## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 07-1377

U NITED S TATES OF AMERICA , Plaintiff-Appellee

, v.

R OBERT S. M C I NTIRE , Defendant-Appellant

.

____________
Appeal from the United States District Court for the Central District of Illinois. No. 06-30017-001— Jeanne E. Scott

, Judge

.

____________ A RGUED O CTOBER 31, 2007—D ECIDED F EBRUARY 15, 2008

____________

Before E ASTERBROOK , Chief Judge , and B AUERand W ILLIAMS , Circuit Judges

. E ASTERBROOK , 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 ensuin g 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 warra nt after receiving affidavits and testimony from an officer and an informant who appeared in person. Th e informant swore that she had seen marijuana in McIntire’s home about three days2 No. 07-1377

earlier and had purchased mari juana from him on several earlier occasions. The inform ant described the look and smell of the substance she had seen; the officer stated that these matched the look and sme ll of marijuana. The officer and the informant had driven through the neighborhood where McIntire lived; the info rmant 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 reco rd, 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. L EXIS 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 dist rict 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 Sidwellsays, 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.3d748, 755 (7th Cir. 1999). But other decisions in this circuit hold that the standard of appellate review depends on whether a warrant has issued, withde 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 onOrnelas v. United States , 517 U.S. 690 (1996), which holds that, whenNo. 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 whethe r the judicial officer who issued the warrant acted a ppropriately? To address that question one must go back to Illinois v. Gates , 462 U.S. 213 (1983), which in the course of reformulating thestandard of probable cause remarked: “we have repeatedly said that after-the-fa ct 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 wh en 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 sea rches 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). Wecannot agree. The Fourth Amendment demonstrates a “strong preferenc e 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 a pplied to a magistrate’s probable-cause determination to issue a warrant is less than that for warra ntless 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 justification4 No. 07-1377

is non-deferential, from se arches authorized by a warrant, where appellate courts must afford “great deference” to the decision of the ju dge who issued the warrant. This produces a complex stan dard 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 issuedthe warrant (rarely the same as the judge who ruled on the motionto suppress) acted on the basis of probable cause. Onthatissue 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 andOrnelas 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 [t he] 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,” an d what does “due weight” mean? That complicates our ta sk and may account for theinconsistent treatment of the subject found in our postOrnelas cases; still, the formula given here represents our best understanding of wh at the Court requires when dealing with a search supported by a warrant.

Many decisions of this court afterOrnelas announce a simple “ de novo appellate consideration” approachNo. 07-1377 5

without distinguishing betw een warrant cases and nowarrant cases. Others announce that appellate review in warrant cases is deferent ial but do not distinguish between our role vis-à-vis the judge presiding in the criminal prosecution (non-defer ential, 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 decisi ons do not cite each other, perhaps because counsel cite d 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 byGates andOrnelas . This opinion has been circulated to all active judges under Circuit Rule 40(e). Amajority did not favor a hearing en banc on the question whether to adhere to th e 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 no n-deferential review of the federal district judge’s decision granting or denying a motion to suppress), andUnited States v. Jackson , 470 F.3d 299, 3 06–07 (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”), andUnited States v. Hammoud , 381 F.3d 316, 332 (4th Cir. 2004) ( de novo review of the decision of the judge who i ssued the warrant). Several circuits are in ternally 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 brin g this circuit’s law into line with Gates andOrnelas

.6 No. 07-1377

The district judge in this case did not make any findings of fact but simply exam ined the affidavits presented to the state judge who issued the warrant. Therefore the only question we need consideris whether, with the benefit of “great deference” to th e 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 ma ke a practical assessment of informants’ statements; there is no inevitable requirement of corroboration or a history of accurate information from the informant in question. Th e 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 offens e and was reputed to be back in that business. A sensible ju dge could find that this adds up to probable cause—as both Gates andJones hold with respect to similar factual patterns.

A FFIRMED

R IPPLE , Circuit Judge , dissenting. The standard ofreview 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 an d for attempting to resolve it. Its resolution may well be correct—or at least the best that any intermediate appella te 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 di cta, 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 beexpected to elucidate principles in one of these situations, we certainly ought to be able to do so in the other. The reason for different st andards 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 denovo 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 enforceme nt 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 canbe 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 i ssue. 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 theabsence of en banc review, I can simply express, respectfully, the hope that other circuits will be more generous with their time and that, ev entually, 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