United States of America v. Todd Sutton

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1298
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
T ODD SUTTON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:10‐CR‐20048 — Michael M. Mihm, Judge.
____________________
A RGUED D ECEMBER 12, 2013 — D ECIDED FEBRUARY 10, 2014
____________________
Before BAUER , C UDAHY, and P OSNER , Circuit Judges.
C UDAHY, Circuit Judge. This case concerns the sufficiency
of evidence for a search warrant. Defendant Todd Sutton ap‐
peals an order denying his motion to suppress the fruits of a
search of his cousin’s apartment, arguing that the underlying
warrant was not supported by probable cause. Agents exe‐
cuting that warrant found more than fifty grams of crack co‐
caine. Pursuant to a plea agreement, Sutton pleaded guilty,
but retained the right to appeal the denial of the motion to

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2 No. 13‐1298
suppress. Because the facts indicate that probable cause ex‐
isted for the search warrant, we now affirm.
This investigation began when Special Agent Kristopher
Lombardi of the Kankakee Metropolitan Enforcement Group
(KAMEG) received a tip from a confidential informant (CI)
that he had seen an individual known as “Cap” in posses‐
sion of an ounce of cocaine and provided the address of an
apartment where he had seen “Cap.” The CI was familiar
with cocaine and its distribution because he had previously
been involved in the sale of narcotics. In an effort to obtain
leniency on pending drug charges, the CI was working with
KAMEG. In fact, within a six month period prior to this
search, he had provided information that had led to another
cocaine seizure and arrest.
Acting on the CI’s information, Lombardi searched the
name “Cap” in a law enforcement database containing alias‐
es of arrestees and suspects. Todd Sutton was listed as a
match for the alias “Cap.” Lombardi then obtained a book‐
ing photo of Sutton and showed it to the CI, who confirmed
that the man he identified as “Cap” was Sutton. Lombardi
then drove the CI past the address where the CI claimed to
have witnessed Sutton in possession of the cocaine. The CI
confirmed the location. The CI further informed Lombardi
that the apartment’s tenant was Nikiya Foster, whom the CI
believed to be Sutton’s girlfriend. A law enforcement data‐
base confirmed that Foster was indeed the apartment’s ten‐
ant; however, Lombardi later discovered that she was actual‐
ly Sutton’s cousin.
That same day, Lombardi took the CI before a Kankakee
County judge when the CI signed a “John Doe” affidavit in

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No. 13‐1298 3
support of a search warrant. That affidavit read in relevant
part as follows:
Within the past 10 days from May 2nd, 2010 I have
seen approximately one ounce of cocaine inside the
residence located at 1525 West Station St. Apt. 1W,
Kankakee, IL. I am familiar with cocaine and the way
it is packaged for sale because I have sold cocaine in
the past. I am not currently under the influence of al‐
cohol or drugs. At this time, I am a Confidential In‐
formant Source for KAMEG. I am using an assumed
name for fear that I may receive bodily harm for the
information that I have provided for KAMEG.
Lombardi filed his own affidavit in support of the war‐
rant reiterating the CI’s information, detailing certain cor‐
roboration and describing Lombardi’s previous experience
with the CI. The county judge issued the warrant, and offic‐
ers executed it that same evening. During the search, agents
found: 63 grams of crack cocaine in a bedroom closet; male
clothing and shoes in the same closet; a digital scale with
white powder residue and other items frequently used to
cook crack cocaine in the kitchen; a handwritten letter on the
kitchen table referring to “Cap”; and a computer, on which
agents viewed a video depicting Sutton in the apartment.
Following Sutton’s arrest, agents discovered that Foster was
Sutton’s cousin, not his girlfriend; that Sutton was the only
person in possession of keys to the apartment besides her;
and that she rarely entered the bedroom where the cocaine
was found.
Sutton was indicted and subsequently filed a motion to
suppress the evidence on the bases that (1) the warrant was
based on stale information; (2) the CI’s information was base‐

