996 F.3d 785
7th Cir.2021Background
- Police stopped Carswell for speeding, learned his home address, and surveilled the Green Road residence where his car was regularly parked.
- A single nighttime trash pull from bins at the driveway recovered drug packaging (including green saran wrap linked to a prior case), bagged cocaine residue, ~3 g meth, and a receipt showing Dereka Evans purchased a CZ Scorpion pistol and ammunition.
- Affidavit also described Carswell's prior drug-related investigation/conviction (nuisance tied to distribution quantities wrapped in green saran wrap) and an arrestee-informant who identified Carswell as a supplier.
- A magistrate issued a warrant; the search produced 64 grams of heroin, large amounts of cash (~$25,000), multiple firearms and ammo, digital scales, cell phones, and drug-packaging materials; Carswell was charged federally.
- Carswell moved to suppress; district court denied suppression. At trial Carswell's sole defense was that the heroin was for personal use; government presented DEA expert testimony that 64 g and the other indicia were consistent with distribution. Jury convicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for search warrant | Totality of trash pull (drugs, packaging, firearm receipt), informant ID, and Carswell's criminal history gave a fair probability of evidence at the residence | Trash pull was a single pull (could be outsider trash); informant uncorroborated; prior convictions insufficient alone | Affirmed: magistrate reasonably found probable cause under Gates totality-of-circumstances standard |
| Prosecutor's comments about defendant not testifying | Prosecutor may point to lack of supporting evidence and argue credibility of defendant's out-of-court statement | Comments improperly referenced silence and penalized Carswell for not testifying (Griffin claim) | Affirmed: remarks tracked jury instructions and attacked the credibility of an in-evidence statement; not an improper comment on silence |
| Argument that Carswell was not "dope sick" and thus not a user | Government relied on agents' observations plus expert testimony about heroin withdrawal/use patterns to rebut personal-use claim | No record evidence showed he was not dope sick; conjecture | Affirmed: combination of observations and expert testimony provided a basis for the argument; not improper plain error |
| "Stash house" inference and quantity exaggerations in closing | Inferences from texts/phones and rhetorical analogies were permissible argument from evidence | Remarks misstated or overstated evidence and misquoted defense, denying fair trial | Affirmed: inferences and loose analogies were not plain error; no deprivation of fair trial |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (totality-of-circumstances standard for probable cause for search warrants)
- United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule)
- United States v. McDuffy, 636 F.3d 361 (discarded/trash evidence can support probable cause)
- United States v. Koerth, 312 F.3d 862 (commonsense, nontechnical probable-cause inquiry for warrants)
- Griffin v. California, 380 U.S. 609 (prosecutor may not comment on defendant's silence at trial)
- United States v. Cotnam, 88 F.3d 487 (limits on prosecutorial comment when only defendant could produce exculpatory testimony)
- United States v. Tucker, 714 F.3d 1006 (plain-error review for unobjected-to prosecutorial misconduct)