In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3625

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRACY A. CARSON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-cr-022-01—Larry J. McKinney, Judge.

ARGUED MAY 6, 2009—DECIDED OCTOBER 6, 2009

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

WOOD, Circuit Judge. Tracy Carson is a bank robber

who, in April 2007, held up and robbed an Indianapolis

branch of Chase Bank. Following a tip from an

informant and an independent investigation, the police

obtained a search warrant and arrested Carson at a local

hotel. In the face of the damning evidence seized at the

hotel, including more than $100,000 in cash wrapped in
2 No. 08-3625

Chase Bank straps and stamped with information particular to the robbed facility, latex gloves, a firearm, cocaine,

and marijuana, Carson immediately confessed to the

robbery. He was later charged with, and convicted of,

armed bank robbery, in violation of 18 U.S.C. § 2113(a)

& (d), brandishing a firearm, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii), and being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g) & 924(e).

On appeal, Carson’s primary argument is that evidence

critical to his conviction should have been suppressed

because probable cause did not support the issuance of

the search warrant. In the alternative, he asserts that the

affidavit supporting the application for the warrant

contained material false statements. Finally, he argues

that his confession should have been suppressed because

the large quantities of drugs and alcohol that he ingested

prior to his arrest and confession invalidated his waiver

of his Miranda rights. We conclude that the district court

correctly refused to suppress both the evidence and

the confession, and we thus affirm its judgment.

I

At a little after one o’clock in the afternoon of April 25,

2007, a robber, later identified as Carson, entered a

Chase Bank branch at 7001 South Madison Avenue in

Indianapolis. Carson was wearing a mask over his face

and latex gloves on his hands, and was carrying a firearm.

He made away with more than $120,000. Indiana State

Police learned of the robbery later that evening when, at

around 11:15, an informant gave Sergeant Dean Wildauer
No. 08-3625 3

and Detective Ronnie Shoemaker extensive information

about the robbery. The informant’s report included the

following details: a bank robbery had occurred on the

south side of Indianapolis; the robber’s name was Tracy;

Tracy was a white male between the ages of 35 and 38

and was approximately six feet tall; Tracy was at a hotel

that had a swimming pool in the guest room; the room

went for $500 per night; Tracy was accompanied by a

woman named Amanda; he possessed money that the

informant estimated as at least $100,000 (based on the

informant’s observation of Tracy’s counting the money);

Tracy also had a handgun, narcotics, and cocaine; Tracy

and Amanda had been dropped off at the hotel; and the

hotel was located at 21 and Post Streets, on the east

st

side of Indianapolis. While Sergeant Wildauer was

aware that the Sybaris Hotel in Indianapolis had swimming pools in the rooms, he did not know of any such

hotel located at 21 and Post. Sergeant Wildauer asked

st

the informant to check his information, and the

informant promptly confirmed that the hotel was indeed

the Sybaris.

With this information in hand, Sergeant Wildauer

contacted the FBI bank robbery detail and spoke with

Agent Bervin White, who confirmed that a Chase Bank

located at Southport Road and Madison Avenue in Indianapolis had been robbed on April 25, 2007, by a white

male meeting the description Sergeant Wildauer had

been given. Agent White also told Sergeant Wildauer that

the robber was carrying a gun and had stolen approximately $125,000 from the bank. Sergeant Wildauer and

Detective Shoemaker then went to the Sybaris Hotel and
4 No. 08-3625

learned that a woman named Charlotte Ruby had rented

Suite 12 for two people, Tracy Carson and Amanda Johnson, and that Carson and Johnson had both signed a

waiver and release form. The officers also learned that the

room was paid for in cash and had been rented for

two nights.

After returning to the police station, Sergeant Wildauer

ran a background check on Carson and learned that he

had prior convictions for bank robbery, two handgun

violations, and grand larceny and escape convictions.

Sergeant Wildauer also discovered that Carson had an

outstanding warrant from Marion County for possession

of a controlled substance and public intoxication. Detective

Shoemaker again contacted FBI Agent White, who

advised him that the FBI had identified Carson as a

suspect in a bank robbery within the previous twelve

months. Sergeant Wildauer then memorialized all this

information in an affidavit, and, at 3:34 a.m. on April 26,

2007, obtained a state search warrant for Suite 12 of the

Sybaris Hotel; the warrant authorized the police to look

for and seize Carson, the fruits of the bank robbery,

and narcotics.

