United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Love is charged with two counts of distributing crack cocaine
on December 8 and December 15, 2016, and with possessing
crack cocaine with intent to distribute on December 20, 2016.
He is also charged with being a felon in possession of a
firearm. Love has moved to suppress evidence seized during
the December 20 execution of a search warrant at his
residence, claiming that the search was not supported by
probable cause. He also seeks a hearing under Franks v.
Delaware, 438 U.S. 154 (1978).
December 19, 2016, the government applied for a warrant to
search what was described as the “Upstairs
Apartment” at 1302 W. 150th Street in East
Chicago, Indiana, for “evidence, fruits and
instrumentalities” of drug trafficking. [DE 46 at 13.]
The affidavit of FBI Task Force Officer Christopher Gootee
was submitted in support of the application. [Id. at
16.] United States Magistrate Judge John Martin issued the
warrant at 3:10 p.m. on December 19. [Id. at 26.] On
December 20, federal agents executed the search warrant and
seized items including plastic baggies containing what was
suspected to be marijuana and cocaine, several digital
scales, several pistols and currency. [Id. at 2.]
acknowledges that the warrant was sought after controlled
buys of crack cocaine were made from Love by a confidential
informant. There were two transactions, each involving a CI
purchasing 1.9 grams of crack cocaine from Love for $150.
[Id. at 2.] The first controlled buy took place on
December 8, 2016, and the second on December 15.
[Id.] Both transactions took place at a Subway
restaurant at 150th and Indianapolis Boulevard in
East Chicago, and both were audio and video recorded.
[Id.] The CI attempted to arrange a third buy on
December 12, but his phone call to Love went unanswered and
no transaction occurred. [Id.]
apartment targeted in the search warrant was identified as
the apartment of Love's girlfriend, Amanda Matthews. [DE
46 at 19, ¶8.] Gootee's affidavit attests that on
December 8, approximately 4 minutes prior to meeting with the
CI to make the sale of crack cocaine, Love “was
observed by Investigators departing the area of” the
apartment. [Id. at 20, ¶13.] Concerning
“Controlled Purchase #2, ” the affidavit reported
that investigators conducting surveillance saw Love use a key
to enter the apartment building for a short time before
driving to the Subway to make the sale to the CI.
[Id. at ¶15.] The affidavit mistakenly uses the
date of December 12 to describe the second controlled buy,
when it in fact occurred on December 15. [Id. at
¶14.] Recall that there was an aborted attempted
undercover buy from Love on December 12th and
perhaps that is the source of the confusion in the dates.
addition to Love being seen by law enforcement leaving the
apartment just prior to one of the undercover buys (and in
the area of the apartment on the other), Gootee's
affidavit attempts to link Love with the apartment in another
way. The affidavit notes that on December 3, 2016, less than
a week before the first controlled buy, Amanda Matthews had
reported a home invasion and robbery at the apartment. [DE 46
at 19, ¶8.] According to the affidavit, “[r]eports
authored by East Chicago Police Officers indicate that both
Matthews and Love have been uncooperative with the
“A search warrant affidavit establishes probable cause
when it sets forth facts sufficient to induce a reasonably
prudent person to believe that a search thereof will uncover
evidence of a crime.” United States v.
Gregory, 795 F.3d 735, 741 (7th Cir. 2015)
(citation omitted). Where the issuance of a search warrant is
based entirely on an affidavit, “the validity of the
warrant depends solely on the strength of the
affidavit.” United States v. Johnson, 867 F.3d
737, 741 (7th Cir. 2017), citing United States
v. Carson, 582 F.3d 827, 831-32 (7th Cir.
2009). A reviewing court gives “great deference”
to the conclusion of the issuing judge that there was
probable cause to support the warrant. United States v.
Robinson, 724 F.3d 878, 884 (7th Cir. 2009).
Franks, a defendant is entitled to an evidentiary
hearing on the truthfulness of information submitted in a
search warrant application if he can make a
“substantial preliminary showing” that there were
false statements in the warrant affidavit, that the untruths
were intentional or made with reckless disregard of the
truth, and that the false statements were “material to
the finding of probable cause.” United States v.
Mullins, 803 F.3d 858, 861-62 (7th Cir.
2015). But if a finding of probable cause is supported even
without the false statements, “a hearing is unnecessary
and the motion should be denied.” Id. at 862.
Love's motion to suppress raises four arguments. The
first is Love's assertion that Gootee's affidavit is
insufficient to establish that Bryant Love resided in the
apartment. This argument misses the mark. The legitimacy of
the warrant did not turn on whether Love resided in the
apartment, but on whether there existed probable cause to
believe evidence relating to drug dealing would be found in
the apartment. “The task of the issuing judge ‘is
simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before
him, ...there is a fair probability that contraband or
evidence of a crime will be found in a particular
place.'” United States v. Reichling, 781
F.3d 993, 887 (7th Cir. 2015), quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983).
affidavit here could of course have been drafted with greater
specificity and precision. As for one drug transaction, it
offers evidence that Love was seen “departing the area
of the Premises” approximately four minutes prior to
meeting the CI to sell him drugs. [DE 46 at 20, ¶13.]
But concerning the second controlled buy, the affidavit is
more detailed, attesting that officers conducting
surveillance saw Love enter the premises with a key, stay
inside the premises for a short period of time and then drive
directly to the drug transaction. [Id. at 21,
¶15.] Whether or not Love resided in the apartment, the
affidavit presented facts indicating that Love had access to
the apartment and had entered the building just before
engaging in a drug transaction on one occasion and had, on
the occasion of an identical drug transaction, also been seen
driving from the apartment to his meeting with the CI.
further link Love with a particular apartment within the
building, the affidavit offers evidence of a relationship
with Amanda Matthews, whose residence in the upstairs
apartment is documented in a police report of a home invasion
and robbery reported to the East Chicago Police five days
before the CI's first controlled buy from Love. [DE 46 at
19, ¶8.] Love takes issue with the affidavit's
assertion that Matthews was his girlfriend. But that's
neither here nor there. The issuing magistrate did not need
to demand proof of the nature of Love's and Matthews'
relationship to take into account that a very recent police
report reflected that Love had some connection to
the apartment in question.
sufficiency of the allegations supporting probable cause is
assessed based on the “totality of the
circumstances.” United States v. Hancock, 844
F.3d 702, 708 (7th Cir. 2016), quoting
Mullins, 803 F.3d at 861. The existence of a
connection between Love and the apartment was what mattered
in the present context, not the nature of his relationship
with Matthews. Love was seen leaving the apartment building
on two occasions prior to drug deals and he was further
connected to the building through the earlier police report.
That's all that matters. A judge issuing a warrant has
“license to draw reasonable inferences concerning where
the evidence referred to in the affidavit is likely to be
kept, taking into account the nature of the evidence and the