U.S. v. McAllister
| Citation | 18 F.3d 1412 |
| Decision Date | 18 March 1994 |
| Docket Number | No. 93-1669,93-1669 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. McALLISTER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Robert Anderson, AUSA, Asst. U.S. Atty. (argued), Madison, WI, for plaintiff-appellee.
Ralph A. Kalal (argued), Kalal & Associates, Madison, WI, for defendant-appellant.
Before POSNER, Chief Judge, COFFEY, Circuit Judge, and ZAGEL, District Judge. *
Ronald J. McAllister ("McAllister") was indicted on one count of manufacturing marijuana and one count of possessing marijuana with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The defendant moved to suppress the marijuana seized pursuant to a search warrant, and sought an evidentiary hearing challenging the warrant affidavit under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The magistrate judge denied the motion to suppress and the motion for a Franks hearing in an order dated December 16, 1992. On appeal, the district court agreed with the Magistrate Judge's reasoning and affirmed. McAllister then pled guilty to one count of manufacturing marijuana while reserving his right to appeal the court's refusal to grant him a Franks hearing pursuant to Fed.R.Crim.P. 11(a)(2). The trial judge accepted the negotiated plea and sentenced the defendant to seventy months in prison to be followed by five years of supervised release, and ordered payment of a $50.00 special assessment.
The defendant appeals the denial of his motion for a Franks hearing, and we affirm.
Detective Jeff Blakley ("Blakley") of the Dane County, Wisconsin, Sheriff's Department, received a tip from a confidential informant (referred to under police code name "MPD1022") that the defendant was growing marijuana in the attic of his house in Stoughton, Wisconsin. Armed with this information, Detective Blakley applied for and received a search warrant for McAllister's house and executed it on May 5, 1992. In an affidavit in support of his warrant application, Blakley stated that:
The affidavit also explained why Detective Blakley believed his informant's tip would prove reliable:
The police seized the plants and arrested McAllister, and he was subsequently indicted and charged with manufacturing marijuana and possessing marijuana with intent to distribute. The defendant filed two motions to suppress. In the first motion he alleged that the informant (MPD1022) must have unlawfully entered his home on May 1, 1992. In an alternative motion, he alleged that the informant had not been in McAllister's attic in May 1992 as he had claimed, but that he was simply describing the smaller marijuana operation he had observed in his house a year earlier in May of 1991. In this motion he requested that the district court conduct an evidentiary hearing pursuant to Franks to determine if the informant was acting as a "police agent" when he falsely claimed to have observed the defendant's marijuana operation in the "past 72 hours."
McAllister submitted a number of affidavits in support of the motions, for instance, in support of his motion to suppress on the grounds that the informant had gathered his information by breaking into his residence, the defendant swore that he had not consented to anyone entering much less viewing his attic during the five days preceding the search of his house. He also alleged that there had been a break-in at his home on May 1, 1992, while he was away. 1
In support of his alternative motion arguing that the CI's information had been based on his observation of the defendant's attic a year earlier in May 1991, McAllister swore that the information MPD1022 gave to the police (regarding 50 plants growing in milk cartons) accurately described the contents of the defendant's attic as of May 1991, but did not describe the operation he was presently conducting, and discovered by the police in May 1992 (599 plants growing in Coke cups).
In response, the government submitted an affidavit from Detective Blakley stating that "all of the information contained in that affidavit in support of the search warrant I have believed to be fully accurate and correct at the time of the application for the search warrant" and that "to this date [November 30, 1992] I have no information or suspicions that the information that I received from the confidential informant came from any manner other than lawful observations made by the confidential informant while present in the home with the permission of the defendant."
After reviewing the facts in the case, the Magistrate Judge ruled on the defendant's pre-trial motions and issued an order denying the motion to suppress based on an alleged break-in, reasoning that even taking "at face value defendant's claim that somebody broke into his house on May 1, 1992 ... McAllister has not made a substantial preliminary showing that the CI is that person." Turning to the defendant's alternative motion alleging that the CI had lied to Detective Blakley when he told him that he had observed McAllister's attic "within the past 72 hours," the Magistrate Judge found that McAllister had made a substantial preliminary showing that the informant may have lied about when he had last been in the defendant's attic, but that there was no evidence that the affiant (Detective Blakley) knew or should have known that the informant may have been less than truthful. The Magistrate Judge reasoned that the defendant was not entitled to a Franks hearing unless he could make a substantial preliminary showing that the informant was acting as a government agent when he conveyed his tip to the police. Concluding that McAllister had failed to make the required showing, he The district court accepted the Magistrate Judge's reasoning in an order dated January 8, 1993, and ruled that "[a]lthough the defendant has made a substantial showing that the informant may have lied to Blakley, he has not shown that Blakley knew, or even should have known, of the possible lies and is not entitled to a Franks hearing."
denied McAllister's motions to suppress and his motion for a Franks hearing.
The defendant has elected not to contest the trial court's determination that he failed to make a substantial preliminary showing that the CI had broken into his home. The sole issue presented on appeal is whether the district court committed clear error in failing to grant McAllister a Franks hearing on the grounds that the CI was acting as a police agent when he gave the information to Detective Blakley concerning the 50 marijuana plants he had observed in McAllister's attic "within the past 72 hours."
We review a district court's "factual and legal determinations on a motion to suppress for clear error." United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993) (citations omitted). Under this standard, we will not hold that a trial judge's denial of a motion to suppress is clearly erroneous unless, after reviewing the record as a whole, we are of "the definite and firm conviction that a mistake has been committed." United States v. Soria, 965 F.2d 436, 439 (7th Cir.1992) (citations omitted).
The Supreme Court has held that because the Fourth Amendment prohibits police from intentionally or recklessly submitting false statements in a warrant affidavit, the defendant may obtain a hearing to challenge a warrant affidavit if (1) the defendant makes a "substantial preliminary showing" that the affiant has intentionally or recklessly included a false statement in the warrant affidavit and (2) the false statement was material, i.e., was necessary for a finding of probable cause to issue the warrant. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77.
United States v. Radtke, 799 F.2d 298, 309 (7th Cir.1986) (quoting United States v. McDonald, 723 F.2d 1288,...
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