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United States v. Lewis

United States District Court, E.D. Wisconsin

May 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
STEPHEN LEWIS, and DEMETRA HINKLE, Defendants.

         ORDER VACATING THAT PORTION OF JUDGE JOSEPH'S ORDER DENYING DEFENDANTS' REQUEST FOR A FRANKS HEARING (DKT. NO. 62), REMANDING CASE TO JUDGE JOSEPH TO CONDUCT FRANKS HEARING, DEFERRING RULING ON DEFENDANTS' OBJECTIONS TO JUDGE JOSEPH'S RECOMMENDATION THAT THE COURT DENY THEIR MOTION TO SUPPRESS (DKT. NO. 62 AT 18) AND GRANTING DEFENDANT HINKLE'S MOTION TO ORDER APPOINTMENT OF COUNSEL (DKT. NO. 79)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The grand jury returned a seven-count superseding indictment charging defendants Steven Lewis, Theresa Lewis and Demetra Hinkle with conspiring to distribute cocaine, firearm possession, possessing a firearm in furtherance of a drug offense, and maintaining a drug trafficking residence. Dkt. No. 37. Two of the defendants, Stephen Lewis and Demetra Hinkle, filed a motion to suppress evidence, with included a request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).[1] Magistrate Judge Nancy Joseph denied the motion for a Franks hearing and issued a report recommending that this court deny the motion to suppress. Dkt. No. 62.

         The court vacates the portion of Judge Joseph's order denying the defendants' motion for a Franks hearing, dkt. no. 62, and defers ruling on their objections to the recommendation that the court deny the motion to suppress, dkt. no. 62 at 18. The court also grants defendant Hinkle's motion to order appointment of counsel. Dkt. No. 79.

         I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         A. Procedural History

         A November 2017 indictment charged all three defendants with conspiring to distribute over five kilograms of cocaine as well as 280 grams or more of crack. Dkt. No. 9. It charged Stephen Lewis with possessing a firearm in furtherance of a drug trafficking offense (Count Two) and being a felon in possession of firearms (Count Three). Id. Demetra Hinkle was charged with making her residence available for storing, distributing, and using a controlled substance. (Count Four). Id. Finally, the indictment charged Theresa Lewis with traveling to Texas to facilitate a drug transaction (Count Five). Id.

         On April 10, 2018, the grand jury returned a superseding indictment adding two additional charges against defendant Hinkle-Count Six, possessing a firearm in furtherance of a drug trafficking offense, and Count Seven, being a felon in possession of a firearm. Dkt. No. 37. The defendants subsequently filed seven pretrial motions. Dkt. Nos. 46-52. Among those was a joint motion from defendants Steven Lewis and Hinkle, asking the court to suppress evidence obtained at a search of a residence on North 45th Street in Milwaukee, “and/or to grant an evidentiary hearing to determine whether there has been a Franks violation warranting the suppression of evidence based on false, omitted, and misleading statements included in and omitted from the Affidavit submitted in support of the search warrant.” Dkt. No. 52 at 1.

         After the parties had briefed that motion, Judge Joseph held a counsel-only status hearing regarding the defendants' request that she schedule a Franks hearing. Dkt. No. 59. The minutes from that status conference state that “[t]he court ha[d] additional questions re defendants' request for a Franks Hearing.” Id. at 1. The government first “addresse[d] questions from the court as to the date the conversation took place that is referenced in paragraph 7 of Exhibit A of defendants' motion.” Id. The government also “[d]irect[ed] attention to a letter produced in discovery from a case agent, relating a conversation from a CS.” Id. The minutes reflect that Judge Joseph “allow[ed] briefings regarding the court's concerns as to paragraph seven” of the affidavit in support of the search warrant. Id. She set a deadline of September 14, 2018 for the defendants to “file supplemental letters re court's concerns, ” and a deadline of September 19, 2018 for “[g]ovt to file replies.” Id. at 2. The minutes also indicate that “[t]he court will defer to the govt re supporting documents or reports.” Id. The parties submitted letter responses on those deadlines. Dkt. Nos. 60, 61.

