                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1377
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

ROBERT S. MCINTIRE,
                                        Defendant-Appellant.
                        ____________

          Appeal from the United States District Court
               for the Central District of Illinois.
          No. 06-30017-001—Jeanne E. Scott, Judge.
                        ____________
 ARGUED OCTOBER 31, 2007—DECIDED FEBRUARY 15, 2008
                    ____________


 Before EASTERBROOK, Chief Judge, and BAUER and
WILLIAMS, Circuit Judges.
  EASTERBROOK, Chief Judge. Police obtained a warrant
to search Robert McIntire’s home. They found marijuana
and methamphetamine. McIntire entered a conditional
plea of guilty to the ensuing federal charges, reserving
the right to contend on appeal that the district court
should have suppressed the evidence found during the
search.
  A state judge issued the warrant after receiving affida-
vits and testimony from an officer and an informant
who appeared in person. The informant swore that she
had seen marijuana in McIntire’s home about three days
2                                              No. 07-1377

earlier and had purchased marijuana from him on several
earlier occasions. The informant described the look and
smell of the substance she had seen; the officer stated that
these matched the look and smell of marijuana. The officer
and the informant had driven through the neighborhood
where McIntire lived; the informant picked out his house
and identified his face in a photo array. The officer added
that he had received information that McIntire, who had
a drug conviction on his record, had entered the metham-
phetamine business. Relying principally on United States
v. Jones, 208 F.3d 603 (7th Cir. 2000), the district court
concluded that these facts provided probable cause for a
search, and it denied the motion to suppress. 2006 U.S.
Dist. LEXIS 46013 (C.D. Ill. July 6, 2006). McIntire later
was sentenced to 120 months’ imprisonment.
  McIntire asks us to ignore both the state judge’s decision
to issue a warrant and the district judge’s conclusion that
the warrant was supported by probable cause, and to
make a de novo (which is to say, non-deferential) decision
about the warrant’s validity. McIntire’s entire discussion
of the standard of review reads: “This Court reviews the
district court’s determination of probable cause de novo.
United States v. Sidwell, 440 F.3d 865, 868 (7th Cir.
2006).” That is indeed what Sidwell says, as do several
more decisions. See, e.g., United States v. Lake, 500 F.3d
629, 632 (7th Cir. 2007); United States v. Brack, 188 F.3d
748, 755 (7th Cir. 1999). But other decisions in this cir-
cuit hold that the standard of appellate review depends
on whether a warrant has issued, with de novo review
being used only when officers conducted a search without
a warrant. See, e.g., United States v. Wiley, 475 F.3d 908,
914–15 (7th Cir. 2007); United States v. Newsom, 402 F.3d
780, 783 (7th Cir. 2005); United States v. Rogers, 270 F.3d
1076, 1081 (7th Cir. 2001). This intra-circuit conflict
needs resolution.
 All of the decisions we have cited rely on Ornelas v.
United States, 517 U.S. 690 (1996), which holds that, when
No. 07-1377                                                3

police act without a warrant, the court of appeals makes
an independent decision whether probable cause or
reasonable suspicion supports the search. Does the same
rule apply when the police execute a warrant—and thus
when the question is whether the judicial officer who
issued the warrant acted appropriately? To address that
question one must go back to Illinois v. Gates, 462 U.S.
213 (1983), which in the course of reformulating the
standard of probable cause remarked: “we have re-
peatedly said that after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of
de novo review. A magistrate’s ‘determination of prob-
able cause should be paid great deference by reviewing
courts’ ” (462 U.S. at 236, citation omitted). Our opinion in
Ornelas relied on this passage when holding that appellate
review should be deferential whether or not the police
obtained a warrant. 16 F.3d 714, 719 (7th Cir. 1994). The
Justices replied (517 U.S. at 698–99):
    The Court of Appeals, in adopting its deferential
    standard of review here, reasoned that de novo
    review for warrantless searches would be inconsis-
    tent with the “ ‘great deference’ ” paid when re-
    viewing a decision to issue a warrant, see Illinois
    v. Gates, 462 U.S. 213 (1983). See United States v.
    Spears, 965 F. 2d 262, 269-271 (CA7 1992). We
    cannot agree. The Fourth Amendment demon-
    strates a “strong preference for searches conducted
    pursuant to a warrant,” Gates, supra, at 236, and
    the police are more likely to use the warrant
    process if the scrutiny applied to a magistrate’s
    probable-cause determination to issue a warrant is
    less than that for warrantless searches. Were we
    to eliminate this distinction, we would eliminate
    the incentive.
Ornelas thus distinguished searches conducted with-
out a warrant, where appellate review of the justification
4                                             No. 07-1377

is non-deferential, from searches authorized by a war-
rant, where appellate courts must afford “great deference”
to the decision of the judge who issued the warrant.
  This produces a complex standard of appellate review. A
district court’s findings of historical fact are reviewed
for clear error, whether or not a warrant issued.
Ornelas, 517 U.S. at 699. A district judge’s legal conclu-
sions are reviewed without deference. And on the mixed
question whether the facts add up to “probable cause”
under the right legal standard, we give no weight to the
district judge’s decision—for the right inquiry is whether
the judge who issued the warrant (rarely the same as the
judge who ruled on the motion to suppress) acted on the
basis of probable cause. On that issue we must afford
“great deference” to the issuing judge’s conclusion.
  One could question this as an initial matter: why
defer to the issuing judge, who acts ex parte and without
time for reflection, but not to a district judge who has
the benefit of adversarial presentations? But that’s what
Gates and Ornelas tell us to do. Justice Scalia, who
dissented in Ornelas, thought that the majority’s entire
discussion of de novo review in no-warrant cases was
internally contradictory, because after articulating it
the majority also told appellate courts to give “due weight
to inferences drawn from [the] facts by resident judges
and local law enforcement officers.” See 517 U.S. at 705
(referring to the majority’s statements, 517 U.S. at 699,
immediately following the passage in the block quotation).
Who is a “resident judge,” and what does “due weight”
mean? That complicates our task and may account for the
inconsistent treatment of the subject found in our post-
Ornelas cases; still, the formula given here represents
our best understanding of what the Court requires when
dealing with a search supported by a warrant.
  Many decisions of this court after Ornelas announce
a simple “de novo appellate consideration” approach
No. 07-1377                                               5

