U.S. v. Harris

• Decision Date: 27 September 2006
• Docket Number: No. 05-3808.,05-3808.
• Citation: 464 F.3d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antone C. HARRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

464 F.3d 733

UNITED STATES of America, Plaintiff-Appellee, v. Antone C. HARRIS, Defendant-Appellant.

No. 05-3808.

United States Court of Appeals, Seventh Circuit.

Argued May 3, 2006.

Decided September 27, 2006.

Cynthia J. Ridgeway (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

James C. McKinley (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

When a criminal defendant makes a substantial preliminary showing that the warrant to search his property was procured by intentional or reckless misrepresentations in the warrant affidavit, and such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to a hearing to challenge the constitutionality of the search. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Antone Harris is serving a twenty-year prison sentence for possessing with intent to distribute more than fifty grams of cocaine base. In this appeal, Harris claims that the district court erred when it denied his request for a Franks hearing. Because Harris has made a substantial preliminary showing that the search of his home was unlawful pursuant to the Supreme Court's decision in Franks, we conclude that the Fourth Amendment entitles him to a hearing to challenge the veracity of the affidavit that police used to procure the search warrant. Therefore, we reverse the judgment of the district court.

I. BACKGROUND

On March 25, 2004, an anonymous tipster called the Indianapolis, Indiana police department's "Dope Hotline" and reported that Anthony Harris and his brother, Trent Harris, were selling crack from a residence located at 2254 N. Goodlet Avenue.¹ Indianapolis police detective Michael Forrest was assigned to investigate the tip. The propriety of Forrest's investigation is the core of this appeal.

In his April 19, 2004 warrant affidavit, Detective Forrest stated that he conducted surveillance of the Goodlet residence beginning on March 29.² During the surveillance, Forrest allegedly observed Antone and Trent Harris coming and going from the home. Forrest also discovered that animal control officials had recently contacted Antone Harris about dogs at his residence, and that he had a prior felony drug conviction. Also, according to Forrest, in the seventy-two hours preceding his warrant request, a confidential informant ("CI") contacted him and reported that while visiting the Goodlet residence, the CI observed Trent and Antone Harris possessing cocaine that was for sale. The CI also allegedly told Forrest that the brothers admitted that they lived in the Goodlet residence and that there were several handguns stashed in the home.

On April 19, based on the information provided in Detective Forrest's affidavit, the magistrate issued a warrant authorizing a search of the residence for cocaine and drug contraband. The next day, police officers executed the warrant and seized several firearms, cocaine base, and paraphernalia commonly used to cook and package crack cocaine.

Harris was charged in a superseding indictment with one count of possession with intent to distribute more than fifty grams of a mixture containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Harris filed a pretrial motion to suppress evidence seized during the search, and he requested a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the veracity of the search warrant affidavit. Harris also filed a related motion for an in camera proceeding to compel disclosure of the CI's identity.

In his pretrial motion and request for a Franks hearing, Harris attacked the credibility of the affiant Detective Forrest as well as the existence and credibility of the CI. Harris argued that Detective Forrest's warrant affidavit contained materially false statements and that those false statements were necessary to a finding of probable cause. To support his contentions, Harris submitted an affidavit from an Indiana Department of Corrections official verifying that Harris's brother, Trent Harris, was incarcerated from March 26, 2004, through and including the date of the search. Thus, Harris maintained that it would have been impossible for either Detective Forrest or the CI to have seen his brother at the residence as alleged in the warrant affidavit. In addition, Harris submitted his own affidavit swearing that he was not present at the residence within seventy-two hours of April 19 when the warrant was requested.

The district court ordered the government to file a supplemental affidavit from Detective Forrest detailing when he surveilled the Goodlet residence, describing how he came to believe that the second person with Antone Harris was Trent Harris, and accounting for the alleged misstatements contained in the search warrant affidavit. The parties do not dispute that the details in Detective Forrest's supplemental affidavit to the court differ from those in his warrant affidavit. In his supplemental affidavit, Forrest admitted that he could not recall the exact dates or times of his surveillance, that he (rather than the CI) initiated contact with Antone Harris, and that the CI's visit to the Goodlet residence occurred at least a week, rather than seventy-two hours, prior to the warrant request.

On January 4, 2005, the district court denied Harris's motion to suppress and request for a Franks hearing. The district court concluded that when compared with the supplemental affidavit, it was evident that Detective Forrest's initial search warrant affidavit contained three false and misleading statements and omissions. First, the warrant affidavit erroneously identified Trent Harris as the second individual with Antone Harris at times when, in light of his incarceration, it would have been impossible for him to have been present at the residence. Second, the warrant contained misleading information regarding the date of the CI's conversations with Antone Harris and the second individual about purchasing cocaine. Third, the warrant affidavit failed to include the dates of the Dope Hotline tip and of Detective Forrest's surveillance of the residence.

In addition, the district court concluded that Detective Forrest made the false statements and omissions either intentionally or recklessly. The court found that Detective Forrest failed to disclose that the anonymous tip was made to the "Dope Hotline" almost a month before he sought the search warrant, and that his surveillance of the residence occurred sporadically and at unspecified times. The court also noted that Detective Forrest implied that the CI's visit to the residence occurred within seventy-two hours of his warrant request when, in fact, the visit had occurred at least a week prior to the request. The court thus concluded that Detective Forrest's "omissions, both individually and in their cumulative effect, suggest an intentional design to create an incorrect or at least misleading impression that the evidence relied upon to obtain the warrant was more current than it actually was."³

Although these findings satisfy two of the three Franks requirements, the district court determined that Harris was not entitled to a hearing because the misstatements in the search warrant affidavit were not material to the magistrate's finding of probable cause. After it disregarded the false statements and incorporated the omitted information, the court reasoned that there was sufficient evidence to establish probable cause. In so doing, the court relied upon the "Dope Hotline" tip, Detective Forrest's surveillance, information from the informant, and Harris's prior drug conviction.

Following a three-day jury trial in June 2005, Harris was convicted on one count of possession with intent to distribute more than fifty grams of a mixture containing cocaine base. The district court sentenced Harris to twenty years' imprisonment with ten years of subsequent supervised release. Harris timely filed this direct appeal, and we now consider whether the court's denial of a Franks hearing violated Harris's Fourth Amendment right to be free from an unreasonable police search.

II. ANALYSIS

We review the district court's denial of Harris's request for a Franks hearing for clear error. Zambrella v. United States, 327 F.3d 634, 638 (7th Cir.2003). While our clear-error inquiry is factually based and requires that we give particular deference to the district court, see United States v. Williams, 945 F.2d 192, 195 (7th Cir.1991), any legal determinations that factor into the court's ruling are reviewed de novo, United States v. Adames, 56 F.3d 737, 747 (7th Cir.1995).

The Warrant Clause of the Fourth Amendment requires that, absent certain exceptions that are not applicable here, police must obtain a warrant from a neutral and disinterested magistrate before commencing a search. See Jones v. Wilhelm, 425 F.3d 455, 462 (7th Cir.2005). The warrant shall not issue unless there is probable cause, as typically set forth in the warrant affidavit, to justify the search. Probable cause is established when, considering the totality of the circumstances, there is sufficient evidence to cause a reasonably prudent person to believe that a search will uncover evidence of a crime. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Whether a defendant may attack the veracity of a warrant affidavit was first addressed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Court held that the Fourth Amendment requires an evidentiary hearing on the veracity of a warrant affidavit, and ultimately on the constitutionality of the search, when a defendant requests such a hearing and "makes a...