U.S. v. ETCHIN

WOOD, Circuit Judge.

Maurice Bowman, Albert Cole, and Katrice Etchin pleaded guilty to drug crimes after participating in an operation run by Bowman that supplied crack cocaine to street dealers in Madison, Wisconsin. On appeal, Bowman and Etchin challenge the lower court's decision to admit evidence, including 150 grams of crack, discovered in a search of Etchin's apartment. In addition, all three contest their sentences.

When police officers knocked on Etchin's door, she told them they could not come in without a warrant. The police entered anyway, securing the area to preserve the status quo while another officer applied for a search warrant. It was not until four hours later, with warrant in hand, that the police searched Etchin's apartment and discovered drugs. We do not doubt that the officers' warrantless entry violated the Fourth Amendment, but the Supreme Court has explained that our analysis cannot end there. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Probable cause to search Etchin's apartment existed when the officers entered, and so the temporary seizure of Etchin's home did not create any incremental violation of the Constitution, above and beyond the problem with the initial entry. Because the officers' search relied on a later-arriving warrant that was based on information sufficiently unrelated to the initial entry, the evidence discovered in Etchin's apartment was untainted by the officers' illegal behavior. We therefore conclude that the district court properly denied the defendants' motions to suppress and, finding no error in the sentences imposed, we affirm.

I

For a decade, Bowman distributed crack to a revolving cast of street dealers who sold his product between their stints in jail. Etchin, who had a child with Bowman, allowed Bowman to use her apartment for storage and to conduct deals. In 2004 Cole joined the team as a cook, responsible for turning Bowman's powder cocaine into crack before it was sold. By 2006 law enforcement officials had taken an interest in Bowman, and they began to interview associates of his who were now behind bars. A break in the case came on the evening of October 2, 2007, when police stopped Terrell Banks, Bowman's new recruit, as he was driving through Madison with his girlfriend. As a result of the stop, Banks and his girlfriend gave the police permission to search their home. A group of officers took Banks's girlfriend back to the apartment where she and Banks lived and discovered more than five grams of crack. Meanwhile, Banks stayed behind and Detective Steve Wegner began to question him in the back of a squad car.

Before Banks learned that police had discovered drugs at his apartment, he told Detective Wegner that he had sold the last of his supply of drugs, and he named "Chico" as the person who had supplied him drugs in the past. As the interview progressed, Banks realized he was in trouble. Perhaps because he was on supervised release at the time, Banks changed his tune and told Detective Wegner everything he knew: he named Bowman as his source and explained that the crack found in his apartment was left over from a batch he purchased from Bowman two days earlier; he admitted that he had gotten crack from Bowman four times in the preceding two months; he described how the transactions took place in Etchin's apartment at 5834 Russett Road in Madison (he did not know her name or the precise address at the time) with both Etchin and Bowman present; and he explained that Bowman stored drugs in a Crown Royal bag that was hidden with a scale either in Etchin's bathroom or in a cupboard above her kitchen stove.

Detective Wegner drove Banks to Russett Road to verify his story, and Banks pointed out Etchin's apartment. A database check on Bowman returned two warrants, one related to a child support claim filed by Etchin that listed 5834 Russett Road as the address. Detective Wegner also obtained mug shots of Bowman and Etchin, and Banks confirmed that they were his sources. Just before midnight, Detective Wegner orchestrated a phone call between Banks and Bowman in an ultimately unsuccessful attempt to coax Bowman into a meeting. As the investigation progressed, Detective Dorothy Rietzler and another Madison police officer traveled to the Russett Road address to investigate. They confirmed that Etchin lived in the apartment that Banks had identified and relayed that information to Detective Wegner, who concluded that there was enough evidence to apply for a search warrant. As Detective Wegner got to work on a warrant application, Detective Rietzler decided it was best to secure the apartment. She later reported that she heard male and female voices inside Etchin's house and, around 11:30 p.m., she decided to knock on the front door to ask for permission to enter. Etchin appeared at the door and Rietzler identified herself. When Etchin refused her entry without a warrant, Detective Rietzler and other officers hiding nearby ignored Etchin's wishes and forced their way in, telling Etchin that they intended to secure the apartment until a warrant arrived. While there was marijuana lying in plain view, the officers did not search the home. Instead, they waited while Detective Wegner prepared an affidavit recounting the investigation up to that point. Four hours after the officers had entered Etchin's apartment, a state judge signed a search warrant. At 3:30 a.m., warrant in hand, officers executed the warrant and found 150 grams of crack in a jacket, a digital scale in the cupboard above the kitchen stove, and marijuana in a number of places around Etchin's apartment.

Etchin and Bowman filed motions to suppress the evidence. The district court, adopting a magistrate judge's recommendation, denied the motions. Etchin then pleaded guilty to maintaining a drug house, 21 U.S.C. § 856(a)(2), and Bowman to possessing with the intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), both preserving their right to appeal the denial of their motions to suppress. Cole, who did not file a motion to suppress, pleaded guilty to the same crime as Etchin. The district court sentenced Bowman and Etchin to terms of 360 and 46 months, at the very bottom of the ranges recommended by the U.S. Sentencing Guidelines. Cole received the statutory maximum 240 months, a term below the range that the guidelines would otherwise have advised. The defendants appealed.

II

We turn first to Bowman and Etchin's challenge to the denial of their motions to suppress the evidence found in Etchin's apartment. Our review of the district court's legal conclusions is de novo, and we use the clear error standard for its findings of fact. United States v. Dowthard, 500 F.3d 567, 568-69 (7th Cir. 2007). At the outset, we note that the government does not dispute the fact that Bowman had an expectation of privacy in Etchin's home, and because we conclude in the end that suppression is not warranted, we too treat Etchin and Bowman as though they have equivalent Fourth Amendment interests in Etchin's apartment.

A

The sanctity of the home is a central concern of the Fourth Amendment. It is therefore "a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks omitted). But when there is an emergency, in so-called "exigent circumstances," the police may enter and search a home without securing a warrant. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The first step in our analysis is to consider whether the initial entry of the officers into Etchin's apartment was in response to exigent circumstances. We conclude that it was not.