Warrant in hand, the police arrived at the Sybaris about

an hour later. In Suite 12, they found Carson, Johnson,

approximately $106,000 wrapped in straps with

stampings from the victimized Chase Bank branch dated

April 24, 2007, along with latex gloves, a firearm, cocaine,

and marijuana. Officers also noted that a tall, gallon-sized

bottle of vodka was in the room and had been opened,

though very little appeared to have been consumed. After
No. 08-3625 5

the room was secured, Sergeant Wildauer read Carson

his Miranda rights. Carson immediately responded, “This

is mine. It’s all mine. She’s [meaning Johnson] got

nothing to do with it.” Approximately 30 minutes

later, Agent Eric Jensen of the federal Bureau of Alcohol,

Tobacco, Firearms and Explosives again advised Carson

of his Miranda rights. This time Carson said, “Yeah, been

there.” Carson did not sign the waiver form, purportedly

because by that time he had been handcuffed.

But Carson then admitted that he had robbed the

Chase Bank in question of $130,000, that he knew that his

possession of the firearm made him an armed career

criminal for the purposes of the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e), and that he was facing

a virtual life sentence. Carson described the clothes he

wore during the robbery, mentioning his jeans, Nike

tennis shoes, gloves, and mask. Carson confessed that

he carried a .45 caliber handgun in the bank. He said that

he bought the gun on the street and that it was not

stolen (this was later confirmed). Carson recounted that

he had driven to the target bank in a red Chrysler

LeBaron that he had bought for $250. Carson also

revealed that on two prior occasions he had robbed the

Chase Bank branch at Hanna and Keystone Avenues,

obtaining $23,000 and $29,000, and also had attempted to

rob a particular credit union. Carson recalled that the

credit union attempt was unsuccessful because the employees shut him out using an automatic door system

when they saw him approaching wearing a mask. Agent

Jensen later corroborated this information.
6 No. 08-3625

Carson declined to answer any questions implicating

anyone else or divulging his methodology. He explained

that bank robbery methods are learned in prison and

passed around confidentially, “sort of like a trade secret.” Remarkably, he commented that he did not want

to “screw it up” for anyone else in the bank robbery trade.

The interview lasted for somewhere between 30 and

60 minutes, during which time Carson had to excuse

himself at least twice to go to the restroom to vomit. Agent

Jensen later testified that Carson walked normally, that

he did not sit or fall during the interview, and that his

speech and memory appeared to be clear, given his

ability to offer a coherent account of the events relating

to the robberies and to provide responsive answers.

Following Carson’s arrest and indictment, he was

provided with a supplemental case report. The supplemental report indicated that the information that

Sergeant Wildauer and Detective Shoemaker had about

Carson’s whereabouts had not actually come from the

informant directly, but instead had come from an

unknown third party who first had conveyed these

details to the informant. In light of this revelation, Carson

filed two motions to suppress. The motions took the

position that the district court should suppress the evidence obtained through the search warrant because the

warrant application failed to demonstrate the reliability

of the person upon which the officers actually relied

(that third party who was the original source), that the

issuing magistrate judge was misled by material

omissions in the warrant, and that Carson had been

incapacitated while he was being questioned by officers
No. 08-3625 7

and therefore had been incapable of knowingly waiving

his Miranda rights.

Following a hearing, the district court denied both

motions. The court found that the affidavit in support

of the search warrant contained enough information to

support probable cause, that Sergeant Wildauer had not

deliberately omitted anything from his affidavit, and

that Carson was not too impaired to give an effective

waiver of his Miranda rights.

II

A

We consider first Carson’s argument that the district

court erred by denying his motion to suppress the

evidence seized in the search of Suite 12 at the Sybaris

Hotel. When a search is executed pursuant to a facially

valid warrant, we review a district court’s findings of

historical fact for clear error and its legal conclusions

de novo. United States v. Garcia, 528 F.3d 481, 485 (7th Cir.

2008). With respect to the question whether the facts

add up to probable cause, while we give no special

weight to the district court’s decision, we give great

deference to the conclusion of the judge who issued the

warrant. United States v. McIntire, 516 F.3d 576, 578 (7th

Cir. 2008).

Probable cause is established when, based on the

totality of the circumstances, the affidavit sets forth

sufficient evidence to persuade a reasonably prudent

person that a search will uncover evidence of a crime.
8 No. 08-3625

Illinois v. Gates, 462 U.S. 213, 238 (1983). If an affidavit is

the only evidence presented to the judge in support of a

search warrant, and the issuing judge hears no live testimony, the validity of the warrant depends on the

strength of the affidavit. United States v. Peck, 317 F.3d 754,

755 (7th Cir. 2003). Where an informant supplies the

information contained in the affidavit, this court considers several factors: first, “the extent to which police

have corroborated the informant’s statements”; second,

“the degree to which the informant has acquired knowledge of the events through firsthand observation”; third,

the amount of detail in the affidavit; and fourth, the

interval between the time of the events that gave rise to

the need for a search warrant and that of the police

officer’s application for the warrant. United States v.

Koerth, 312 F.3d 862, 866 (7th Cir. 2002). We also take

into account whether the informant testified at the probable cause hearing. Peck, 317 F.3d at 756. None of these

factors is determinative; “a deficiency in one factor may

be compensated for by a strong showing in another or

another indicator of reliability.” United States v. Brack,

188 F.3d 748, 756 (7th Cir. 1999).

Carson argues that the affidavit in his case did not

establish probable cause, because it provided no way to

assess the reliability of the underlying source and there

was no indication that the informant’s report was based

on first-hand observations. The conclusory statement in

the affidavit to the effect that the informant was a

“reliable source” was, Carson argues, insufficient. In our

view, Carson has missed the forest for the trees. We

assess the affidavit as a whole. While Carson is correct
No. 08-3625 9

that it did not say that the informant’s information was

the result of first-hand observations, the affidavit was

ultimately sufficient to support the determination of

probable cause.

In the first instance, the affidavit reported that the

informant identified Carson by name, described his

appearance, pinpointed where he was located, described

the appearance of Carson’s hotel room, named the

woman with whom Carson was sharing the room, specified that he had seen the amount of money Carson had

in his possession, said that Carson was in possession of

a gun and drugs, and stated that Carson was a

convicted bank robber. In addition, the affidavit outlined

the independent efforts the police took to corroborate

the information provided by the informant, including

the fact that a bank robbery had occurred at the location

identified by the informant, the appearance of the

robber, the amount of money the robber had stolen, that

Suite 12 of the Sybaris Hotel was occupied by Carson

and Johnson (just as the informant had said), that their

room came equipped with a personal swimming pool,

that Carson had a prior conviction for bank robbery,

and that Carson had outstanding arrest warrants for

possession of a controlled substance. Finally, the time

between the robbery (1:00 p.m. on April 25), the conversation with the informant (11:15 p.m. the same day), and the

application for the warrant (3:34 a.m. on April 26) was

minimal. The police also wasted no time executing the

warrant: they arrived at Carson’s room at 4:30 a.m. on

April 26.
10 No. 08-3625

Carson attempts to counter all of this evidence by

claiming that his case is just like Koerth, supra, in which

we found probable cause to be lacking. 312 F.3d at 868.

Koerth, however, is readily distinguishable. In Koerth, the

supporting affidavit failed to explain the extent to

which the informant had previously provided information leading to arrests or prosecutions. Indeed, the

affidavit was devoid of detail, and the police failed to

check out any of the information provided. Id. at 868. As

we have already recounted at length, Carson’s case could

not be more different. In addition to the particulars

we have already mentioned, the affidavit stated that the

informant was reliable and had previously provided

accurate information leading to arrests on five separate

occasions. Finally, the affidavit described the extensive

efforts undertaken by the police to corroborate the informant’s account. We have no trouble concluding that

this affidavit supported the issuing judge’s finding of

probable cause for the warrant.

We have not overlooked the fact that the law also

permits a challenge to an affidavit on the basis that material facts were omitted, where that omission was

made intentionally or with reckless disregard for the

truth. Franks v. Delaware, 438 U.S. 154, 155-56 (1978);

United States v. Sims, 551 F.3d 640, 645 (7th Cir. 2008).

Carson argues that, had the affidavit specified that the

informant’s tip that Carson could be found at the Sybaris

Hotel came from an unidentified third party, no judge

would have found the informant reliable and probable

cause would have been lacking. Once again, we do not

attach such great significance to that one detail. Even if
No. 08-3625 11

the informant had not identified the hotel, there

would have been enough information in the affidavit to

establish probable cause to search Carson’s room

there. Sergeant Wildauer stated in the affidavit that he

independently identified the Sybaris Hotel based on the

informant’s description, because the Sybaris is the only

hotel in Indianapolis with in-room swimming pools.

Moreover, the affidavit notes that the police did not

blindly rely on the informant’s word. Instead, they personally visited the hotel, requested the names of the hotel

guests, and confirmed that Carson was there. There is

no reason to conclude that the omission of the original source of the name of the Sybaris Hotel was made

knowingly or with reckless disregard for the truth.

