NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 1, 2013
Decided June 26, 2013
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3075
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District
of Wisconsin
v.
No. 1:11‐cr‐00291
KEVIN M. SCHUBERT,
Defendant‐Appellant. William C. Griesbach,
Judge.
O R D E R
Kevin Schubert pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. §§
922(g)(1) and was sentenced to 50 months in prison. His conditional plea preserved his right to
appeal the district court’s adverse suppression ruling. Schubert appeals, arguing that the search
warrant authorizing the search of his vehicle was not based on probable cause supported by oath
or affirmation. We conclude that even if the affidavit was deficient, the district court did not err in
denying Schubert’s motion to suppress. The officers executed the warrant in good‐faith reliance on
its issuance and therefore the good‐faith exception of United States v. Leon, 468 U.S. 897 (1984),
applies to the search. We accordingly affirm.
No. 12‐3075 Page 2
I.
In November 2011, sheriff deputies of the Oconto County, Wisconsin, Sheriff’s
Department were called to a domestic disturbance at the home of “J.F.,” Schubert’s girlfriend.
J.F. reported that Schubert had pushed her and had threatened to shoot her and her family. She
also told the deputies that she saw Schubert place three long guns into his car and that she
knew that he had a .22 caliber rifle, a muzzle loader, and a .20 gauge shotgun. J.F.’s son reported
that he and Schubert had gone target shooting earlier that week with the .20 gauge shotgun.
Schubert was detained and arrested for disorderly conduct. Deputies found four .20
gauge shotgun shells and one .22 caliber bullet on Schubert’s person. The deputies requested
permission to search Schubert’s vehicle; he refused. The vehicle was towed at Schubert’s request
to the sheriff’s impound lot.
The next day, Investigator Keith Johnson of the Oconto County Sheriff’s Department
prepared a warrant application to search Schubert’s impounded vehicle for certain items,
including “firearms” and “any other items found to be contraband, which things were used in
the commission of, or may constitute evidence of the crime of Felon in Possession of a Firearm.”
Johnson supported the warrant application with his affidavit, which provided in part:
The facts tending to establish the grounds for issuing a search warrant are
as follows:
Affiant states that he is an investigator with the Oconto County Sheriff’s
Department and he makes this affidavit on information, belief, and personal
knowledge, his information is presumed reliable as a police informant, and on
information provided by the Oconto County Sheriff’s Department, this
information is presumed reliable because it is from affiant’s own police agency
which agency affiant believes is reputable and reliable.
Kevin M. Schubert was convicted in Outagamie County of a Felon
Possessing a Firearm in Outagamie County case number 2011CF404 on
November 5, 2002.
Please also see attached report 1 in support of this Search Warrant.
The attached Oconto County Sheriff’s Office report was prepared by Deputy Todd
Skarban and entitled “Disturbance and request for search warrant.” The report detailed the
previous day’s incident involving Schubert. Deputy Skarban wrote that he responded to “an
active domestic disturbance possibly involving a firearm,” that Schubert was detained, and that
1
The typewritten word “Affidavit” was crossed out and “report” was handwritten
in its place and initialed by Johnson.
No. 12‐3075 Page 3
Skarban and Deputy Ryan Zahn had asked Schubert “about having firearms in his car.”
Skarban added that he had asked Schubert for permission to search his car, and Schubert had
refused. As a result, Skarban had the car impounded in the Oconto County Sheriff’s yard.
The report indicated that Schubert was placed under arrest for disorderly conduct and
that Deputy Zahn searched Schubert, finding several .20 gauge shotgun shells and one .22
caliber bullet. Deputy Skarban wrote that J.F. told him that Schubert had pushed her and she
had pushed him back toward the door, telling him to get out. The report said that J.F. told
Skarban that when Schubert moved into the house about five days before, she noticed he had
several long guns and that when he was packing his stuff and putting it in the car, she saw him
place three guns in the car. J.F. stated that she believed they were a .20 gauge shotgun, a .22
caliber rifle, and a muzzle loader. According to the report, J.F.’s son stated that he and Schubert
had gone target practicing with a .20 gauge shotgun earlier in the week. Based on J.F.’s
statements, her son’s statement, and the discovery of the shells and bullet on Schubert’s person,
Deputy Skarban requested the District Attorney’s Office to review the report and prepare a
search warrant for Schubert’s impounded vehicle.
