United States of America v. Terrance Sewell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 10, 2010
Decided January 21, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐2090
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TERRANCE SEWELL,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 08 CR 325‐1
Joan Humphrey Lefkow,
Judge.
O R D E R
Law enforcement executed a search warrant for Terrance Sewell’s residence in March
2007 and seized approximately 43 grams of crack cocaine, a scale, and a firearm. Sewell
pleaded guilty to possession of a controlled substance with intent to distribute, see 21 U.S.C.
§ 841(a)(1), subject to his right to appeal the district judge’s denial of his motion to suppress
the evidence seized from his home. FED. R. CRIM . P. 11(a)(2). We affirm.
Sewell came to the attention of federal authorities investigating organized drug
trafficking carried out by members of the Gangster Disciples street gang at Chicago’s Cabrini
Green housing project. Sewell reportedly belongs to the Gangster Disciples and has a prior
felony conviction for distributing cocaine.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. A PP. P. 32.1

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No. 10‐2090 Page 2
A magistrate judge granted a search warrant for Sewell’s residence based on a 26‐
page affidavit from Agent Jeffrey Sisko of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives. The affidavit recounted Agent Sisko’s extensive experience and documented the
government’s investigation into the gang’s drug‐trafficking operation. According to the
affidavit, federal agents observed several interactions between Sewell and Rondell Freeman,
a fellow Disciple who led the gang’s drug operation at Cabrini Green. Agent Sisko asserted
in the affidavit that these sightings, along with drug paraphernalia discarded by Freeman in
his dumpster and recovered by investigators, led him to conclude that Sewell routinely
supplied Freeman with drugs which Freeman then packaged and attempted to sell. For
instance, in August 2006 agents saw Freeman and Sewell together enter Freeman’s condo
building (out of which authorities suspected that Freeman was preparing drugs for sale).
The next day authorities aborted one of Freeman’s attempted drug sales near Cabrini Green
by stopping the suspected buyer’s car. A week later, the affidavit further recounted, agents
saw what they believe was another interaction between Sewell and Freeman in the parking
lot of Freeman’s condo. Agents later recovered a white plastic bag that Freeman discarded
into a dumpster; the bag was found to contain narcotic paraphernalia, namely latex gloves,
small plastic bags, and sleeping pills commonly used to dilute cocaine. The affidavit
reflected a similar pattern that unfolded over the following months: a brief meeting would
take place between Freeman and Sewell, followed by Freeman’s disposal—sometimes a few
hours after Sewell’s visit and sometimes a few days later—of materials used to package
drugs for sale. The affidavit also related wiretaps that agents had carried out on Freeman’s
cell phone, recording a conversation that Freeman had with Sewell about suspected drug
trafficking, as well as a conversation that Freeman had with another co‐conspirator about
Sewell’s involvement.
Sewell moved to suppress the evidence seized from his apartment, primarily arguing
that Agent Sisko presented insufficient facts to establish probable cause. Sewell emphasized
that the affidavit not only lacked direct evidence of wrongdoing, but also recklessly omitted
three important details that he insists call into question whether Agent Sisko sought the
warrant in good faith: the government used an informant who did not know Sewell but
knew all other members of the drug operation, the same informant committed criminal acts
while cooperating with the government, and Agent Sisko did not reveal Freeman’s visitors
before he disposed of narcotic paraphernalia, but after Sewell left (and thus, he argued,
someone else could be Freeman’s source).
The district judge denied Sewell’s motion to suppress after concluding that the
affidavit provided probable cause. Specifically, the judge focused on Sewell’s multiple
meetings with Freeman at his condo, and the phone conversations corroborating Sewell’s
involvement in drug trafficking. Alternatively, the judge also found that even if probable