         Judge Joseph issued a single order, denying the request for a Franks hearing and recommending that the court deny the motion to suppress. Dkt. No. 62. Regarding the request for a Franks hearing, she found that the defendants had not made the required “substantial preliminary showing” that the affiant, Special Agent Nate Peskie of the Wisconsin Department of Justice's Criminal Investigation Division, made false statements intentionally or with reckless disregard for the truth. Id. at 7-12. Regarding the motion to suppress, she found that although the affidavit supporting the warrant did not establish probable cause, the warrant was not “so blatantly defective that the executing officers could not have reasonably presumed it to be valid.” Id. at 18. She recommended that this court uphold the search based on the good-faith exception to the exclusionary rule. Id.

         The defendants have objected both to Judge Joseph's order denying their request for a Franks hearing and her recommendation regarding the motion to suppress. Dkt. No. 70. The parties have briefed the objections.

         B. Facts

         The defendants' objections did not dispute Judge Joseph's recitation of the facts, nor did the government's response. The court reproduces below the facts as Judge Joseph recounted them:

On September 3, 2017, Milwaukee County Circuit Judge Borowski issued a warrant to search 5272 North 45th Street, Milwaukee, Wisconsin. The application for the search warrant was based on an affidavit signed by Nate Peskie, a Special Agent with the Wisconsin Department of Justice Division of Criminal Investigation. (Exh. A ¶ 1.) Peskie was part of a local, state, and federal law enforcement investigation of Theresa Lewis. (Defs.' Br. ¶ 9.)
Peskie averred that law enforcement had interviewed a confidential informant who told them that Theresa Lewis was working with her cousin, Stephen Lewis, to pick up cocaine shipments in Texas. (Exh. A ¶ 3.) The informant provided law enforcement with telephone number (414) 949-9152 and claimed that the number was being used by Theresa Lewis to contact the informant. (Id.) Peskie further averred that the informant explained that during conversations with Theresa Lewis, the informant referred to the cocaine source location in Texas as “home away from home.” The informant also said that Theresa Lewis told the informant that she (Lewis) was going to their “home away from home” with Stephen Lewis and was being paid $1200 to make the trips approximately once a month. The informant spoke to Theresa Lewis about the drug operation as recently as July 10, 2017. (Exh. A ¶ 4.)
Peskie also averred that on May 8, 2017, law enforcement agents received information from the informant who explained that during a call with Theresa Lewis on May 3, 2017, Theresa Lewis said that she was getting ready to make a trip over the weekend and that upon returning from the trip she would “drop it (believed to be drugs)” at Stephen Lewis' house and get paid by him. (Exh. A ¶ 7.)
Peskie averred that the informant is accurate and reliable because: (1) the informant had been providing information to law enforcement since February 2017; (2) the information was substantially against the informant's own penal interest; and (3) the information was consistent with evidence obtained through other law enforcement activity, phone records, and interviews of other confidential sources. (Exh. A ¶ 3.)
Peskie also averred that on March 1, 2017, law enforcement reviewed historical call records obtained through a subpoena for (414) 949-9152, the telephone number utilized by Theresa Lewis. Those records indicate numerous contacts between Theresa Lewis' number and (972) 734-1111 a Dallas, TX telephone associated with “several Milwaukee area drug cases.” (Exh. A ¶ 5.)
Peskie also averred that on April 27, 2017 agents from DCI and DEA met with members of the Milwaukee FBI Task Force who informed them that the FBI had an open drug investigation linked to Stephen Lewis. The FBI claimed Stephen Lewis was a runner for a large-scale heroin and cocaine distribution network. (Exh. A ¶ 6.)
Peskie stated that a “reliable source” informed law enforcement that Theresa Lewis left Milwaukee on August 11, 2017 for a drug trip to Houston, TX and returned to Milwaukee on August 14, 2017. (Exh. A ¶ 8.) The same “reliable source” informed law enforcement that Theresa Lewis left Milwaukee on September 1, 2017 and was heading to Texas on a drug trip. Peskie believed the “reliable source” to be accurate and reliable because Peskie had utilized information from the same “reliable source” in the past and found it to be reliable and correct. (Id.)
Peskie further averred that based on monitoring of Theresa Lewis' cell phone, authorized pursuant to a “State of Wisconsin Pen/Trap & Trace warrant” obtained on September 2, 2017, he became aware that Theresa Lewis' phone stopped at a gas station in Livingston, TX on September 2, 2017. (Exh. A ¶¶ 9-10.) A follow-up call to the Livingston police department ascertained that “Theresa Lewis was in the company of several black males, and that two vehicles were possibly associated with Theresa Lewis, a silver VW and a white Hyundai.” (Id.) Peskie subsequently observed a white Hyundai and a silver VW hatchback crossing the border into Wisconsin on September 2, 2017[2] at 1:45 p.m., and that the VW was ultimately stopped on I-94 under the North Avenue overpass, where Theresa Lewis was found seated in the back seat. (Exh. A ¶ 11.)
Milwaukee Police Department (MPD) officers monitoring 5272 N. 45th Street prior to the traffic stop of the vehicle of which Theresa Lewis was a passenger on September 2, 2017, did not note any vehicles parked in the front or rear of 5272 N. 45th Street that “were known to be associated with this residence.” (Exh. A ¶ 12.) The MPD officers later saw a white Hyundai parked at the rear of 5272 N. 45th Street. (Exh. A ¶ 13.) Stephen Lewis was seen leaving the rear of that residence and entering the white Hyundai after which a traffic stop was attempted, Stephen Lewis fled, and was ultimately arrested. (Exh. A ¶ 14.) The Hyundai was searched and law enforcement recovered one corner cut of cocaine lying beneath the front driver's seat. Stephen Lewis denied having been at 5272 N. 45th Street. (Exh. A ¶¶ 14-15.)
Finally, Peskie averred that law enforcement subsequently returned to 5272 N. 45th Street and knocked at the front door, but received no response. (Exh. A ¶ 17.) While at the front door, a law enforcement officer smelled the odor of “fresh” marijuana in the area of the front door, and with the information that Theresa Lewis was in the company of several black males while in Livingston, TX at the gas station, the law enforcement officer believed a second individual was inside the residence. (Id.) Law enforcement officers then entered the residence using a key recovered from Stephen Lewis. (Id.) Peskie further states that: the residence was “frozen and secured” by law enforcement; the residence was not searched; and law enforcement officers were waiting for a search warrant to search the residence. (Id.)

