United States v. Gregory
Opinion of the Court
ORDER
Based on information provided by an informant, a state judge issued warrants to search two residences in rural Illinois. The search revealed indoor cannabis-growing operations and led to the indictment of four men, including the three appellants. During the subsequent criminal proceedings, the appellants moved to suppress the evidence discovered at the two residences, moved for a Franks hearing, and moved to compel the government to reveal the identity of the informant. All these motions were denied and the appellants pleaded guilty, but reserved the right to appeal the denials of their motions. The government concedes that remand is necessary to determine whether the identity of the informant should be disclosed. Consequently, we reverse the denial of the motion to compel. Because we remand for reconsideration of that motion, we abstain from addressing the denials of the other motions.
I. Facts
On February 16, 2011, someone contacted Drug Enforcement Administration Officer Christopher Washburn and reported cannabis-growing operations at 1025 and
On March 4, the informant telephoned Chavira and provided the following information: Gregory and Eric Konrady were living at the 1027 residence and growing cannabis in the basement. Similarly, Ci-pra, an associate of Gregory, was living at the 1025 residence and also was growing cannabis in the basement. The residences are located on the same parcel of land and share a common driveway. The operations in both residences were set up similarly. Cipra and Gregory used both soil operation techniques and hydroponics,
The informant further stated that he had known Cipra and Gregory for years, and had first-hand knowledge that both had been involved in the production, manufacture, and sale of cannabis in the Lee County area for about seven years. Cipra and Gregory regularly rented rural properties to grow cannabis, and they had been using the 1025 and 1027 residence for two years. Additionally, the informant cautioned Chavira that Cipra and Gregory possessed several handguns and assault rifles they had acquired after being robbed. Finally, the informant noted that Gregory drove a red Ford Explorer, and that Cipra drove a silver or dark gray Toyota Camry that he parked on the west side of the 1025 residence.
After this conversation, Chavira investigated and determined that Gregory and Cipra had firearms permits as well as pri- or convictions for possession of cannabis. Chavira also determined that a Toyota sedan was registered to Cipra. Further, Chavira discovered that Gregory was associated with several Illinois addresses. On
On March 22, Chavira sought search warrants for the 1025 and 1027 residences. In his supporting affidavits, Chavira stated that, based on his experience, the informant’s statements about the market price for a pound of cannabis were accurate, and the informant’s descriptions of the method and manner of the cannabis operation demonstrated that he was knowledgeable about the inner workings and demands of growing cannabis. Chavira also attached the photographs of the cannabis provided by the informant and police photographs of the residences to his affidavits.
On March 22, a state court judge issued search warrants for the 1025 and 1027 residences. On March 23, the police executed the warrants and discovered large-scale cannabis-growing operations as well as numerous weapons. The police arrested Gregory, Konrady, Cipra, and Benjamin Garcia.
The defendants were indicted in federal court for various drug and weapon offenses arising out of the cannabis-growing operations at the 1025 and 1027 residences. Before pleading guilty, Konrady, Gregory, and Cipra each moved to suppress the evidence obtained from the search of the two residences on the theory that probable cause was lacking. Cipra also requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the theory that Chavira intentionally omitted from his affidavits adverse electricity-consumption information disclosed by the power company in response to Washburn’s subpoena on April 5. (The power company did not respond to the subpoena until April 5, 2011— two weeks after the warrants issued. The response showed, inter alia, that two houses near the 1025 and 1027 residences had similar electricity-consumption rates to those of the 1025 and 1027 residences.)
The case then took a bizarre turn. In January 2012, the government disclosed to the defendants that the informant had left several voice mails for Washburn. Therein, the informant accused Washburn of falsifying documents to “get inside someone’s house.” The informant also claimed that Washburn told the informant to lie and that “this isn’t what I signed up for, to lie.” Thereafter, on February 28, the district court denied the motion to suppress on the ground that the warrant was supported by probable cause or, alternatively, the Leon good faith exception applies. In the same order, the district court denied the motion for a Franks hearing because
Cipra asked the government to disclose the identify of the informant, but the government refused to do so. Thereupon, Cipra, with whom Gregory and Konrady later joined, moved to compel the disclosure of the informant’s identity so that they could interview the informant and determine if another motion to suppress or motion for a Franks hearing was appropriate. The government opposed the motion on the theory that, even if the informant’s allegations were true, Chavira (and not Washburn) had prepared the affidavits and, at worst, Chavira had merely unwittingly included false statements told to him by a private third party. The district court accepted this reasoning and denied the motion to compel disclosure.
