United States v. Hicks

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-2184

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

C HRISTOPHER D ARON H ICKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 CR 56—J.P. Stadtmueller, Judge.

A RGUED N OVEMBER 30, 2010—D ECIDED M AY 27, 2011

Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. This successive appeal picks up
where we left off in United States v. Hicks, 539 F.3d 566, 571-
72 & n.1 (7th Cir. 2008) (Hicks I). Did Milwaukee Police
Detective Donald Brown base his threat to obtain a
search warrant on “a legitimate belief” that police could
obtain a warrant, or was it a pretextual threat potentially
rendering the subsequent consent involuntary? In Hicks I,
we instructed the district court to determine the factual
2 No. 09-2184

basis supporting Detective Brown’s statement to Samella
Smith—who initially resisted consenting to her home’s
search—that if she did not consent police would simply
obtain a warrant. Id. at 572. Once the court answered
that question, it was to reassess the totality of the cir-
cumstances to determine the voluntariness of Smith’s
consent. Id. at 572 n.1.
Hicks I focused on appellant Christopher Hicks’s
arrest and the subsequent search of Smith’s residence in
which police found the weapons that formed the basis
of Hicks’s federal criminal charges. Id. at 567-68. Hicks
entered a plea agreement that reserved the right to
appeal the denial of his motion to suppress the weap-
ons. Id. at 567. Because this appeal turns on whether
the police had a reasonable factual basis to support prob-
able cause for a warrant to search Smith’s residence,
we will examine what the police knew when Detec-
tive Brown told Smith that police could get a warrant.
Specifically, we will focus on what Milwaukee Police
Detective Wayne Armon knew because it was his state-
ment to Detective Brown that he had “enough” evidence
for a warrant that supported Brown’s “legitimate be-
lief.” As we noted in Hicks I, we do not question that
Detective Brown genuinely believed that absent Smith’s
consent the police could get a warrant. Id. at 571. Yet
because Detective Brown based his belief on Detective
Armon’s statement that he could get a warrant, we must
examine the factual basis for Armon’s belief that the
police could get a warrant. If Detective Armon had a
reasonable factual basis to support his belief that police
had enough for a warrant, then Detective Brown’s state-
No. 09-2184 3

ment to Smith about the potential of a search warrant was
an accurate assessment of Smith’s options and not a
pretextual assertion. On the other hand, if Armon lacked
a factual basis then his statement to Brown about the
availability of a warrant would render Brown’s state-
ment a pretextual threat that could render Smith’s
consent involuntary. As we explained in Hicks I, this
analysis prevents police from skirting the voluntariness
requirement of consent searches by compartmentalizing
information. Id. at 572. If all the officer on the scene
needed to support a claim that police could get a
warrant were assurances from the lead investigating
officer that he had “enough” for a warrant, the investi-
gating officer’s factual basis for probable cause would not
matter as long as the arresting officer genuinely be-
lieved the investigating officer. We thwart this latent
“cat’s-paw-like circumvention of the rule” by deter-
mining “whether there was a reasonable factual basis
on which to conclude there was probable cause.” Id.
At a December 18, 2008, evidentiary hearing on remand,
Detective Armon testified about what he knew, how he
knew it, and when he knew it. On April 24, 2009,
the district court adopted a magistrate judge’s recom-
mendation that the threat to get a warrant was not
pretextual and that Smith’s consent was otherwise vol-
untary. United States v. Hicks, No. 07-CR-56, 2009 WL
1110397 (E.D. Wis. Apr. 24, 2009). Hicks is still not con-
vinced that Smith’s consent was voluntary and in this
second appeal continues to assert that the results of
the search should be suppressed. We will outline the
district court’s findings as to Detective Armon’s factual
4 No. 09-2184

basis and then review the trial court’s finding that
Armon had a reasonable factual basis to support his
belief that he could get a warrant. (The government does
not contend that Hicks lacks standing to challenge this
search. As noted in Hicks I, he lived with Smith and four
children at the searched residence. Id. at 567-68.)

