U.S. v. Williams

Decision Date13 February 2007
Docket NumberNo. 06-2320.,06-2320.
Citation477 F.3d 554
PartiesUNITED STATES of America, Appellee, v. Tiloe C. WILLIAMS, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Michael J. Hansen, Asst. Fed. Public Defender, Lincoln, NE, for appellant.

Michael D. Wellman, Asst. U.S. Atty., Omaha, NE, for appellee.

Tiloe C. Williams, Oxford, WI, pro se.

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury found Tiloe Williams guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Williams argues on appeal that the district court1 erred by failing to suppress firearms evidence resulting from a search warrant in which the affiant officer omitted material facts concerning the reliability of a confidential informant. We affirm.

I

After receiving a citizen's complaint that drugs were being sold on the premises, Omaha police officers Wells and Milone directed a confidential informant, Randy Conway, to purchase crack cocaine from the residence of Tiloe Williams on April 11, 2005. Although the officers watched Conway approach the house, they lost sight of him as he reached its entrance. Conway was not equipped with any recording device or transmitter. Soon after, they received a cell-phone call from Conway. He was "excited, talking really fast, [and] breathing heavily." Conway stated that he spoke to a man at the doorway about buying crack; he told the man that he knew him a long time ago, whereupon the man pointed a rifle at Conway, who immediately fled the residence. The officers met up with Conway in person and observed that he was still "excited, breathing heavily, and talking a mile a minute." Conway repeated the same story, described the man he encountered, and identified the man as Williams when presented with Williams's mug shot.

Subsequent to this encounter, Officer Wells learned of Williams's status as a convicted felon. He and Officer Milone submitted an affidavit that included the information provided by Conway in an application for a search warrant of Williams's residence. Their affidavit also mentioned that Conway had been utilized by the police unit in several prior narcotics operations, and that his assistance had resulted in search warrants and several felony narcotics arrests. It further averred that Conway had experience making controlled purchases of illegal narcotics for which preliminary field tests of the purchases had positively indicated cocaine. Finally, the affidavit stated that Conway was not on any terms of parole, probation, or work release at the time he approached Williams.

The affidavit did not mention that Conway had been arrested for providing false information to a police officer in 2003. At that time, Conway knew of an outstanding warrant for his arrest when a police officer pulled over the car in which he was riding. When the officer asked the passengers for their respective names, Conway identified himself with a false name to avoid being arrested and losing his job. The officer discovered Conway's deceit, and Conway subsequently pled guilty to a misdemeanor offense for lying to the officer and was sentenced to a single day in jail. The affidavit also failed to mention that Conway had been convicted for two felonies and had been arrested on a charge of felony theft for receiving stolen property. Finally, the affidavit did not mention Conway's financial arrangement with the police under which he received payment for his confidential informant services depending on the type of service he provided and the outcome of the investigation.

Citing these omissions, Williams moved for a hearing to suppress the entry of the firearms into evidence. A magistrate judge2 granted the hearing but limited the scope of the inquiry to the omissions of Conway's conviction for lying to a police officer and Conway's financial relationship with the police department. At the conclusion of the hearing, the magistrate judge found that Officer Wells had intentionally omitted the information at issue, but that even had the information not been omitted, the affidavit would still have provided probable cause for the warrant. Accordingly, the magistrate judge recommended a denial of Williams's suppression motion.

The district court reviewed the magistrate judge's recommendations and likewise considered the omitted information material and relevant. After reviewing all of the evidence de novo, and even after assuming, arguendo, the truth of the full extent of Conway's criminal history, the district court concluded that probable cause would have existed had the omitted information been part of the affidavit and accordingly denied the motion to suppress.

Williams appeals from his conviction, arguing that the district court erred (1) by not remanding the case to the magistrate judge for further inquiries into Conway's criminal history in light of the limitations that the magistrate judge imposed on the scope of the hearing and (2) by finding that probable cause would still have existed even with the inclusion of the omitted information. The government responds that Williams was not even entitled to a hearing because he failed to make a substantial preliminary showing that Officer Wells omitted facts with an intent to make, or in reckless disregard of whether they made, the affidavit misleading. It further contends that even had Williams made such a showing, he failed to show that the omitted facts would have altered the probable cause finding; therefore, any procedural errors that might have occurred during the hearing were harmless.

II

We review factual findings supporting the denial of a suppression motion for clear error, and we review de novo the legal conclusions pertinent to the ultimate question of whether the Fourth Amendment has been violated. United States v. Allen, 297 F.3d 790, 794 (8th Cir.2002).

The Fourth Amendment requires a showing of probable cause before a search warrant may be issued. Determinations of probable cause must be premised on the totality of the circumstances. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Where an issuing judge's probable cause determination was premised on an affidavit containing false or omitted statements, the resulting search warrant may be invalid if the defendant can prove by a preponderance of evidence "(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading . . . and (2) that the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (citations omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993).

To be entitled to a hearing on this issue ("Franks hearing") a defendant must make a substantial preliminary showing that includes

allegations of deliberate falsehood or of reckless disregard for the truth[.][T]hose allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted . . . is only that of the affiant, not of any nongovernmental informant.

Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). While

clear proof of these elements is not required at the stage at which the defendant is demonstrating an entitlement to an evidentiary hearing, United States v. Owens, 882 F.2d 1493, 1498 (10th Cir.1989), the defendant still must make a "substantial preliminary showing" comprised of specific allegations along with supporting affidavits or similarly reliable statements. Cf. Franks, 438 U.S. at 171, 98 S.Ct. 2674 (describing the showing requirements for allegedly false statements in warrant affidavits). Because "[t]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant[,t]o mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. The substantiality requirement is not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987).

III

In its order granting the Franks hearing, the magistrate judge found that the defendant made a substantial preliminary showing that Officer Wells may have omitted information from the search warrant affidavit with a reckless disregard for the truth. Such a finding alone is legally insufficient to justify a Franks hearing absent a determination that the intentionally or recklessly omitted information may have rendered the affidavit misleading and may have otherwise made a probable cause finding unsupportable. Because neither the magistrate judge nor the district court fully addressed whether a Franks hearing was even justified, we now consider the sufficiency of Williams's preliminary showing.

In support of his motion for a Franks hearing, Williams alleged that Officer Wells omitted the following facts from his affidavit: (1) the details of the financial arrangement between the police department and Conway and (2) Conway's criminal background, which includes a conviction for lying to officers in 2003. Williams offered support for his contention that Officer Wells was aware of each and suggests that they...

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