United States District Court, E.D. Wisconsin
ADELMAN District Judge.
government charged defendant Theodore Simmons with
participating in a series of armed robberies of stores and
restaurants. Defendant moved to suppress evidence obtained
pursuant to a GPS tracking warrant, arguing that the affiant
included false statements in the warrant application. See
Franks v. Delaware, 438 U.S. 154 (1978). A defendant is
entitled to a so-called Franks hearing - an
evidentiary hearing regarding the veracity of information
included in a warrant application - if he can make a
substantial preliminary showing that: (1) the warrant
affidavit contained false statements, (2) these false
statements were made intentionally or with reckless disregard
for the truth, and (3) the false statements were material to
the finding of probable cause. United States v.
Mullins, 803 F.3d 858, 861-62 (7th Cir.
2015). If, at the hearing, the defendant establishes by a
preponderance of the evidence that the false statements were
made intentionally or with reckless disregard for the truth,
and without the false material the affidavit's remaining
content is insufficient to establish probable cause, the
search warrant is invalid and the fruits of the search must
be excluded from evidence. Id. at 862.
magistrate judge handling pre-trial proceedings in this case
concluded that defendant made the necessary showing and
ordered a Franks hearing. The government objects to
that order. The issue before me at this point is narrow: was
the magistrate's judge's order setting a
Franks hearing contrary to law or clearly erroneous?
See Fed. R. Crim. P. 59(a); see also United
States v. Pace, 898 F.2d 1218, 1227 (7th Cir.
1990) (holding that the decision whether to hold a
Franks hearing is reviewed deferentially and will be
set aside only if the reviewing court reaches a “firm
and definite conviction” that a mistake was made).
facts are discussed in detail in the magistrate judge's
order and the parties' submissions, and I need not
restate them here. The warrant affiant averred, in pertinent
part, that the police came to suspect defendant in the
robberies based on a tip from a citizen who wished to remain
anonymous. On review of surveillance video of one of the
robbery locations, the affiant averred that he
“observed a Pontiac Aztek drive past the store three
times, in approximately six minutes.” (GPS Aff. [R. 50]
¶ 13.) The affiant further averred that on the date of
the robbery defendant's sister, Cathy Barnes, called the
police to report that she lent her Pontiac Aztek to
defendant, but he failed to return it; she later called the
police stating defendant had returned the car, about two
hours before the robbery. Based on this information, the
affiant sought and obtained an order authorizing the
installation of a GPS device on Barnes's Pontiac Aztek.
argued - and the magistrate judge agreed - that the video
footage relied upon by the affiant was of such poor quality
that one could not determine whether a Pontiac Aztek circled
the store three times, as alleged in the affidavit. The
magistrate judge further concluded that the video represented
compelling evidence calling into question the veracity of the
vehicle identification set forth in the affidavit. Finally,
the magistrate judge expressed doubt that, absent this link
between the vehicle and the robbery, the warrant would have
objections, the government first argues that defendant lacks
standing to challenge the search of his sister's car.
However, the government did not make this argument before the
magistrate judge, and I cannot deem his order clearly
erroneous for failing to address an issue not raised.
the government takes issue with the magistrate judge's
conclusion that the video was of such poor quality that the
affiant could not have definitively identified the Aztec. The
government argues that an experienced investigator could have
identified the car based on its distinctive features. This
argument, which essentially contends that the affiant did not
intentionally or recklessly mislead the judge but rather drew
a reasonable inference from the evidence, is properly
presented at the hearing. The government may likewise argue
at the hearing that no rationale officer would intentionally
or recklessly misrepresent the contents of readily available
the government argues that the magistrate judge misread the
warrant affidavit as asserting that the affiant saw
Barnes's Pontiac Aztec circle the store before
the robbery, as opposed to seeing a Pontiac Aztec do
so. I do not read the order that way. The magistrate judge
understood that the affiant drew the inference that the Aztec
he claimed to see on the video was Barnes's vehicle. The
magistrate judge instead took issue with the affiant's
definitive statement that the vehicle he saw repeatedly
circle the store was “a Pontiac Aztec.”
the government faults the magistrate judge for failing to
consider defendant's post-arrest confession, in which he
allegedly admitted that he circled the store several times
before parking the Aztec in the alley behind the store.
However, the government cites no authority requiring the
magistrate judge to consider such later obtained evidence in
ruling on a request for a Franks hearing.
Ordinarily, in the warrant context, the court limits its
review to the four corners of the affidavit. See,
e.g., United States v. Orozco, 576 F.3d 745,
748 (7th Cir. 2009); United States v.
Peck, 317 F.3d 754, 755 (7th Cir. 2003);
see also United States v. Harris, 464 F.3d 733,
738-39 (7th Cir. 2006) (holding that district
court erred in denying Franks hearing based on new
the government argues that the magistrate judge erred in
finding that defendant made a sufficient showing of intent to
deceive, as opposed to a mere difference of opinion as to
what the surveillance video showed. A defendant need not
present direct evidence that the affiant lied in order to
obtain a Franks hearing; evidence showing that the
affiant should have doubted the accuracy of his allegations
will also suffice. See United States v. Jones, 208
F.3d 603, 607 (7th Cir. 2000) (“The
defendant must offer evidence showing either that the warrant
affiant lied or that the warrant affiant recklessly
disregarded the truth because he in fact entertained serious
doubts as to the truth of his allegations or had obvious
reasons to doubt the veracity of the allegations.”)
(internal quote marks omitted). The magistrate judge
concluded that the surveillance video constituted such
evidence, and given the deferential standard I cannot find
that determination clearly wrong. The government will be free
to argue at the hearing that the video fails to demonstrate
reckless disregard for the truth.
the government argues that the magistrate judge erred in
finding that, absent the allegedly false statement about the
Aztec, probable cause would be absent. The government argues
that information from the anonymous citizen and one of the
robbery victims, set forth in the affidavit, sufficed to
connect defendant to the robberies. But the issue here is
whether there was probable cause to track Barnes's Aztec.
Absent the affiant's statement that an Aztec was seen
casing the store, there arguably would not have been a basis
for this warrant; the police suspected that defendant robbed
the store, and they knew that his sister owned an Aztec which
he sometimes borrowed. What is missing - with the allegedly
false statement excised - is a connection between the Aztec
and the robberies. The government does not contend that the
police may track any vehicle driven by a robbery suspect.
the government argues that holding a Franks hearing
will jeopardize the officer's career. The court does not
rule on motions based on sympathy for the police or the
defendant. Nor is there any reason to believe that the
magistrate's judge order will make Franks
hearings routine in this district.
IT IS ORDERED that the government's objections
are overruled, and the matter is returned to the ...