Magistrate Judge Crocker found that "it was reasonable and prudent for the police to enter [Etchin's] apartment" in light of "genuine concerns that Banks's cooperation already was known on the streets, and Banks had reached out to Bowman that evening." In Judge Crocker's view, Rietzler's failed effort to get Etchin's consent to search "let the cat out of the bag" (we paraphrase slightly), which required officers to enter or else risk that evidence would be destroyed. The government has endorsed the position that exigent circumstances supported the officers' entry, relying on our decision in United States v. Collins, 510 F.3d 697 (7th Cir. 2007).

In Collins, we acknowledged that police are free to approach a home and knock on a door, and we stressed that doing so may sometimes give rise to an emergency that justifies a warrantless entry into the home. 510 F.3d at 700. We realized that there is a risk of the police's "manufacturing" exigent circumstances, in the sense that their presence is what leads to the urgency of the need to enter, but this possibility, like practically everything else in the Fourth Amendment area, must be assessed case-by-case. We continued, "[I]f police hear a crime being committed within a house (and spoilation of evidence is a crime), then they can enter immediately . . .; if they do not hear a crime (more precisely, if they do not have probable cause to believe a crime is in progress), they have to get a warrant." Id. at 701. Police who without a warrant knock on the door of a drug house seeking consent to enter take the risk that permission will be withheld and an emergency will not materialize. Where an occupant turns the police away or asks to see a warrant, the officer cannot, without some other suspicious activity, justify a warrantless entry based solely on the fear that evidence might be destroyed. United States v. Ellis, 499 F.3d 686, 692 (7th Cir. 2007). If "[a] mere possibility that evidence will be destroyed" were enough, then "the requirement of a warrant would have little meaning in the investigation of drug crimes." United States v. Salgado, 807 F.2d 603 (7th Cir. 1986). Our cases reflect the rule that an emergency justifying entry and a search arises only if the officer knocking at the door observes objective evidence that there is an ongoing crime within that must be stopped before it is completed. The sound of someone walking around, for example, or a voice that announces, "The cops are here," is not enough by itself. But other sights and sounds — toilets flushing, a door slammed, people running, an obvious lie by the person answering the door, or efforts to remove contraband from the house — may be evidence that there is an emergency that calls for an immediate, warrantless intrusion. E.g., United States v. Amaral-Estrada, 509 F.3d 820, 828-29 (7th Cir. 2007); United States v. Rivera, 248 F.3d 677, 680-81 (7th Cir. 2001).

Detective Rietzler did not see or hear anything to suggest that an emergency was taking place inside of Etchin's apartment. The worst that seems to have happened, according to the government, is that Etchin "reacted belligerently" when Detective Rietzler asked permission to enter. Putting aside the question whether a belligerent reaction to police interruption late in the evening reveals anything but the occupant's annoyance at being bothered, Detective Rietzler's own police report squarely contradicts the government's view of the events. Detective Rietzler relates that when she asked for Etchin's consent to enter, "[Etchin] was insistent we could not come into her residence unless we had a warrant." Detective Rietzler then lists as reasons for entering that she heard a man's voice inside, that she thought the man might be Bowman, and that she feared that evidence might be destroyed. This is too vague to justify a finding that there was an ongoing crime in the house requiring immediate entry. We proceed, therefore, on the basis that Detective Rietzler and others violated the Fourth Amendment when they entered Etchin's apartment without a warrant.

B

The fact that police behaved illegally does not mean that the remedy of excluding evidence is necessarily appropriate. Herring v. United States, ___ U.S. ___, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In this case, a straight-forward application of Segura leads us to two conclusions: first, Detective Rietzler's four-hour occupation of Etchin's apartment did not add anything to the violation of the Fourth Amendment that had already occurred with the entry; and second, the drugs later found were admissible.

1. The Seizure of Etchin's Apartment. Segura holds that officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the Fourth Amendment as long as they had probable cause at the moment of entry and the seizure is not unreasonably long. 468 U.S. at 798, 104 S.Ct. 3380. The Court reasoned that "the home is sacred in Fourth Amendment terms not primarily because of the occupants' possessory interests in the premises, but because of their privacy interests in the activities that take place within," and so a police occupation (which infringes on possession) is permitted even when a search (which implicates privacy interests) would be unreasonable. Id. at 810, 104 S.Ct. 3380. The second of the Court's concerns — duration — is not at issue here, as the seizure here was shorter than the one upheld in Segura. We therefore focus exclusively on the question whether the probable cause criterion was satisfied.

Before considering whether Detective Rietzler had probable cause to seize Etchin's home, we must clarify how the Court was using this concept in Segura. There, it was looking at the question whether there was probable cause to support a warrant to search the premises; it was not concerned with the question whether there was probable cause to support a finding of exigent circumstances. Id. at 810, 104 S.Ct. 3380 ("[A]gents had abundant probable cause in advance of their entry to believe that there was a criminal drug operation being carried on in petitioner's apartment.").

A comparison will help to illustrate the distinction. If the police come across evidence of an ongoing violation of the Endangered Species Act committed by a man who has displayed an African cheetah pelt on the wall of his home, see United States v. Winnie, 97 F.3d 975 (7th Cir. 1996), officers may have probable cause to support a search warrant and thus a seizure of the premises under Segura (that is, they may act to secure the premises and occupants and wait for the warrant before searching), but there is no emergency requiring immediate entry. On the other hand, when police observe from the street an ongoing brawl inside of a home, see Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), they have probable cause to believe not only that a crime is in progress but that it must be stopped immediately — i.e., that an exigency justifies entering and searching the home without a warrant. Our concern is with the first of those scenarios.

Segura itself drew a clear line between cases involving exigent circumstances and those involving a temporary seizure of premises supported by probable cause. The Court noted that the district court there had found that there were no exigent circumstances. Accepting that finding, the Court expressed its holding in Segura as follows:

[W]here officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures.

468 U.S. at 798, 104 S.Ct. 3380. See also United States v. Alexander, 573 F.3d 465, 476 (7th Cir. 2009) (noting that "[t]he presence (or not) of exigent circumstances . . . is beside the point" in a Segura analysis). The defendants are thus incorrect insofar as they argue that Segura permits the seizure of a home only in an emergency.

Turning to the question whether probable cause existed in this case, we consider first whether Detective Rietzler and the other officers had probable cause to believe that they would discover evidence of a crime in Etchin's apartment at the moment that they knocked on her door. This would be enough, under Segura, to justify the seizure of the apartment, despite the fact that Etchin voiced an objection to their entry. Strictly speaking, the question whether the police presented enough evidence to the state judge who issued the warrant to support probable cause is a separate inquiry.

Probable cause to search a place exists when, based on all of the circumstances, a reasonably prudent person would be persuaded that evidence of a crime will be found there. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When an informant such as Banks supplies the basis for probable cause we consider, among other things, whether police have corroborated the informant's statements; the degree to which the informant's knowledge is based on firsthand observation; the detail provided; and the interval between the events described and the application for a search warrant. United States v. Farmer, 543 F.3d 363, 377 (7th Cir. 2008). This is not a checklist; indeed, anything like that would be inconsistent with the totality-of-circumstances approach that the Supreme Court endorsed in Gates. Other facts might prove helpful in a different case, and there is nothing necessarily wrong if one of these common factors is weak or nonexistent. See United States v. Carson, 582 F.3d 827, 832 (7th Cir. 2009). Normally, we give little weight to conclusory statements of an unknown informant, but in some cases even those statements may contribute to the mix, if there is supporting factual information or we are given some other reason to believe that the informant's statements are reliable. United States v. Koerth, 312 F.3d 862, 867-68 (7th Cir. 2002).

Detective Wegner swore that he believed the information he obtained from Banks was "truthful and reliable in that it was obtained against his penal interests." The defendants contest this characterization, saying that Banks was acting in his own interest when he turned on them. The truth probably lies somewhere in the middle. Banks admitted that he bought significant quantities of crack from Bowman on several occasions, but most of his conversation with Detective Wegner focused on the bad acts of Bowman and Etchin and not his own misdeeds. The degree to which Banks was speaking against his own penal interest is debatable, and thus this may not be the best reason to credit his statements.

But even if we had a stronger reason to doubt Banks's motives, probable cause rests on the totality of circumstances, and Banks's "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234, 103 S.Ct. 2317. Banks told police that Bowman and Etchin had a child; he knew that Bowman stored crack in a Crown Royal bag at Etchin's house and kept a scale inside the kitchen cupboard; and he described four visits to the apartment during which he bought drugs. The most recent purchase had taken place just a couple of days earlier. In addition, police corroborated Banks's story by having Banks point out Etchin's house from their cruiser, having him identify photos, determining that Etchin actually lived in the apartment, and verifying that Bowman was wanted on a warrant for support payments related to the child he had with Etchin. Contrary to the defendants' suggestion, Banks's arranged call to Bowman increased the reliability of his story by establishing that the two knew one another, even if Banks was ultimately unable to set up a drug deal. Though Banks initially lied to the police and had a lengthy criminal record, the information he provided before the officer's entry supplied probable cause to believe drugs would be found in Etchin's house. Accordingly, the seizure of Etchin's home did not violate the Fourth Amendment, and the search warrant was also supported by probable cause.

2. The Search of Etchin's Apartment. With that established, we are ready to consider whether the evidence discovered when the officers executed the warrant must be excluded as illegal "fruit" of their initial unlawful entry. Segura helps here, too. It holds that when a later-arriving warrant is based on information "wholly unconnected" to the illegal entry, evidence discovered during the search is admissible because its discovery is based on an independent source. Segura, 468 U.S. at 813-16, 104 S.Ct. 3380; see also Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The Supreme Court has used this "wholly unconnected" language repeatedly. E.g., Hudson v. Michigan, 547 U.S. 586, 600, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Murray v. United States, 487 U.S. 533, 535, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Although the language sounds broad, we have not read it as an inflexible rule that any information (no matter how trivial) obtained during an illegal entry and included in a warrant application taints the subsequent search. United States v. Markling, 7 F.3d 1309, 1315-18 (7th Cir. 1993). Such a holding would be inconsistent with the related "inevitable discovery doctrine." See United States v. Tejada, 524 F.3d 809, 812-13 (7th Cir. 2008). Segura instead focused on the fact that "[n]o information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant." 468 U.S. at 814, 104 S.Ct. 3380 (emphasis added). This suggests two lines of inquiry: first, we ask whether any illegally obtained information affected the judicial officer's decision to issue a warrant, cf. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); and second, we consider whether the police officers' decision to seek a warrant was prompted by anything that was discovered during the illegal entry, Markling, 7 F.3d at 1315-16.

The inquiry is fact-specific. In the case before us, the record strongly supports the district court's conclusion that "agents always intended to obtain a warrant" and "the warrant would have issued even in the absence of information gleaned from the entry into Etchin's apartment." Investigators had long focused on Bowman. Their questioning of Banks on the evening of October 2, 2007, led them to believe that Etchin's apartment was a place where at least some of Bowman's illegal activities were taking place. Detective Rietzler reported that once she verified that Etchin lived in the place that Banks identified, Detective Wegner concluded there was enough information for a warrant, and he set to work on an affidavit. It is difficult to see how marijuana or anything else in plain sight inside of Etchin's apartment was necessary to confirm the officers' view that they had indeed found the right place. The fact that Detective Rietzler thought she might get Etchin's permission to enter while Detective Wegner worked on his warrant application does not cast any doubt on Detective Wegner's earlier-expressed intent to secure a warrant.

In addition, the information that was obtained in the illegal entry and then mentioned in Detective Wegner's affidavit was not necessary to the determination that probable cause supported the warrant. The single paragraph of Detective Wegner's affidavit that could be seen as problematic explains that Etchin refused to consent to a search of her home, that officers entered "to prevent the destruction of evidence," that there were several children in the house, that Etchin confirmed one child was Bowman's, and that "[o]fficers found the apartment layout to be the same as [Banks] had described." The bulk of the affidavit recounts information provided by Banks, which we have already described, explaining Bowman's activities and the possibility that crack cocaine would be found in the house. That the layout of the apartment's interior happened to support Banks's story was not an essential factor in the probable cause analysis, particularly when one considers the other efforts to corroborate the information that Banks provided. See Brock v. United States, 573 F.3d 497, 502 (7th Cir. 2009) ("The heart of [the] question is whether, taking away any illegally obtained information, the affidavit still demonstrated probable cause."). We would have a much different case if, for example, Detective Wegner's affidavit revealed that Detective Rietzler observed marijuana in plain view. But that information was correctly excluded from the warrant affidavit and the probable cause analysis. Accordingly, the link between the initial entry and the later-discovered evidence "was sufficiently attenuated to dissipate the taint" of the illegal search, Segura, 468 U.S. at 815, 104 S.Ct. 3380, and we conclude that evidence discovered was admissible.

It follows from this conclusion that the marijuana observed at the time of the illegal entry was also properly admitted. See Murray, 487 U.S. at 537-41, 108 S.Ct. 2529; Salgado, 807 F.2d at 608. Given our conclusion that the evidence is admissible under Segura, we have no need to reach the government's alternative arguments that the police relied in good faith on a facially valid warrant, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and that exclusion would be a disproportionate remedy, Herring, 129 S.Ct. at 695.

III

We turn now to three challenges that the defendants present to their sentences. None gets off the ground.

A

Bowman and Cole argue that their sentences were based on exaggerated drug quantities. Following a two-day sentencing hearing, the district judge determined that Bowman was responsible for more than 4.5 kilograms of crack and that Cole was responsible for just over two kilograms. We review these findings for clear error. United States v. Barnes, 602 F.3d 790 (7th Cir. 2010). Bowman and Cole argue that these quantities are based entirely on the testimony of unreliable government witnesses. They point out that the witnesses were to receive lower sentences for testimony favorable to the government, and so they had a motive to lie about their past dealings with Bowman and Cole. A drug-quantity finding at sentencing must be supported by information that possesses sufficient indicia of reliability, United States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000), and a guidelines range based on false evidence can certainly constitute clear error, United States v. Salinas, 365 F.3d 582, 586-87 (7th Cir. 2004). But where a sentencing challenge boils down to a credibility decision, as this one does, our review is especially deferential to the district judge's assessment of the testimony. United States v. Acosta, 534 F.3d 574, 584 (7th Cir. 2008); United States v. House, 110 F.3d 1281, 1285-86 (7th Cir. 1997).

In 2006, when investigators began to ask questions about Bowman of various people who themselves had been arrested, several volunteered statements that were used to calculate drug quantities included in the defendants' Presentence Investigation Reports ("PSR"). Four of these witnesses — Demonterryo Black, Timothy Hampton, Joseph Thigpen, and James Wilder — agreed to testify against Bowman and Cole at sentencing about their activities in the preceding decade. Hampton said he bought an average of 63 grams of crack per week from Bowman over a two-year period, and he testified that he traveled with Bowman to Chicago to buy drugs dozens of times. Black added that he worked with Bowman to unload 100 to 250 grams per week for a period of time, and Thigpen explained that he and Bowman pooled money to buy between six and 10 kilograms of powder cocaine, which they turned into crack. All four witnesses confirmed that Cole cooked Bowman's crack, and all said they had seen Cole in action. During cross-examination, Bowman and Cole highlighted the witnesses' lengthy criminal records, their past gang activities, and the personal gain each sought by testifying. Bowman and Cole also called three witnesses of their own who all denied that they had ever seen Bowman and Cole involved with drugs. Finally, Bowman took the stand to contest nearly everything the government witnesses said.

Recognizing that the government witnesses had "very strong reasons to say what they do," the district court nonetheless found their testimony credible. The judge observed that they made "good sense" and corroborated one another. Meanwhile, the judge thought that Bowman's story was "so implausible that it border[ed] on being contemptuous." Bowman and Cole have offered no reason to doubt this credibility determination. While witnesses' motives are important, we have stressed that their reasons for taking the stand "`do not render their testimony inherently unreliable.'" House, 110 F.3d at 1285 (quoting United States v. Garcia, 66 F.3d 851, 857 (7th Cir. 1995)). Nor is it a requirement that a biased witness's testimony be corroborated by other evidence, United States v. Mendoza, 576 F.3d 711, 718 (7th Cir. 2009), though in this case the district court reasonably concluded that the government witnesses corroborated one another. Finally, the fact that Black, Hampton, Thigpen, and Wilder were unsavory characters is of no importance at this stage.

The district court's conservative conclusions that Bowman distributed "well in excess of 4.5 kilograms" over 15 years and that Cole's limited role meant he was responsible for less than half that amount were supported by a consistent narrative delivered by four separate witnesses who had detailed knowledge of the defendants' activities. The district court was entitled to credit that testimony, and its drug-quantity findings were well-supported.

B

Bowman and Cole also contest the district court's decision to deny them offense-level reductions under U.S.S.G. § 3E1.1, which provides a break to a defendant who "clearly demonstrates acceptance of responsibility for his offense." Again, the district judge is in the best position "to assess whether a defendant is motivated by genuine acceptance of responsibility," United States v. Gilbertson, 435 F.3d 790, 799 (7th Cir. 2006), and our review is only for clear error, United States v. Panice, 598 F.3d 426, 435 (7th Cir. 2010). The defendants take the position that because they had a right to require the government to prove relevant conduct at sentencing, it is error to deny them a reduction for acceptance of responsibility simply because they exercised that right.