To add yet another twist, the government disclosed to the defendants that the informant was being prosecuted in Boone County, Illinois. At a subsequent hearing, counsel for Cipra stated that the brother of one of the defendants contacted him and requested representation in a Boone County prosecution sounding suspiciously like the government’s prosecution of the informant. However, counsel explained that he had been unable to confirm his suspicion because he was unable to talk to the brother or find the brother in the Boone County Clerk’s records. Thereafter, Konrady, Gregory, and Cipra each pleaded guilty, but they reserved the right to appeal the district court’s various rulings. Having been sentenced, they now appeal.
II. Discussion
On appeal, Konrady, Gregory, and Ci-pra argue that the district court erred in finding that probable cause supported the warrants or, alternatively, in holding that the Leon good faith exception applies. The appellants also argue that the district court erred in declining to hold a Franks hearing based on the theory that the April 5 electricity-consumption information was intentionally omitted from Chavi-ra’s affidavits. (The appellants contend that this information undermined the notion that the electricity-consumption rates at the 1025 and 1027 residences were unusually high.) Finally, the appellants argue that the district court erred in declining to require the government to identify the informant and hold a Franks hearing regarding the informant’s allegations against Washburn. Because we remand to allow the district court to reconsider its decision declining to require the government to identify the informant (which ultimately could affect whether the warrants are upheld), we refrain at this time from resolving the appellants’ probable cause challenges and arguments regarding the alleged omission of the April 5 electricity-consumption information.
Here, the district court held that disclosure was unwarranted in part because a Franks hearing is not necessary when a third party lies to the officer preparing an affidavit and the officer incorporates those false statements into his affidavit.
Consequently, we must remand this case to allow the district court to reconsider whether to compel disclosure of the informant’s identity. Should the district court order the government to disclose the informant’s identity, the defendants will have the opportunity to determine if the informant is willing to stick to his story (in open court at a Franks hearing) that Washburn coerced him into lying about [having personal knowledge of] the drug operation at the 1025 and 1027 residences. If so, then a Franks hearing will likely be necessary. Undoubtedly, the informant’s claims are highly unusual given that so many of his statements to Chavira were confirmed by subsequent police investigation or borne out by the search itself. But perhaps the informant’s claim is that Washburn illegally obtained the information about the cannabis-growing operations and then coerced the informant into pretending to be the source of the information. We think the best course is to leave the resolution of this matter for the district court on remand.
We VACATE the appellants’ sentences, and we REMAND for reconsideration of the appellants’ motion to compel the government to disclose the identity of the informant.
. "Soil operations” (as the term suggests) refers to methods of growing plants in soil whereas "hydroponics” refers to methods of growing plants without soil.
. Garcia is not part of this appeal.
. Due to a secretarial error, Konrady's appeal was filed fifteen days late. However, the district court concluded that the late filing was excusable and extended Konrady’s time to appeal in accordance with Rule 4(b)(4) of the Federal Rules of Appellate Procedure.
. The district court also held that the informant was "at most a tipster only.” We have generally held that disclosure is not required if the informant is a mere tipster, rather than an eyewitness or participant to the event in question. See Harris, 531 F.3d at 515 (collecting cases). The notion that the informant was not an eyewitness is difficult to reconcile with the fact that the informant provided photographs of the cannabis-growing operation in the 1027 residence. Moreover, while the informant originally may have been a mere tipster, the government concedes that the informant's subsequent allegations of misconduct by Washburn during the investigation of the 1025 and 1027 residences transforms the informant into something more than a mere tipster. The district court also observed that the informant’s messages and online statements do not specifically refer to the prosecution of Konrady, Gregory, and Cipra, and consequently the court reasoned that it is pure conjecture to say that Washburn caused the informant to lie in this case. But there is no evidence that the informant had ever assisted Washburn in any other case. So it is difficult to see how the informant’s allegations reasonably could be interpreted to refer to anything other than the appellants' case.
Reference
- Full Case Name
- United States v. Shannon L. GREGORY, Donald P. Cipra, and Eric M. Konrady
- Cited By
- 1 case
- Status
- Published