May 22, 2019
from the United States District Court for the Western
District of Wisconsin. No. 3:17-cr-53-JDP-1 - James D.
Bauer, Hamilton, and Scudder, Circuit Judges.
Hamilton, Circuit Judge.
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.
The Need for a Franks Hearing
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).
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.
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.
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.
The Warrant Application
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
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.
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
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).
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.
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.
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
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.
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.
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,