UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON WHITE, Defendant-Appellant.
No. 04-2134
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 12, 2005—DECIDED JULY 28, 2005
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 03 CR 26—Theresa L. Springmann, Judge.
MANION, Circuit Judge. In April 2003, the Fort Wayne Police Department learned that Jason White was selling crack cocaine from a house at 118 W. Creighton Ave. in Fort Wayne, Indiana. They obtained and executed a search warrant, discovering rocks of crack cocaine, packages of crack cocaine, a razor blade, and a 9 millimeter handgun. A jury in the Northern District of Indiana convicted White of possession of cocaine base with intent to distribute, being a felon in possession of a firearm, and use of a firearm in
I
On March 25, 2003, Detective Justin Henry arranged for a confidential informant (“CI“) to make a controlled purchase of crack cocaine from Jason White at 118 W. Creighton Ave. (the “Creighton house“). Officers searched the CI before the transaction and gave the CI $50 of pre-recorded drug money. The CI entered the front door of the Creighton house while the officers conducted surveillance on the location. Approximately fifteen minutes later the CI exited the house and returned, having purchased crack cocaine. After being shown a photo array of six individuals, the CI identified the picture of Jason White as the person who sold the drugs. The police also confirmed that White had provided that address as his residence during a prior police investigation.
The next day, Detective Henry swore an affidavit as to the events of the night before. Henry described the Creighton house as a “two-story, wood-frame, single family residence which is light gray in color with black trim with an entry door that faces south with a detached garage.” An Indiana state court judge granted a search warrant, ordering a search for evidence of drugs, firearms, and drug paraphernalia. In the search warrant, the state court judge described the house in the same manner as Henry.
On April 1, 2003, Henry called White to set up a purchase of $100 worth of crack cocaine. White gave Henry directions to the Creighton house and indicated that he would meet Henry in a Cadillac parked in an alley behind the house. When Henry arrived, he observed White sitting in the
At approximately the same time that White was taken into custody, the police executed the search warrant. According to Henry, he found on the first floor a “room [that] had been converted to a beauty salon, a barber shop.” Also on this first floor was a “little living room” with a bedroom off to one side, a kitchen, and another room that leads to the back door. Henry further explained that on one side of the salon portion of the first floor “there‘s a stairwell that goes up and there‘s another little apartment up there [on the second level] with a separate kitchen and living room, and bedroom.”
In the downstairs bedroom, the police searched a dresser which contained, in addition to some clothing, a handgun and a large quantity of crack cocaine. Police discovered “another chunk of crack cocaine” and a razor blade on a plate on top of the dresser in this bedroom. The parties stipulated at trial that the total weight of the crack cocaine recovered in the search was 13.53 grams. In the downstairs portion of the house, the police also found mail belonging to Jason White, though the mail contained a different address than that of the Creighton house. Finally, the police recovered a wallet from the downstairs bedroom that contained Jason White‘s driver‘s license and social security card.
A grand jury indicted White for: (1) knowing and intentional distribution of less than 5 grams of crack cocaine, in violation of
The case eventually proceeded to trial in January 2004, though the first count, which related to the distribution of the less than 5 grams of crack cocaine, was dismissed shortly before trial. During jury selection, the government used a peremptory challenge on the lone black juror because of her answer to one of the questions in the jury questionnaire. In response to the question, “Have you any preconceptions or attitudes about jury duty, the American legal system, the courts, its officers, and attorneys which you believe would affect your ability to serve as a jury?,” the potential juror stated that “she was a very conservative person, and that she tended not to see things in great perceptions.” The government explained that this answer suggested that the potential juror might not correctly apply the reasonable doubt standard, forcing the government to prove more than its proper burden. White, a black man, felt this was not a sufficiently race-neutral reason and objected based on Batson v. Kentucky, 476 U.S. 79 (1986). In response, the government
After a two-day trial, the jury convicted White on the three remaining counts of the indictment. At sentencing, the district court imposed a sentence of: (1) 150 months’ imprisonment on the distribution count; (2) 120 months’ imprisonment on the felon in possession count, to be served concurrently with the distribution sentence; and (3) 60 months’ imprisonment on the possession of a firearm in a drug trafficking crime, to be served consecutively to the other counts. White appeals his conviction but does not challenge his sentence.
