NONPRECEDENTIAL DISPOSITION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 May 14, 2008
Decided June 20, 2008
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 07‐2526 Appeal from the United States District
Court for the Central District of Illinois
UNITED STATES OF AMERICA,
Plaintiff‐Appellee, No. 05 CR 30105
v. Jeanne E. Scott, Judge.
LARRY D. BUTLER,
Defendant‐Appellant.
O R D E R
Larry Butler pleaded guilty to manufacturing methamphetamine and possession
with intent to distribute methamphetamine, reserving his right to appeal from the
district court’s denial of his motion to suppress evidence obtained during a search of his
home. Butler appeals, arguing that the search warrant authorizing the search of his
home was not based on probable cause and was so blatantly deficient that the officers
could not have relied upon it in good faith. We affirm.
No. 07-2526 Page 2
I.
Around midnight on New Year’s day of 2004, the Pike County, Illinois, Sheriff’s
Department responded to a complaint that a CD player and CB radio had been stolen
from a vehicle belonging to Trent Conkright. About an hour later, Frank Dehart
reported to police that someone had stolen a .22 caliber single‐shot rifle from his
automobile. About a month later on February 10, 2004, Sheriff Paul Petty spoke with a
juvenile who admitted to some vandalism which occurred at the same time as the
thefts, but the juvenile fingered Josh Taylor as the thief of the CD player, CB radio, and
rifle. Taylor, in turn, admitted to stealing the CD player and CB radio, but claimed the
juvenile had stolen the rifle.
Around the same time, sometime between February 7 and February 10, 2004, a
confidential source informed Sheriff Petty that the .22 caliber rifle was located at the
residence of the defendant, Larry Butler, in rural Mt. Sterling, Illinois. The confidential
source explained that Butler had previously lived in Perry, Illinois, which was located in
Pike County, and that the rifle had been at Butler’s previous residence, but was then
moved to Butler’s current house. The confidential source stated that he had seen the
rifle “within the confines of [the defendant’s] residence.” Sheriff Petty and a drug task
force inspector had also received information that in the past year Butler had cooked
methamphetamine (“meth”) at his residence and that while he prepared the meth,
individuals with firearms served as lookouts.
Officers applied for a search warrant to search Butler’s residence. In support of
the search warrant, Sheriff Petty filed an affidavit. The affidavit detailed Sheriff Petty’s
investigation and noted that “within the past 3 days, I spoke to a confidential source
who indicated that the .22 caliber rifle stolen from Dehart was at Larry Butler’s
residence in rural Mt. Sterling. . . . [and] [t]hat the c/s has observed the firearm within
the confines of Butler’s residence.” Sheriff Petty further stated “[t]hat the c/s providing
information in this investigation has proven himself credible in that he has provided
other information involving felony activity which has been validated by law
enforcement reports, previous investigation, and other confidential information we
have received. That his information has lead to the conclusion of active investigations.”
Based on Sheriff Petty’s affidavit, an Illinois state court judge issued a search
warrant authorizing a search of the property and person of Larry Butler and his
residence, including a detached garage, for evidence of the .22 caliber rifle, .22 caliber
No. 07-2526 Page 3
shells and bullets and proof of residence. Early in the morning of February 11, 2004,
several law enforcement officers executed the warrant. During the search of the
residence, officers found more than 20 firearms, including Dehart’s stolen .22 caliber
rifle. They also observed evidence of meth and meth manufacturing in the house and
garage. After observing the evidence of the drug operations, one of the searchers,
Deputy Sheriff Mike Norris, immediately submitted an affidavit for a second warrant to
search the house and garage for meth and items used in the manufacturing of meth.
The affidavit in support of the second search warrant referenced the evidence
discovered during the initial search for the gun. A state judge issued a second warrant
to search for meth‐related items. The officers, several of whom had remained to secure
the premises, then seized the meth‐related evidence.
A federal grand jury charged Butler with manufacturing meth and possession
with intent to distribute meth and with two counts of possession of a firearm in
furtherance of drug trafficking. Butler filed a motion to suppress the evidence seized
from his house and garage. The district court held that the first search warrant
application and affidavit did not establish probable cause to search Butler’s house, but
because the officers relied on the search warrant in good faith, the evidence obtained
during the first search was admissible. The district court then concluded that because
the evidence from the first search was admissible, the second search warrant was
supported by probable cause and thus evidence obtained during that search was
admissible. Accordingly, the district court denied Butler’s motion to suppress. Butler
then pleaded guilty to the two drug counts, reserving his right to appeal the denial of
his motion to suppress, and the government dismissed the two gun counts. The district
court sentenced Butler to 130 months of imprisonment on each of the drug counts, to
run concurrently. Butler appeals from the district court’s denial of his motion to
suppress.
II.
On appeal, Butler argues that while the district court correctly concluded that the
warrant was not supported by probable cause, it erred in concluding that the officers
relied on the warrant in good faith. The government concedes that the search warrant
affidavit did not establish probable cause, but claims that the warrant is saved by the
good faith exception to the exclusionary rule. Where a search warrant is not supported
by probable cause, the government must present evidence that the officers acted in
good faith, to avoid suppression of evidence recovered during the search. United States
No. 07-2526 Page 4
v. Leon, 468 U.S. 897, 924 (1984). “Whether a law enforcement officer reasonably relied
upon a subsequently invalidated search warrant is a legal question which we review de
novo.” United States v. Harju, 466 F.3d 602, 604 (7th Cir. 2006).