without distinguishing between warrant cases and no-
warrant cases. Others announce that appellate review
in warrant cases is deferential but do not distinguish
between our role vis-à-vis the judge presiding in the
criminal prosecution (non-deferential, except with respect
to findings of fact) and our role vis-à-vis the judge who
issued the warrant (“great deference”). Yet others do
distinguish between the district judge and the judge who
issued the warrant. These decisions do not cite each other,
perhaps because counsel cited only one of the lines of
decisions in their briefs. We therefore think it best to
start over, restoring circuit precedent to the approach
required by Gates and Ornelas. This opinion has been
circulated to all active judges under Circuit Rule 40(e). A
majority did not favor a hearing en banc on the ques-
tion whether to adhere to the standard of review articu-
lated above.
   For what it is worth, we have checked how other cir-
cuits handle this question and found ample variability.
For just a few examples, compare United States v. Grant,
490 F.3d 627, 631–32 (8th Cir. 2007) (explicitly distin-
guishing between the “great deference” due to the judge
who issues a warrant and the non-deferential review of the
federal district judge’s decision granting or denying a
motion to suppress), and United States v. Jackson, 470
F.3d 299, 306–07 (6th Cir. 2006) (same), with United
States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (“[w]e
review de novo the determination that there was probable
cause to issue the warrant”), and United States v.
Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (de novo
review of the decision of the judge who issued the war-
rant). Several circuits are internally conflicted, as this
circuit has been. It is unnecessary to give the full lineup.
Nothing we can do will either create or eliminate a con-
flict, but we can and do bring this circuit’s law into line
with Gates and Ornelas.
6                                              No. 07-1377

  The district judge in this case did not make any find-
ings of fact but simply examined the affidavits presented
to the state judge who issued the warrant. Therefore the
only question we need consider is whether, with the benefit
of “great deference” to the issuing judge’s conclusions,
those affidavits establish probable cause to believe that
McIntire’s house contained illegal drugs. The answer is
yes. Gates holds that a judge asked to issue a search
warrant is entitled to make a practical assessment of
informants’ statements; there is no inevitable requirement
of corroboration or a history of accurate information from
the informant in question. The state judge knew that this
informant was able to recognize marijuana by sight and
smell and had identified both McIntire’s house and a
picture of McIntire. The judge also knew that McIntire had
a conviction for a drug offense and was reputed to be back
in that business. A sensible judge could find that this adds
up to probable cause—as both Gates and Jones hold with
respect to similar factual patterns.
                                                 AFFIRMED




   RIPPLE, Circuit Judge, dissenting. The standard of
review issue presented in this case is a very impor-
tant—and nuanced—question that has been with us for
a good long time. My colleagues on the panel deserve a
great deal of credit for addressing the ambiguity that
has crept into our case law and for attempting to resolve
it. Its resolution may well be correct—or at least the best
that any intermediate appellate court can do, given the
tension that the panel agrees is inherent in Ornelas v.
United States, 517 U.S. 690 (1996). See id. at 705 (dissent-
ing opinion of Scalia, J.).
No. 07-1377                                                  7

   The disagreement among the circuits about the ap-
plicable standard of review is attributable to Ornelas’
maintaining, at least in dicta, the distinction between
review of a judicial officer’s determination that there is
a probable cause to issue a warrant and review of a
judicial officer’s post facto determination that law enforce-
ment officers, acting without a warrant, had probable
cause to search. Certainly, in terms of the Supreme
Court’s desire that appellate courts “maintain control
of ” and “clarify” legal principles, id. at 697, both scenarios
would seem to be equally susceptible to the traditional
law clarification function of appellate courts. If we can be
expected to elucidate principles in one of these situa-
tions, we certainly ought to be able to do so in the other.
The reason for different standards of reviews for each
situation is not clear.
  If, as the panel maintains, Ornelas truly intended
that we review the determination of a judicial officer to
issue a warrant with “great deference,” while reviewing de
novo a judicial officer’s determination that law enforce-
ment officers had probable cause, but with “due weight”
given to the inferences drawn from the facts by resident
judges and local law enforcement officers, we have our
work cut out for us.
   Although I can understand the court’s reluctance to
spend valuable judicial resources on a question that can
be resolved ultimately only by the Supreme Court, I be-
lieve that this question is sufficiently important, and
the need for guidance for the bench and bar sufficiently
acute, that the matter is worth the court’s time. Indeed, a
plenary and thoughtful treatment by the entire court
might be of significant assistance to the Supreme Court
when it deals with this issue. Our Circuit Rule 40(e)
procedure plays a salutary role in our work, but it is ill-
suited for the thoughtful discussion necessary to deal
comprehensively with this issue.
8                                            No. 07-1377

  Standards of review count. The panel’s opinion is can-
did about the difficulties that this issue poses. In the
absence of en banc review, I can simply express, respect-
fully, the hope that other circuits will be more generous
with their time and that, eventually, the Supreme Court
will resolve the issue definitively.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—2-15-08
