                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Argued February 20, 2007
                             Decided April 27, 2007

                                     Before

                         Hon. DANIEL A. MANION, Circuit Judge

                         Hon. MICHAEL S. KANNE, Circuit Judge

                         Hon. DIANE P. WOOD, Circuit Judge


No. 06-3481                                   Appeal from the United States
                                              District Court for the Central
UNITED STATES OF AMERICA,                     District of Illinois
             Plaintiff-Appellant,
                                              No. 05 CR 10062
      v.
                                              Joe Billy McDade, Judge.
COURTNEY MORRIS, a/k/a
C-NOTE,
           Defendant-Appellee.


                                   ORDER

       Courtney Morris was charged in an indictment with conspiracy to distribute
cocaine, possession with intent to distribute “crack,” and weapons possession in
furtherance of the crimes. Morris filed a motion to suppress evidence seized during
searches conducted pursuant to two state court search warrants. The district court
granted Morris’ motion to suppress. The government appeals. Because we conclude
that the officers relied on the search warrants in good faith, we REVERSE and
REMAND.
No. 06-3481                                                                      Page 2



                                         I.

       On June 8, 2005, Peoria, Illinois police officers and FBI agents arrested
Courtney Morris for drug dealing. While Morris was in police custody, two Peoria
police officers signed sworn complaints requesting search warrants for two
residences in Peoria: 237 W. Virginia, where Morris lived, and 1020 W. Gift Street,
a residence that Morris frequented and for which he had a key. The first complaint
requested the issuance of a warrant to search the residence at 1020 W. Gift for
evidence of “possession or control of the premises or the cocaine, and any related
items which have been used in the commission of, or which constitutes evidence of
Unlawful Possession of a Controlled Substance . . . .” In support of the search
warrant request, Sergeant J.W. Adams of the Peoria Police Department stated that
he

      believe[s] that the above listed items to be seized are now located on
      the person and/or premises described above because: On June 8, 2005
      complainant caused a surveillance to be conducted on Courtney L.
      Morris, date of birth 1-25-72. Officers of the S.I.D. Vice Unit observed
      Morris leave from his listed address of 237 W. Virginia at 1223 hrs.
      Morris’ [sic] was carrying a bag. Morris parked in the alley behind
      1020 W. Gift at 1230 hrs. Officer Moore observed Morris exited [sic]
      his vehicle at 1231 hrs. Morris carried a bag in to [sic] the residence
      through the back door. Morris remained inside for several minutes
      then existed the residence and returned to his vehicle until 1314 hrs
      when Officer Moore and Complaint observed Morris leave in his
      vehicle.

      Officers of the S.I.D. continued the mobile surveillance. Morris went
      through parking lots and side streets until he parked in the BP gas
      station lot on Knoxville @ Lake @ 1324 hrs. Morris was observed
      entering the gas station and returning to his vehicle. Morris then
      backed up to the area of the dumpster. At approx. 1334 hrs. D.E.A.
      Agent T. Murphy observed Morris go on foot to the dumpster and place
      a gray bag like item inside the dumpster. Morris immediately
      returned to his vehicle and left south on Knoxville. At 1335 hrs Agent
      Murphy and Sgt. Bainter immediately went to the dumpster and
      recovered the packaging for 1 kilo of powder cocaine. The white
      powder substance tested positive for cocaine. No one went to the
      dumpster between the time Morris was at the dumpster and Agent
      Murphy and Sgt. Bainter recovered the cocaine packaging. The
No. 06-3481                                                                    Page 3



      remaining contents of the dumpster were boxes and paperwork from
      the business.

      The Complainant has caused numerous surveillance to be conducted
      on Courtney L. Morris over the past 90 days. Officers of the S.I.D. have
      observed Morris drive to 1020 W. Gift. On one occasion the
      Complainant observed Morris met [sic] with an individual. Morris got
      into a vehicle with the individual. Morris and the individual drove
      around the block. Morris got out of the vehicle and immediately
      returned to 1020 W. Gift. Based on the Complainant’s training and
      experience this appeared to be a drug transaction. The Complainant
      caused the individual and his vehicle to be stopped away from the
      area. 29.3 gr. of crack cocaine were seized and the individual was
      arrested.