But that argument does not do the district court's decision justice. We recognize that the decision to demand proof of relevant conduct does not automatically bar the reduction that Bowman and Cole seek. Indeed, a defendant may in a rare case exercise all of her trial rights and still benefit under § 3E1.1. See United States v. DeLeon, 603 F.3d 397, 407 (7th Cir. 2010) (discussing Application Note 2 to § 3E1.1). The question is what did the defendant do with that opportunity to testify, or otherwise to participate. Application Note 1(a) to § 3E1.1 tells judges to consider whether a defendant has " falsely den[ied] any additional relevant conduct" when deciding whether to grant a reduction for acceptance of responsibility. (Emphasis added.) While a defendant may want cross-examination of witnesses to disprove false testimony related to relevant conduct, she may also try to present testimony in an attempt falsely to deny past activities. Bowman and Cole did the latter, not the former.

The district court decided that Bowman gave "false testimony" and said that Cole "frivolously denied the amounts of crack cocaine attributed to [him]." Cole argues that he is responsible for roughly 10 percent of the quantity of crack cocaine that the government attributes to him. He insists before this court that the government's witnesses made up facts about him, but he presented only one witness to contest their version of events at sentencing. Given the deferential standard of review that applies, we ca to 25 percent and, thus, because the plaintiff's "lost opportunity" was not greater than 50 percent, she could not recover under MCL 600.2912a(2). However, Fulton did not offer any explanation as to why it merely subtracted the postmalpractice chance from the premalpractice chance to determine the "lost opportunity." This might have been the correct method of determining the "lost opportunity" if MCL 600.2912a(2) required that such a loss be "greater than 50 percentage points." However, MCL 600.2912a(2) requires that the "lost opportunity" be "greater than 50%." There is a significant distinction between 50 percentage points and 50 percent. As Dr. Roy Waddell, a board-certified orthopedic surgeon in Grand Rapids, has explained: "A decrease in survival rate from 50 percent to 10 percent is a 40-percentage-point decrease, but it is an 80 percent decrease." Waddell, A doctor's view of "opportunity to survive": Fulton's assumptions and math are wrong, 86 Mich B J 32, 33 (March 2007) (emphasis in original). Similarly, a reduction in wages from $5 an hour to $1 an hour is not a 4 percent reduction in wages; rather, it is an 80 percent reduction in wages. [ Id. at 196 (emphasis in the original).]

As I also observed in my opinion in Stone, Justice CAVANAGH made this same mistake in his opinion, in Stone:

Like the Court of Appeals in Fulton, Justices CAVANAGH offers no explanation as to why he repeatedly calculates the "lost opportunity" in terms of the percentage points lost rather than the actual percentage lost when MCL 600.2912a(2) clearly states that the "lost opportunity" must be "greater than 50%," not greater than 50 percentage points. These statistical concepts are utterly distinct. [ Id. at 196 n 11.]

I am pleased that Justice CAVANAGH and. the other justices who signed his opinion in Stone (Chief Justice KELLY and Justice WEAVER) now apparently recognize this analytical error, and that they now "repudiate" that position. Thus, a majority of the justices of this Court now agree that MCL 600.2912a(2) requires us to determine whether the lost opportunity is "greater than 50%," not whether the lost opportunity is greater than 50 percentage points.

The other problem with Fulton, which Justice CAVANAGH and his colleagues in the majority also now apparently recognize, is that "it does not differentiate between those patients who would have survived regardless of whether they received proper or improper treatment and those patients who needed the proper treatment in order to survive." Id. at 197. As I observed in Stone:

Although the majority describes their formula in considerably different terms than I did in Stone, the same result is produced under either formula. That is, regardless of whether the formula is described as I do
(premalpractice chance of better result)-(postmalpractice chance of better result) _____________________________________________________________ 100 — (postmalpractice chance of better result)
or, as the majority now does
(postmalpractice chance of worse result)-(premalpractice chance of worse result) ________________________________________________________ (postmalpractice chance of worse result)
the same figure is obtained. Given Justice CAVANAGH'S forceful criticisms of my formula in Stone, it is encouraging that we are now in agreement on this critical point. See, e.g., Stone, 482 Mich at 183-184 (opinion by CAVANAGH, J.) ("the Waddell formula [which I adopted in Stone and to which I continue to adhere] is blatantly inconsistent with the language of MCL 600.2912a(2)"; "[i]t is inconceivable that Justice MARKMAN can read the [statute] and conclude that it should be translated into this formula"; "[t]he approach taken by Justice MARKMAN and Dr. Waddell requires [the statute] to be rewritten"; "the Waddell approach leads to such anomalous results that it cannot possibly reflect the intention of the Legislature"). While Justice CAVANAGH is correct that he employs the formula to determine whether plaintiff's cause of action is a traditional medical-malpractice action or a lost-opportunity action, and I use it to determine whether plaintiff has satisfied the greater-than-50-percent requirement, we agree nonetheless that the number produced by the formula represents the opportunity that the plaintiff lost as a result of the defendant's negligence.

Such a differentiation is necessary because only those in the latter group have truly suffered a "lost opportunity" as a result of the improper treatment. That is, if a patient would have survived regardless of whether he received proper or improper treatment, the improper treatment cannot be said to have caused him to lose an opportunity to survive. On the other hand, if the patient would have survived only if he had received the proper treatment, the improper treatment can be said to have caused him to lose an opportunity to survive. MCL 600.2912a(2) requires us to determine whether the patient more likely than not fell into the latter category rather than the former category,

because the statute only allows a plaintiff to recover for a "loss of an opportunity" that was "greater than 50%" and that was "caused by the negligence of the defendant. . . ." Dr. Waddell's calculation does just that:

(Premalpractice chance) — (Postmalpractice chance) __________________________________________________ 100 — (Postmalpractice chance)

