United States v. Mykytiuk, Robert

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1196

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT MYKYTIUK,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-CR-078-S—John C. Shabaz, Judge.

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ARGUED AUGUST 3, 2004—DECIDED APRIL 1, 2005

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Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. After executing a state search war-

rant for Robert Mykytiuk’s residence and truck, Wisconsin

law enforcement officers found a handgun and equipment,

materials, and chemicals used to manufacture methamphet-

amine. Later, federal prosecutors took over the case, and

Mykytiuk moved to quash the search warrant and suppress

the evidence. The district court denied the motion.

Mykytiuk then entered a conditional guilty plea to one

count of possessing pseudoephedrine with intent to manu-

facture methamphetamine, see 21 U.S.C. § 841(c)(2), and

2 No. 04-1196

one count of possessing a firearm in furtherance of drug

trafficking, see 21 U.S.C. § 924(c)(1)(A), reserving in his

plea agreement the right to challenge the denial of his

motion to suppress. The district court sentenced him to 90

months’ imprisonment on Count One and 60 months’ im-

prisonment on Count Two, to run consecutively. On appeal,

Mykytiuk challenges the denial of his motion to suppress,

arguing that the warrant was too broad and that the court

erred in applying the good-faith doctrine. We conclude that

the evidence was admissible under United States v. Leon,

468 U.S. 897 (1984), and we therefore affirm the judgment

of conviction. Mykytiuk’s challenge to his sentence, how-

ever, cannot be resolved until after a limited remand for

further proceedings in the district court.

I

On May 2, 2003, Jason Hagen, a detective for the Barron

County Sheriff’s Department, served a search warrant at

Tim Soltau’s residence and found chemicals and materials,

including anhydrous ammonia, that led Hagen to believe

that Soltau was manufacturing methamphetamine. After

questioning, Soltau told two officers that he and Mykytiuk

had stolen the anhydrous ammonia and stored it at

Mykytiuk’s residence until three days earlier, when Soltau

stole it for himself. Soltau also told the officers that

Mykytiuk manufactured methamphetamine and ordinarily

kept the necessary materials in two five-gallon buckets in

vehicles parked at his residence. Soltau informed the officers

that Mykytiuk ordinarily carries a loaded firearm in his

vehicle, and that while at Mykytiuk’s residence, Soltau had

fired fully automatic weapons belonging to Mykytiuk.

That day Hagen applied for a no-knock search warrant

allowing officers to search Mykytiuk’s residence, vehicles,

and outbuildings on the property. Hagen’s supporting affi-

davit detailed Soltau’s statements. In the affidavit, Hagen

No. 04-1196 3

also represented that, “based on his experience and train-

ing,” he believed that a “person manufacturing metham-

phetamine would ordinarily possess methamphetamine and

drug paraphernalia within his/her residence.” Based on the

affidavit, Barron County Circuit Judge James C. Babler

issued a no-knock warrant to search “vehicles parked on the

property of 2117 6¼ street, Cumberland, Wisconsin and a

yellow two story house and outbuildings at that location . . .

[for] two five gallon buckets containing muriatic acid, paint

thinner, pseudofed, lithium batteries, Coleman fuel, and/or

coffee filters.” Upon executing the warrant, the officers found

components of a methamphetamine lab in a storage build-

ing as well as additional materials used to manufacture

methamphetamine and a Colt .45 semi-automatic handgun

(found in Mykytiuk’s truck).

At that point, the investigation was referred to federal

authorities. Mykytiuk was indicted for possessing pseudo-

ephedrine, possessing a firearm in furtherance of drug traf-

ficking, possessing chemicals and equipment to manufacture

a controlled substance, and attempting to manufacture

methamphetamine. He moved to quash the search warrant

and suppress the evidence on the grounds that the warrant

was not supported by probable cause, that the warrant’s

scope was too broad, and that no reasonable officer could

have relied on the warrant in good faith. Magistrate Judge

Stephen L. Crocker issued a report recommending that

the motion be denied. Magistrate Judge Crocker reasoned

that, although the warrant was not supported by probable

cause, it was not overly broad and the officers had relied on

it in good faith. Mykytiuk objected, but the district court

adopted the report and recommendation and denied the

motion to suppress.

