USA v. FREEMAN

• Decision Date: 12 November 2010
• Docket Number: No. 09-3640.,09-3640.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton Z. FREEMAN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 1049

UNITED STATES of America, Plaintiff-Appellee,
v.
Clifton Z. FREEMAN, Jr., Defendant-Appellant.

No. 09-3640.

United States Court of Appeals,Eighth Circuit.

Submitted: Sept. 24, 2010.
Filed: Nov. 12, 2010.

625 F.3d 1050

Richard L. Hughes, Little Rock, AR, for appellant.

Angela Sue Jegley, AUSA, Little Rock, AR, for appellee.

Before LOKEN, HANSEN, and BENTON, Circuit Judges.

LOKEN, Circuit Judge.

Clifton Freeman was charged with possession of crack cocaine with intent to distribute and moved to suppress evidence gathered during a warrant search of his residence. The district court ¹ denied the motion following a suppression hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). After Freeman entered a conditional guilty plea, the district court denied his motion for a “rehearing” of the suppression issues. Freeman appeals both rulings. We affirm.

I.

Officer Todd Williams of the Pine Bluff, Arkansas Police Department obtained a warrant to search Freeman's residence. The warrant affidavit averred that a reliable confidential informant told Williams that Freeman was hiding crack cocaine under a camper parked near the residence, which the informant had seen “only moments before he made contact with [Officer Williams].” Police executing the warrant found 87 grams of crack cocaine and other evidence of drug trafficking.

[1] When a search warrant is based upon an affidavit setting forth a facially sufficient showing of probable cause, as in this case, the defendant is nonetheless entitled to an evidentiary suppression hearing if he makes a “substantial preliminary showing” that a false statement necessary to the finding of probable cause was “knowingly and intentionally, or with reckless disregard for the truth,” included in the warrant affidavit. Franks, 438 U.S. at 155, 98 S.Ct. 2674. The evidence will be suppressed if, at the hearing, the defendant proves the allegation of perjury or reckless disregard, and that the affidavit's remaining content was insufficient to establish probable cause. Id. at 156, 98 S.Ct. 2674. “[N]egligence or innocent mistake is not enough to establish a Franks violation.... A showing of deliberate or reckless

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falsehood is not lightly met.” United States v. Butler, 594 F.3d 955, 961 (8th Cir.2010) (quotation omitted).

[2] In this case, when the defense learned that the confidential informant was Bobby Foster, the son of Freeman's long-time girlfriend, defense counsel interviewed Foster with his mother present. Foster denied telling Officer Williams important facts attributed to Foster in the warrant affidavit-that Freeman was hiding crack cocaine under the camper and that Foster had previously provided information as an informant to Officer Williams. At the end of the interview, counsel prepared and Foster signed an affidavit including these averments and asserting that police pressured Foster to help “arrest another individual” after they arrested Foster for possessing cocaine.

Freeman then filed a motion to suppress, arguing that Foster's affidavit showed there were deliberate falsehoods in Officer Williams's warrant affidavit essential to its showing of probable cause, and requesting a Franks hearing. The government opposed the motion but not the request for an evidentiary hearing. At the start of the hearing, counsel advised that Foster had recanted the statements made in his affidavit, as reflected in an F.B.I. Form 302 signed by Foster at the conclusion of an interview conducted after law enforcement officers learned he was assisting Freeman's defense. Freeman's counsel was allowed to withdraw because he was now a likely witness, and the suppression hearing was rescheduled.

When the Franks hearing resumed, Freeman (represented by new counsel) called Foster and Freeman's former attorney. Foster testified that he in fact provided Officer Williams the information attributed to Foster in the warrant affidavit; that he had provided information to law enforcement in the past; that he lied to Freeman's former attorney because his mother and Freeman had pressured him to help Freeman's case; and that he was not pressured by law enforcement officers to recant when he signed the F.B.I. Form 302. Freeman's former attorney denied pressuring Foster to sign the now-recanted affidavit but had no independent knowledge of the facts asserted by Foster in the affidavit. When Freeman rested, the...