II
White presents two separate arguments. First, he claims that the search warrant was defective because it failed to describe the Creighton house with particularity, and, therefore, the fruits of the search should have been suppressed. Second, White asserts that the district court erred in overruling his Batson challenge to the government‘s exclusion of the sole potential black juror. We examine each in turn.
A
White initially claims that the district court erred in admitting the evidence found at the Creighton house as the search warrant was insufficiently particular. This court normally reviews the denial of a motion to suppress for
The Fourth Amendment establishes that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched . . . .”
The Supreme Court has recognized, however, that the validity of a warrant must be judged on the basis of the information available at the time that the warrant issued. See Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“the discovery of facts demonstrating that a valid warrant was unnecessar-
In order to succeed under Garrison, White needs to first establish that the warrant failed to describe the Creighton house with particularity. If he succeeds in showing that, he must then show that the police knew or should have known, based on the available information at the time the warrant issued, that the warrant was overbroad. Again, any plain error regarding the warrant‘s particularity must be clear or obvious, as well as prejudicial, for it to be cognizable. See United States v. Olano, 507 U.S. 725, 734 (1993).
We first consider White‘s assertion that the warrant did not comply with the particularity requirement because the Creighton house is not a single family residence as described in the warrant, but actually a multi-unit, multi-pur-
White fails to show plain error regarding the particularity of the description in the warrant. Even if it turned out that the residence did contain multiple units, the warrant still would be proper under Garrison. As discussed earlier, Garrison examines the validity of a warrant based on what the police knew or should have known, and accordingly, what they disclosed or had the duty to disclose to the magistrate at the time of the warrant‘s issue. See 480 U.S. at 85. While White does not claim that the police actually knew that there were multiple units in the Creighton house, he asserts that the police should have known of these units nonetheless. But other than what the CI might have told them, they had no way of knowing.
As in Garrison, the police here conducted an investigation that suggested that the drug house was a single family residence. First, the police officers made an exterior examination and surveillance of the Creighton house while the CI made the original purchase of crack cocaine from White. Based on the purely exterior view, the Creighton house did not appear to have multiple units and looked like a normal residential house. Second, the CI told the police that White, who would sell him drugs, lived at the Creighton house, which further suggested that it was merely a residence. Third, White had previously given the Creighton address to the police as his residence. While several years had elapsed,
As White himself candidly admitted before the court, the distinctions between the different areas of the Creighton house are “fluid.” This is not a storefront barbershop with clearly marked apartments next to or above the store. Rather, this is a house that does not have the typical distinctions that designate separate apartments.1 The living areas on both floors are not separate from each other. There is no indication that a person who lives downstairs could not go upstairs or vice versa. There do not appear to be any internal locks separating the allegedly distinct parts of the Creighton house from each other. Even White‘s exculpatory witness, his brother Willie White, lent credence at trial to the notion that this was a single family residence, testifying that only he (Willie) had the keys to the house and lived up-
The one unusual feature in this house that adds some complexity to the analysis is the room that had been converted into a barbershop. As the rest of the house seems to be a residence, the particularity of the warrant‘s description hinges on whether the barbershop room constitutes a separate and distinct unit in the house. That would make it obvious that the location was a business, not a house. The record contains no description of the barbershop room that we could use to conclude that this room constituted a distinct area limited to that business and, thus, call into question the warrant‘s description. Given the lack of information in the record describing this room, we cannot say that a description of the Creighton house as a single family residence, rather than a house and a business, was a plain or obvious error.
White argues that the police should have deduced that the Creighton house was actually composed of distinct units based on a sign with the barbershop‘s name in the front window. However, the record does not provide any details about this sign, such as the text or the size of the sign, or whether it was permanently attached to the window or removable. These considerations are important because without these details we cannot conclude that the officers should have noticed the sign and that the house contained a separate business.