Nor was this omission material. Even if the informant’s

original source had been disclosed, we do not see a reasonable probability that the results of the proceeding

before the issuing judge would have been different. Sims,

551 F.3d at 645. The issuing judge properly found probable

cause on the basis of adequate information. The omission

of the fact that the name of the hotel where Carson was

arrested initially came from an independent third

source, and not the informant, does not detract from this

finding.

B

Carson also argues that his April 26 confession should

have been suppressed pursuant to Miranda v. Arizona, 384

U.S. 436 (1966), and Missouri v. Seibert, 542 U.S. 600 (2004).

A defendant may waive her Miranda rights only if that
12 No. 08-3625

waiver was made “voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986). This

court has held that a confession is voluntary if, under

all the circumstances, it is the “product of a rational

intellect and free will and not the result of physical abuse,

psychological intimidation, or deceptive interrogation

tactics that have overcome the defendant’s free will.”

United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). A

finding that the police engaged in coercive activity is

an essential predicate to a finding that a suspect’s confession was involuntary. See Colorado v. Connelly, 479 U.S.

157, 167 (1986). We determine whether police coerced a

suspect by examining things like “the defendant’s age,

education, intelligence level, and mental state; the

length of the defendant’s detention, the nature of the

interrogations; the inclusion of advice about constitutional rights; and the use of physical punishment, including deprivation of food or sleep.” United States v. Huerta,

239 F.3d 865, 871 (7th Cir. 2001). When the interrogating

officers should reasonably have known that a suspect

was under the influence of drugs or alcohol, “a lesser

quantum of coercion may be sufficient to call into

question the voluntariness of the confession.” United

States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991).

Carson asserts that his confession was not voluntary

because he had “overdosed on heroin . . . [and] other mindaltering substances” when the officers administered his

Miranda rights. According to Carson, he had imbibed an

astonishing amount of liquor: since noon on the day of

his arrest, he had drunk three-quarters of a fifth of whiskey, a fifth of vodka, and half a bottle of champagne. As
No. 08-3625 13

if that were not bad enough, he had also been using

heroin and cocaine in tandem throughout the day. Carson

elaborates that he had overdosed during the night of his

arrest; he was so high that at one point he was crawling

on all fours in the hotel room; he was vomiting; he continuously nodded off and woke up; he could not

remember when the police came into the hotel room; his

state of mind was “like a retarded kid” when he was

talking to police officers; and he did not remember receiving his Miranda warnings. Carson argues that the

officers must have known about his incapacitated state

because he vomited a couple of times during the interrogation and there was cocaine on the table in the

hotel room where he was arrested.

Just as in United States v. LeShore, 543 F.3d 935, 941 (7th

Cir. 2008), Carson is confronted by a threshold problem:

the standard of review. The district court specifically

found that Carson was alert and coherent, never complained about great pain, was given aspirin when he

requested it, and gave no indication that he was

seriously sleep-deprived or drug-induced at the time of

the interrogation. Further, while Carson testified at the

suppression hearing that he had injested copious

amounts of alcohol, cocaine, and heroin, the district

court was negatively impressed with this story for a

number of reasons. First, the court found that Carson

was cognizant enough of his whereabouts to order a

battery charged for his electric shaver just before the

police arrived. Second, both Carson and the police

officers involved in his arrest testified that Carson’s first

reaction to the police entry into his room was the
14 No. 08-3625

entirely rational thought that his gun possession would

heighten any penalty he received for the bank robbery.

Third, Carson commented to the police that he realized

that if he were convicted for bank robbery, he would

qualify for a heightened sentence under the ACCA.

Fourth, Carson told the police that he knew that any

statements he made about the bank robbery would not

affect his probable life sentence. Fifth, Carson told the

police that the gun and drugs were his alone in an effort

to protect Johnson. Sixth, during the course of the interview, Carson chose to answer some questions and

not others, because he said that he did not want to incriminate the people from whom he had purchased the gun

and a stolen car. Finally, as we mentioned earlier,

Carson told the police that he would not reveal the “trade

secrets” of bank robbers because it was not appropriate

to do so.

Based on these findings, the district court found that

Carson’s testimony about the crippling degree of his

intoxication was incredible. If Carson was not under any

influence that would diminish his capacity, there is no

circumstance that would lead us to question the validity

of his Miranda waiver, under any standard of review.

The judgment of the district court is AFFIRMED.

10-6-09