I. Factual Background
On appeal, Hicks does not raise any challenges to the
district court’s factual findings; his contention is that the
district court erred in its bottom-line conclusion that
Detective Armon’s belief that he had probable cause was
reasonable. Thus, we rely on the facts as found by the
district court, which, unless noted otherwise, were derived
from Detective Armon’s testimony at the December 18,
2008, evidentiary hearing. See United States v. Taylor, 596
F.3d 373, 375 (7th Cir.) (relying on the district court’s
findings of fact because the defendant did not challenge
them on appeal), cert. denied, 130 S. Ct. 3485 (2010). The
events triggering Detective Armon’s investigation began
after a Milwaukee jury on October 11, 2006, found Gary
Anderson guilty of murdering Sidney Smith.1 Detective
Armon testified that he learned that during the trial
Anderson supporters exchanged words, looks, and threats
with Smith supporters. After the verdict about fifteen to
twenty of Smith’s family members and friends left

1
The record does not indicate whether Sidney Smith was of
any relation to Hicks’s girlfriend Samella Smith.
No. 09-2184 5

the courthouse and congregated on the porch of the
Randall family’s Milwaukee home. A few houses away,
supporters of Anderson gathered and moved in the
direction of the Randall home. Verbal exchanges escalated
into a neighborhood brawl. A few minutes later, an unseen
assailant (or assailants) shot at the Smith supporters
multiple times, striking Kimberly Dudley (a Smith sup-
porter) three or four times resulting in her hospitaliza-
tion. Detective Armon testified that the high number of
9-millimeter shell casings recovered at the scene and
witnesses’ statements that they heard shots fired in
rapid succession prompted police to believe that a
9-millimeter semiautomatic handgun with an extended
clip was used in the shooting. Police compiled a list of
suspects that included Brandon and Kelsey Williams,
Marcus Finch, Jerrell Starks, a man named Colby, Jermaine
Stevens, and Christopher Hicks. Police arrested Kelsey
Williams on the day of and at the scene of the shooting
but Kelsey denied knowing anything about the incident.
At some point, the police arrested Finch. He told Detec-
tive Armon that after the verdict, he went with a group
of people to Brandon’s home, where he saw a person
known as C-Dub leave after Brandon told C-Dub to “get
the chopper.” Detective Armon testified that he under-
stood the term “chopper” to be a street term for a “semiau-
tomatic weapon.” Detective Armon later determined that
C-Dub’s real name was Christopher Hicks. Finch told
Detective Armon that he, Brandon and Kelsey Williams,
and Colby, left Brandon’s home (about a half a block
from the Randall home) and walked to the scene of the
shooting, arming themselves with weapons en route.
6 No. 09-2184

Finch told Armon that during the above-mentioned
brawl he saw Hicks and an unidentified person drive
onto the block in Hicks’s vehicle and park. Detec-
tive Armon testified that Brandon later confirmed to
police that he told Hicks to “get the chopper” and that he
had seen Hicks with a 9-millimeter handgun. But
Brandon did not tell Detective Armon precisely when
he saw Hicks with “the chopper.”
Detective Armon also talked to Frankie Randall, whose
aunt owned the home where the Dudley shooting oc-
curred. Randall told him that he saw Kelsey and Brandon
Williams, Jerrell Starks, Colby, and Marcus Finch ap-
proach the house before the shooting. Randall remem-
bered seeing a car he believed belonged to Hicks. After
the shooting, Randall told Detective Armon that he
talked to people in the neighborhood who said that
Hicks and a man known as Nephew (later determined
by police to be Jermaine Stevens) were the shooters.
Randall told police that he and a friend at one point
attempted to purchase a 9-millimeter with an extended
clip from Stevens. Detective Armon testified that
Randall told him that Hicks, Stevens, and a third
person (later determined to be in prison at the time of the
shooting) were “always together in the neighborhood.”
Randall told Detective Armon that whenever there’s
“drama or something about to happen, one of the three
would have that gun with the extended clip.” Detective
Armon testified that he believed that a 9-millimeter
semiautomatic handgun with an extended clip was at
the residence of either Hicks, Stevens, or Hicks’s parents
based on information from Randall, Finch, and three
No. 09-2184 7

