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United States v. Clark

United States Court of Appeals, Seventh Circuit

August 15, 2019

United States of America, Plaintiff-Appellee,
Michael Clark, Defendant-Appellant.

          Argued May 22, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-53-JDP-1 - James D. Peterson, Judge.

          Before Bauer, Hamilton, and Scudder, Circuit Judges.

          Hamilton, Circuit Judge.

         Defendant-appellant Michael Clark was convicted of possessing a mixture containing fentanyl in violation of 21 U.S.C. § 841(a)(1). Clark had been found in a hotel room with more than 80 grams of a mixture of heroin and fentanyl, a digital scale, and cellophane bags. He does not appeal any aspect of his jury trial, but he challenges the denial of his motion for a Franks hearing challenging the issuance of the search warrant for the hotel room. He also challenges the denial of his motion to suppress without an evidentiary hearing. And he challenges two aspects of his sentence: the guideline treatment of his conviction for drug distribution that occurred in Illinois seven months after his Wisconsin arrest and one condition of supervised release. We vacate Clark's conviction and remand for an evidentiary hearing on his Franks challenge. We affirm on the denial of his motion to suppress without a hearing. We also affirm on the guideline issue and determine that the supervised release challenge was waived. We address in Part I the need for a Franks hearing and in Part II the need for an evidentiary hearing on the motion to suppress. We address the sentencing issues in Part III.

         I. The Need for a Franks Hearing

         The Fourth Amendment's strong preference for the use of search warrants calls for probable cause determinations by a "neutral and detached magistrate" as opposed to "officer[s] engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). The application for a warrant "must provide the magistrate with a substantial basis for determining the existence of probable cause." Illinois v. Gates, 462 U.S. 213, 239 (1983).

         The ability of the neutral and detached magistrate to determine probable cause depends on the accuracy of the information the police submit. "[A] search warrant is not valid if the police obtain it by deliberately or recklessly presenting false, material information," or by omitting material information from the affidavit provided to the issuing judge. United States v. McMurtrey, 704 F.3d 502, 508 (7th Cir. 2013), citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978). To invalidate a warrant on this basis, a defendant at a so-called Franks hearing must prove by a preponderance of the evidence either falsity or recklessness, as well as materiality. McMurtrey, 704 F.3d at 509.

         Merely to obtain a Franks hearing, however, a defendant does not need to prove the Franks violation. A defendant must only make a substantial preliminary showing (1) that the warrant application contained a material falsity or omission that would alter the issuing judge's probable cause determination, and (2) that the affiant included the material falsity or omitted information intentionally or with a reckless disregard for the truth. United States v. Glover, 755 F.3d 811, 820 (7th Cir. 2014); see also, e.g., United States v. Hancock, 844 F.3d 702, 708 (7th Cir. 2016); United States v. Mullins, 803 F.3d 858, 861-62 (7th Cir. 2015); United States v. Robinson, 546 F.3d 884, 887-88 (7th Cir. 2008). "Proof by a preponderance of the evidence is not required until the Franks hearing itself." Glover, 755 F.3d at 820.

         Clark asserted in the district court that the police investigator who applied for the search warrant of the hotel room deliberately or recklessly omitted critical information affecting the credibility of the unidentified informant who told the officer about drug distribution at the hotel where Clark was arrested. The district court denied the motion for an evidentiary hearing on the question. The court agreed that the police had provided no information about the informant's credibility. The court found, however, that the police had provided sufficient corroboration for the informant's tip so that the warrant did not depend on the informant's credibility. That meant the omitted credibility information was not material for Franks purposes. We disagree and find that a hearing is needed. "[W]e review the denial of a Franks hearing for clear error, but any legal determinations that factored into the ruling are reviewed de novo." Glover, 755 F.3d at 815; see also Hancock, 844 F.3d at 707-08.

         A. The Warrant Application

         Investigator Todd Maas is a police officer in Superior, Wisconsin. He prepared the warrant application and signed the supporting affidavit. Maas said that a confidential informant contacted him on October 14, 2015 and told him that earlier that day, he had driven someone to a parking lot adjacent to the Baywalk Inn in Superior to buy heroin from a black male called "Big Mike," the brother of "Toonchie." Maas said he and another officer then performed their own investigations, including surveillance of the parking lot. Maas observed a black male leave the hotel and enter and then exit at least five cars in the hotel parking lot. He also learned that the guest staying in Room 203 was the only hotel guest who both had paid in cash and was staying only one night, all behavior that Maas said was typical of drug trafficking, based on his training and experience. Maas also said he had spoken to a woman (referred to in this case as the "mom on a mission") who said that her daughter was a heroin addict and that she (the mother) had followed a man she suspected of drug-dealing to Room 203.