      Complainant has been a Peoria Police Officers/Sergeant for the past 27
      years. Complainant has been assigned to the Special Investigation
      Division on four separate occasions, with the latest assignment
      starting in September 2003. Complainant has approximately 10 years
      of experience in the Special Investigation Division. Along with tenure
      in the Special Investigation Division, complainant was assigned to the
      Tactical Unit, Special Response Team, Internal Affairs and Patrol
      Division. During this time complainant has been trained in the
      appearance, odor, and packaging techniques concerning cannabis,
      cocaine, and/or heroin as well as other dangerous drugs.

       Officer John P. Couve filed a second complaint, seeking the issuance of a
search warrant to search the residence located at 237 W. Virginia and to seize items
tending “to evidence possession or control of the premises or the cocaine, and any
related items which have been used in the commission of, or which constitutes
evidence of Unlawful Possession of a Controlled Substance . . . .” Officer Couve’s
affidavit then detailed the same facts as set forth in Sergeant Adams’ affidavit,
adding that he had “checked Peoria Police records and found that Courtney Morris
has listed his address as 237 W. Virginia with this agency as recently as July 7,
2003.”

       Based on these affidavits, a state judge issued search warrants for 1020 W.
Gift Street and 237 W. Virginia. During the searches, officers recovered a “freshly
cooked” kilogram of crack cocaine in a false ceiling at 1020 W. Gift. They also found
weapons and $120,000 in currency at 237 W. Virginia. A grand jury later returned
a superseding indictment, charging Morris with conspiracy to possess with intent to
No. 06-3481                                                                      Page 4



distribute cocaine, possession with intent to distribute cocaine, and two counts of
possession of a firearm in furtherance of drug trafficking.

       Morris filed a motion to quash his arrest and to suppress evidence seized
from the two residences. After a hearing on the motion, the district court found
that probable cause supported the arrest of Morris, but did not support the search
warrant. The district court also rejected the government’s claim that the officers
acted in good faith in executing the warrants, concluding that the affidavits were
“so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” District Court Order at 5. The government filed a motion to
reconsider, which the district court denied, reasoning:

      There is no showing that Mr. Morris kept drugs in his residence or at
      the Gift Street house at any time in the past or that he had sold drugs
      out of these premises. The only drug connection to these houses is the
      fact that defendant either lived or had visited there. To uphold the
      seizure on the basis of the “Good Faith” exception would be giving
      carte blanche for a search of any residence or other premises visited by
      a person suspected of drug dealing. The rationale being that drugs are
      necessarily kept in such places. More is needed to warrant application
      of the Leon exception. There must be some indicia of illegal drug
      dealing at the place to be searched.

District Court Order at 2.

      The government appeals from the district court’s order granting Morris’
motion to suppress, pursuant to 18 U.S.C. § 3731.

                                          II.

       On appeal, the government does not challenge the district court’s conclusion
that the search warrants for the Virginia and Gift street residences were not
supported by probable cause. Rather, the government argues that the district court
nonetheless erred in granting Morris’ motion to suppress because the officers relied
in good faith on the search warrants. This court reviews de novo the question of
“[w]hether a law enforcement officer reasonably relied upon a subsequently
invalidated search warrant . . . .” United States v. Harju, 466 F.3d 602, 604 (7th
Cir. 2006). This legal question is governed by United States v. Leon, 468 U.S. 897
(1984). In Leon, the Supreme Court held that the exclusionary rule did not apply if
a law enforcement officer, in good faith, relied on a magistrate’s apparently valid
warrant, even if that warrant was later determined to be invalid. Id. at 922-25.
No. 06-3481                                                                        Page 5



      In this case, the officers obtained search warrants to search the two
residences, and that is prima facie evidence that they were acting in good faith.
United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005). To determine whether
Morris rebutted this presumption of good faith, we apply

      a framework similar to that employed in the qualified immunity
      context. . . . That is to say, we will admit the evidence unless: (1)
      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; or (2) the
      affidavit is so plainly deficient that any reasonably well-trained officer
      would have known that his affidavit failed to establish probable cause
      and that he should not have applied for the warrant.