Dkt. No. 62 at 2-5.

         II. MOTION TO SUPPRESS AND REQUEST FOR FRANKS HEARING

         A. The Defendants' Arguments

         The defendants asked the court to suppress evidence obtained from a September 3, 2017 search of a residence at 5272 N. 45th Street, Milwaukee, Wisconsin. Dkt. No. 52. Most of the motion focused on the defendants' contention that the affidavit submitted to Judge Borowski in support of the warrant contained false and misleading statements, or omitted facts, in violation of Franks. Id. at 2. The motion also alleged that the officers entered the residence before they obtained a warrant, and that that entry violated the Fourth Amendment. Id. at 14-15. Finally, they argued that the warrant failed to state probable cause that officers would find contraband or evidence at the 5272 North 45th Street residence. Id. at 2.

         In support of their request for a Franks hearing, the defendants identified the following alleged false and/or misleading statements in the affidavit, and several omissions:

* Paragraph Seven:
On May 8th, 2017, a DCI S/A received information from the CS who explained that during a call with Theresa LEWIS on May 3rd, 2017, Theresa LEWIS said that she was getting ready to “make a trip” over the weekend. Theresa LEWIS told the CS that immediately upon returning from “the trip” she would drop it (believed to be drugs) off at Stephen LEWIS' aka “Lil Steve's” house and get paid by him. According to the CS, this conversation with LEWIS was done with LEWIS using telephone number 414-949-9152.

Dkt. No. 52-1 at ¶7.

         The defendants argued that their review of the discovery, “including letters sent by the CS to law enforcement, ” revealed that on May 3, 2017, Theresa Lewis did not tell the informant that she was going to deliver anything to Stephen Lewis' house (or to any other house). Dkt. No. 52 at 7 (citing a discovery document not provided to the court). They asserted that they had listened to a recording of a May 3, 2017 jail call between the CS and Theresa Lewis, and that at no time during the fifteen-minute call did Theresa Lewis say she planned to take anything to Stephen Lewis' house. Id.