Viewed in full, even if the house did contain multiple units, the warrant was sufficient at the time of issue. As in Garrison, the police conducted a reasonable investigation, which did not suggest that the Creighton house actually contained more than one unit. The police confirmed their evaluation of the exterior through White‘s previous statement and the CI. And when the CI entered, he encountered
B
White also challenges the district court‘s denial of his Batson objection to the government‘s use of one of its peremptory challenges. A prosecutor is forbidden from striking a juror solely because of his race. See Batson, 476 U.S. at 89. “The court ‘will only overturn the trial court‘s determination that a prosecutor‘s use of peremptory challenges was not motivated by purposeful discrimination if that determination is clearly erroneous.’ ” United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000) (quoting United States v. Williams, 934 F.2d 847, 849 (7th Cir. 1991)). We must have a firm and definite conviction that a mistake was made before reversing a trial court‘s Batson ruling. See Jones, 224 F.3d at 624.
When evaluating the validity of the prosecution‘s use of a peremptory challenge, we proceed with a three-stage analysis. See, e.g., United States v. Jordan, 223 F.3d 676, 686 (7th Cir. 2000); Tinner v. United Ins. Co. of Am., 308 F.3d 697, 703 (7th Cir. 2002). First, the defendant must establish a prima facie case that the challenge was being used to exclude a prospective juror because of his race. See Jones, 224 F.3d at 624. Second, the government must offer a race-neutral reason for striking the juror. See Jordan, 223 F.3d at 686. This explanation does not need to be particularly persuasive, it just cannot be a lie covering up a race-based motive. See United States v. George, 363 F.3d 666, 674 (7th Cir. 2004). Of course, the weaker the reason, the more likely it actually is pretext. See United States v. Roberts, 163 F.3d 998, 999 (7th Cir. 1998). Turning to the third step in the Batson analysis, the trial court must decide whether the prosecution‘s explanation was pretextual and whether the defendant has proven purposeful discrimination. See Jordan, 223 F.3d at 686. The ultimate burden of persuasion remains with the opponent of the strike throughout. See George, 363 F.3d at 673.
In this case, the government moved to strike a black juror based on her response to the question, “Have you any preconceptions or attitudes about jury duty, the American legal system, the courts, its officers, and attorneys which you believe would affect your ability to serve as a jury?” The potential juror, who was the only member of the jury pool to respond with more than a simple “no” to that question, stated that “she was a very conservative person, and that she tended not to see things in great perceptions.” Proceeding to the first stage of the Batson analysis, White normally would have to make a prima facie case that the challenge was being used because of the juror‘s race. In this case, however, as “the government volunteer[ed] a race neutral explanation for exercising peremptory challenges and the trial court [went] on to rule on the ultimate issue of whether the race neutral reason was really a pretext for discrimination, the issue of whether the challenging party has established a prima facie case is moot.” See Jones, 224 F.3d at 624 (citing United States v. Cooper, 19 F.3d 1154, 1160 (7th Cir. 1994)).
Before us, White claims that the government‘s reason must be pretext because the juror stated that she was conservative, an attribute White assumed the government should have found attractive. White also asserts that the juror‘s answer did not directly implicate her ability to apply the reasonable doubt standard. However, “[o]nce the trial judge has been persuaded of the neutrality of the prosecutor‘s reason for striking a juror, we have no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrated its falsity.” Jones, 224 F.3d at 625. White must establish more than a disagreement with the government‘s rationale. He must demonstrate that the prosecution‘s reason was outlandish or that other evidence showed it to be a lie. While the juror never referenced reasonable doubt in her answer, it is understandable that the government might have been concerned whether a juror who “did not see things in great perceptions” would be able to apply this standard. As the government indicated, this juror singled herself out with a cryptic answer that called into question her ability to fulfill her obligations as a juror. It was not outlandish for the government to be anxious about someone who volunteers that her attitudes and preconceptions might affect her performance in the jury room. Nor was it unreasonable for the
III
Based on the foregoing reasons, we AFFIRM the conviction of Jason White.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit