In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1377

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT S. MCINTIRE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 06-30017-001—Jeanne E. Scott, Judge.

____________

ARGUED OCTOBER 31, 2007—DECIDED FEBRUARY 15, 2008

____________

Before EASTERBROOK, Chief Judge, and BAUER and

WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge. Police obtained a warrant

to search Robert McIntire’s home. They found marijuana

and methamphetamine. McIntire entered a conditional

plea of guilty to the ensuing federal charges, reserving

the right to contend on appeal that the district court

should have suppressed the evidence found during the

search.

A state judge issued the warrant after receiving affidavits and testimony from an officer and an informant

who appeared in person. The informant swore that she

had seen marijuana in McIntire’s home about three days
2 No. 07-1377

earlier and had purchased marijuana from him on several

earlier occasions. The informant described the look and

smell of the substance she had seen; the officer stated that

these matched the look and smell of marijuana. The officer

and the informant had driven through the neighborhood

where McIntire lived; the informant picked out his house

and identified his face in a photo array. The officer added

that he had received information that McIntire, who had

a drug conviction on his record, had entered the methamphetamine business. Relying principally on United States

v. Jones, 208 F.3d 603 (7th Cir. 2000), the district court

concluded that these facts provided probable cause for a

search, and it denied the motion to suppress. 2006 U.S.

Dist. LEXIS 46013 (C.D. Ill. July 6, 2006). McIntire later

was sentenced to 120 months’ imprisonment.

McIntire asks us to ignore both the state judge’s decision

to issue a warrant and the district judge’s conclusion that

the warrant was supported by probable cause, and to

make a de novo (which is to say, non-deferential) decision

about the warrant’s validity. McIntire’s entire discussion

of the standard of review reads: “This Court reviews the

district court’s determination of probable cause de novo.

United States v. Sidwell, 440 F.3d 865, 868 (7th Cir.

2006).” That is indeed what Sidwell says, as do several

more decisions. See, e.g., United States v. Lake, 500 F.3d

629, 632 (7th Cir. 2007); United States v. Brack, 188 F.3d

748, 755 (7th Cir. 1999). But other decisions in this circuit hold that the standard of appellate review depends

on whether a warrant has issued, with de novo review

being used only when officers conducted a search without

a warrant. See, e.g., United States v. Wiley, 475 F.3d 908,

914–15 (7th Cir. 2007); United States v. Newsom, 402 F.3d

780, 783 (7th Cir. 2005); United States v. Rogers, 270 F.3d

1076, 1081 (7th Cir. 2001). This intra-circuit conflict

needs resolution.

All of the decisions we have cited rely on Ornelas v.

United States, 517 U.S. 690 (1996), which holds that, when
No. 07-1377 3

police act without a warrant, the court of appeals makes

an independent decision whether probable cause or

reasonable suspicion supports the search. Does the same

rule apply when the police execute a warrant—and thus

when the question is whether the judicial officer who

issued the warrant acted appropriately? To address that

question one must go back to Illinois v. Gates, 462 U.S.

213 (1983), which in the course of reformulating the

standard of probable cause remarked: “we have repeatedly said that after-the-fact scrutiny by courts of the

sufficiency of an affidavit should not take the form of

de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing

courts’ ” (462 U.S. at 236, citation omitted). Our opinion in

Ornelas relied on this passage when holding that appellate

review should be deferential whether or not the police

obtained a warrant. 16 F.3d 714, 719 (7th Cir. 1994). The

Justices replied (517 U.S. at 698–99):

The Court of Appeals, in adopting its deferential

standard of review here, reasoned that de novo

review for warrantless searches would be inconsistent with the “ ‘great deference’ ” paid when reviewing a decision to issue a warrant, see Illinois

v. Gates, 462 U.S. 213 (1983). See United States v.

Spears, 965 F. 2d 262, 269-271 (CA7 1992). We

cannot agree. The Fourth Amendment demonstrates a “strong preference for searches conducted

pursuant to a warrant,” Gates, supra, at 236, and

the police are more likely to use the warrant

process if the scrutiny applied to a magistrate’s

probable-cause determination to issue a warrant is

less than that for warrantless searches. Were we

to eliminate this distinction, we would eliminate

the incentive.

Ornelas thus distinguished searches conducted without a warrant, where appellate review of the justification
4 No. 07-1377

is non-deferential, from searches authorized by a warrant, where appellate courts must afford “great deference”

to the decision of the judge who issued the warrant.

This produces a complex standard of appellate review. A

district court’s findings of historical fact are reviewed

for clear error, whether or not a warrant issued.

Ornelas, 517 U.S. at 699. A district judge’s legal conclusions are reviewed without deference. And on the mixed

question whether the facts add up to “probable cause”

under the right legal standard, we give no weight to the

district judge’s decision—for the right inquiry is whether

the judge who issued the warrant (rarely the same as the

judge who ruled on the motion to suppress) acted on the

basis of probable cause. On that issue we must afford

“great deference” to the issuing judge’s conclusion.

One could question this as an initial matter: why

defer to the issuing judge, who acts ex parte and without

time for reflection, but not to a district judge who has

the benefit of adversarial presentations? But that’s what

Gates and Ornelas tell us to do. Justice Scalia, who

dissented in Ornelas, thought that the majority’s entire

discussion of de novo review in no-warrant cases was

internally contradictory, because after articulating it

the majority also told appellate courts to give “due weight

to inferences drawn from [the] facts by resident judges

and local law enforcement officers.” See 517 U.S. at 705

(referring to the majority’s statements, 517 U.S. at 699,

immediately following the passage in the block quotation).