The quotient resulting from this numerator and denominator is then multiplied by 100 to obtain a percentage. This number must be "greater than 50%" in order to satisfy the requirement of the second sentence of MCL 600.2912a(2). For instance, if the patient's premalpractice chance to achieve a better result was 80 percent and, as a result of the defendant's malpractice, the patient's postmalpractice chance is reduced to 20 percent, the patient has suffered a 75 percent loss of an opportunity to survive.[]

80-20 x 100 = 75%

What the Waddell formula essentially does is test the sufficiency of the expert testimony, which is typically presented in the form of two statistics: the likelihood that a patient would have had a good outcome with proper treatment (the "[premalpractice chance]") and the likelihood that a patient would have had a good outcome with negligent treatment (the "[postmalpractice chance]"). The Waddell formula allows a court analyzing this data to determine whether the plaintiff, when the patient has experienced a bad outcome, has created a question of material fact concerning whether proper treatment more likely than not would have made a difference. The formula does this by identifying the universe of patients who would have had a bad outcome (the denominator) and the subset of those patients who could have been favorably treated (the numerator).

It is easiest to start with the formula's denominator. This denominator consists of the universe of Eill patients who would have had a bad outcome, for whatever reason. This group includes two subsets of patients: those who would have had a bad outcome because they received negligent treatment, and those who would have had a bad outcome despite receiving proper treatment. The formula identifies this group by subtracting from 100 the percentage of patients who would have had a good outcome even without proper treatment; in other words, it subtracts the "[postmalpractice chance]" from 100. In this way, a court can take the expert's statistics and identify those patients who were not treated properly and who experienced a bad outcome. A patient who is the subject of a medical-malpractice action is a member of this group. But we cannot determine whether the patient is a member of this group because he or she was denied the proper treatment or because he or she would have suffered a bad outcome even with proper treatment.

One more calculation must then be made in order to answer the dispositive question posed by the statute: whether it is more likely than not that the patient would have benefited from proper treatment or, put another way, whether the "opportunity to survive or . . . to achieve a better result" was "greater than 50%." MCL 600.2912a(2). A court has to determine what percentage of those patients with a bad outcome (those patients in the denominator) would have benefited from treatment. This brings us to the Waddell formula's numerator. The numerator consists of those patients who would have had a bad outcome only if they had been negligently treated. It is calculated by subtracting the "[postmalpractice chance]" from the "[pre-malpractice chance]," thus identifying those patients who required treatment to avoid a bad outcome.

Once the numerator and denominator have been calculated, comparison of these two numbers by their quotient allows a court to reasonably determine whether improper treatment more likely than not made a difference in the patient's outcome. If the number of patients who would have had a bad outcome only if they had been negligently treated (the numerator) comprises more than half of the number of patients who would have had a bad outcome overall (the denominator), then the plaintiff has established that proper treatment more likely than not would have made a difference. In other words, when this has been shown, the plaintiff has created a question of material fact concerning whether the "opportunity" — the benefit that would have been realized by a group of patients from the treatment that was not given to this specific patient — was greater than 50 percent. Such a plaintiff has presented adequate expert testimony to establish a "lost opportunity" cause of action within the meaning pf the statute.

As Dr. Waddell has explained:

"[T]he intent of the law is to disallow damages unless it can be shown that proper treatment creates a better than even ("greater than 50%") chance of survival of the patients who would have died without treatment. In other words, if appropriate treatment cannot save at least half of the patients who otherwise would have died, then you do not have sufficient evidence to show that the negligence made the difference in the adverse outcome (death). Conversely, if good treatment can save more than half of the patients who otherwise would have died, then you have adequate evidence that the poor treatment or negligence was likely to blame for the bad outcome. This is exactly what this definition of opportunity measures." [Waddell, 86 Mich B J at 33 (emphasis in original).]

MCL 600.2912a(2) only allows a plaintiff to recover for a "loss of an opportunity" that was "greater than 50%" and that was "caused by the negligence of the defendant. . . ." Use of Dr. Waddell's formula, which generates the actual percentage lost rather than the number of percentage points lost, and excludes those who would have achieved a good result regardless of the malpractice, best ensures, in my judgment, that these statutory requirements are satisfied. That is, this calculation would impose liability, in accordance with MCL 600.2912a(2), in those instances in which the medical care received more likely than not affected whether the patient survived. [ Id. at 197-202.]

III. APPLICATION

In the instant case, plaintiff alleged that defendants failed to timely and properly treat his acute chest syndrome, a serious complication of sickle-cell disease, and that, as a result, he suffered a stroke. More specifically, plaintiff alleged that defendants should have performed an exchange blood transfusion in which the patient's abnormal blood is taken out and replaced with normal blood, rather than a simple blood transfusion in which normal blood is simply added to the patient's abnormal blood. Plaintiff'S expert witness testified that there was a 10 to 20 percent chance of stroke without proper treatment, but that with proper treatment there would have been only a 5 to 10 percent chance of stroke. In other words, with proper treatment plaintiff had a 90 to 95 or more percent chance of not suffering a stroke, and without proper treatment he had an 80 to 90 percent chance of not suffering a stroke. That is, plaintiff's premalpractice chance to achieve a better result was, at best, 95 percent, and his postmalpractice chance was, at worst, 80 percent. Pursuant to the Waddell calculation, plaintiff lost a 75 percent opportunity to achieve a better result:

An exchange blood transfusion was not performed until after plaintiff suffered a stroke. As a result of the stroke, plaintiff suffers from partial paralysis of his left leg and complete loss of function of his left hand and arm.

95.80 ______ x 100=75% 100-80

Therefore, plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a(2). For these reasons, I agree with the majority that the judgment of the Court of Appeals should be reversed and this case should be remanded to the Court of Appeals for it to consider defendants' remaining issue on appeal, i.e., the admissibility of the expert witness testimony proffered by plaintiff.

IV. MAJORITY'S ANALYSIS

Although I agree with the majority that the Court of Appeals should be reversed, I strongly disagree with its analysis.