others in the neighborhood who “saw these people on
a daily, daily basis.”
Detective Armon testified that he ruled out Hicks’s
parents’ house as “the chopper’s” location based on
information he gathered in December from a confidential
informant (CI) who knew the real names of C-Dub (Hicks)
and Nephew (Stevens) and claimed to be close to them.
The CI’s claim that Hicks and Stevens jointly possessed
“the chopper” was corroborated by Brandon Williams
(who saw Hicks with the firearm at an unidentified time)
and Randall (who said he tried to buy “the chopper” from
Stevens). The CI directed police to Hicks’s and Stevens’s
residences and told police that the gun they were
looking for was at one of those two locations. Detective
Armon testified that the CI’s knowledge of Hicks’s and
Stevens’s residences was further corroborated after police
performed surveillance on the homes and visually con-
firmed that Hicks and Stevens lived at these respective
residences.
Based on this information, Detective Armon testified
that he decided to arrest Hicks and Stevens. Detective
Armon decided not to get search warrants because he
believed that he:
. . . had enough information, based upon the
interviews of the co-conspirators, people that we
had talked to in the neighborhood, if you want to
use the term “informants,” and the fact, the last
fact of one of the people that we had talked to
had actually been in their houses and saw guns.
8 No. 09-2184

So I believed that we had enough to get a warrant
quickly. And [Assistant District] Attorney [Jeffrey]
Griepp, he said “If you have any problem or you
think you need a warrant, call me.”
Detective Armon testified that he did not want to get
a search warrant because “of the timeframe that we were
working with” and his desire to prevent the disclosure
of his sources. Detective Armon testified that his aim
was to “arrest Mr. Hicks and see if we can get the gun, if
he had it.” Detective Armon believed that both Hicks
and Stevens would answer their doors when police
knocked:
. . . [b]ecause I believe they didn’t know they had
become the target of the investigation. I had never
talked to them, I had never approached them.
I just didn’t think that they thought that we
would be interested in them.
***
That was my belief. Knock on the door, identify
yourself as police, can I come in and talk to you,
I believed they would say yeah.
Detective Armon orchestrated the December 24, 2006,
arrests. He walked up to Stevens’s door and performed
surveillance on Hicks’s residence to get “the necessary
information so that we could provide it to Mr. Griepp
for the description of the place to be searched if need be.”
On Christmas Eve, Detective Armon directed a tactical
squad to Stevens’s residence and Detective Brown
directed a squad to Hicks’s residence. Detective Armon
No. 09-2184 9

told Detective Brown that they were looking for
guns—and in particular “the chopper.” Armon told
Brown to let him know if Hicks did not open the door
and he would contact Assistant District Attorney
“Griepp and we’d apply for a search warrant.”
We know the rest of the story from Hicks I. Police
knocked and Hicks answered the door. 539 F.3d at 568.
Police immediately handcuffed and arrested him on two
outstanding municipal warrants and for his alleged
participation in the Dudley shooting. Id. at 567-68. Police
found Hicks’s girlfriend Samella Smith and her children
during a protective sweep of the home. Police detained
Smith and her children in the living/dining room. Id. at
568. After police removed Hicks from the residence,
Detective Brown asked Smith for consent to search her
home. Id. Smith told Detective Brown to get a warrant.
Id. Detective Brown told Smith the police could get a
warrant, but that they thought firearms were in the
home, implying that her children were in danger. Id.
Detective Brown also told Smith that it was Christmas
Eve and that if she cooperated the police would not
destroy her home during the inevitable search. Id. After
a few minutes of conversation, Smith told Detective
Brown “go ahead.” Id. But Smith refused to sign Detec-
tive Brown’s memo book indicating her consent to the
search. Id. Detective Brown testified that he did not
know the full extent of Detective Armon’s investigation,
but that he knew Armon concluded that he had enough
evidence for a warrant if Smith refused to consent to the
search. Id. at 567. (As noted in Hicks I, Armon had in-
10 No. 09-2184

structed Brown to get consent to search and that there
was enough to get a search warrant, if necessary. Id.)
In the home’s bedroom, police found a loaded Smith
and Wesson .40-caliber semiautomatic handgun and a
loaded sawed-off Mossberg 12-gauge shotgun with a
pistol grip. These weapons became the basis of the gov-
ernment’s prosecution against Hicks.
By the way, during the essentially simultaneous encoun-
ter at the Stevens residence, Stevens did not open the
door when police knocked. But before police arrested
him, members of Detective Armon’s squad (which had
secured the home’s perimeter) saw Stevens toss what
turned out to be a black 9-millimeter semiautomatic
handgun with an extended clip, apparently “the chopper,”
from a window. There is no indication in the record
that “the chopper” was recovered before Detective Brown
told Samella Smith that a warrant could be obtained.