Later that afternoon, Johnson subscribed and swore to the affidavit before an Oconto
County Circuit Court Judge, and the judge issued the warrant. Sheriff’s deputies executed the
warrant and in Schubert’s vehicle found two firearms—a .20 gauge pump shotgun and a .22
caliber rifle—among other items. Schubert has several prior felony convictions; thus, he was
indicted for possessing these two firearms as a convicted felon.
Schubert moved to suppress the results of the search of his vehicle, arguing, among
other things, that the warrant violated the Fourth Amendment’s oath or affirmation
requirement. The magistrate judge found that the warrant was supported by probable cause
based on the information in the affidavit and unsworn police report, and she recommended that
the motion be denied. The district judge adopted the recommendation. He found that “the
primary factual information upon which a determination of probable cause was required to be
made, indeed all of the information with the exception of [Schubert’s] prior conviction, was
included in the attached police report that was not separately sworn to under oath” and that
“there is no showing that Investigator Johnson had any direct knowledge of the facts set forth in
the attached report.” The judge found that “the issuing judge had more than sufficient
information … to make a proper probable cause determination” and that Schubert objected to
“the form of the warrant.” Based on “[a] common sense reading of the affidavit,” the judge
found “that Investigator Johnson swore under oath that he had reliable information that
Schubert had illegally possessed firearms and evidence of the crime, namely, one or more
firearms, was in the trunk of his car” and concluded that “the affidavit was sufficient to
establish probable cause and the warrant was valid.” The judge also concluded that “even if the
warrant were invalid, the officers’ good faith reliance upon it would preclude granting
[Schubert’s] motion to suppress.”
No. 12‐3075 Page 4
II.
Schubert argues that the search warrant was invalid because probable cause was not
supported by oath or affirmation. He contends that Investigator Johnson did not swear to any
of the facts contained in the unsworn police report authored by Deputy Skarban that
purportedly establish probable cause. Schubert also argues that Johnson’s incorporation by
reference of the police report into his affidavit is insufficient. And he complains that Johnson
had no connection to the facts or witnesses detailed in the police report and had no basis for
knowing their reliability. Finally, Schubert argues that Leon’s good‐faith exception does not
apply because the affidavit was so deficient that Johnson could not have reasonably believed it
supported a valid warrant. (Schubert challenges the affidavit to the extent it is based on
Johnson’s belief. But this claim—raised for the first time in his reply brief—has been waived. See
United States v. Fluker, 698 F.3d 988, 1004 (7th Cir. 2012) (noting that arguments raised for the
first time in a reply brief are waived unless “exceptional circumstances” justify an exception to
waiver).)
A good argument can be made that Investigator Johnson’s affidavit was sufficient to
establish probable cause supported by oath or affirmation. An affidavit in support of a search
warrant can rely on information from other officers and other hearsay if sufficiently reliable.
See, e.g., United States v. Hollingsworth, 495 F.3d 795, 805 (7th Cir. 2007) (“[A] search warrant
need not be based on first‐hand observations.”); Woods v. City of Chicago, 234 F.3d 979, 996 (7th
Cir. 2000) (“[A]n identification or a report from a single, credible victim or eyewitness can
provide the basis for probable cause.”); United States v. Spears, 965 F.2d 262, 277 (7th Cir. 1992)
(“In determining whether probable cause exists, a magistrate is entitled to regard an affiant’s
fellow law enforcement officers as reliable sources.”); United States v. DiNovo, 523 F.2d 197,
200 (7th Cir. 1975) (“An affidavit for a search warrant can properly include hearsay based on
hearsay[.]”). The affidavit incorporates the police report and Johnson swore to the affidavit,
thus swearing to the information in the police report as well. See, e.g., United States v.
Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993) (concluding that a statement stapled to a search
warrant affidavit was incorporated into the affidavit and thus was sworn to by the affiant and
supported the probable cause determination); United States v. Berisford, 750 F.2d 57, 58 (10th Cir.