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4 No. 13‐1298
less and uncorroborated; and (3) the affidavit supporting the
warrant was reckless, and contained at least one false state‐
ment. Determining that there was probable cause and that
none of Sutton’s arguments warranted suppression, the dis‐
trict court denied the motion. Sutton then pleaded guilty to
possession with intent to distribute 50 grams or more of
crack cocaine. Subject to his plea agreement, Sutton retained
his right to appeal the district court’s ruling on the suppres‐
sion motion.
I.
This warrant was supported by probable cause. “Proba‐
ble cause is established when, considering the totality of the
circumstances, there is sufficient evidence to cause a reason‐
ably prudent person to believe that a search will uncover ev‐
idence of a crime.” United States v. Harris, 464 F.3d 733, 738
(7th Cir. 2006) (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). When a search is authorized by a warrant, deference
is owed to the issuing judge’s conclusion that there is proba‐
ble cause. United States v. Sims, 551 F.3d 640, 644 (7th Cir.
2008). Courts should defer to the issuing judge’s initial prob‐
able cause finding if there is “substantial evidence in the rec‐
ord” that supports his decision. Id. (citing United States v.
Koerth, 312 F.3d 862, 865 (7th Cir. 2002)). However, a judge
may not rely solely on “conclusory allegations” or a “bare
bones” affidavit. Id.
When probable cause is supported by information sup‐
plied by an informant, we particularly look to several fac‐
tors: (1) the degree to which the informant has acquired
knowledge of the events through firsthand observation, (2)

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No. 13‐1298 5
the amount of detail provided, (3) the extent to which the
police have corroborated the informant’s statements, and (4)
the interval between the date of the events and the police of‐
ficer’s application for the search warrant. United States v.
Searcy, 664 F.3d 1119, 1122 (7th Cir. 2011) (citing United States
v. Garcia, 528 F.3d 481, 485–86 (7th Cir. 2008)). It is also signif‐
icant if an informant appears before the magistrate in person
and files his or her own supportive affidavit; doing so af‐
fords the magistrate a greater opportunity to assess credibil‐
ity. Sims, 551 F.3d at 640 (citing United States v. Lloyd, 71 F.3d
1256, 1263 (7th Cir. 1995)). Taken as a whole, these factors
support the initial finding of probable cause by the Kanka‐
kee County judge.
Sutton challenges every prong of this analysis. However,
there is no real issue regarding the CI’s firsthand knowledge.
There is no dispute that the CI swore he had firsthand
knowledge of Sutton’s possession of cocaine in Foster’s
apartment, details about the amount of cocaine in Sutton’s
possession, the location of the apartment and the relation‐
ship between Sutton and Foster. Every piece of relevant evi‐
dence in the affidavit came from the CI’s firsthand
knowledge.
Specificity
Likewise, Sutton’s argument regarding the second factor,
specificity of the supporting affidavits, fails. The affidavits
clearly establish that Sutton was in possession of an ounce of
cocaine in the apartment and on a specific date. The CI fur‐
ther established a connection between Sutton and the apart‐
ment by describing a close, personal relationship between
Sutton and Foster. While an ideal affidavit might contain
more information and not mistake a girlfriend for a cousin,

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6 No. 13‐1298
the information here is sufficiently specific to satisfy this
prong. Indeed, much less specific affidavits have been
properly used to support warrants. See e.g., Garcia, 528 F.3d
at 486; Sims, 551 F.3d at 644.
Corroboration
In his challenge to the third factor, Sutton argues that
none of the CI’s observations were corroborated. Despite this
bald assertion, Lombardi did take sufficient steps to corrobo‐
rate the CI’s information: Lombardi confirmed that Sutton
was “Cap” by searching law enforcement databases; Lom‐
bardi confirmed the CI’s identification of Sutton by showing
the CI a mugshot of Sutton; Lombardi drove past the ad‐
dress the CI identified as the location where he observed
Sutton with the cocaine; and Lombardi verified that Foster
was the tenant of the apartment after the CI informed Lom‐
bardi of the relationship between Foster and Sutton. Ulti‐
mately, Lombardi took reasonable steps to ensure that the
CI’s information was accurate—we see no reason why we
should find this corroboration insufficient.
Staleness
Sutton focuses much of his appeal on staleness. He ar‐
gues that the one to ten day period between the time the CI
witnessed Sutton in the apartment with cocaine and the exe‐
cution of the search warrant is enough to render the warrant
stale. First, we point out that we do not actually know how
many days elapsed between the CI’s observation of Sutton
and the search. Due to the sensitive nature of the CI’s infor‐
mation a range was used to conceal the CI’s identity, rather
than revealing on precisely which day the CI was in the
apartment. Thus, the information could have been as much