II. Analysis
Hicks argues that Detective Brown’s claim to Smith
that police could get a warrant if she did not consent to
a search was unfounded and served as an improper
pretext to gain her consent to the warrantless search of
her residence. Our review is confined to the narrow
question of whether Detective Armon had a reasonable
factual basis to support his belief that police could get a
warrant to search Smith’s residence. Detective Brown’s
statement to Smith that police could get a warrant was
based on Detective Armon’s stated belief that the police
No. 09-2184 11

had “enough” for a warrant. Whether Detective Armon’s
statement to Detective Brown about the availability of
a warrant was genuine or pretextual rests on whether
Detective Armon had a reasonable factual basis to
support probable cause. If Detective Armon lacked a
reasonable factual basis for probable cause, then Detec-
tive Brown’s expressed intention to obtain a warrant
“was necessarily a baseless/pretextual threat that may
render Smith’s consent involuntary.” Hicks I, 539 F.3d
at 572.
Warrantless searches such as the one performed at
Smith’s residence are permissible if police receive volun-
tary consent. United States v. White, 979 F.2d 539, 542 (7th
Cir. 1992) (citing Illinois v. Rodriguez, 497 U.S. 177, 181
(1990); Schneckloth v. Bustamonte, 412 U.S. 218 (1973)).
Whether a person consents “voluntarily depends on ‘the
totality of all the circumstances.’ ” Id. (quoting Schneckloth,
412 U.S. at 227). “The government bears the burden of
showing voluntariness by a preponderance of the evi-
dence.” Id. (citing Schneckloth, 412 U.S. at 222). We will not
reverse the district court’s finding that Smith consented
voluntarily unless that finding is clearly erroneous.
Id. (citations omitted).
A baseless threat “to obtain a search warrant may render
consent to search involuntary.” Hicks I, 539 F.3d at 571
(quoting White, 979 F.2d at 542). Yet when the officer’s
“expressed intention to obtain a warrant is genuine, . . .
and not merely a pretext to induce submission, it does not
vitiate consent to search.” Id. (quoting White, 979 F.2d at
542); United States v. Talkington, 843 F.2d 1041, 1047-49 (7th
12 No. 09-2184

Cir. 1988) (finding consent invalid partly because police
falsely claimed that they were in the process of applying
for a search warrant). To determine whether the warrant
statement was baseless or not, we should determine
whether the police had probable cause, United States v.
Evans, 27 F.3d 1219, 1231 (7th Cir. 1994) (holding
that because the police “could have obtained a search
warrant” their expression of an intent to do so did not
vitiate the consent); United States v. Duran, 957 F.2d 499,
502 (7th Cir. 1992) (holding that an admission that her
husband dealt marijuana provided police with probable
cause for a search warrant for the residence), or simply “a
reasonable factual basis to believe there was probable
cause” to the extent that the statement about the avail-
ability of a warrant was not a baseless or pretextual
threat, Hicks I, 539 F.3d at 571; see also United States v.
Jones, 614 F.3d 423, 426-27 (7th Cir. 2010) (holding that the
“facts were sufficient for the officers to possess a rea-
sonable factual basis to believe that there was sufficient
probable cause to obtain a warrant”); White, 979 F.2d at
542 & n.1 (finding no evidence that the police tried to
coerce consent with an empty threat and that the
police obtained a search warrant for another search of
the residence the following day).
To inform our discussion of whether Detective Armon
had a reasonable factual basis to support probable cause,
we should briefly discuss the legal standards governing
probable cause findings. Probable cause exists when
“known facts and circumstances” allow a reasonable
belief that a search will turn up evidence of criminal
activity. United States v. Brack, 188 F.3d 748, 755 (7th Cir.
No. 09-2184 13

1999) (quoting Ornelas v. United States, 517 U.S. 690, 696
(1996)). Probable cause requires “only a probability or
substantial chance of criminal activity, not an actual
showing of such activity.” Id. (quoting Illinois v. Gates, 462
U.S. 213, 243 n. 13 (1983)). As the term implies, probable
cause addresses probabilities. Brinegar v. United States, 338
U.S. 160, 175 (1949). Mere suspicion does not suffice to
establish probable cause. Id. An issuing magistrate’s task
“is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the
affidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Gates, 462
U.S. at 238. Magistrates are entitled “to draw reasonable
inferences concerning where the evidence referred to in
the affidavit is likely to be kept, taking into account the
nature of the evidence and the offense.” United States v.
Singleton, 125 F.3d 1097, 1102 (7th Cir. 1997) (citation
omitted). The magistrate considers all the factors sup-
porting the reliability of the information, including its
age and the nature of the officer’s experience. See
United States v. Elst, 579 F.3d 740, 746 (7th Cir. 2009);
United States v. Lamon, 930 F.2d 1183, 1188-89 (7th Cir.
1991); United States v. Batchelder, 824 F.2d 563, 564 (7th
Cir. 1987). When an informant’s tip supports a probable
cause affidavit, we consider multiple factors in deter-
mining whether the totality of the circumstances sup-
port probable cause, including “(1) the extent to which
the police have corroborated the informant’s statements;
(2) the degree to which the informant has acquired knowl-
14 No. 09-2184

edge 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) (citations omitted). “[N]o
single piece of information need satisfy every relevant
consideration before we may consider it.” United States
v. Wiley, 475 F.3d 908, 915 (7th Cir. 2007). Probable cause
determinations are not technical; rather, “they are the
factual and practical considerations of everyday life
on which reasonable and prudent men, not legal techni-
cians, act.” Brinegar, 338 U.S. at 175. Thus, because re-
viewing courts will not invalidate warrants “by
hypertechnical rather than commonsense interpretation”
of detailed affidavits found sufficient for probable
cause, United States v. Buonomo, 441 F.2d 922, 929 (7th
Cir. 1971) (citation omitted), we will not impose
hypertechnical requirements on the reasonableness
of Detective Armon’s rather detailed factual basis for
probable cause.
Yet it bears emphasizing that we do not analyze this
case as a hypothetical judicial officer issuing a warrant
because the ultimate question is the genuineness of the
stated intent to get a warrant as determined by the
factual basis’s reasonableness. Hicks I, 539 F.3d at 572
(“The way to thwart this potential cat’s-paw-like cir-
cumvention of the rule is to determine whether there
was a reasonable factual basis on which to conclude
there was probable cause.”).
As an aside, our analysis of whether Detective Armon
had a reasonable factual basis for probable cause parallels
No. 09-2184 15

the exclusionary rule’s good-faith exception. Although a
warrant was never issued or sought in this case, our
analysis reflects aspects of the Leon good-faith exception:
even if probable cause is lacking, evidence seized under a
defective warrant may nonetheless be admissible if the
police acted in good faith. See United States v. Pappas, 592
F.3d 799, 801-04 (7th Cir.) (citing United States v. Leon, 468
U.S. 897, 922-23 (1984)), cert. denied, 131 S. Ct. 594 (2010).
Pursuant to Leon’s articulation of the good-faith exception,
we still must examine the veracity and sufficiency of
Detective Armon’s factual basis establishing probable
cause. 468 U.S. at 914-15. If Detective Armon relied on a
factual basis “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreason-
able,” Armon would not receive the benefit of the good-
faith exception because if he incorporated a deficient
factual basis into a probable cause affidavit, Leon would
not allow him to presume the warrant’s validity. Id. at
923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11
(1975) (Powell, J., concurring in part)).
Hicks first attacks the district court’s finding that Detec-
tive Armon had a reasonable factual basis for probable
cause by arguing that Armon’s information was hopelessly
stale. Hicks argues that because the evidence of the chop-
per’s location was based upon a CI’s tip, the absence of
a “temporal guidepost” counsels “against a finding of
probable cause.” United States v. Harris, 464 F.3d 733, 739
(7th Cir. 2006). In Harris, all an affidavit said was “that at
some unspecified time the CI allegedly visited the home
and observed crack for sale, and at some unspecified
time thereafter the CI reported this information to” police.
16 No. 09-2184