II

On appeal, Mykytiuk again urges that the search warrant

was not supported by probable cause, that it was overly

4 No. 04-1196

broad, and that the good-faith exception to the exclusionary

rule should not be applied to excuse the officers’ conduct in

this case. The government concedes that the search warrant

was not supported by probable cause. We nevertheless

address this question briefly, both because the government’s

concession is not ultimately binding on this court, and be-

cause the question whether probable cause was lacking is

relevant to whether the officers relied on the warrant in

good faith.

When, as here, an affidavit is the only evidence presented

to a judge to support a search warrant, “the validity of the

warrant rests solely on the strength of the affidavit.” United

States v. Peck, 317 F.3d 754, 755-56 (7th Cir. 2003). A

search warrant affidavit establishes probable cause when,

based on the totality of the circumstances, it “sets forth suf-

ficient evidence to induce a reasonably prudent person to

believe that a search will uncover evidence of a crime.” Id.

(citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Where

information from an informant is used to establish probable

cause, courts should assess the informant’s credibility by

considering the following factors: (1) whether the informant

personally observed the events, (2) the degree of detail

shown in the informant’s statements, (3) whether the police

independently corroborated the information, (4) the interval

of time between the events and application for a warrant,

and (5) whether the informant appeared in person before

the judicial officer who issued the warrant. United States v.

Koerth, 312 F.3d 862, 866 (7th Cir. 2002); United States v.

Jones, 208 F.3d 603, 609 (7th Cir. 2000).

In Koerth, we had to decide whether statements from an

informant of unknown reliability were sufficient to establish

probable cause. 312 F.3d at 867-69. The evidence submitted

in support of the search warrant in Koerth is similar to the

evidence in the present case, as seen from the probable

cause portion of the Koerth affidavit:

No. 04-1196 5

On Wednesday, Aug. 30, 2000, a search warrant was

executed at 806 Ruff Pl., Bloomer, Wis., which led to

the seizure of marijuana, methamphetamine, and U.S.

Currency. Investigation revealed that the marijuana

and methamphetamine were purchased from a white

male, known as Lonnie, who resides at 2344 195th Ave.

Abraham Savage, who is believed to be a reliable source,

indicated that he was at Lonnie’s on Thursday, Aug. 29,

2000, and witnessed a large amount of marijuana.

Savage stated he believed there was approximately 150-

200 pounds of marijuana at the residence, as well as

approximately two pounds of methamphetamine, a

large bag of cocaine, and $30,000 in U.S. currency.

Savage has purchased from Lonnie in the past and that

[sic] is a member of the Iron Wings Motorcycle Club.

Id. at 867. The officer also requested a no-knock warrant

because the informant had seen “numerous firearms” at

Lonnie’s residence. Id. We held in Koerth that despite the

fact that the informant had first-hand knowledge of the

allegedly illegal activity and gave “statements against his

penal interest,” the facts were presented in a “conclusory

and essentially uncorroborated fashion.” Id. at 870. The af-

fidavit thus lacked a factual foundation, and was “based on

the testimony of a previously unknown informant.” Id. at

867. We also noted that the informant had not appeared in

person before the state judge who issued the search warrant

and that the police had not corroborated any of his state-

ments. Id. at 868. In those circumstances, to uphold the

state judge’s probable cause determination “would be

[impermissibly] to ratify the search of a home based on the

use of essentially conclusory statements without corrobora-

tion.” Id.

In the present case, Officer Hagan similarly failed to cor-

roborate or provide foundation for Soltau’s statements.

Although Soltau provided first-hand information against his

6 No. 04-1196

penal interest, there was no evidence that he was a reliable

witness or that he had provided accurate information in the

past, and he provided only one detail to support the accu-

racy of his statements regarding Mykytiuk’s metham-

phetamine production—that Mykytiuk stored his materials

in two five-gallon buckets. This was a thin reed on which to

rest the probable cause determination, and we are disin-

clined to second-guess both the district court’s and the

government’s assessment of this point.

Even on the assumption that the warrant was bad and

the search invalid, however, suppression of evidence is not

the inevitable consequence. See Leon, supra. A facially valid

search warrant issued by a neutral, detached magistrate

will be upheld if the police relied on the warrant in good

faith. See 468 U.S. at 913. An officer’s decision to obtain a

warrant is prima facie evidence that she was acting in good

faith. See United States v. Merritt, 361 F.3d 1005, 1013 (7th

Cir. 2004). A defendant can rebut the presumption of good

faith only by showing that the issuing judge abandoned his

role as a neutral and detached arbiter, that the officers

were dishonest or reckless in preparing the supporting

affidavit, or that the affidavit was so lacking in probable

cause that no officer could have relied on it. See Leon, 468

U.S. at 923; Peck, 317 F.3d at 757.

