Unwitting CIs Provide Probable Cause to Search

by | April 28, 2021

United States v. Bacon, 2021 WL 1085823 (7th Cir 2021)

“This case presents a novel variation on the classic controlled buy.” Officers received two anonymous tips about Shawn Bacon, who had previously been arrested for selling cocaine from his home, selling drugs from his residence. The officers arranged for two controlled buys using two different confidential informants (CIs) with proven track records. However, in these cases, the CIs used acquaintances to make the actual purchase. The CIs were wearing wires and the officers kept the CIs and their unwitting accomplices under close surveillance. In each case, the acquaintances bought drugs from Bacon.

Each acquaintance stated that Bacon had weapons in his apartment. One of the anonymous tipsters said Bacon was selling large amounts of heroin, cocaine and meth to the tipster’s friends. The tipster also said Bacon had multiple guns in his residence. Officers confirmed Bacon was a convicted felon.

Based on this information, officers obtained a search warrant for Bacon’s apartment. During the warrant service, officers found guns and ammunition, a ballistic vest, suspected explosive devices, a digital scale, drug sales records and large quantities of meth, cocaine and fentanyl. Bacon was not home at the time but was arrested later that day during a traffic stop. During a search of the car incident to arrest, the officers found drugs and several guns, including two short-barreled rifles. Bacon was subsequently convicted on several counts of armed drug dealing and possession of short-barreled rifles, body armor and explosive devices.

Both of the unwitting CI “acquaintances” were arrested a year later on unrelated drug charges. Bacon asked the court to suppress the evidence from the initial home search, claiming the affidavit lacked probable cause. Bacon also asked the court to hold a Franks hearing to challenge the reliability of the unwitting confidential informant “acquaintances.” The affidavit did not explain that the officers did not recruit or know the middlemen and did not search them as part of the controlled buy.

The middlemen did not know they were participating in controlled buys and had no apparent motive for deception.

A Franks hearing is a legal proceeding in a criminal case where the defendant challenges the truthfulness of information recited in a search warrant. In this case, Bacon complained the warrant didn’t describe the unwitting middlemen as criminals involved in drugs. Wait, would Bacon have sold drugs to someone not involved with drug use?

The trial court denied the motion and the appellate court affirmed. The appellate court cited the detailed tips from anonymous sources and the officers’ corroboration of the tipsters’ information about Bacon’s cars, address and criminal record. That, coupled with the information gleaned in the controlled buys, provided probable cause to search Bacon’s residence.

The appellate court held the controlled buys were reliable indicators that Bacon was selling drugs from his home. The middlemen did not know they were participating in controlled buys and had no apparent motive for deception. Bacon’s claim that the officers did not know or search the middlemen and that neither the officers nor the CIs actually saw the hand-to-hand transaction was “clear from the face of the affidavit.” Thus, Bacon was not entitled to a Franks hearing. The court upheld Bacon’s convictions and sentence.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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