The Seventh Circuit issued only one new criminal opinion in the past week. In United States v. Robinson, the defendant’s ex-girlfriend (Evans) reported to a Milwaukee police officer that Robinson had a gun in his home, a charge that was later confirmed after the officer obtained a warrant to search Robinson’s residence. Robinson was then convicted in federal court of being a felon in possession of a firearm. On appeal, he argued that the cop who applied for the search warrant should have disclosed that Evans had recently been charged with disorderly conduct for threatening Robinson with a knife. In Robinson’s view, had the judicial officer known the history of conflict between Evans and Robinson, the officer would have discounted the credibility of Evans’ allegation that Robinson had a gun and declined to issue the search warrant. At a minimum, Robinson argued that he was entitled to a hearing on the matter under Franks v. Delaware, 438 U.S. 154 (1978).
The Seventh Circuit nonetheless affirmed, determining that, even had the omitted information been included, there would still have been a sufficient showing of probable cause to support issuance of the search warrant. Lurking in the background of the case, of course, is a legitimate concern about jilted lovers lying to cops about criminal activity in order to harrass their former significant others. But it seems to me that the police have every incentive to screen these messy cases out of the system as quickly as possible, and little reason (in this context) to withhold key information bearing on credibility when seeking a search warrant. In any event, the particularities of the Robinson case were such that the withheld information did not seem especially important (e.g., the cop’s affidavit did disclose the existence of another pending criminal charge against Evans).
Although the Seventh Circuit’s resolution of the Fourth Amendment issue seems perfectly reasonable, I find the prosecution of the case a bit troubling. Robinson nicely illustrates how the combination of an expansively defined federal crime (felon in possession) and a cozy relationship between local police and federal prosecutors can result in the conversion of a routine domestic disturbance into a federal conviction, which typically entails a much longer sentence than a state conviction. (These cases are especially troubling when they trigger the fifteen-year mandatory minimum of the Armed Career Criminal Act, which does not seem to have been applied to Robinson.) Once upon a time, there were clearer lines demarcating what were federal cases (typically white-collar stuff, organized crime, and crime with a real interstate or international component to it) and what were state cases (typically public disorder offenses, violent crime, and routine property offenses). As is indicated by the phrase, “Don’t make a federal case out of it,” there was a sense that federal prosecution was reserved for only the most serious offenses. As we have gotten away from this tradition and entered an era of far more complex federal-state law enforcement relationships — a trend I have explored in some of my scholarship — I fear there have been significant costs in terms of public accountability and perceptions of arbitrariness.
This is the second in what will be an ongoing series of weekend posts reviewing new Seventh Circuit opinions in criminal cases.