCH 3, 2010—D ECIDED A PRIL 5, 2010
Before E ASTERBROOK , Chief Judge, and M ANION and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. Larry Billian pleaded guilty
to two marijuana offenses and to possessing a firearm
in connection with those crimes. His conditional plea
reserved the right to appeal from the district court’s
order denying his motion to suppress evidence seized
from his home. The seizure was authorized by a war-
rant issued by a state judge. Billian contended that the
affidavit Detective Teresa Smith had tendered in sup-
2 No. 09-3385
port of the application failed to establish probable cause
and contained material falsehoods and omissions. The
district court held a hearing under Franks v. Delaware,
438 U.S. 154 (1978), and found that, although Smith’s
affidavit was inaccurate in some respects, Billian “failed
to demonstrate by a preponderance of the evidence
that the affidavit contained deliberate lies or a reckless
disregard for the truth.” The judge concluded that the
affidavit established probable cause—and that, even if it
did not, suppression is inappropriate because Smith
obtained a warrant in good faith. See United States v.
Leon, 468 U.S. 897 (1984).
“[A]fter-the-fact scrutiny by courts of the sufficiency
of an affidavit should not take the form of de novo review.
A magistrate’s determination of probable cause should
be paid great deference by reviewing courts”. Illinois v.
Gates, 462 U.S. 213, 236 (1983) (citation and internal quota-
tion marks omitted). See also United States v. McIntire, 516
F.3d 576 (7th Cir. 2008). Billian wants us to decide the
probable-cause question without regard to the fact that
both a state judge and a federal district judge have
found probable cause. Appellate review, however, is
deferential. After a federal district judge holds an eviden-
tiary hearing and finds probable cause for the search, it
would be almost inconceivable for a court of appeals
to find probable cause so obviously lacking that the
evidence must be suppressed. How could one say, as
Leon requires for suppression, that any reasonable police
officer must have known that the search warrant was
deficient, when after an evidentiary hearing and ample
time for reflection a federal judge found the warrant valid?
No. 09-3385 3
Billian’s answer to this question is that Smith pulled the
wool over the state judge’s eyes. A warrant that rests on
perjury, or false assertions made with reckless disregard
of the truth, is not covered by the Leon principle. 468 U.S.
at 923. One problem for this line of argument is that
the federal judge concluded that the affidavit is suf-
ficient even with some statements removed; Franks
permits such a reconstruction. 438 U.S. at 171–72. Another
problem is that the district judge found that Smith
was neither deceitful nor reckless; errors in her affidavit
were negligent, but negligence does not justify use of
the exclusionary rule. See Herring v. United States, 129
S. Ct. 695 (2009). The district judge’s findings are not
clearly erroneous.
Smith told the state judge that she had received a tip
that Billian was selling marijuana from his home and
that he owned one black Cadillac and one white Cadillac.
Smith and other officers checked this by verifying that
Billian lived in the neighborhood where the tipster said
he did. Smith drove past the house repeatedly and,
though she did not see signs of drug sales, she did see
a black Cadillac Escalade parked in the driveway fre-
quently and once saw a white Cadillac. Police twice
searched Billian’s trash; each time they found some
marijuana and packaging paraphernalia (such as the plastic
bags used for distribution). Smith’s affidavit related
that nine months earlier police had stopped Octavian
Reynolds for drug offenses while he was driving a
white Cadillac registered to Billian; in that car, officers
found a scale and “paperwork in the names of Reynolds
and Billian.” The affidavit added that during a stakeout
4 No. 09-3385
police had seen Billian leave “the residence of a known
high-volume narcotics trafficker.” It also observed that
Billian had “a prior arrest for cocaine possession and . . . a
‘handgun’ alert.” Finally, the affidavit included some
information favorable to Billian: police took two drug-
detection dogs to a storage locker that Billian had rented,
and neither dog gave an “alert” to indicate that it had
smelled unlawful drugs.
According to Billian, the search warrant rests entirely
on an uncorroborated tip. “Entirely” because, in Billian’s
view, something is wrong with each aspect of the way
police set about checking the tipster’s report. Billian
complains that Smith violated departmental procedure
by taking five months after receiving the tip to write an
intra-office memo memorializing the report (she testi-
fied that this normally is done within a week, but that she
left the information on a sticky note until other events
reminded her of the need to follow up), and then
misled the state judge by dating the tip to the intra-office
memo rather than the tip’s actual receipt. Billian observes
that Smith saw a white Cadillac in Billian’s driveway
only once and did not write down its license plate
number, so she could not learn who owned it. She
often saw a black Cadillac, owned by Erin Billian, Larry
Billian’s wife. Larry contends that this means that some-
thing must be fishy about any reports concerning a
white Cadillac. He thinks that Smith withheld three
pieces of information from the state judge: that she
did not know who owned the white Cadillac seen in the
driveway, that she did not see any suspicious activity
when driving past his home, and that the tipster men-
No. 09-3385 5
tioned cocaine as well as marijuana, while the trash
searches turned up only marijuana. Finally, Billian
submits that the results of the trash searches should be
ignored, first because the amounts of marijuana were
small enough to represent personal use rather than distri-
bution, and second because (according to Billian) the
trash cans were next to his garage, rather than at the
curb for pickup, when the police searched them, and
this invasion of the home’s curtilage was unreasonable.
