United States v. Mullins

• Decision Date: 14 October 2015
• Docket Number: No. 14–3626.,14–3626.
• Citation: 803 F.3d 858
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth MULLINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

803 F.3d 858

UNITED STATES of America, Plaintiff–Appellee

v.Kenneth MULLINS, Defendant–Appellant.

No. 14–3626.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 2015.

Decided Oct. 14, 2015.

Scott Paccagnini, Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff–Appellee.

Carol A. Brook, Attorney, Paul E. Gaziano, Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.

Before FLAUM, RIPPLE, and SYKES, Circuit Judges.

Opinion

FLAUM, Circuit Judge.

Defendant Kenneth Mullins operated a cocaine and marijuana stash house, along with Terrance Washington, in Mullins's apartment. While executing a search warrant based on an affidavit filed by Deputy Kyle Boomer, police uncovered a large quantity of drugs in the apartment. After Mullins's indictment, several factual inaccuracies in the affidavit came to light. Mullins filed a motion to suppress the evidence seized from the apartment, arguing that Deputy Boomer's affidavit was insufficient to establish probable cause. Mullins also sought a Franks hearing based on the inaccuracies in the affidavit. The district court denied Mullins's motion to suppress as well as his request for a Franks hearing, finding that the factual inaccuracies in the warrant affidavit were immaterial to the probable cause determination. We affirm.

I. Background

Kenneth Mullins began living in apartment # 2 in the complex behind the BigFoot Lounge in Rockford, Illinois on March 1, 2013. Mullins and Terrance Washington (known as “T”) used Mullins's apartment as a stash house for their cocaine and marijuana distribution operation.

On May 16, 2013, Winnebago County Sheriff's Deputy Kyle Boomer submitted to the Circuit Court of Winnebago County an affidavit in support of a search warrant for Mullins's apartment. The affidavit professed to be “based on [Deputy Boomer's] personal knowledge, on [his] review of records and other materials, including police reports obtained during the course of this investigation, as well as information provided to [him] by other investigators.”

The affidavit relayed information gleaned from a confidential informant (“CI”). Specifically, it averred that the CI had told members of the Winnebago County Sheriff's Police Narcotics Unit that a black male known as T was selling large quantities of cocaine and marijuana in the Winnebago County area and that T was storing the drugs in an apartment behind the BigFoot Lounge. The CI claimed that T drove a black Cadillac Escalade with Minnesota registration 161EKT when he delivered drugs to buyers. Deputy Boomer's affidavit reported that he had driven to the area of the BigFoot Lounge and discovered—consistent with the CI's information—the Cadillac Escalade with Minnesota registration 161EKT in the parking lot of the apartment building behind the lounge.

The affidavit also described periodic surveillance that members of the Narcotics Unit had undertaken. It stated that Deputy Boomer, along with Winnebago County Sheriff's Deputy Kaiser, observed a black male exit apartment # 2 and drive away in the Cadillac Escalade. Deputies Boomer and Kaiser had also seen multiple people visit the apartment and only stay for approximately three to four minutes at a time, which, based on Deputy Boomer's training and experience, was indicative of illegal narcotic sales.

Finally, the affidavit detailed a controlled drug buy that Deputy Boomer, Deputy Kaiser, and Winnebago County Sheriff's Deputy Jurasek conducted using the CI during the week of May 12, 2013. First, the officers met the CI and searched his person and vehicle to ensure the absence of narcotics and money. Next, Deputy Boomer provided the CI with currency from Narcotics Unit Funds, which he instructed the CI to use to purchase marijuana from T. Then, Deputy Boomer instructed the CI to call T and ask to buy drugs. The CI placed the call and T advised the CI to meet him at the Family Dollar, one block from Mullins's apartment. The affidavit stated that Deputy Boomer “then followed the CI to the Family Dollar parking lot.”

According to the affidavit, Deputy Kaiser observed a black male exit the apartment and drive away in the Cadillac Escalade. The vehicle “was followed” (the affidavit does not say by whom, but suggests that it was Deputy Kaiser) “with a clear and unobstructed view” to the Family Dollar. The CI approached the driver-side window and conducted a “hand-to-hand transaction.” Deputy Kaiser then followed the suspect back to the apartment. Meanwhile, the CI was followed to a predetermined location, where the CI handed Deputy Boomer a clear plastic bag filled with marijuana, which the CI purportedly purchased from T.