Application to a judge for a search warrant, as done by the officers in this case, is
prima facie evidence that the officers acted in good faith. United States v. Koerth, 312
F.3d 862, 868 (7th Cir. 2002). A defendant must then overcome the presumption of good
faith by showing
either that: (1) the magistrate “wholly abandoned his judicial role,” or
otherwise failed in his duty to “perform his ‘neutral and detached’
function and not serve merely as a rubber stamp for the police,” Leon, 468
U.S. at 923, 914; or (2) the officer submitted an affidavit “so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.”
Koerth, 312 F.3d at 868. Butler does not claim that the magistrate abandoned her judicial
role or otherwise acted as a rubber stamp. Rather, Butler claims that the affidavit was
so lacking in indicia of probable cause that the officers acted unreasonably in relying on
the warrant’s existence. There are two ways to prove such unreasonable reliance. A
defendant may show either that
(1) courts have clearly held that a materially similar affidavit previously
failed to establish probable cause under facts that were indistinguishable
from those presented in the case at hand, or (2) the affidavit is so plainly
deficient that any reasonably well‐trained officer “would have known that
his affidavit failed to establish probable cause and that he should not have
applied for the warrant.”
Koerth, 312 F.3d at 869.
In this case, Butler claims that he has satisfied both tests. First, Butler claims that
this court in Koerth held that a materially similar affidavit failed to establish probable
cause and thus the officers could not rely on the search warrant obtained in this case.
Contrary to Butler’s argument, Koerth did not involve a materially similar affidavit.
Rather, the affidavit found deficient in Koerth merely stated that the informant was
“believed to be a reliable source.” Conversely, the affidavit in this case stated: “The c/s
No. 07-2526 Page 5
providing information in this investigation has proven himself credible in that he has
provided other information involving felony activity which has been validated by law
enforcement reports, previous investigation, and other confidential information we
have received. That his information has lead to the conclusion of active investigations.”
Thus, whereas in the Koerth case, the affidavit conclusorily stated that the affiant
“believed” the source to be reliable, in this case the sworn testimony was that the source
had “proven” himself credible. The affidavit in this case then provided a factual basis
for the affiant’s statement that the informant had proven himself credible, noting that
the informant “has provided other information involving felony activity which has been
validated by law enforcement reports, previous investigation, and other confidential
information. . . .” The affidavit in this case thus included an explanation for why the
source was not just “believed” to be reliable, but was, in fact, proven reliable. This
difference distinguishes the affidavit in this case from the one in Koerth. Accordingly,
because Koerth is distinguishable, it cannot serve to overcome the presumption of good
faith.
Butler also claims that the affidavit is so plainly deficient that any reasonably
well‐trained officer would know that it failed to establish probable cause. In support of
his position, Butler highlights all the deficiencies in the affidavit, as noted by the district
court in finding the affidavit insufficient to support probable cause. For instance, Butler
notes that the source was confidential, did not appear before the magistrate, and did not
implicate himself in criminal conduct. While those circumstances were absent, as noted
above, the source had proven himself reliable based on information provided to the
government in other felony investigations. This additional circumstance negates a
conclusion that the affidavit’s reliance on the source was plainly deficient.
Butler also claims that the affidavit was deficient because it did not explain how
the source recognized the rifle as the one stolen and did not state when the source had
last seen the gun present in Butler’s house. Those are defects in the affidavit, but
neither is so significant to render the warrant plainly deficient. While the affidavit did
not explain how the source recognized the rifle as the one stolen from Dehart, the
affidavit did not merely state that the source saw a .22 rifle at Butler’s, but clearly stated
that the source indicated that Dehart’s stolen rifle was located at Butler’s house.
Moreover, while the affidavit did not state when the source had last seen the rifle at
Butler’s, at most it was seen within the last month or so, because the weapon was stolen
on January 1, 2004. The source provided information to the government sometime
within three days of the filing of the affidavit on February 10. The affidavit also
No. 07-2526 Page 6
explained that the source had seen Dehart’s rifle at Butler’s previous house and that
Butler had moved the rifle to his new house. This added statement indicates that the
source had a relationship with Butler that allowed him or her fairly regular access to
Butler’s house, and, more significantly, that Butler would likely still have possession of
the gun because if he moved it to his new house, he likely intended to keep the gun.
The additional statements in the affidavit that the government had information that
Butler kept a large number of guns and used an armed look‐out during drug operations
also support the conclusion that the rifle was still at Butler’s house. Furthermore, guns,
unlike small quantities of drugs, are likely to remain in the same location for a longer
time period. See United States v. Harju, 466 F.3d 602, 608 (7th Cir. 2006) (holding that
officers relied on the warrant in good faith where three weeks had elapsed between the
time the informant saw the guns and the issuance of the warrant). Thus, the fact that
the affidavit did not state when the source had last seen the rifle in Butler’s residence
does not render the warrant plainly deficient.
In sum, none of the deficiencies Butler points to in the affidavit is so severe as to
put a reasonably well‐trained officer on notice that the warrant was invalid. See Koerth,
312 F.3d at 872 (holding that officers did not act unreasonably in relying on search
warrant). Thus, Butler cannot overcome the presumption of good faith that arose
because Sheriff Petty applied to a judge for a search warrant—a presumption which is
further reinforced by the government’s return to a judge to obtain a second warrant to
continue the search after discovering the drugs. Accordingly, the evidence obtained
during the first search of Butler’s home was admissible. Because the evidence obtained
during the officers’ initial search was admissible under the good faith exception, the
second warrant, which relied on the meth evidence discovered during the initial search,
was also valid. Accordingly, all of the evidence seized during both searches was
admissible and the district court properly denied Butler’s motion to suppress and we
AFFIRM.