Mykytiuk does not rely on either of the first two of those

rebuttal theories. He argues only that this affidavit was so

inadequate that a reasonable officer should have known

that the warrant was no good. More specifically, Mykytiuk

argues that the officers should have known that the war-

rant was invalid because this court’s case law—specifically

the Koerth decision—makes clear that statements like those

from Soltau are insufficient to establish probable cause. In

response, the government argues that it would be unreason-

able to assume that every police officer knows about a

federal appellate court’s decision that appeared less than

six months before the particular state search warrant was

issued.

No. 04-1196 7

Police officers are charged with having knowledge of well-

established legal principles. See Koerth, 312 F.3d at 869;

United States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995).

This court took a narrow view in determining whether a

legal principle is well-established in Koerth, holding that

evidence seized pursuant to a search warrant should not be

excluded unless the supporting affidavit is “plainly defi-

cient” or where “courts have clearly held that a materially

similar affidavit previously failed to establish probable cause

under facts that were indistinguishable from those presented

in the case at hand.” 312 F.3d at 869. In the qualified im-

munity context, which uses a similar analysis, see Malley

v. Briggs, 475 U.S. 335, 344-45 (1986); Koerth, 312 F.3d

at 869, it is only necessary for the plaintiff to “point to a

closely analogous case decided prior to the challenged con-

duct in order to defeat qualified immunity,” Sonnleitner v.

York, 304 F.3d 704, 716 (7th Cir. 2002).

We think that the cautious approach advocated by Koerth

is correct. On this record, we do not have the type of evi-

dence that has been found so wanting in the past—uncor-

roborated, conclusory assertions from unproven informants—

that the availability of the good-faith exception has been

forfeited. The officers had already found some of the in-

gredients necessary for manufacturing methamphetamine

at Soltau’s residence, during the May 2 search. That alone

provided corroboration for Soltau’s claim that he knew

something about where the anhydrous ammonia found at

his house had come from, and who else Soltau knew to be

involved in the illegal activity. Furthermore, Soltau’s state-

ments to the officers went beyond the conclusory allegations

we have criticized in the past. He specified where Mykytiuk

kept the ingredients for his meth operation, and what kind

of weapons Mykytiuk had in his possession.

We do not mean to excuse the local officers’ apparent

ignorance of Koerth. If a local drug task force routinely

works with the federal government, it has a responsibility

8 No. 04-1196

to learn and follow applicable legal precedent. The officers

could consult with federal prosecutors before obtaining a

warrant. See United States v. Brown, 328 F.3d 352, 357 (7th

Cir. 2003) (local agents contacted AUSA to seek guidance on

how to proceed with a search); Merritt, 361 at 1012-13

(BATF agent relied on warrant in good faith where his

affidavit was “drafted, reviewed, and approved by AUSA”).

In fact, Magistrate Judge Crocker expressed his concern in

his report and recommendation that a double standard

could develop between state and federal appeals:

A measurable percentage of these task force cases (in-

cluding some currently before the court) contain defi-

cient police work. If the government wishes to continue

to bring these cases federally, it should start screening

them more carefully and/or start providing more train-

ing to state and county agents so that a de facto double

standard doesn’t develop.

That said, we note that the scope of the good-faith exception

to the warrant requirement may raise some federalism

concerns. The state police officers were relying on the deci-

sion of the state judge to accept the affidavit, and it is a fact

that the state trial courts are not bound directly by deci-

sions of the federal courts of appeals. If, in a particular case,

it could be shown that the conduct of the state courts and

police complied with Fourth Amendment interpretations

from the state supreme court and the U.S. Supreme Court,

but was in apparent conflict with a decision of a federal

court of appeals, we would need to decide what weight to

give to the court of appeals’ decision. That is not this case,

however, and we therefore save for another day further

consideration of this problem.

The Supreme Court has concluded that “suppression of

evidence obtained pursuant to a warrant should be ordered

only on a case-by-case basis and only in those unusual cases

in which exclusion will further the purposes of the exclu-

No. 04-1196 9

sionary rule.” Leon, 468 U.S. at 918. In the present case, we

conclude that it is unlikely that suppression would improve

the performance of either the local officers who were

investigating the case or the federal prosecutors who relied

on their work. Nonetheless, we join Magistrate Judge Crocker

in urging the government to train local task forces and to

screen the local cases that lead to federal prosecutions;

appeals like this take time, and preventive measures will

reduce their numbers.