Harju, 466 F.3d at 607 (internal quotations omitted).

        Morris argues on appeal that he has overcome the presumption of good faith
first by showing that materially similar affidavits previously failed to establish
probable cause. In support of his argument, Morris cites several cases in which
probable cause did not support a search warrant application. See Appellee’s Brief
at 6 - 8, citing Owens v. United States, 387 F.3d 607, 608 (7th Cir. 2004); United
States v. Peck, 317 F.3d 754, 755-57 (7th Cir. 2003); United States v. Koerth, 312
F.3d 862, 866-68 (7th Cir. 2002). Those cases, however, all involved information
coming from confidential informants, whereas in this case, the affidavits were based
on surveillance conducted by two police officers. Thus, this case is distinguishable
from the cases cited by Morris.

       Morris also attempts to overcome the presumption of good faith by arguing
that “the affidavit is so plainly deficient that any reasonably well-trained officer
would have known that his affidavit failed to establish probable cause and that he
should not have applied for the warrant.” Harju, 466 F.3d at 607 (internal
quotations omitted). Although it is a close question, we conclude that the affidavit
is not so plainly deficient as to overcome the presumption of good faith. There is no
claim here that the officers misstated or exaggerated the facts contained in the
affidavits. Nor is this a case in which the only connection between Morris and the
residences is that he, a suspected drug dealer, lived in or frequented the homes.
Rather, in this case, the officers conducted surveillance of Morris for approximately
three months. It was only after they had witnessed Morris leave one residence,
enter the second, leave, and then drive in a suspicious manner to a parking lot and
then dispose of what the officers—both experienced and trained in investigating
narcotics trafficking—determined to be the empty packaging for a kilogram of
No. 06-3481                                                                   Page 6



cocaine and which tested positive for cocaine residue, that the officers sought a
search warrant. The officers sought the search warrant the same day Morris
disposed of the packaging material and while Morris was in custody, making it
impossible for Morris to return to his residence and remove any drugs that had
been removed from the recently recovered packaging. Additionally, the officers had
previously witnessed Morris drive to the Gift Street address and then engage in
behavior consistent with drug-dealing, namely entering a car, riding around the
block, and then exiting the vehicle. A subsequent stop of the driver of that car
turned up 29.3 grams of crack cocaine. A reasonable officer could conclude under
these circumstances that Morris was using the two residences to manufacturer
and/or store the drugs. While Morris counters that no one ever testified seeing
drugs in the residences, “[a] search warrant may issue even in the absence of direct
evidence linking criminal objects to a particular site[,] taking into account the
totality of the circumstances.” United States v. Garey, 329 F.3d 573, 578 (7th Cir.
2003) (internal quotations omitted). Although the evidence that drugs would be
found in the two residences is circumstantial and might not support a finding of
probable cause, the question on appeal is solely whether the officers relied on the
search warrants in good faith. We conclude that under the totality of the
circumstances, the officers relied on the warrants in good faith.

       One final point: Morris argues on appeal that the officers’ failure to seek
guidance from a federal prosecutor demonstrates their lack of good faith. While
consulting with a prosecutor may demonstrate the good faith of an officer, failure to
do so does not override good faith. Rather, an officer demonstrates good faith by
seeking a warrant from a neutral, detached magistrate, and whether he first also
sought guidance from a prosecutor does nothing to call into question the officer’s
reliance on the magistrate’s determination that probable cause supports the
issuance of a warrant.

                                         III.

       The officers sought and obtained a search warrant from a state court judge,
creating a presumption that they acted in good faith. Morris has failed to overcome
the presumption of good faith and therefore under Leon, even if probable cause did
not support the search warrant, the evidence was nonetheless admissible.
Accordingly, we REVERSE the district court’s order suppressing the evidence
obtained during the searches of 237 W. Virginia and 1020 W. Gift and we REMAND
for further proceedings consistent with this opinion.
