NONPRECEDENTIAL DISPOSITION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 November 30, 2017
Decided December 27, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN Z. LEE, District Judge*
No. 16‐3919
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 2:16‐cr‐20002
KEVIN PETTIS, Colin S. Bruce, Judge.
Defendant‐Appellant.
O R D E R
Kevin Pettis was convicted of being a felon in possession of a firearm. He appeals
the denial of a motion to suppress the gun which police discovered in his apartment after
obtaining a warrant. We conclude that the warrant issued to search the apartment was
based on probable cause, and that, even if it wasn’t, the police relied on the issuance of
the warrant in good faith. Either way, suppression was not appropriate, so we affirm the
judgment below.
* The Honorable John Z. Lee of the United States District Court for the Northern District of Illinois, sitting
by designation.
No. 16‐3919 Page 2
I. Background
In the early morning hours of July 7, 2013, police responded to a call from the
Oakwood Trace apartment complex in Champaign, Illinois. The caller, Shaleke Russell,
told the police that she had been in an argument with Kevin Pettis in the parking lot of
the apartment complex. Russell said that when she pulled out her phone to call the police,
Pettis jumped in his tan Chevy Tahoe and drove away, firing one gunshot out the
window as he left. From Russell’s description of where the shot was fired, the police were
able to discover a single shell casing in that area of the parking lot. Russell also reported
that the Tahoe’s license plate number was P686094, although she said she was unsure
about the final two numbers.
While one officer was meeting with Russell in the parking lot of Oakwood Trace,
another went to Pettis’s last known address, an apartment complex about two miles away
at 407 South State Street. That officer observed a black male in the common grassy area
in the middle of the U‐shaped apartment building. The officer pulled into the complex’s
parking lot and noticed a tan Tahoe bearing Illinois tag P686056, which matched all but
the last two digits of Russell’s report. He felt the hood and noticed it was warm, indicating
that it had just been driven. Then other officers notified him that they had tracked down
Pettis a block away from the apartments. The officer who first located Pettis identified
the man in custody as the same person he had seen in the common area. Pettis, however,
did not have a gun when he was arrested.
Police then contacted the landlord at the South State apartments. The landlord said
that Pettis had moved from apartment #1 to apartment #5 after his first apartment was
damaged in a fire. The police observed that the lights were on in apartment #5, but
nobody answered when they knocked on the door. Given the timing of the events, the
officers believed that Pettis may have had time to enter his apartment in order to store
the gun he had fired in the Oakwood Trace parking lot. So they decided to seek a search
warrant for both the Tahoe and the apartment.
In the morning (only about four hours after the police had been called), officers
brought two affidavits (one each for the Tahoe and the apartment) to the home of a state
judge in order to seek warrants. In relevant part, the affidavits stated that: (1) the police
received a report of a shot fired at Oakwood Trace; (2) Russell told an officer that she saw
Pettis, whom she knew by sight, fire a gun in the air as he drove off in a Chevy Tahoe
with Illinois tag P686056; (3) police found a single shell casing near the spot where Russell
told them the gun had been fired; (4) an officer located Pettis in the common area at the
No. 16‐3919 Page 3
South State apartments minutes later; (5) the landlord confirmed that Pettis currently
leases apartment #5; (6) the Chevy Tahoe was at the apartment complex and was hot to
the touch; and (7) Pettis had the keys to the Tahoe in his possession when he was arrested.
On these representations, the state judge issued the warrants. Police subsequently found
in apartment #5 the gun that is the subject of this appeal.
A grand jury indicted Pettis on the felon‐in‐possession charge. Pettis then moved
to suppress the gun on the ground that the police lacked probable cause to obtain a
warrant. He first submitted an affidavit in which he declared that he no longer lived at
the South State apartments and that apartment #5 was used as storage and open to anyone
who wished to enter. The government then argued that Pettis’s affidavit established that
he lacked a reasonable expectation of privacy in the apartment. In response, he submitted
a second affidavit in which he swore that he was paying rent for the apartment and that
nobody was permitted to enter without his permission. The district court found that the
two affidavits were contradictory and disregarded the second affidavit. As a result, the
court concluded that Pettis lacked a reasonable expectation of privacy in the apartment.
The court further held that even if Pettis had a reasonable expectation of privacy,
probable cause existed for a warrant to search the apartment. Therefore, the court denied
his motion to suppress. A jury then convicted him of the single count and he was
sentenced to ten years’ imprisonment. He appeals the denial of the suppression motion.
II. Discussion
The district court denied Pettis’s motion to suppress on two independent grounds,
but we will assume without deciding that Pettis had a reasonable expectation of privacy
in apartment #5. That’s because even if he did have an expectation of privacy, the warrant
issued to search apartment #5 for the gun Pettis fired in the parking lot at Oakwood Trace
was issued upon probable cause. Moreover, even if probable cause were slightly lacking,
the affidavits supporting the warrants (one each for the Tahoe and the apartment) were
not so deficient that the executing officers could not in good faith rely on the issued
warrants. We take these issues in turn.
While the district court’s judgment on the question of probable cause is not entitled
to deference, we do give “‘great deference’ to the conclusion of the judge who initially
issued the warrant.” United States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (quoting
United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008)). We defer to the state judge’s
decision to issue the warrant so long as “there is ‘substantial evidence in the record’ that
supports [the state judge’s] decision.” United States v. Curry, 538 F.3d 718, 729 (7th Cir.
No. 16‐3919 Page 4
2008) (quoting United States v. Koerth, 312 F.3d 862, 865 (7th Cir. 2002)). That substantial
evidence must support the conclusion that “there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Koerth, 312 F.3d at 866 (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)). The state judge “‘is entitled to draw reasonable
inferences about where evidence is likely to be kept,’ and he ‘need only conclude that it
would be reasonable to seek the evidence in the place indicated in the affidavit.’” Curry,
538 F.3d at 729 (quoting United States v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995)).
Here, the affidavits the police submitted to the state judge included more than
enough evidence for the judge to infer that the gun would be inside either the Chevy
Tahoe or apartment #5. According to the affidavits, Pettis fired the shot at Oakwood Trace
and then was spotted minutes later in the common area at the South State apartments,
with the still‐warm Tahoe in the parking lot. He was then apprehended without the gun
one block from the South State apartment building. Pettis admits there was probable
cause to believe that he fired the gun. From this, a reasonable judge could infer that the
gun (since it was not with Pettis when he was arrested) was probably in either the
apartment or the Tahoe.
That’s true even though there was a small mistake in the affidavits—the police
represented to the state judge that the Tahoe’s true license plate number was the number
Russell had reported, even though she had gotten the final two digits wrong. Like the
district court, we think this seemingly inadvertent error was not “significant enough to
negate a finding of probable cause.” Nor are we troubled by the fact that Pettis was seen
at the South State apartments just a few minutes after the shot was fired, even though
Google maps indicates that it normally takes seven minutes to drive between the two
apartment buildings. As the district court explained, the events in question happened
around three in the morning, so it is certainly plausible that Pettis could have driven from
Oakwood Trace to South State in less than seven minutes. In sum, we agree with the
district court that the state judge had probable cause to issue the warrant to search the
apartment.
Even if we were to doubt the state judge’s probable‐cause finding, the good‐faith
exception to the exclusionary rule would save the evidence in this case. United States v.
Leon, 468 U.S. 897, 920–23 (1984). Under the exception, we presume that the executing
officers relied in good faith on the state judge’s decision to issue a warrant. The defendant
may overcome this presumption by showing that (1) the issuing judge was misled by
information in the warrant application that the warrant affiant knew to be false or would
have known was false but for his reckless disregard for the truth, (2) the judge wholly
No. 16‐3919 Page 5
abandoned his neutral and detached role in issuing the warrant, or (3) the warrant was
so deficient on its face that the officers executing the warrant could not reasonably
presume the warrant to be valid. Id. at 923. Pettis argues that the affidavits’ inclusion of
an incorrect license plate number and their failure to account for the normal seven‐minute
driving time between the two apartments render them misleading. But as we have
already said, the license plate mistake was trivial (and probably a simple typo), and the
timing of Pettis’s trip could have plausibly been much quicker than seven minutes. So we
agree with the district court that nothing was included in the warrant application that
would have misled the state judge and induced him to issue a warrant that otherwise
shouldn’t have been issued.
Nor can Pettis show a lack of good‐faith reliance based on the other two Leon
prongs. There has been no serious argument that the state judge abandoned his role as a
neutral arbiter when he issued the warrant. Speculation that the judge was acting as a
“rubber stamp” without more is insufficient to overcome the presumption that judges are
neutral decision‐makers. Finally, given that a federal judge has already found that the
warrant was supported by probable cause, we cannot say that it was so deficient on its
face that no officer could presume that it was valid. Even if we are ultimately wrong about
the merits of the probable‐cause finding, a federal judge has upheld it. The police
generally cannot be required to know the law better than federal judges, so in most cases
a well‐reasoned district court opinion supporting the state judge’s probable‐cause
determination will indicate that the executing officers were justified in relying on the
issuance of the warrant. That is the case here. Thus, we conclude that the exclusionary
rule wouldn’t bar admission of the gun even if the warrant lacked probable cause.
III. Conclusion
For the reasons stated above, the district court properly denied Pettis’s motion to
suppress the gun he fired in the air at the Oakwood Trace parking lot.
AFFIRMED