In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1612
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN L. N ORRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-00170-SEB-KPF-1—Sarah Evans Barker, Judge.
A RGUED JANUARY 13, 2011—D ECIDED M AY 5, 2011
Before R IPPLE, E VANS and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. John L. Norris was indicted on
one count of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g) and 924(e). He initially
pleaded not guilty to the charge, but, after his motion
to suppress evidence was denied, he entered a condi-
tional plea of guilty. Mr. Norris now appeals the district
court’s ruling on his motion to suppress. Because the
officers were acting pursuant to a valid warrant and in
a reasonable manner, we affirm the judgment of the
district court.
2 No. 10-1612
I
BACKGROUND
A. Facts
On October 23, 2007, Officer Dale Young of the Indiana-
polis Metropolitan Police Department sought a search
warrant for the home of Mr. Norris at 2826 West 10th
Street, Indianapolis, Indiana. The warrant was sup-
ported by Officer Young’s affidavit, which described a
series of drug-related activities involving Mr. Norris
and taking place at or near his residence. The affidavit
recited that a reliable confidential informant had been
to Mr. Norris’s residence two times in the week prior
to October 23; during those visits, the confidential infor-
mant both had seen cocaine in Mr. Norris’s possession
and had been told by Mr. Norris that he had cocaine
for sale. Approximately six weeks before October 23,
another reliable confidential informant had carried out
a controlled purchase of cocaine from Mr. Norris. Officer
Young further stated in his affidavit that he personally
had conducted surveillance near Mr. Norris’s residence
during the week prior to October 23 and had observed
the following:
I have observed B/M Johnny Norris, approxi-
mately 45 years old, 200lbs. at the residence and
interacting through car windows with the occu-
pants and walk up pedestrians in a manner consis-
tent with narcotics trafficking. Specifically, very
short conversations, hand to hand exchanges
of objects, and constant attempts to observe all
directions as these exchanges occur. Other people
No. 10-1612 3
acting as lookouts for 2826 W. 10th St. were walk-
ing the area attempting to detect police activit[i]es.
R.24, Ex. 1 at 2. A Marion County Superior Court judge
signed the warrant. The warrant authorized the search
of the residence at 2826 West 10th Street and “the person
of a B/M Johnny Norris” for cocaine and other evidence
“indicat[ing] a violation or a conspiracy to violate the
Indiana Controlled Substances Act.” Id.
On October 25, a group of ten police officers, including
Officer Young, went to the 10th Street residence to
execute the warrant. When the officers arrived at the
location, Mr. Norris was walking away from his back
door. He proceeded down the steps, which were outside
the fence that enclosed his backyard and led to the
public sidewalk, where two of Mr. Norris’s acquaintances
were waiting. Mr. Norris never reached the public side-
walk, but instead stopped at the last step leading to
the sidewalk. At that point, the police exited the van.1
It is unclear whether Mr. Norris saw the police first or
whether he was alerted to their presence by his female
1
The parties’ versions of events differ at this point. The district
court credited Officer Young’s version of what transpired, and
Mr. Norris does not claim that this credibility determination
is “completely without foundation.” United States v. Collins, 604
F.3d 481, 486 (7th Cir. 2010) (quotation marks and citation
omitted) (reiterating that, on review of a motion to suppress,
we shall not disturb a district court’s credibility determina-
tions unless they are “completely without foundation”). Conse-
quently, we employ the facts as testified to by Officer Young
and as accepted by the district court.
4 No. 10-1612
acquaintance, who said, “Police,” when she saw the
officers approaching. Regardless of the method by which
Mr. Norris learned of the officers’ approach, Mr. Norris
turned away from the officers, hunched over and placed
his hands in front of him near his pockets. As Mr. Norris
was beginning to walk back up the steps, the police
ordered him to stop; he did not comply. Instead, Mr.