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No. 13‐1298 7
as ten days old at the time of the search, but could have been
as recent as one day old.
Sutton points out that the government has not cited any
case where a warrant has been substantiated on the basis of
a single occurrence of criminal activity outside a 72‐hour
window. Sutton may be correct in his assertion, but the ab‐
sence of such precedent does not create a 72‐hour rule. In‐
deed, there is no bright line rule for determining staleness.
United States v. Pappas, 592 F.3d 799, 803 (7th Cir. 2010). In‐
stead of setting a time limit for staleness, we consider the age
of the CI’s information in conjunction with the rest of the fac‐
tors. See e.g., United States v. Pless, 982 F.2d 1118, 1125–26 (7th
Cir. 1992). To the extent that ten days is a lengthier interval
than usual, it is not so long as to completely dispel any belief
that a search would be fruitful—particularly in light of the
fact that the CI had previously provided reliable information
to law enforcement resulting in arrest and seizure of drugs.
Sutton also argues that the warrant was impermissibly
stale because the supporting affidavits did not establish reg‐
ularity of drug use or sale. While evidence of regularity may
be helpful to determine how long a CI’s information will re‐
main useful, it is not a legal requirement. Instead, the affida‐
vits must provide enough information to lead a reasonably
prudent person to believe a search would be fruitful. Harris,
464 F.3d at 738. Because the circumstances point toward
probable cause, this staleness argument fails as well.
Finally, Sutton argues that the warrant was stale because
the affidavits do not establish any connection between the
cocaine and the apartment. This is simply not true. The CI
observed Sutton in possession of cocaine while he was in the
apartment. Without any other connection, this fact alone

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8 No. 13‐1298
might be insufficient. However, the CI’s information also es‐
tablished an undisputed connection between Sutton and
Foster, the tenant of the apartment. Given Sutton’s close per‐
sonal relationship with Foster, Sutton’s argument that there
was no connection between the cocaine and the apartment is
inaccurate.
Credibility
In addition to challenging these four factors, Sutton chal‐
lenges the CI’s reliability on the grounds that he (1) erred in
identifying the nature of Sutton and Foster’s relationship; (2)
provided reliable information on only one prior occasion, six
months removed; and (3) provided information to obtain le‐
niency on his own drug charges, making him inherently un‐
reliable. None of these arguments are availing. First, the mis‐
take concerning the nature of Sutton and Foster’s relation‐
ship was, as the district court determined, de minimis. De‐
spite the mistake, the CI still accurately described a close
personal relationship between Foster and Sutton. For sub‐
stantiating the warrant, the existence of a relationship is far
more material than what exactly the relationship was. Sec‐
ond, the fact that the CI provided accurate information lead‐
ing to an earlier arrest and drug seizure weighs in favor of
credibility—the fact that he did this only once is not indica‐
tive of a lack of credibility. In fact, our case law suggests that
a CI’s prior cooperation with police, if accurate, can compen‐
sate for an affidavit’s lack of specificity. See Searcy, 664 F.3d at
1123–24. Third, this court has rejected the argument that a
CI’s cooperation for leniency is inherently unreliable. See
United States v. Olson, 408 F.3d 366, 371 (7th Cir. 2005). Final‐
ly, the CI personally appeared and presented his affidavit to
the county judge, allowing the judge to evaluate his

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No. 13‐1298 9
knowledge and credibility. Given the deference we give to
the judge’s finding of probable cause, this weighs significant‐
ly in favor of the CI’s credibility. See Sims, 551 F.3d at 644.
In light of the foregoing, it was reasonable for the issuing
judge to conclude that a search would uncover illegal drugs.
Therefore, Sutton’s arguments are insufficient to justify re‐
versing the district court’s denial of Sutton’s motion to sup‐
press.
II.
Both parties addressed the good faith exception from
United States v. Leon, 468 U.S. 897 (1984). However, this ex‐
ception is only relevant if the warrant at issue lacked proba‐
ble cause. Because we find it clear that probable cause exist‐
ed at the time the search warrant was issued, we see no need
to address the good faith exception.
WE AFFIRM.

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