United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
has been charged with conspiring to distribute cocaine and
heroin in Milwaukee along with a number of other persons,
including her former boyfriend and the leader of the group,
Jimmy Bates (“Bates”). (Docket #1). As part of
the investigation into this conspiracy, DEA agent Jasemin
Pasho applied for authorization for a search warrant to
obtain records related to two of Defendant's cell phones.
(Docket #179-1). The application included numerous facts
about the Bates drug ring and Defendant's involvement
therein. See generally Id. It also included one
demonstrably false statement-that a substantial quantity of
heroin was found in a search of Defendant's residence.
Id. at 6. The warrant was nonetheless authorized and
the search was performed. (Docket #179-2).
seizes upon the false statement as a basis to suppress the
evidence found during the execution of the warrant. She filed
a motion to that effect, and a request for a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978). As
explained by the Seventh Circuit:
If police officers obtain a search warrant by deliberately or
recklessly providing the issuing court with false, material
information, the search warrant is invalid. In
[Franks], the Supreme Court held that when a
defendant makes a substantial preliminary showing that the
police procured a warrant to search his property with
deliberate or reckless misrepresentations in the warrant
affidavit, and where such statements were necessary to the
finding of probable cause, the Fourth Amendment entitles the
defendant to an evidentiary hearing to show the warrant was
United States v. McMurtrey, 704 F.3d 502, 504 (7th
Cir. 2013). McMurtrey emphasizes that the
“substantial preliminary showing” is just that-
substantial. Id. at 509. The defendant must prove by
a preponderance of the evidence that the alleged false
statements were indeed false, and that they were offered
intentionally or recklessly. Id. The defendant must
further establish “that if the deliberately or
recklessly false statements were omitted, or if the
deliberately or recklessly misleading omissions included,
probable cause would have been absent.” Id.
Judge William E. Duffin considered Defendant's arguments
in favor of both suppression and her request for a
Franks hearing. (Docket #209) (the “Order and
Recommendation”). He denied the request for a hearing
and has recommended denial of the motion to suppress.
Id. Defendant has filed an objection to the Order
and Recommendation. It appears that Defendant objects to both
parts of the ruling pursuant to Federal Rule of Criminal
Procedure 59(a) (parties may object to non-dispositive orders
of magistrate judges) and (b) (parties may object to
magistrate judge recommendations on the disposition of,
inter alia, motions to suppress).
joint nature of the ruling might otherwise present some
difficulty for this Court's review, as a Rule 59(a)
objection faces a heightened standard of review, Fed. R.
Crim. P. 59(a) (orders may only be set aside when they are
contrary to law or clearly erroneous), while a Rule 59(b)
objection warrants de novo review of the magistrate
judge's recommendation, Id. 59(b)(3). The
distinction does not matter here, as Magistrate Judge
Duffin's findings and conclusions are unassailable under
any standard. In the interest of timeliness and brevity-the
deadline for filing of plea agreements is approaching-the
Court assumes familiarity with the Order and Recommendation
and the parties' briefing on Defendant's
thrust of Defendant's objection is that Magistrate Judge
Duffin was wrong to find probable cause present in the
warrant application absent the false statement. She offers
two specific qualms with the statements in the application.
First, Defendant states that while she indeed admitted to
being Bates' girlfriend September 2017, she was not at
the time the application was made in November 2018. However,
the precise nature of the relationship between Defendant and
Bates at any particular time is not material. The
confidential informant was clear that Defendant worked as
Bates' courier and provided specific information about
one trip in particular that agents sought to corroborate with
the cell phone records.
Defendant complains that the application relies on hearsay
statements by Bates, without establishing that Bates was a
reliable source of information. Magistrate Judge Duffin
explained that hearsay is generally permissible in a warrant
application, so long as it is reliable. (Docket #209 at 5).
Bates' statements, relayed through the confidential
informant, carried substantial indicia of reliability because
they were admissions of criminal activity. Id.
Defendant claims that Magistrate Judge Duffin erred by
“putting a lot of faith in the uncorroborated words of
two drug dealers.” (Docket #213 at 6). Preliminarily,
the Court notes that the confidential informant's
reliability was addressed in the application, and
Defendant does not question it. Moreover, the Court agrees
with Magistrate Judge Duffin that Bates' reliability is
sufficiently established by his statements; what motivation
would he have to contrive specific and inculpatory
statements about his criminal enterprise?
to the extent that Defendant's objection attacks the
finding of probable cause generally, the Court again agrees
with Magistrate Judge Duffin's analysis. Even without the
false statement, the application details Bates' drug
distribution ring, explains Defendant's close
relationship to Bates and her role in the organization, and
relates a very specific trip she took to Chicago in her role
as courier. One must remember that probable cause is not a
difficult hurdle for police to overcome. “[P]robable
cause is far short of certainty-it ‘requires only a
probability or substantial chance of criminal activity, not
an actual showing of such activity,' [Gates, 462
U.S. at 244 n. 13], and not a probability that exceeds 50
percent (“more likely than not”), either.”
United States v. Seiver, 692 F.3d 774, 777
(7th Cir. 2012). The application easily established a
substantial chance that the cell phone records sought would
contain information relevant to the Chicago trip and perhaps
to the Bates' organization generally.
light of the foregoing, the Court will uphold Magistrate
Judge Duffin's order denying Defendant a Franks
hearing and adopt his recommendation in favor of denying
Defendant's motions to suppress. (Docket #209).
Defendant's objection to Magistrate Duffin's Order
and Recommendation will be overruled, (Docket #213), and the
motion to suppress will be denied, (Docket #179).
IT IS ORDERED that Magistrate Judge William
E. Duffin's November 5, 2019 Order and Recommendation
(Docket #209) be and the same is hereby
ADOPTED, and that Defendant's objection
thereto (Docket #213) be and the same is hereby
IS FURTHER ORDERED that Defendant's motion to
suppress (Docket #179) be and ...