Norris proceeded up two steps and threw a crumpled
paper bag into the air; the bag landed on the sidewalk.2
After throwing the bag, Mr. Norris returned his hands
to his front waistband area, out of view of the officers.
The police again instructed Mr. Norris to stop and to
show his hands; when Mr. Norris failed to do so, Officer
Young used his taser.
When the taser stopped cycling, Mr. Norris rolled onto
his side. He yelled, “Police, police,” and attempted to
grab the leg of one of the officers who was going past
him to enter the house. As Mr. Norris reached for the
officer, Officer Young observed a small, silver Derringer
pistol on the ground under Mr. Norris.
B. District Court Proceedings
Mr. Norris was indicted on one count of being a felon
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g) and 924(e). Mr. Norris filed a motion to
2
The discarded bag contained twenty-five individually
wrapped bindles of crack cocaine and two packages of mari-
juana.
No. 10-1612 5
suppress evidence and a request for a hearing under
Franks v. Delaware, 438 U.S. 154 (1978). Although the
motion maintained that the warrant was “stale” at the
time of its execution and was insufficient on its face, the
bulk of Mr. Norris’s submission was devoted to the
argument that “Officer Young intentionally, or with
reckless disregard for the truth, included false informa-
tion and omitted material facts in the affidavit, and
that said false information and omitted material facts
affected the probable cause determination.” R.24 at 3-4.
The district court held a hearing, during which both
Officer Young and Mr. Norris testified. At the conclu-
sion of the hearing, the court issued an oral ruling
denying the motion. The district court found that, when
the police arrived at the residence to execute the search
warrant, Mr. Norris was “well outside the house, appar-
ently leaving the house, . . . [and] carrying a bag small
enough to be held in one hand in a somewhat crumpled
fashion.” R.40 at 116. Mr. Norris was heading toward
a man and a woman, both standing on the public side-
walk. At that point, the woman recognized the police, and
the police ordered everyone “to stop so that the situation
could be brought under control.” Id. at 117.
Although the police were present to execute the
warrant, the court determined that “[o]ther facts justified
the police encounter to stop and make an investigatory
inquiry of the defendant.” Id. Specifically, Officer Young
knew that “the defendant was a prior convicted drug
dealer, that he had recently been engaged in drug
activity based on the information of confidential infor-
6 No. 10-1612
mants and had conducted himself in such a way that was
visible to [Officer] Young when [Officer] Young was
maintaining surveillance.” Id. According to the court:
That suggested that he was conducting drug
activity on the side street to his residence as
people would come and go. In fact, the defendant
himself testified that that was his activity. He
said he did it in conjunction with paying off
people who helped him, but maybe that was just
part of it, because [Officer] Young said that he
was conducting himself in such a way that based
on his experience and expertise, it clearly sug-
gested that the drug activity was going on between
the defendant and passersby on foot and in the
cars.
So [Officer] Young had this information when
he confronted the defendant.
Id. at 117-18. The district court then went on to describe
how Mr. Norris, when asked to stop, did not do so (as his
confederates apparently did), but turned his back to the
police and placed his hands where the police could not
see them. After discarding the bag, Mr. Norris ignored
another order by the police to stop and show his hands.
Officer Young then employed his taser. The court ex-
pressed the belief that “the taser was a permissible step.”
Id. at 119. Furthermore, the court determined that the
discovery of the gun was caused by Mr. Norris’s
“crumpl[ing] under the effects of the taser.” Id. at 120.
The district court then turned to Mr. Norris’s legal
arguments:
No. 10-1612 7
[T]he defendant’s legal theory has moved
around a little bit here in terms of asserting a
constitutional violation. Clearly started out as an
allegation that the search warrant was false
and was intentionally false on the basis of which
legal permission was obtained to enter the pre-
mises. There is no evidence of that.
....
The real issue here is whether the Terry stop that
occurred comported with the appropriate legal
standards for such an encounter, and the Court
finds that those standards have been complied
with and that there is no constitutional violation,
nor is there any violation of controlling precedent
from the Seventh Circuit.