Who is a “resident judge,” and what does “due weight”

mean? That complicates our task and may account for the

inconsistent treatment of the subject found in our postOrnelas cases; still, the formula given here represents

our best understanding of what the Court requires when

dealing with a search supported by a warrant.

Many decisions of this court after Ornelas announce

a simple “de novo appellate consideration” approach
No. 07-1377 5

without distinguishing between warrant cases and nowarrant cases. Others announce that appellate review

in warrant cases is deferential but do not distinguish

between our role vis-à-vis the judge presiding in the

criminal prosecution (non-deferential, except with respect

to findings of fact) and our role vis-à-vis the judge who

issued the warrant (“great deference”). Yet others do

distinguish between the district judge and the judge who

issued the warrant. These decisions do not cite each other,

perhaps because counsel cited only one of the lines of

decisions in their briefs. We therefore think it best to

start over, restoring circuit precedent to the approach

required by Gates and Ornelas. This opinion has been

circulated to all active judges under Circuit Rule 40(e). A

majority did not favor a hearing en banc on the question whether to adhere to the standard of review articulated above.

For what it is worth, we have checked how other circuits handle this question and found ample variability.

For just a few examples, compare United States v. Grant,

490 F.3d 627, 631–32 (8th Cir. 2007) (explicitly distinguishing between the “great deference” due to the judge

who issues a warrant and the non-deferential review of the

federal district judge’s decision granting or denying a

motion to suppress), and United States v. Jackson, 470

F.3d 299, 306–07 (6th Cir. 2006) (same), with United

States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (“[w]e

review de novo the determination that there was probable

cause to issue the warrant”), and United States v.

Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (de novo

review of the decision of the judge who issued the warrant). Several circuits are internally conflicted, as this

circuit has been. It is unnecessary to give the full lineup.

Nothing we can do will either create or eliminate a conflict, but we can and do bring this circuit’s law into line

with Gates and Ornelas.
6 No. 07-1377

The district judge in this case did not make any findings of fact but simply examined the affidavits presented

to the state judge who issued the warrant. Therefore the

only question we need consider is whether, with the benefit

of “great deference” to the issuing judge’s conclusions,

those affidavits establish probable cause to believe that

McIntire’s house contained illegal drugs. The answer is

yes. Gates holds that a judge asked to issue a search

warrant is entitled to make a practical assessment of

informants’ statements; there is no inevitable requirement

of corroboration or a history of accurate information from

the informant in question. The state judge knew that this

informant was able to recognize marijuana by sight and

smell and had identified both McIntire’s house and a

picture of McIntire. The judge also knew that McIntire had

a conviction for a drug offense and was reputed to be back

in that business. A sensible judge could find that this adds

up to probable cause—as both Gates and Jones hold with

respect to similar factual patterns.

AFFIRMED

RIPPLE, Circuit Judge, dissenting. The standard of

review issue presented in this case is a very important—and nuanced—question that has been with us for

a good long time. My colleagues on the panel deserve a

great deal of credit for addressing the ambiguity that

has crept into our case law and for attempting to resolve

it. Its resolution may well be correct—or at least the best

that any intermediate appellate court can do, given the

tension that the panel agrees is inherent in Ornelas v.

United States, 517 U.S. 690 (1996). See id. at 705 (dissenting opinion of Scalia, J.).
No. 07-1377 7

The disagreement among the circuits about the applicable standard of review is attributable to Ornelas’

maintaining, at least in dicta, the distinction between

review of a judicial officer’s determination that there is

a probable cause to issue a warrant and review of a

judicial officer’s post facto determination that law enforcement officers, acting without a warrant, had probable

cause to search. Certainly, in terms of the Supreme

Court’s desire that appellate courts “maintain control

of” and “clarify” legal principles, id. at 697, both scenarios

would seem to be equally susceptible to the traditional

law clarification function of appellate courts. If we can be

expected to elucidate principles in one of these situations, we certainly ought to be able to do so in the other.

The reason for different standards of reviews for each

situation is not clear.

If, as the panel maintains, Ornelas truly intended

that we review the determination of a judicial officer to

issue a warrant with “great deference,” while reviewing de

novo a judicial officer’s determination that law enforcement officers had probable cause, but with “due weight”

given to the inferences drawn from the facts by resident

judges and local law enforcement officers, we have our

work cut out for us.

Although I can understand the court’s reluctance to

spend valuable judicial resources on a question that can

be resolved ultimately only by the Supreme Court, I believe that this question is sufficiently important, and

the need for guidance for the bench and bar sufficiently

acute, that the matter is worth the court’s time. Indeed, a

plenary and thoughtful treatment by the entire court

might be of significant assistance to the Supreme Court

when it deals with this issue. Our Circuit Rule 40(e)

procedure plays a salutary role in our work, but it is illsuited for the thoughtful discussion necessary to deal

comprehensively with this issue.
8 No. 07-1377

Standards of review count. The panel’s opinion is candid about the difficulties that this issue poses. In the

absence of en banc review, I can simply express, respectfully, the hope that other circuits will be more generous

with their time and that, eventually, the Supreme Court

will resolve the issue definitively.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-15-08