United States v. McMurtrey

• Decision Date: 10 January 2013
• Docket Number: No. 11–3352.,11–3352.
• Citation: 704 F.3d 502
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mason S. McMURTREY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

704 F.3d 502

UNITED STATES of America, Plaintiff–Appellee,

v.Mason S. McMURTREY, Defendant–Appellant.

No. 11–3352.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 12, 2012.

Decided Jan. 10, 2013.

Kirk Schuler (argued), Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff–Appellee.

Edward King Poor, Attorney, Quarles & Brady LLP, Chicago, IL, Valerie P. Vidal (argued), Attorney, Quarles & Brady LLP, Milwaukee, WI, for Defendant–Appellant.

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

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 v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), 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 invalid. In this appeal we attempt to clarify some issues concerning the procedures a district court may or must use in evaluating a criminal defendant's motion to suppress evidence under Franks.

A district court that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called “pre-Franks ” hearing to give the defendant an opportunity to supplement or elaborate on the original motion. Though permissible, this procedural improvisation is not without risk, as the sparse case law indicates. In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses. We emphasize that the option to hold such a limited pre-Franks hearing belongs to the district court, not the defendant.If the defendant's initial Franks motion does not make the required “substantial preliminary showing,” the court need not hold a pre-Franks hearing to provide the defendant a further opportunity to do so.

In this case, defendant Mason McMurtrey pled guilty and was sentenced to a total of 180 months in prison for possession of more than five grams of crack cocaine with intent to deliver and possession of a firearm during a drug trafficking crime. 21 U.S.C. § 841(a)(1), (b)(1)(B); 18 U.S.C. § 924(c). The defendant's guilty plea reserved his right to appeal the denial of his motion to suppress the fruits of a search based on a warrant obtained with an affidavit he contends was deliberately or recklessly false.

The defendant made a sufficient preliminary showing under Franks by offering two police officers' affidavits. On the critical issue of which of two houses should be searched, the affidavits contradicted each other. The affidavits also indicated that each officer previously had contradicted himself in the information he had provided to the other officer. That evidence was sufficiently specific to support (though not require) a reasonable inference that the affidavit submitted to support the search of the defendant's home was deliberately or recklessly false. Rather than hold a full Franks hearing, however, the district court held a truncated pre-Franks hearing. The district court permitted the government to offer additional evidence to explain the discrepancies in the affidavits. That evidence should have required a full Franks hearing, yet the defendant was not permitted full cross-examination on the government's new evidence. The court then relied on the untested government evidence to find that the defendant had failed to make a showing sufficient to obtain a full Franks hearing. This procedure was erroneous because it denied defendant his full opportunity to challenge the warrant under Franks. Accordingly, we vacate and remand for further proceedings.¹

I. Factual and Procedural Background

The problem here stemmed from confusion between two officers about which of two neighboring houses should be searched. After he was indicted, defendant McMurtrey asked the government to produce the documents underlying the search warrant that was executed at his house at 1514 West Aiken Street in Peoria, Illinois. In response to this request, the government produced a search warrant for a different house, 1520 West Aiken Street. That warrant was supported by the affidavit of Officer Matthew Lane. McMurtrey immediately moved to suppress the evidence found in the search because the police had not searched 1520 West Aiken. They had searched 1514 West Aiken. In response to the defendant's motion, the government then produced a second search warrant affidavit—this one for 1514 West Aiken—by Officer Erin Barisch.

Aside from the target addresses, the Lane and Barisch affidavits were very similar.The Lane affidavit was dated June 17, 2010, and described 1520 West Aiken as “a gray with white trim, one and one half story, single family residence, and the numbers ‘1520’ affixed to the front of the residence.” It said that a confidential informant told Lane that a black male known as “Milltown” was in possession of and was selling cocaine from 1520 West Aiken. The confidential informant had been present at 1520 West Aiken at least twice in the previous 30 days, most recently within the previous 72 hours, and said that each time he had observed Milltown in possession of crack cocaine packaged for sale. The Lane affidavit was bolstered by a separate affidavit by this confidential informant.

Officer Lane's affidavit stated further that he had spoken with Officer Barisch, who had informed Lane that he also “had controlled buys” from Milltown at 1520 West Aiken. Milltown was described as approximately 28 years old, 5 feet, 10 inches tall, and 230 pounds, with black hair, brown eyes, and a dark complexion. In a photographic line-up, the confidential informant had identified McMurtrey as Milltown. Based on the Lane affidavit and the informant's affidavit, an Illinois state judge issued a search warrant for 1520 West Aiken on June 17, 2010 at 3:00 p.m.

This search warrant, however, was never executed. Instead, later that day Officer Barisch sought a separate search warrant for 1514 West Aiken. The Barisch affidavit supporting the application provided essentially identical information concerning Milltown's activities, but it placed the activities at 1514 West Aiken. Barisch's affidavit described the target residence as a “gray with white trim, one and one half story, single family residence, and the numbers ‘1514’ affixed to the front of the residence.” He affirmed that on June 17th a reliable confidential informant said he had been inside 1514 West Aiken at least three times in the previous 30 days, most recently within the past 72 hours, and on each of those occasions had observed Milltown in possession of crack cocaine.

The Barisch affidavit was not supported by a sworn statement of this confidential informant. Barisch swore, however, that Officer Lane had told Barisch that Lane's confidential informant was also purchasing crack cocaine from “Milltown” at 1514 West Aiken, not 1520 West Aiken, as Lane and the informant had sworn a few hours earlier in obtaining the warrant for that house. Finally, Officer Barisch testified that he had observed 1514 West Aiken and over the past 72 hours had noticed heavy foot traffic coming and going from the residence, entering through a side door and staying only a few minutes. The Barisch affidavit was silent concerning any knowledge or information about Lane's search warrant affidavit for 1520 West Aiken, which stated that Barisch had observed nearly identical conduct at 1520 West Aiken during the same period. The Barisch affidavit was also silent about his having given Officer Lane information, as set forth in the Lane affidavit, that directly contradicted his own affidavit. Again, Lane's affidavit said that Barisch had told him that he was overseeing controlled buys from 1520 West Aiken, not 1514.

Without knowledge of the contradictory Lane affidavit and search warrant, or Barisch's contradictory statements in support of the Lane affidavit, a second Illinois state judge issued a search warrant based on the Barisch affidavit later on June 17, 2010, at 7:25 p.m. Officers executed this search warrant, and the evidence supporting McMurtrey's indictment was found at 1514 West Aiken.

With the two conflicting affidavits in hand, the defendant amended his motion to suppress to rely on Franks v. Delaware. He argued that when the Barisch and Lane affidavits are read together, one can reasonably infer (a) that Barisch intentionally or recklessly misstated material facts in either his own affidavit for the 1514 West Aiken warrant or in the information he provided to Lane for the 1520 West Aiken warrant, and/or (b) that Lane intentionally or recklessly misstated material facts in the information he provided to Barisch for the 1514 West Aiken warrant or in his affidavit for the 1520 West Aiken warrant. The defendant sought a hearing under Franks to determine whether the warrant used to search his house had been obtained with deliberately or recklessly false information.

Rather than hold a Franks hearing, the district court held what could be termed a “pre-Franks ” hearing. The purpose was to determine whether the defendant had made a substantial preliminary showing of intentional or reckless misrepresentations in the warrant affidavit, and thus whether a true Franks hearing should be held.

At the hearing, the parties presented brief arguments. So far, so good. Then, without finding that McMurtrey either had or had not made his...