Id. at 120-22.
After his motion to suppress was denied, Mr. Norris
entered a conditional plea of guilty. Following his sen-
tencing, he timely appealed his conviction.
II
DISCUSSION
Mr. Norris does not directly attack the district court’s
determination that, under Terry v. Ohio, 392 U.S. 1 (1968),
the police had reasonable suspicion to stop him on
8 No. 10-1612
October 25, 2007.3 Instead, Mr. Norris maintains that,
when the police seized him and his weapon,4 he was
within the curtilage of his home. Mr. Norris further
contends that the curtilage to one’s home is treated as
part of the residence for Fourth Amendment purposes.
Because reasonable suspicion is not a sufficient basis
for the police to invade a person’s home, reasonable
suspicion also cannot justify the police’s seizure of his
person, and weapon, within the curtilage of his home.
The Government argues in response that Mr. Norris
was outside the curtilage of his home when the officers
stopped him. Moreover, the Government continues, the
court need not reach the issue of curtilage because, when
the police stopped Mr. Norris, they were executing a
valid warrant for the search of Mr. Norris’s person
and residence.5
Because we agree with the Government that the officers
were acting pursuant to a valid warrant and in a rea-
3
Similarly, he does not argue that any part of the police’s
response to the situation was disproportionate (i.e., use of
the taser).
4
Mr. Norris admitted at sentencing that the gun was his.
R.60 at 20.
5
The Government also maintains that the seizure of Mr. Norris
and his weapon were justified by exigent circumstances
and that, even if the search cannot be justified on any of its
proffered bases, the evidence still should not be suppressed
because the officers acted in good faith. See United States v.
Leon, 468 U.S. 897, 920 (1984).
No. 10-1612 9
sonable manner, we do not need to address the question
whether Mr. Norris was within the curtilage of his prop-
erty when the seizure of his person occurred.
A. Validity of the Warrant
1.
Before the district court, Mr. Norris claimed that the
affidavit in support of the warrant was insufficient to
“allow a neutral and detached magistrate to conclude
that there was probable cause” to search Mr. Norris’s
residence or his person. R.24 at 3. “Whether a warrant
affidavit contains sufficient indicia of probable cause is
a legal question that we review de novo.” United States v.
Harris, 464 F.3d 733, 738 (7th Cir. 2006).
In reviewing de novo the issuance of a search warrant
based on probable cause, we have stated that
[a] magistrate’s determination of probable cause
is to be given considerable weight and should be
overruled only when the supporting affidavit, read
as a whole in a realistic and common sense man-
ner, does not allege specific facts and circum-
stances from which the magistrate could reason-
ably conclude that the items sought to be seized
are associated with the crime and located in the
place indicated.
United States v. Newsom, 402 F.3d 780, 782 (7th Cir. 2005)
(quoting United States v. Spry, 190 F.3d 829, 835 (7th Cir.
1999)). When, as here, the probable cause determination
10 No. 10-1612
is supported by an affidavit that is based on information
provided by a confidential informant, we rely primarily
on four factors to inform our inquiry:
(1) the extent to which the police have corrobo-
rated 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 police officer’s
application for the search warrant.
United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002).
Based on these four factors, we cannot find any infirmity
in the probable-cause determination. Here, the affidavit
was based on information provided by two confidential
informants; Officer Young had worked with both previ-
ously and found them to be reliable. One confidential
informant stated that, in the week prior to the date
the search warrant had been executed, he twice had
been in Mr. Norris’s residence, had seen cocaine in
Mr. Norris’s possession and had been told by Mr. Norris
that the cocaine was for sale. The second confidential
informant actually had conducted a controlled purchase
of cocaine from Mr. Norris six weeks prior to the execu-
tion of the warrant. Finally, Officer Young personally
had surveilled Mr. Norris and his home in the week prior
to the execution of the search warrant. Officer Young had
observed Mr. Norris engaging in actions consistent with
the sale of illegal substances, “[s]pecifically, very short
conversations, hand to hand exchanges of objects, and
constant attempts to observe all directions as these ex-
No. 10-1612 11
changes occur[red].” R.24, Ex. 1 at 1. We believe that the
affidavit, taken as a whole, established the infor-
mants’ reliability and contained sufficient timely and
detailed information to constitute probable cause that
Mr. Norris was engaging in ongoing narcotics trafficking,
that he was selling to individuals entering his home and
to individuals approaching on the public street, and
that, therefore, he likely had cocaine in his home and on
his person.