1984) (“There is nothing unusual about reading together the several components of an affidavit
for search warrant, where properly incorporated or related by reference.” (citations omitted));
People v. Hale, 35 Cal. Rptr. 3d 183, 186–87 (Cal. Ct. App. 2005) (holding that affidavit in support
of search warrant incorporating statement of probable cause was sufficiently sworn to where
officer’s statement under oath that he had probable cause to search implied that the facts
contained in the statement of probable cause were true). However, the better practice is for the
affiant to include all facts establishing probable cause in the search warrant affidavit itself. But
even if the warrant was invalid, the district court did not err in denying the motion to suppress.
We review de novo the district court’s conclusion that Leon’s good‐faith exception to the
exclusionary rule applies. United States v. Miller, 673 F.3d 688, 693 (7th Cir. 2012). “[E]ven if a
search warrant [is] invalid because the supporting affidavit fail[s] to support a finding of
probable cause, evidence seized in executing the warrant should not be suppressed if the police
No. 12‐3075 Page 5
officers relied in good faith on the judge’s decision to issue the warrant.” Id. (citing Leon, 468
U.S. at 922–23). “[T]he exclusionary rule is designed to deter police misconduct rather than to
punish the errors of judges and magistrates.” Leon, 468 U.S. at 916. “[S]uppression of evidence
obtained pursuant to a warrant should be ordered . . . only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.” Id. at 918. As the Court explained:
“[I]n the ordinary case, an officer cannot be expected to question the [issuing judge’s] probable‐
cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at
921.
An officer’s decision to obtain a search warrant is prima facie evidence of the officer’s
good faith. Miller, 673 F.3d at 693. “A defendant can defeat the good‐faith exception to the
exclusionary rule by showing (1) that the issuing judge abandoned the detached and neutral
judicial role; (2) that the officer was dishonest or reckless in preparing the affidavit; or (3) that
the warrant was so lacking in probable cause that the officer could not reasonably rely on the
judge’s issuance of it.” Id. Schubert does not suggest that (1) or (2) applies but instead urges us
to conclude that the warrant was so lacking in probable cause—supported by oath or
affirmation—that the deputies could not have reasonably relied on its issuance. (Schubert also
suggests that the affidavit was “so facially deficient” that the deputies could not have
reasonably presumed it to be valid, but this argument misses the mark. See, e.g., Leon, 468 U.S. at
923 (indicating that “so facially deficient” means “failing to particularize the place to be
searched or the things to be seized”). There is no question that the affidavit particularly
described the place to be searched (Schubert’s vehicle) and the things to be seized (“hunting
equipment, including but not limited to any firearms”).)
The affidavit incorporating the police report is not so defective that a reasonable officer
could not reasonably believe that the warrant was valid. Investigator Johnson sought a warrant
to search Schubert’s vehicle from a neutral, detached judge, which creates a presumption of
good faith. The police report contained the facts establishing probable cause (with the exception
of Schubert’s prior felony conviction, which was detailed in the affidavit) and was attached to
the affidavit. The affidavit clearly indicated that Johnson was relying on information in the
report—information provided by another officer and his sources of information. Together, the
affidavit and report provided probable cause for a search warrant. Investigator Johnson signed
the affidavit under oath. It would not be so clear to a reasonable officer that incorporating the
unsworn report into the sworn affidavit would deprive the affidavit of probable cause. Cf. Hale,
35 Cal. Rptr. 3d at 187 (characterizing the failure to swear to the facts contained in an
incorporated statement of probable cause as a “technical defect of form, not substance”). Both
the affidavit and report were presented to the issuing judge. Any technical defect in verifying
under oath or affirmation the truth of the statements in the police report apparently went
undetected by the issuing judge. And the judge, based on his review of the affidavit and report,
determined that probable cause existed to search. In this case, a reasonable officer could not be
expected to question the judge’s determination, but instead could rely in good faith on the
issuance of a warrant. See United States v. Guzman, 507 F.3d 681 (8th Cir. 2007) (holding good‐
faith exception applied where affidavit was deficient but officer presented both the affidavit
and an incident report supplying additional information to the issuing judge, even though the
No. 12‐3075 Page 6
affidavit did not incorporate the incident report); see also People v. Leonard, 57 Cal. Rptr. 2d 845,
849 (Cal. Ct. App. 1996) (holding that police reasonably relied on the magistrate’s issuance of a
warrant supported by a sworn affidavit incorporating an unsworn statement of probable cause
setting forth “abundant cause” to search). Therefore, the district court did not err in denying
Schubert’s motion to suppress. We accordingly AFFIRM.