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No. 10‐2090 Page 3
cause were lacking Agent Sisko acted in good faith, thus precluding application of the
exclusionary rule.
At the outset, Sewell addresses the applicable standard of review and argues that we
should review the magistrate judge’s probable‐cause ruling de novo. But such
determinations are afforded “great deference,” United States v. McIntire, 516 F.3d 576, 578
(7th Cir. 2008); see United States v. Dismuke, 593 F.3d 582, 586 (7th Cir. 2010), and we decline
to depart from that standard.
Sewell next argues that the district judge erred when she denied his motion to
suppress because the individual “snippets” recited in the affidavit did not supply enough
evidence to establish probable cause. Sewell emphasizes that the affidavit recites no direct
evidence of drug dealing, that investigators recorded only one conversation he had with
Freeman, and that Supreme Court precedent dictates that Sewell’s visits with Freeman
cannot alone establish probable cause.
A search‐warrant affidavit establishes probable cause when it sets forth sufficient
evidence to persuade a reasonably prudent person that there was a fair probability that a
search will reveal evidence of criminal activity. See United States v. Curry, 538 F.3d 718, 729‐
30 (7th Cir. 2008). The magistrate judge issuing the warrant may take into account the
totality of the circumstances, apply common sense, and consider the agent’s experience. See
Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Orozco, 576 F.3d 745, 748‐49 (7th Cir.
2009). Moreover, a magistrate judge may draw reasonable inferences about the location of
stashed evidence based on the nature of the evidence and the particular offense, and
“specifically, [i]n the case of drug dealers, evidence is likely to be found where the dealers
live.” Orozco, 576 F.3d at 749 (internal citations and quotation omitted). As long as the
issuing magistrate judge had a substantial basis for his conclusion, we will uphold a finding
of probable cause, see Curry, 538 F.3d at 729, and if as here the agent’s affidavit was the sole
support for the warrant, then the warrant’s validity depends on the strength of the affidavit.
See Orozco, 576 F.3d at 748.
As the district judge determined, the affidavit recited enough circumstantial evidence
from which a magistrate judge could infer probable cause that Sewell likely kept drugs in his
home. Sewell met with the suspected leader of a drug trafficking operation (Freeman) at his
drug packaging site (his condo), and wiretapped phone conversations captured Freeman
discussing drug trafficking with Sewell directly and with another co‐conspirator about
Sewell’s involvement. Additionally, the district judge was also correct to note that Freeman
disposed of narcotic paraphernalia shortly after Sewell visited the condo, that Sewell
belonged to the gang that ran the operation at Cabrini Green, and that he had a prior

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No. 10‐2090 Page 4
conviction for selling drugs. The facts cumulatively furnish a substantial basis for the
probable cause determination.
Sewell further contends that his mere presence at a crime site (Freeman’s condo) or
association with criminal suspects could not provide probable cause to search his home, a
principle he draws from Sibron v. New York, 392 U.S. 40 (1968), and Ybarra v. Illinois, 444 U.S.
85 (1979). But his reliance on these two cases is misplaced; the facts of both cases provide a
far weaker argument for the existence of probable cause. In Sibron an officer performed an
illegal search after inferring that a suspect sold drugs merely because he spoke to narcotics
addicts, see Sibron, 392 U.S. at 62‐63, and in Ybarra officers with a warrant to search a tavern
unlawfully searched its patrons based solely on their presence in the bar. Ybarra, 444 U.S. at
90‐91. Here, by contrast, the agent’s affidavit describes much more than the defendant’s
conversations with drug addicts or his presence near suspected criminals. As the district
court noted, Freeman led a drug‐trafficking organization run by Sewell’s gang, and that
provides greater support for a finding of probable cause than the drug addicts in Sibron.
And unlike Ybarra, Sewell encountered Freeman not at “some innocuous location” (as the
district judge put it), but rather at his gang’s suspected drug packaging facility.
Sewell next asserts, for the first time in his reply brief, that Agent Sisko recklessly
omitted material information from the affidavit and thus the evidence should have been
suppressed under Franks v. Delaware, 438 U.S. 154 (1978). But Sewell waived this argument
by failing to address it in his opening brief. See United States v. Li, 615 F.3d 752, 757 (7th Cir.
2010).
Finally, because we conclude that the search warrant was supported by probable
cause, we need not address the government’s alternative argument that, even if the affidavit
were deficient, the evidence seized from Sewell’s apartment would have been admissible
under the good‐faith exception to the exclusionary rule. See United States v. Leon, 468 U.S.
897, 922 (1984); United States v. Farmer, 543 F.3d 363, 378 (7th Cir. 2008). The good‐faith
exception allows the admission of evidence recovered without a proper search warrant as
long as an officer relied in good faith on a neutral magistrate’s issuance of a facially valid
warrant. See Curry, 538 F.3d at 730. An officer’s request for a search warrant raises a
presumption of good faith, see id., that Sewell has failed to rebut. Sewell asserts that Agent
Sisko recklessly omitted material information about the government informant’s criminal
past, but this information was immaterial because the evidence critical to the probable cause
determination was corroborated by other investigative means, such as surveillance and
wiretaps.
AFFIRMED.

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