2.
Alternatively, Mr. Norris argued before the district court
that “Officer Young intentionally, or with reckless disre-
gard for the truth, included false information and
omitted material facts in the affidavit, and that said
false information and omitted material facts affected the
probable cause determination.” R.24 at 3-4.
“There is . . . a presumption of validity with respect to
the affidavit supporting the search warrant.” Franks, 438
U.S. at 171. In order to overcome this presumption,
Mr. Norris must prove, by a preponderance of the evi-
dence, that Officer Young knowingly, intentionally, or
with a reckless disregard for the truth, made false state-
ments in the warrant affidavit and that the false state-
ments were necessary for the judicial officer to conclude
that probable cause existed. See United States v. Taylor,
471 F.3d 832, 838-39 (7th Cir. 2006).
Following an evidentiary hearing, during which both
Officer Young and Mr. Norris testified, the district court
12 No. 10-1612
concluded that there was no support for Mr. Norris’s
claim. Indeed, the court concluded that Officer Young
reasonably believed the information provided to the
state court judge and that there was “no legal or factual
basis” for concluding that Officer Young had provided,
intentionally or recklessly, false statements to the state
court judge to secure the warrant. R.40 at 121.
We review the court’s findings of fact for clear error.
United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990)
(reviewing district court’s findings of facts after a Franks
hearing and stating that “[t]his court must uphold the
trial court’s findings of fact unless those findings are
clearly erroneous”); cf. Taylor, 471 F.3d at 839 (reviewing
district court’s denial of motion to suppress for clear
error). Before the district court, Mr. Norris suggested
that there were three bases for concluding that Officer
Young intentionally or recklessly presented false infor-
mation in support of the search warrant. We shall
examine each.
First, Mr. Norris presented his own affidavit to the
district court that recounted facts at odds with the in-
formation provided by the confidential informant.
Mr. Norris’s affidavit stated that, on the dates the con-
fidential informant allegedly visited his home and saw
cocaine in his possession, he had not invited anyone
into his house and had not represented to anyone that
he had cocaine for sale. R.24, Ex. 2 at 1-2.6 Whether the
confidential informant had been in Mr. Norris’s home,
6
Mr. Norris affirmed the contents of the affidavit during
the hearing.
No. 10-1612 13
however, is not the proper inquiry under Franks. The
Supreme Court has observed that, for a warrant
affidavit to be “truthful,” it is not necessary that every
fact in the affidavit be correct; instead, the affidavit
must be “truthful in the sense that the information put
forth is believed or appropriately accepted by the affiant
as true.” Franks, 438 U.S. at 165 (internal quotation
marks omitted). The relevant inquiry focuses on the
officer’s belief about the facts recounted, not the validity
of the underlying facts themselves. Here, the district
court believed that Officer Young testified truthfully
when he recounted the events leading up to the securing
of the warrant and when he stated that he believed the
facts presented to the state court were true. See R.40 at 120-
21. A trial court’s decision to credit the plausible testi-
mony of one witness over another “can virtually never
be clear error.” Anderson v. City of Bessemer, 470 U.S. 564,
575 (1985) (stating that, “when a trial judge’s finding is
based on his decision to credit the testimony of one
of two or more witnesses, each of whom has told a co-
herent and facially plausible story that is not con-
tradicted by extrinsic evidence, that finding, if not inter-
nally inconsistent, can virtually never be clear error”).