Id.; see also United States v. Hython, 443 F.3d 480, 486 (6th
Cir. 2006) (holding that the lack of a “temporal reference
point” explaining when a “single controlled buy took
place” was alone sufficient to render a warrant invalid).
We agree that the lack of temporal guideposts as to when
the police’s sources saw Hicks with “the chopper” is
troubling. Yet we also noted in Harris that “[p]assage of
time is less critical when the affidavit refers to facts
that indicate ongoing criminal activity.” 464 F.3d at 739
(quoting United States v. Spry, 190 F.3d 829, 836 (7th Cir.
1999)). Detective Armon’s sources indicated that Hicks
and Stevens were known to share “the chopper” on an
ongoing basis. Armon knew according to Randall that
when there’s “drama or something about to happen,”
Hicks or Stevens “would have that gun with the
extended clip.” This is not direct evidence of criminal
activity but it does indicate ongoing activity and therefore
assuages our concern for the absence of temporal guide-
posts. The nature of the information from Detective
Armon’s sources suggests that Armon or the sources
may not have believed that matters of timing were rele-
vant. Detective Armon testified that the CI told him
that “the gun was either at Hicks’s house or Stevens’s
house” not sometime in the past but at the time the
CI talked to Armon. Armon also testified that the CI
told him that:
Yes, they did tell me that they had seen him with
the gun. What they said was if he did not have it,
Mr. Stevens would have it. The gun was passing
between the two of them I believe.
No. 09-2184 17

Detective Armon testified that the information from
Brandon Williams suggested to him that Hicks and
Stevens actively and continuously made use of “the
chopper” at that present time:
If you’re asking me when he saw it, that was
information that he was giving me because they
knew each other. They all had guns and that was
one of the guns that they shared was a 9-millimeter
with an extended clip.
This information caused Detective Armon to believe
that arresting Hicks and Stevens at their residences at
the same time could lead to the discovery of “the chop-
per.” For Detective Armon to have a sufficient factual basis
to support probable cause he did not have to know for
sure that the weapon was at either residence; Armon’s
evidence had to create a “substantial chance” or “only a
probability” that he would find the weapon. Brack, 188
F.3d at 755. Detective Armon’s information that Hicks
and Stevens kept this weapon with them on a regular
basis makes up for the absence of temporal guideposts.
See Wiley, 475 F.3d at 915 (“Credibility of informants,
nexus to the searched premises and to illegal activity,
and the age of the information are all relevant consider-
ations in this inquiry, but no single piece of informa-
tion need satisfy every relevant consideration before we
may consider it.”). The district court also noted that the
information from Detective Armon’s CI was corroborated
by Brandon Williams’s statements about Hicks’s prior
possession of “the chopper,” Randall’s information that
he attempted to purchase “the chopper” from Stevens, the
18 No. 09-2184

CI’s knowledge of Hicks’s and Stevens’s street and
real names, and the CI’s ability to direct police to their
respective residences. And although the district court did
not explicitly rely on Detective Armon’s police experi-
ence, at the time of the evidentiary hearing, Armon was
in his 25th year with the Milwaukee Police Department
and had been a detective since the early 1990s. Ex-
perienced officers may “draw reasonable inferences from
the facts based on their training and experience.” Elst,
579 F.3d at 746; see also Lamon, 930 F.2d at 1188-89;
Batchelder, 824 F.2d at 564. A magistrate reviewing Detec-
tive Armon’s factual basis for probable cause would have
been entitled to rely on Armon’s experience and any
reasonable inferences drawn from that experience.
Hicks next argues that nothing inherent about guns
supports an inference of continuing possession because
guns are by their nature easily transferrable. See United
States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (noting
that the “[p]assage of time could affect reasonableness”
for Fourth Amendment purposes, “especially for search
warrants that authorize the police to hunt for items that
are portable (or consumable)”). Hicks charges that pre-
suming that the suspect’s alleged gun possession contin-
ued for months would amount to armchair empiricism,
citing United States v. Chambers, 473 F.3d 724, 726
(7th Cir. 2007) (“But it is an embarrassment to the
law when judges base decisions of consequence on con-
jectures . . . .”), rev’d, 555 U.S. 122 (2009).
The conclusion that Hicks (or Stevens) kept the
weapon is not mere conjecture or armchair empiricism.
No. 09-2184 19

