United States v. Shawn Bacon
991 F.3d 835
7th Cir.2021Background
- Police received two anonymous tips that Shawn Bacon sold heroin, cocaine, and meth from 1728 ½ High Street and possessed multiple guns; officers corroborated his address, vehicles, and a prior narcotics conviction.
- Two controlled buys were conducted using reliable confidential informants who were searched and wired; each informant enlisted an unwitting middleman who entered Bacon’s apartment, returned, and gave drugs to the informant.
- Officers observed the middlemen enter and exit Bacon’s apartment (about 17–18 minutes each time) and heard, via the informants’ wires, statements that Bacon had weighed drugs and had weapons in the apartment.
- Based on the tips, surveillance, and the two buys, a state judge issued a warrant; execution recovered large quantities of meth, cocaine, fentanyl, guns, ammunition, body armor, alleged explosive devices, scales, and a drug ledger.
- Bacon was indicted federally for armed drug trafficking, possession of unregistered firearms/destructive devices, and possession of body armor after a felony; he moved to suppress, sought a Franks hearing, was convicted, and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for warrant given the buys used unwired/unsearched middlemen | Bacon: buys were not "controlled" because middlemen were unknown, unsearched, and unwired, so magistrate lacked probable cause | Government: unwitting middlemen are reliable (no motive to lie); corroborating tips, surveillance, informant wires, and recovered contraband supplied probable cause | Affirmed: magistrate had substantial basis for probable cause; unwitting middlemen did not negate probative value of the buys |
| Entitlement to a Franks hearing based on alleged omissions in the affidavit | Bacon: affidavit omitted material facts (that middlemen were not searched/wired; and later arrests) that would undermine probable cause | Government: omissions were apparent from the affidavit or immaterial; no evidence officers knew of impending arrests; credibility of unwitting informants not central | Affirmed: no substantial preliminary showing of material, intentional or reckless omissions; denial of Franks hearing proper |
| Sufficiency: destructive device and body armor counts | Bacon: devices were not proven "destructive devices"; he lacked knowledge that vest was body armor | Government: physical evidence, x-rays, ATF testimony and tag on vest supported that devices were explosive and vest was body armor | Affirmed: rational jury could find devices were explosive/destructive and that Bacon knew vest was body armor |
| Sufficiency: drug-quantity (400+ grams fentanyl) | Bacon: only 232 g fentanyl shown from first search; government failed to prove remaining fentanyl | Government: second search recovered additional fentanyl (combined >400 g); meth quantity independently satisfied higher statutory threshold | Affirmed: evidence supported at least 400 g fentanyl; alternatively 500 g meth finding sustains the same sentencing range; any error harmless |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (probable cause standard for search warrants requires a fair probability based on totality of circumstances)
- United States v. Sidwell, 440 F.3d 865 (7th Cir. 2006) (properly executed controlled buys are reliable indicators of drug activity)
- United States v. McKinney, 143 F.3d 325 (7th Cir. 1998) (controlled buys add great weight to an informant’s tip)
- United States v. Artez, 389 F.3d 1106 (10th Cir. 2004) (discussion of risks from unwitting informants in controlled buys)
- United States v. Gunter, 551 F.3d 472 (6th Cir. 2009) (unwitting informants often have greater reliability because they lack incentives to lie)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (standard for requiring a Franks hearing based on false statements or reckless omissions)
- United States v. McMurtrey, 704 F.3d 502 (7th Cir. 2013) (Franks extends to deliberately or recklessly deceptive omissions)
- United States v. Clark, 935 F.3d 558 (7th Cir. 2019) (preliminary showing required for Franks hearing when informant credibility is central)
- United States v. Spears, 673 F.3d 598 (7th Cir. 2012) (omissions apparent from face of affidavit are immaterial for Franks purposes)
- United States v. Wilburn, 581 F.3d 618 (7th Cir. 2009) (omission of personal knowledge by tipster immaterial where affidavit otherwise assumes no personal knowledge)
- United States v. Lockwood, 789 F.3d 773 (7th Cir. 2015) (definition and elements for "destructive device" under federal law)
- United States v. Tantchev, 916 F.3d 645 (7th Cir. 2019) (standard of review for sufficiency of the evidence on a motion for judgment of acquittal)