The Circuit Court of Winnebago County issued a search warrant based on Deputy Boomer's affidavit. Winnebago County Sheriff's Deputies executed the warrant, recovering 626 grams of marijuana, sixteen grams of powder cocaine, more than 150 grams of crack cocaine, drug packaging materials, digital scales, and mail addressed to Mullins. On August 27, 2013, Mullins and Washington were charged with: (1) conspiracy to possess with intent to distribute twenty-eight grams or more of crack cocaine, cocaine, and marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ; and (2) possession with intent to distribute twenty-eight grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

On April 24, 2014, Mullins filed a motion to suppress the evidence seized from the apartment, arguing that Deputy Boomer's affidavit was insufficient to establish probable cause because it failed to establish the CI's reliability. The district court disagreed, finding that probable cause existed based on the specific details the CI provided and the fact that these details were corroborated by the officers, thereby substantiating the CI's reliability.

Alternatively, Mullins requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),¹ arguing that he was entitled to a Franks hearing for three reasons. First, he contended that Deputy Boomer's affidavit conflicted with the police report that Deputy Boomer prepared after submitting the affidavit. The police report indicated that Deputy Boomer had maintained “surveillance of the residence to be searched near the time of the [controlled buy].” Mullins argued that this contradicted the affidavit's statement that Deputy Boomer had maintained surveillance of the CI throughout the controlled buy, while Deputy Kaiser conducted surveillance of the apartment.

Second, Mullins pointed out that the government admitted an error in the affidavit related to the CI's phone call. Although Deputy Boomer's affidavit averred that the CI arranged the controlled drug purchase by speaking with T on the phone, the CI actually spoke with an unknown third party, who then communicated with T and told the CI to meet T at the Family Dollar. Mullins argued that the specific person the CI spoke with matters for establishing probable cause. Third, Mullins pointed out that, contrary to Deputy Boomer's affidavit, which represented that the affidavit was based, in part, on Deputy Boomer's review of police records, no police reports pertaining to the surveillance of the apartment existed at the time the warrant affidavit was filed.

The district court found that the affidavit established probable cause. The court also concluded that Deputy Boomer's police report did not directly contradict his warrant affidavit and that Deputy Boomer's mischaracterization of the CI's phone call and his erroneous claim that he had relied on police reports in preparing his affidavit were immaterial to the probable cause determination. Accordingly, the district court denied Mullins's motion to suppress and his request for a Franks hearing. Mullins entered a conditional plea of guilty to conspiracy to distribute and to possess with intent to distribute controlled substances,² and the district court sentenced Mullins to ninety-four months in prison.

Mullins appeals the district court's denial of a Franks hearing.

II. Discussion

We review de novo the district court's determination that a search warrant was supported by probable cause. United States v. Roth, 201 F.3d 888, 891 (7th Cir.2000). We review the district court's denial of a Franks hearing for clear error. United States v. Harris, 464 F.3d 733, 737 (7th Cir.2006). “Although the factual portion of the clear error inquiry requires deference to the district court, any legal determinations that factored into the district court's ruling are reviewed de novo.” United States v. Robinson, 546 F.3d 884, 887 (7th Cir.2008).

“The Fourth Amendment requires that, absent certain exceptions not applicable here, police must obtain a warrant from a neutral and disinterested magistrate before commencing a search.” Id. (citing Jones v. Wilhelm, 425 F.3d 455, 462 (7th Cir.2005) ). No warrant shall issue unless there is probable cause, as typically set forth in a warrant affidavit, to justify the search. See U.S. Const. amend. IV. Probable cause is established when, in light of the totality of the circumstances, the issuing judge can make a practical, common-sense determination that there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

A defendant is entitled to a Franks hearing—an evidentiary hearing regarding the veracity of information included in a search warrant application—if he can make a substantial preliminary showing that: (1) the warrant affidavit contained false statements, (2) these false statements were made intentionally or with reckless disregard for the truth, and (3) the false statements were material to the finding of probable cause. See United States v. Williams, 718 F.3d 644, 647 (7th Cir.2013). This Court has interpreted the holding of Franks to apply to omissions in addition to affirmative misrepresentations. R...