The district judge thought this to be so much quibbling.
The fourth amendment does not require police to
follow their normal record-keeping procedures (or for
that matter any state statute, see Virginia v. Moore, 553
U.S. 164 (2008)); it does not matter who owned the
white Cadillac seen in the driveway, which may or may
not have been the one Reynolds was driving (the
material fact was that Reynolds was transporting drug
paraphernalia plus papers linking him to Billian); that
Billian threw away small quantities of marijuana shows
that he had marijuana in the house, not that the dis-
carded personal-use amounts were all the marijuana he
possessed. Other tidbits, such as Billian’s drug-related
arrest, had not been questioned.
Billian’s only substantial objection, as the district judge
saw things, was the contention that officers violated the
fourth amendment when searching his trash. If they did,
then the contents of the trash cans could not count
toward probable cause. Erin Billian testified without
contradiction that the trash cans were next to the garage
at 7 AM on February 6, 2008, and therefore could not
6 No. 09-3385
have been at the curb at 3 AM that day when the affidavit
says they were searched the second time. (“Could not”
because, Erin testified, there is not enough room in the
driveway to get the cans around her car, so they can be
moved only when her car is out of the driveway.) The
district judge accepted this testimony but concluded
that the first trash search adequately corroborated the
tip. Billian contends on appeal that the first search was
defective for the same reason as the second, but on that
subject the testimony was conflicting. Although the
district judge did not make a direct finding that the
trash cans were at the curb when searched, he evidently
believed Smith rather than Erin Billian about their loca-
tion. Given the other support for the warrant, and the
rule of Leon, there would be little point in a remand for
explicit findings to that effect.
On to sentencing. Billian received 70 months’ imprison-
ment for the drug offenses, to be followed by 60 months’
imprisonment for the firearms offense, 18 U.S.C. §924(c).
He contests the 70-month term because, he contends, the
district judge should have held him accountable for
only the 13 kilograms of marijuana found at his home.
The judge calculated Billian’s relevant conduct at 490
kilograms of marijuana after converting to a marijuana
equivalent the $40,000 in cash seized in the house (a
step that Billian no longer contests) and estimating
the extent of Billian’s drug-distribution business. Billian
contends that the record does not show, by a preponder-
ance of the evidence, that he had any such business.
But the judge’s finding was based on Smith’s testimony
at an evidentiary hearing that Billian had confessed to
No. 09-3385 7
conducting a substantial marijuana-distribution opera-
tion. Billian testified at the hearing that he never said
any such thing to Smith. The judge believed Smith
rather than Billian. A challenge to the resolution of such
a swearing contest has no prospect of success on appeal.
See Anderson v. Bessemer City, 470 U.S. 564, 573–75 (1985).
No more need be said about the sentencing argument
that Billian’s counsel made, but a few words are in order
about a potential argument that counsel overlooked.
When converting the cash to a drug equivalent, the
presentence report treated 1 pound as 2.2 kilograms. That’s
backward: 1 kilogram is 2.2 pounds. This error, which
no one noticed, increased Billian’s relevant conduct
from 370 kilograms of marijuana to 490, and his offense
level from 23 to 25. The presentence report calculated a
Guidelines range of 70 to 87 months; the correct range
was 57 to 71 months. If the district court thought that
Billian deserved a sentence toward the bottom of the
range, then this error may have added a year to his im-
prisonment. But because 70 months is within the
correct range—or the judge may have selected the 70-
month term independent of the Guidelines—it may be
that the computation would not affect the sentence.
One important element of plain-error review is whether
the mistake had a substantial and prejudicial effect. See
United States v. Olano, 507 U.S. 725, 734–35 (1993). It is
hard to know whether this mistake was prejudicial,
because it affects (or might affect) a discretionary deci-
sion by the district judge. In other sentencing cases we
have concluded that the best way to find out is a limited
8 No. 09-3385
remand, which permits the district judge to tell us
whether discovery of the error would have led to a
lower sentence. See United States v. Taylor, 520 F.3d 746 (7th
Cir. 2008); United States v. Paladino, 401 F.3d 471, 481–85
(7th Cir. 2005). That is the best way to proceed here as well.
The judgment of conviction is affirmed. We order a
limited remand under the Taylor–Paladino procedure so
that the district judge can tell us whether the error in
converting pounds to kilograms affected the exercise of
discretion in sentencing. If the judge answers yes, we
will remand for a full resentencing; if the judge answers
no, we will affirm Billian’s sentence.
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