Multiple sources supported Detective Armon’s basis
for believing either Hicks or Stevens kept the weapon as
a sort of modus operandi. Although handguns are quite
mobile, markets exist for their sale, and they could be
disposed of, Detective Armon had a sufficient factual
basis for believing that Hicks and Stevens were
associated with this particular weapon, perhaps even
infamously. And we have recognized that, depending on
the circumstances, evidence of the sighting of a gun (or
related items) does not automatically grow stale as time
passes. See United States v. Harju, 466 F.3d 602, 608 (7th
Cir. 2006) (holding that even though three weeks
passed between the gun’s sighting by a CI and the war-
rant’s execution, reliance on the CI was not under-
mined because unlike a small amount of drugs or cash,
“the gun was not likely to have been sold (or con-
sumed) during that period”); United States v. Collins, 61
F.3d 1379, 1384 (7th Cir. 1995) (holding that six-week-old
information updated information from the previous year
that the defendant possessed a firearm making it “not
unreasonable for the magistrate to conclude there was
a fair probability that firearms would be found”); United
States v. Singer, 943 F.2d 758, 763 & n.7 (7th Cir. 1991)
(holding that an anonymous report alleging that the
defendant possessed handguns about six months before
the police investigated was not stale for purposes of
establishing special circumstances to justify a no-knock
entry because “firearms, unlike drugs, are durable
goods useful to their owners for long periods of time”);
Batchelder, 824 F.2d at 564-65 (holding that probable
cause existed partially based on nine-month-old infor-
20 No. 09-2184

mation that the defendant purchased illegal silencer
parts for a pistol). Other courts have concluded similarly.
United States v. Maxim, 55 F.3d 394, 397-98 (8th Cir.
1995) (holding that three-year-old information, combined
with four-month-old information that the defendant
continued to possess weapons as an ongoing offense,
provided sufficient probable cause when an agent
testified that based on his professional experience sur-
vivalists kept their weapons for a long time and the
suspected criminal activity was the continuing offense of
possession); United States v. Laury, 985 F.2d 1293, 1314
(5th Cir. 1993) (holding that an affidavit from an agent,
that based on his training and experience individuals
who robbed banks tended to keep the instruments of
their robberies in their possession “for long periods of
time, up to and including . . . several years,” prevented
two-month-old information from becoming stale); United
States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (holding
that the passage of about three months did not
invalidate a warrant seeking a pistol used in a bank
robbery).
Hicks argues that other factors supported the finding
in Singer that the defendant would likely possess a gun
and the question was not whether probable cause
existed but whether special circumstances justified a no-
knock entry. Hicks also notes that the defendant in
Maxim was a survivalist. But here we also have other
factors supporting Detective Armon’s belief that either
Hicks or Stevens maintained possession of “the chopper.”
These additional factors support a reasonable basis sup-
porting probable cause, not merely special circumstances
No. 09-2184 21