Both parties also briefed the issue whether the scope of

the search warrant was overly broad because it authorized

the search of Mykytiuk’s residence and outbuildings in addi-

tion to his vehicles. The only items found in Mykytiuk’s

residence were two old rifles and a package of illegal M-98

Magnum explosive fireworks. Neither of these guns served

as the basis for the § 924(c)(1) charge. If, as we have as-

sumed, the warrant was unsupported by probable cause, its

scope is irrelevant. Because we have found that the officers

reasonably relied on the search warrant, it was also reason-

able for them to conclude that they could search Mykytiuk’s

residence. As Detective Hagan stated in his affidavit, it is

reasonable to infer that a person who manufactures meth-

amphetamine would keep drugs or materials in his house.

A judge “is entitled to draw reasonable inferences about

where evidence is likely to be kept, based on the nature of

the evidence and the type of offense.” United States v.

Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996) (quoting

United States v. Sleet, 54 F.3d 303, 306 (7th Cir. 1995)).

“[I]n the case of drug dealers evidence is likely to be found

where the dealers live.” Id. (quoting United States v. Lamon,

930 F.2d 1183, 1188 (7th Cir. 1991)). Thus, had the warrant

itself been supported by probable cause, the scope of the

warrant would have been proper.

10 No. 04-1196

III

Shortly before oral argument in this case, we permitted

Mykytiuk to file a supplemental brief in which he claimed

that he was entitled to be resentenced under the principles

announced in Blakely v. Washington, 124 S.Ct. 2531 (2004),

and this court’s decision in United States v. Booker, 375

F.3d 508 (7th Cir. 2004), aff’d, 125 S.Ct. 738 (2005). In that

brief, Mykytiuk acknowledged that he admitted to posses-

sion of a quantity of drugs that resulted in giving him a

base offense level of 28 for purposes of the U.S. Sentencing

Guidelines, § 2D1.1. The district court went on, however, to

enhance the base level by three pursuant to U.S.S.G.

§ 2D1.1(b)(5)(B), based on its own finding that the offense

involved the manufacture of methamphetamine and created

a substantial risk of harm to human life. It did so based on

evidence that on May 15, 2003, Mykytiuk caused a fire in

the building he used as his meth lab and he received burns

that required hospital treatment. He objected to the

enhancement on the ground that, although he did cause the

fire, he did so not while he was manufacturing the drug but

instead while he was lighting a heater to keep warm.

Eventually, he withdrew this objection.

We conclude that Mykytiuk’s objection was not enough to

allow him to escape the plain error standard of review for

his Blakely/Booker argument. In keeping with the proce-

dure outlined in United States v. Paladino, Nos. 03-2296

et al., 2005 WL 435430 (7th Cir. Feb. 25, 2005), we therefore

order a limited remand to permit the sentencing judge to

determine whether he would have imposed a different sen-

tence had he known (in keeping with the sentencing majority

in Booker) that the guidelines were merely advisory. Prior

to coming to a conclusion, the judge should follow the fol-

lowing procedure outlined in Paladino:

“[T]he District court should obtain the views of counsel,

at least in writing, but need not require the presence of

No. 04-1196 11

the Defendant, see Fed. R. Crim. P. 43(b)(3). Upon

reaching its decision (with or without a hearing)

whether to resentence, the District Court should either

place on the record a decision not to resentence, with an

appropriate explanation,” or inform this court of its

desire to resentence the defendant. (By “should” in the

quoted passage we understand “must.”)

Paladino, 2005 WL 435430, at *10, quoting United States v.

Crosby, 397 F.3d 103 (2d Cir. 2005). If the district court

indicates that it wishes to resentence Mykytiuk, this court

will vacate the sentence and remand for resentencing. At

that point, with the defendant present, the district court

must resentence in accordance with the Supreme Court’s

Booker decision and all relevant provisions of the Sentencing

Reform Act, see 18 U.S.C. § 3553. During the limited

remand to learn the inclination of the district court judge,

this court will retain jurisdiction over the case.

IV

We AFFIRM the district court’s order denying Mykytiuk’s

motion to suppress. While retaining jurisdiction over the

appeal, we REMAND for the limited purpose of learning the

district judge’s decision on the question of resentencing.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-1-05