Mr. Norris also claimed that the language that Officer
Young used in the supporting affidavit suggested that
the affidavit contained intentional or reckless falsehoods.
During the hearing, counsel for Mr. Norris established
that, in the affidavit, Officer Young had used the term
“they” in reference to only one of the confidential infor-
mants; Officer Young admitted that it was “an improper
14 No. 10-1612
choice of word,” but noted that a confidential informant
often is referred to in the third person plural. R.40 at 58.
Officer Young also admitted that he used the “cut and
paste” function on his computer to write certain para-
graphs of the affidavit. However, he also testified that
“I made sure that the events that I changed were correct
and accurate.” Id. at 61. Again, neither of these actions
by Officer Young calls into question the veracity of his
representations to the state court. “[M]inor clerical errors
generally are not fatal to a search warrant.” United States v.
Waker, 534 F.3d 168, 172 (2d Cir. 2008); see also United
States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003) (stating
that “[t]he district court correctly concluded that this
singular” reference to an incorrect date “was merely a
typographical error” and “d[id] not reveal a disregard
of the truth”).
Finally, Mr. Norris claimed that Officer Young failed to
include in the affidavit the amounts of cocaine that the
confidential informant observed in Mr. Norris’s home.
Officer Young acknowledged that the affidavit did not
contain specific amounts of cocaine and that the con-
fidential informant saw “less than a couple grams” of
cocaine, which could be consistent with personal use.
R.40 at 56. A defendant may establish a constitutional
violation under Franks by showing an intentional or
reckless omission of evidence; however, the facts with-
held also must be “material” to the probable cause deter-
mination. Whitlock v. Brown, 596 F.3d 406, 410 (7th Cir.
2010). Here, the exact quantity of drugs was immaterial
for two reasons. First, personal possession of cocaine is
No. 10-1612 15
a crime; consequently, the fact that the confidential infor-
mant observed an amount of cocaine consistent with
personal use would not negate probable cause to believe
Mr. Norris was violating the law. Second, an affidavit
supporting a warrant must be “read as a whole and in
a realistic and common sense manner.” United States v.
Wiley, 475 F.3d 908, 915 (7th Cir. 2007) (quoting Newsom,
402 F.3d at 782). Other aspects of the affidavit, notably
the controlled purchase by the second confidential infor-
mant and the surveillance conducted by Officer Young,
both strongly suggested that Mr. Norris was in the busi-
ness of supplying cocaine to other users. Consequently,
the omissions by Officer Young were not material to
the probable-cause determination.
Under these circumstances, there simply is no basis
for second-guessing the district court’s credibility deter-
mination that Officer Young reasonably believed the
information that he provided to the state court judge in
support of the warrant. Because there is no evidence in
the record to overcome the presumption of regularity
accorded to a probable-cause affidavit, Mr. Norris does
not have any basis for challenging the sufficiency of the
warrant.
B. Reasonableness of Execution
“[I]t is generally left to the discretion of the executing
officers to determine the details of how best to proceed
with the performance of a search authorized by war-
rant—subject of course to the general Fourth Amendment
16 No. 10-1612
protection ‘against unreasonable searches and sei-
zures.’ ” Dalia v. United States, 441 U.S. 238, 257 (1979)
(footnote omitted). Whether the manner of execution is
reasonable is a fact-specific inquiry based on the totality of
the circumstances facing the officers executing the warrant.
United States v. Banks, 540 U.S. 31, 35-36 (2003).
Here, we cannot conclude that the officers executed
the warrant in an unreasonable manner. First, the
officers approached Mr. Norris while he was standing
on the steps that led from his yard to the public sidewalk
and while he was speaking to two acquaintances. The
officers did not need to announce their presence
because Mr. Norris’s female acquaintance already had
done so. Mr. Norris’s immediate reaction was to attempt
to retreat into his home. Officer Young instructed
Mr. Norris to stop. Officer Young’s instruction was de-
signed to prevent Mr. Norris from entering his home,
where he possibly could destroy evidence or could arm
himself. If Mr. Norris were permitted to retreat into his
home, the police might have faced “[a]n ambush in a
confined setting of unknown configuration [which] is
more to be feared than it is in open, more familiar sur-
roundings.” Maryland v. Buie, 494 U.S. 325, 333 (1990).