* Paragraph Ten:
That your affiant ultimately obtained information during the monitoring of this cellular phone that Theresa Lewis while northbound from the Houston, Texas area had stopped in Livingston, Texas at a gas station; a subsequent follow-up phone call to the local police department (Livingston PD) ascertained that Theresa Lewis was in the company of several black males and that two vehicles were possibly associated with Theresa Lewis with those vehicles being a silver VW and a white Hyundai;

Dkt. No. 52-1 at ¶10.

         Recall that Theresa Lewis stopped at the Texas gas station on September 2, 2017. The defendants alleged that there were two false statements in paragraph Ten. First, they argued that Peskie's assertion that “two vehicles were possibly associated with Teresa [sic] Lewis with those vehicles being a silver VW and a white Hyundai” was false. Dkt. No. 52 at 8 (quoting dkt. no. 52-1 at ¶10) (emphasis in defendants' brief). They stated that law enforcement reports disclosed in discovery reported that the clerk at the Livingston gas station had told law enforcement that he recalled seeing a silver Volkswagen and a “white vehicle”-no model specified-at the gas pumps. Id. (citing a discovery document not provided to the court). The defendants asserted that the discovery further indicated that Theresa Lewis's cell phone pinged at a gas station in Bryant, Arkansas at 12:14 a.m. on September 3, 2017 (the wee hours the next day). Dkt. No. 52 at 12. The discovery revealed that Peskie contacted local law enforcement in Bryant who told him that “the ‘clerk remembered two vehicles being parked at the gas pumps, the clerk stated one of the vehicles was a silver Volkswagen hatchback. And the other was a new white Honda.'” Dkt. No. 52 at 12 (quoting a discovery document not provided to the court) (emphasis in defendants' brief). In other words, neither clerk mentioned a Hyundai.

         Second, the defendants argued that video surveillance from the Livingston, Texas gas station showed that Theresa Lewis was with two black males, not “several.” Id. at 8. The clerk at the Arkansas gas station recalled seeing two black males “in the new white Honda that apparently filled up with gas and paid at the pump.” Id. at 12-13.

* Paragraph Eleven:
That your affiant, subsequent thereto at approximately 1:45 p.m., observed a white Hyundai and a silver VW hatchback crossing the border into Wisconsin; that the VW was ultimately stopped in [sic] I-94 under the North Avenue overpass at which time affiant ascertained that Theresa Lewis was seated in the back seat;

Dkt. No. 52-1 at ¶11.

         The defendants argued that the discovery did not support Peskie's statement that he saw a white Hyundai cross the border into Wisconsin on the afternoon of September 3, 2017. Dkt. No. 52 at 8-9. The defendants asserted that discovery showed that law enforcement monitored two “vehicles of interest” crossing the border into Wisconsin: (1) a silver Volkswagen GTI with two black males in the front seats and a black female in the backseat, and (2) a Volkswagen Passat (no color specified) with a black female driver and a black male passenger. Id. at 9. The defendants maintained that discovery showed the Passat had fled from police. Id.

         The defendants also reiterated that Peskie's assertion that Theresa Lewis had been seen in Texas in a car with “several” black males caused officers to enter the residence on North 45th Street without the warrant, because it gave them false reason to believe that there might be a “second” person (other than Stephen Lewis, whom law enforcement had seen leaving the house) inside. Id. They point out that when officers stopped the silver Volkswagen hatchback after it crossed into Wisconsin, Theresa Lewis and two black males (Lorenzo Sandlin and Johnny Walker)-the same number of men that the clerk at the Texas gas station had reported seeing-were inside, but Peskie did not state that in the affidavit. Id. at 13. Only Peskie's affidavit referred to “several” black males, but that reference to “several” caused officers to enter the North Avenue residence without the warrant.

         Finally, the defendants argue that paragraph eleven of Peskie's affidavit failed to state that law enforcement searched the silver Volkwagen in which Theresa Lewis, Lorenzo Sandlin and Johnny Walker had been driving, and found no contraband. Id. They also noted that, contrary to what Peskie ...


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