A. LOST OPPORTUNITY VS. TRADITIONAL MEDICAL MALPRACTICE 1. GREATER-THAN-50-PERCENT REQUIREMENT

On the one hand, the majority concludes that whether the plaintiff's lost opportunity is greater than 50 percent determines whether the plaintiff's action is a lost-opportunity action or a traditional medical-malpractice action. I find this conclusion to be completely illogical. Either the defendant's negligence has caused the plaintiff to suffer the injury, or it has caused the plaintiff to suffer a loss of an opportunity to achieve a better result — the better resultbeing not to suffer the injury. How substantial the plaintiff's lost opportunity is determines whether he satisfies the "greater than 50%" requirement of MCL 600.2912a(2), not whether the plaintiff's action constitutes a lost-opportunity action in the first place. As I stated in Stone:

In order to satisfy traditional medical-malpractice action requirements, there must be no question that the proper treatment would have resulted in a good outcome (at least with regard to the specific injury suffered by the patient), because if there is any chance that a patient who received proper treatment might nevertheless have suffered the specific bad outcome ultimately suffered by the patient, it cannot be proved that the improper treatment caused the bad outcome. If there is any chance that the proper treatment could have resulted in the bad outcome, the chances of a good outcome with proper treatment and the chances of a good outcome with improper treatment must be compared. That is, under those circumstances, although the plaintiff cannot prove that the defendant's malpractice caused the bad outcome because the bad outcome might have occurred even with proper treatment, the plaintiff may be able to prove that the defendant's malpractice increased the patient's chances of obtaining a bad outcome and, thus, caused him or her to suffer a "lost opportunity" to achieve a better result. This is the only coherent concept of a "lost opportunity" cause of action under MCL 600.2912a(2). [ Stone, 482 Mich at 271 (opinion by MARKMAN, J.).]

Because it is possible that the bad outcome in this case, i.e., suffering a stroke, might have occurred even if plaintiff had received proper treatment, the instant case constitutes a lost-opportunity action.

2. PLAINTIFF'S PLEADINGS

On the other hand, the lead opinion concludes that "the second sentence of § 2912a(2) applies only to medical malpractice cases that plead loss of opportunity and not to those that plead traditional medical malpractice. . . ." That is, the lead opinion concludes that whether the plaintiff's action constitutes a lostopportunity action or a traditional medical-malpractice action is a function of whether the plaintiff has used the magic words "lost opportunity" in his pleading. If he did not, the action is a traditional medical-malpractice action and the plaintiff need not concern himself with satisfying the greater-than-50-percent requirement of MCL 600.2912a(2). However, if the plaintiff did use the words "lost opportunity" in his pleading, the action is a lost-opportunity action and the plaintiff must satisfy the greater-than-50-percent requirement of MCL 600.2912a(2). Besides being utterly inconsistent with the majority's own conclusion that a lost opportunity greater than 50 percent determines whether the plaintiff's action constitutes a lost-opportunity action or a traditional medical-malpractice action, it is also inconsistent with the well-established principle that Michigan courts are "not bound by a party's choice of label for its action [because this would] put form over substance. . . ." St. Paul Fire Marine Ins Co v Littky, 60 Mich App 375, 378-379; 230 NW2d 440 (1975). Instead, as we explained in Maiden v Rozwood, 461 Mich 109, 135; 597 NW2d 817 (1999), "the gravamen of plaintiff's action is determined by considering the entire claim." (Emphasis added.)

Thus, just as whether a plaintiff labels an action as an ordinary negligence action does not control whether that action is, in fact, an ordinary negligence action or a medical-malpractice action, see Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004), whether a plaintiff labels an action as a traditional medical-malpractice action or a lost-opportunity action cannot control whether the plaintiff's action is, in fact, a traditional medical-malpractice action or a lost-opportunity action. This established principle ensures that the governing law, and not the label the parties attach to that law, controls the outcome of an action. As the United States Supreme Court has observed, any other approach would allow a party to avoid the requirements of a legislative mandate simply by artful pleading. See Allis-Chalmers Corp v Lueck, 471 US 202, 211; 105 S Ct 1904; 85 L Ed 2d 206 (1985). Yet this is exactly what the lead opinion would allow a plaintiff to do in relation to the requirements of MCL 600.2912a(2). Apparently, according to the justices joining the lead opinion, all a plaintiff need do to avoid the "greater than 50%" requirement in MCL 600.2912a(2) is ito omit the words "lost opportunity" in his complaint. Thus, no artfulness is even required to nullify this particular statute under their theory.

Indeed, in light of the lead opinion, the discussions in the various opinions in this case concerning appropriate formulas for determining loss of opportunity seem pointless. For what plaintiff, and what competent plaintiff's attorney, would ever plead a lost-opportunity claim if it could be so easily avoided? Simply put, under the lead opinion's rule, would the lost-opportunity doctrine enacted by the Legislature even continue to exist as a viable legal doctrine in this state? Would a court have any power to apply the actual law, or would it be required to participate in a charade of the plaintiff's (and the lead opinion's) making? As an example, could a public official plaintiff avoid having to prove actual malice in a defamation case by simply leaving the words "public official" out of his pleading? Could a plaintiff suing a public entity entitled to governmental immunity avoid such immunity by simply omitting that the defendant is a public entity from his pleading? Could an independent contractor transmute himself into an employee by simply asserting such in his pleading?