justifying a no-knock entry. Some of Detective Armon’s
information was dated by a few months but in the
month of the search, he received information from the
CI that “the chopper” would be at either the residence
of Hicks or Stevens. Although we do not know when
Detective Armon’s sources saw Hicks and Stevens with
the gun, and Hicks may not fit the profile of a survivalist,
Armon’s sources said that they knew Hicks and Stevens
generally carried and kept “the chopper” not at particular
times but on an ongoing basis. Brandon Williams
and Finch tied Hicks to “the chopper” on the day of
the shooting. Williams told police that at an unknown
date he saw Hicks with a 9-millimeter handgun. Finch
saw Hicks in a car near the shooting scene (and
Randall saw what he believed was Hicks’s car)
where police found more than an average clip’s worth
of spent 9-millimeter shell casings that witnesses said
were fired in a manner suggesting a semiautomatic or
automatic weapon. Randall told police that he heard
that Hicks and Stevens were the shooters. “The chopper”
was not generically or inconsistently described. The
9-millimeter semiautomatic handgun with an extended
clip was a particular weapon known in the neighbor-
hood. The weapon’s extended clip would give “the chop-
per” a distinctive appearance and functionality fitting
Detective Armon’s theory that the high number of
9-millimeter shell casings combined with witnesses
hearing shots fired in rapid succession meant that the
assailant used a firearm that allowed him to rapidly
squeeze off a high number of shots.
Hicks asks us to consider the holding in United States
v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979) that
22 No. 09-2184

common sense says “that it is unlikely that a murderer
would hide in his own home a gun used to shoot some-
one.” Yet Charest recognized “that time is relative and
must be measured by the circumstances of each case.” Id.
at 1018 (citing Sgro v. United States, 287 U.S. 206, 210-11
(1932)). The circumstances in this case suggest that Detec-
tive Armon had a reasonable factual basis to believe
that Hicks and Stevens kept “the chopper” with them
even after the police suspected its use in the Dudley
shooting. Armon testified that Brandon Williams said
that Hicks and Stevens shared “the chopper.” Armon
testified that Randall said that when there’s “drama
or something about to happen,” Hicks or Stevens (and
a third person determined to be in prison) “would have
that gun with the extended clip.” Detective Armon
testified that the CI told him that the weapon was “proba-
bly at Nephew’s house or C-Dub’s house, one of the
two.” And Detective Armon believed that neither Hicks
nor Stevens suspected that police considered them tar-
gets. Thus, the common sense in Charest does not
readily apply to Armon’s factual basis because if neither
suspect thought they were targets they would have
no particular incentive to dispose of “the chopper,” and
Armon gathered information from several sources in-
dicating that Hicks maintained shared possession of
the weapon.
Although the district court only mentioned it in
passing, we note that the magistrate judge appropriately
credited Detective Armon with taking actual steps to
get a search warrant such as going to the front stoops
or entryways of Hicks’s and Stevens’s residences to
No. 09-2184 23

gather “the necessary information so that we could
provide it to [Assistant District Attorney] Mr. Griepp for
the description of the place to be searched if need be.”
Detective Armon also briefed Assistant District Attorney
Griepp, who told Armon, “if you have any problem or
you think you need a warrant, call me.” Detective Armon
had Assistant District Attorney Griepp’s cell phone
number on hand so he could call him at his home. Detec-
tive Armon testified that he did not pursue a warrant
“[b]ecause of the timeframe that we were working
with” and his desire to prevent the disclosure of confiden-
tial sources. These explanations provide sufficient reason
for Detective Armon to try to perform the search without
a warrant. That Detective Armon took steps to get a
warrant, briefed the district attorney, and had sufficient
reason to try to perform the search without a warrant
are factors that bolster the district court’s finding that
Armon’s instructions to Detective Brown to contact him
if he needed a warrant were in fact genuine and not a
pretextual ruse potentially vitiating Smith’s consent.
See White, 979 F.2d at 542 (holding that if “the expressed
intention to obtain a warrant is genuine, however, and
not merely a pretext to induce submission, it does not
vitiate consent”).
We hold that the district court did not clearly err in
finding that Detective Armon had a reasonable factual
basis to conclude that he had probable cause for a
search warrant. We do not address whether in fact there
was probable cause but we are satisfied that Detec-
tive Armon had a reasonable factual basis for probable
cause and took actions consistent with the mindset of
24 No. 09-2184

someone who believed he could, if necessary, get a
search warrant. Thus, consistent with Hicks I, 539 F.3d at
571, we also hold that the district court did not clearly
err in finding that Smith “freely” consented to the
search of her home.

III. Conclusion
We A FFIRM the judgment of the district court.

5-27-11