Consequently, ordering Mr. Norris to stop was a “reason-
able action to secure the premises and to ensure [the
officers’] own safety and the efficacy of the search.” Los
Angeles Cnty. v. Rettele, 550 U.S. 609, 614 (2007).
Officer Young’s instruction, however, went unheeded.
Instead, Mr. Norris proceeded up two steps and threw
a crumpled bag (later discovered to contain narcotics)
No. 10-1612 17
into the air. After throwing the bag, Mr. Norris placed
his hands in front of him, near his waistband area and
out of view of the officers. The police again ordered
Mr. Norris to stop and to show his hands. Mr. Norris
ignored Officer Young’s command a second time. At
that point, Officer Young employed his taser.
Officer Young’s actions were reasonable. Mr. Norris
not only exhibited behavior consistent with an intent to
discard evidence, he also engaged in actions that
suggested he was reaching for a weapon. At this point,
Officer Young had every reason to be concerned for his
own safety, that of the other officers and that of Mr.
Norris’s acquaintances. Both the Supreme Court and the
courts of appeals have recognized that, in conducting a
search, officers may take reasonable steps to minimize
the risk of harm to themselves and to others. See Michigan
v. Summers, 452 U.S. 692, 702-03 (1981); Bills v. Aseltine,
958 F.2d 697, 704 (6th Cir. 1992) (stating that “implicit
in the authority conferred on police officers by a valid
warrant is the authority to secure the premises to be
searched in order to minimize the risk of harm to the
officers”). Our colleagues in the Eleventh Circuit have
held explicitly that an officer’s single use of a taser to
subdue a suspect, who repeatedly had refused lawful
orders of the police, was a “reasonably proportionate”
response where failing to use the taser could have
resulted in an escalation of violence. See Draper v. Reynolds,
369 F.3d 1270, 1278 (11th Cir. 2004). We believe that
Officer Young’s actions are justified on these grounds.
Mr. Norris had displayed an unwillingness to accede to
reasonable police commands, and his actions suggested
an intent to use violence to fend off further police ac-
18 No. 10-1612
tion. Consequently, we agree with the district court
that Officer Young’s use of his taser was reasonable
under the circumstances.
When the taser stopped cycling, Mr. Norris rolled onto
his side. At that point, Officer Young observed a small,
silver Derringer pistol, visible from under Mr. Norris.
Because the weapon was “discovered during a lawful
search authorized by a valid warrant” and because the
“incriminating” nature of the weapon was “immediately
apparent” to Officer Young, Officer Young was justified
in seizing the pistol under the plain view doctrine. See
Horton v. California, 496 U.S. 128, 142 (1990).7
7
On appeal, Mr. Norris claims that we cannot affirm the
district court’s judgment based on the reasonable manner in
which the warrant was executed because the district court
made a factual finding that the warrant never was executed.
See Reply Br. 8 (citing R.40 at 117). We disagree that the
district court made any factual findings that restrict our
affirmance on this basis. The district court determined that
the police arrived on the scene with the “actual purpose” of
“execut[ing] the search warrant.” R.40 at 117. The district
court did not believe that it had to analyze the officers’ encoun-
ter with Mr. Norris as an execution of a search warrant
because it also was justified under Terry v. Ohio, 392 U.S. 1
(1968). That there is an alternative, legal justification for the
officers’ actions, however, is not a factual finding, nor does
it negate the possibility that the officers’ actions may be
justified on any number of legal grounds.
No. 10-1612 19
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
A FFIRMED
5-5-11