         Maas included all of this information in his affidavit, which convinced a state trial judge to issue a search warrant for Room 203. Maas did not include any damaging information about the credibility of his confidential informant, who was the only source of information specifically about drug trafficking. The informant was being paid for his services. He also had two pending criminal charges against him, fifteen prior convictions, and a history of opiate and cocaine abuse, and he was hoping to receive a reduced sentence in exchange for his cooperation.

         B. Materiality

         Where an affidavit is based primarily on tips from an informant, probable cause can be shown based on the totality of the circumstances. Gates, 462 U.S. at 238; Glover, 755 F.3d at 816. In cases based on informants' tips, we have identified five factors of particular relevance: (1) the level of detail the informant provided; (2) the extent to which the informant's information is based on his or her own first-hand observations; (3) the degree to which police have corroborated the informant's information; (4) the time elapsed between the events reported and the warrant application; (5) and "whether the informant appeared or testified before the magistrate." Glover, 755 F.3d at 816, citing United States v. Johnson, 655 F.3d 594, 600 (7th Cir. 2011). Information omitted from a warrant application is material when its omission affects the probable cause determination. Glover, 755 F.3d at 820.

         In performing this probable cause inquiry, courts must keep in mind that a search warrant for a home, business, or even hotel room can authorize highly intrusive and even destructive actions by the police, and that informants, especially in drug cases, can be unreliable and motivated by rivalries or revenge. United States v. Lopez, 907 F.3d 472, 478 (7th Cir. 2018), quoting Terry v. Ohio, 392 U.S. 1, 16-17 (1968) ("What we blandly call 'Terry stops' can be highly intrusive." They are "not just 'a "petty indignity, "' wrote the Supreme Court, but 'a serious intrusion upon the sanctity of a person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly'"); United States v. Bell, 585 F.3d 1045, 1050 (7th Cir. 2009) ("For all we know, [the informant] could have been a rival drug dealer, an angry customer, or had some other beef" with the defendant).

         Our cases do not hold that a Franks hearing is required every time some substantial adverse information about an informant's credibility is omitted from a probable cause affidavit. Hancock, 844 F.3d at 709. We have said generally that where a warrant is obtained based on an informant's tip, "information about the informant's credibility or potential bias is crucial." Glover, 755 F.3d at 816; see, e.g., United States v. Bradford, 905 F.3d 497, 503-04 (7th Cir. 2018). That being said, we also have upheld warrants tainted by police omission of adverse informant credibility information. Our Franks hearing cases show that when police have sufficiently corroborated an informant's tip, the omission of facts pertaining to the informant's credibility may not be material.

         In United States v. Musgraves, for example, the police omitted from the affidavit important and damaging credibility information about one informant. 831 F.3d 454, 459-60 (7th Cir. 2016). We affirmed the denial of a Franks hearing because a second affidavit included information from a second informant without credibility problems who had provided the police with specific and timely information about the suspect's drug trafficking to support the warrant. Id. at 460-61.

         In United States v. Bradford, we also held that the affidavit's omission of facts damaging to an informant's credibility did not require suppression of evidence seized with a search warrant for drug and weapons trafficking. 905 F.3d at 503-05. In Bradford, the application failed to disclose that the informant had three felony convictions, was on probation, and was being paid for his help. Id. at 502. But his information was fresh, specific, and corroborated by his having carried out controlled drug buys from the target and by specific information from another informant without his credibility problems. Id. at 504

         In United States v. Hancock, we affirmed the denial of a Franks hearing in similar circumstances. 844 F.3d at 710. An informant provided fresh, detailed information about a suspect's drug sales, but the affidavit for the warrant left out information about the informant's own criminal history and the fact that he was in custody when he provided the information. Id. at 705-06. We found that the omissions were not material because the warrant application included extensive corroboration of the suspect's drug trafficking and intimidation of witnesses. That corroboration came from other informants, a search of a cellular telephone showing texts referring to drug deals, and from an earlier interview with the suspect himself. The quantity and quality of corroborating information meant that the omitted adverse credibility information about one informant did not require a Franks hearing. Id. at 707-10.

         This case is readily distinguishable. This warrant application did not include any of the substantial adverse information Maas had about the informant's credibility. The government does not try to justify Maas's omissions, but it argues that the informant's credibility was not material to the warrant application because Maas and his colleague investigated and corroborated the informant's tip sufficiently to provide probable cause independent of that tip. We disagree.

         The corroboration in this case was much weaker than in the cases where we upheld warrants' validity in the face of credibility omissions. This case is more akin to Glover, where the warrant application depended so heavily on the credibility of the informant. Here, the police had no controlled buys. They never saw money or drugs change hands. Even the informant did not claim to have seen drugs or money change hands. If his tip did not pan out, he had plenty of deniability. He claimed only that his passenger had met with "Big Mike" outside his presence to buy heroin. And the "mom on a mission" had no track record of credibility and provided no specifics to support her suspicions of the man she had followed to Room 203. In sum, ...

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