B. WHICHEVER FORMULA BEST SERVES THE PLAINTIFF

The lead opinion offers no explanation, and I can think of none, to support its alternative "standard percentage increase calculation" formula, other than the fact the justices signing the lead opinion believe that it somehow indicates that plaintiff has suffered a 300 percent loss of an opportunity! However, none of this really seems to matter to the justices signing the lead opinion because in the end they conclude that MCL 600.2912a(2) does not require "any particular mathematical formula," and that if "either calculation," or, indeed, some other yet-to-be-discovered calculation, demonstrates a greater than 50 percent lost opportunity, the plaintiff's case may proceed, because "the results must be viewed in the light most favorable to the nonmoving party." This is simply nonsensical. Although it is true that evidence is to be viewed in a light most favorable to the nonmoving party, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), which, as in this case, will almost invariably be the plaintiff, this is the first I have heard of a judicially created rule that we are to construe an unambiguous law in a light most favorable to one side or the other. Needless to say, and for reasons that are apparent, the lead opinion does not bother to cite any authority in support of such a rule. Is there some logical reason for this rule other than an apparent desire by the lead justices to place a finger on the scales of justice on behalf of the plaintiff class? Is this rule limited to lost-opportunity cases or is it equally applicable to all medical-malpractice actions? Why is such a rule appropriate in a lost-opportunity case, but not in other realms of the civil law? When is such a default interpretation of the law warranted, and when is it not? If the law does not require "any particular formula," why does the lead opinion devote such attention to identifying the two formulas that it does identify? Why not just devise a third formula under which the plaintiff will always prevail? Could it possibly be that the lead justices may be confusing their own personal political philosophies with the dictates of the actual law that they pledged to uphold?

The lead opinion indicates that the justices signing that opinion now support "Justice CAVANAGH'S partial dissent in Wickens [v Oakwood Healthcare Sys, 465 Mich 53; 631 NW2d 686 (2001)] that, a living person may pursue a claim for loss of opportunity under the circumstances presented in that case." What this gratuitous observation has to do with the instant case, I have not a clue. Do the justices signing the lead opinion also support Justice CAVANAGH'S dissent in People v Gardner, 482 Mich 41; 753 NW2d 78 (2008), or any one of his other random dissents? Given that three justices previously supported Justices CAVANAGH'S partial dissent in Wickens (Chief Justice KELLY and Justices CAVANAGH and WEAVER), by indicating that she now supports it Justice HATHAWAY seems to be signaling that there is now majority support in favor of his position in that case. Unfortunately, this type of behavior seems to have become the new majority's modus operandi — unnecessarily sowing uncertainty, doubt, and confusion into the law by gratuitously questioning prior cases decided by the former majority. For more discussion on this, see my dissent in McCormick v Carrier, 487 Mich 180, 266-274; ___ NW2d ___ (2010).

v. CONCLUSION

As I summarized in Stone:

A "lost opportunity" action is one in which it is possible that the bad outcome would have occurred even if the patient had received proper treatment. On the other hand, if there is no question that the proper treatment would have resulted in a good outcome and the patient has suffered a bad outcome, the plaintiff possesses a traditional medical-malpractice action. In order for a traditional medical-malpractice plaintiff to prevail/the plaintiff must prove that the bad outcome was more probably than not caused by the defendant's malpractice. In order for a "lost opportunity" plaintiff to prevail, the plaintiff must prove that the "lost opportunity" to achieve a better result was more probably than not caused by the defendant's malpractice and that the "lost opportunity" was greater than 50 percent. In order to determine whether the "lost? opportunity" was greater than 50 percent, the postmalpractice chance of obtaining a better result must be subtracted from the premalpractice chance; the postmalpractice chance must then be subtracted from 100; the former number must be divided by the latter number; and then this quotient must be multiplied by 100 to obtain a percentage. The calculation can be summarized as follows:

(Premalpractice chance) — (Postmalpractice chance) __________________________________________________ 100 — (Postmalpractice chance)

If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail. [ Stone, 482 Mich at 218-219 (opinion by MARKMAN, J.).][]

However, the present status of the law seems to be, pursuant to the lead opinion and Justice CAVANAGH'S concurring opinion, that if the plaintiff's lost opportunity is greater than 50 percent (the calculation of which is anyone's guess in view of the different tesits of these two opinions), the plaintiff can bring a traditional medical-malpractice action, but, if the plaintiff's lost opportunity is not greater than 50 percent, then the plaintiff can only bring a lost-opportunity action, lind, pursuant to Fulton, a lost-opportunity plaintiff must prove that the difference between his premalpractice chance of achieving a better result and his postmal practice chance of achieving a better result is greater than 50 percentage points. Neither of these conclusions is, to say the least, consistent with my own reading of the statute.

As discussed earlier, because it is possible that the bad outcome in this case, i.e., suffering a stroke, would have occurred even if plaintiff had received proper treatment, the instant case is, in fact, a lost-opportunity action, and because plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a, I agree with the majority that the judgment of the Court of Appeals should be reversed `and this case should be remanded to the Court of Appeals for it to consider defendants' remaining issue on appeal, i.e., the admissibility of the expert witness testimony proffered by plaintiff.

However, I emphatically disagree with the majority's incoherent analysis and the implications of such analysis. The majority effectively transforms a lost-opportunity action into a traditional medical-malpractice action, for no other apparent reason than to afford plaintiff's larger potential recoveries. Instead of limiting a plaintiff's recovery to the opportunity that he or she may have lost as a result of the defendant's negligence, the majority now expands the plaintiff's recovery to include potentially all damages related to his medical condition, even though the plaintiff may well have suffered the condition even had! he received perfect medical treatment. Thus, having already undermined the Legislature's attempt at medical-malpractice reform, see, e.g., Bush v Shabahang, 484 ftlich 156; 772 NW2d 272 (2009); Potter v McLeary, 484 Mich 397; 774 NW2d 1 (2009); and ADM File No. 2009-13, 485 Mich ___, ___ (order entered February 16, 2010, amending MCR 2.112 and 2.118), the majority now embarks upon transforming medical-malpractice law in exactly the opposite direction of that sought by the Legislature. At the same time, the differing formulas, and non-formulas, adopted by the majority, as well as the internal inconsistencies in its analysis, will only produce more confusion in an already confused area of the law, and more litigation in an already heavily litigated area of the law. The clearest principle of law that can be gleaned from the lead opinion is also the least principled of its asserted principles — the adoption of whichever formula best serves the plaintiff. Not much more than this "principle" really needs to be understood concerning the essence of the lead opinion's analysis.

CORRIGAN, J., concurred with MARKMAN, J., with respect to parts IV(A)(2) and (B).

_____ 100-20