United States v. Mason McMurtrey , 704 F.3d 502 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3352
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ASON S. M C M URTREY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:10-cr-10070—James E. Shadid, Chief Judge.
A RGUED S EPTEMBER 12, 2012—D ECIDED JANUARY 10, 2013
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. If police officers obtain a
search warrant by deliberately or recklessly providing
the issuing court with false, material information, the
search warrant is invalid. In Franks v. Delaware, 438
U.S. 154 (1978), the Supreme Court held that when a
defendant makes a substantial preliminary showing
that the police procured a warrant to search his prop-
erty with deliberate or reckless misrepresentations
in the warrant affidavit, and where such statements were
necessary to the finding of probable cause, the Fourth
2 No. 11-3352
Amendment entitles the defendant to an evidentiary
hearing to show the warrant was invalid. In this appeal
we attempt to clarify some issues concerning the pro-
cedures a district court may or must use in evaluating
a criminal defendant’s motion to suppress evidence
under Franks.
A district court that is in doubt about whether to hold
a Franks hearing has discretion to hold a so-called “pre-
Franks” hearing to give the defendant an opportunity
to supplement or elaborate on the original motion.
Though permissible, this procedural improvisation
is not without risk, as the sparse case law indicates. In
such a pre-Franks hearing, the natural temptation for
the court will be to invite and consider a response
from the government. However, the court should not give
the government an opportunity to present its evidence
on the validity of the warrant without converting the
hearing into a full evidentiary Franks hearing, including
full cross-examination of government witnesses. We
emphasize that the option to hold such a limited pre-
Franks hearing belongs to the district court, not the defen-
dant. If the defendant’s initial Franks motion does not
make the required “substantial preliminary showing,” the
court need not hold a pre-Franks hearing to provide
the defendant a further opportunity to do so.
In this case, defendant Mason McMurtrey pled guilty
and was sentenced to a total of 180 months in prison
for possession of more than five grams of crack cocaine
with intent to deliver and possession of a firearm during
a drug trafficking crime. 21 U.S.C. § 841(a)(1), (b)(1)(B);
18 U.S.C. § 924(c). The defendant’s guilty plea reserved
No. 11-3352 3
his right to appeal the denial of his motion to suppress
the fruits of a search based on a warrant obtained with
an affidavit he contends was deliberately or reck-
lessly false.
The defendant made a sufficient preliminary
showing under Franks by offering two police officers’
affidavits. On the critical issue of which of two houses
should be searched, the affidavits contradicted each
other. The affidavits also indicated that each officer
previously had contradicted himself in the informa-
tion he had provided to the other officer. That evidence
was sufficiently specific to support (though not re-
quire) a reasonable inference that the affidavit submit-
ted to support the search of the defendant’s home
was deliberately or recklessly false. Rather than hold
a full Franks hearing, however, the district court held
a truncated pre-Franks hearing. The district court per-
mitted the government to offer additional evidence
to explain the discrepancies in the affidavits. That
evidence should have required a full Franks hearing, yet
the defendant was not permitted full cross-examination
on the government’s new evidence. The court then
relied on the untested government evidence to find
that the defendant had failed to make a showing
sufficient to obtain a full Franks hearing. This procedure
was erroneous because it denied defendant his full op-
portunity to challenge the warrant under Franks. Accord-
ingly, we vacate and remand for further proceedings.1
1
When the defendant was sentenced on the crack cocaine
charge, the district court properly relied on our decision in
(continued...)
4 No. 11-3352
I. Factual and Procedural Background
The problem here stemmed from confusion between
two officers about which of two neighboring houses
should be searched. After he was indicted, defendant
McMurtrey asked the government to produce the docu-
ments underlying the search warrant that was executed
at his house at 1514 West Aiken Street in Peoria, Illinois.
In response to this request, the government produced
a search warrant for a different house, 1520 West Aiken
Street. That warrant was supported by the affidavit of
Officer Matthew Lane. McMurtrey immediately moved
to suppress the evidence found in the search because
the police had not searched 1520 West Aiken. They
had searched 1514 West Aiken. In response to the de-
fendant’s motion, the government then produced a
second search warrant affidavit — this one for 1514 West
Aiken — by Officer Erin Barisch.
Aside from the target addresses, the Lane and Barisch
affidavits were very similar. The Lane affidavit was dated
1
(...continued)
United States v. Fisher, 635 F.3d 336 (7th Cir. 2011), and refused
to apply the Fair Sentencing Act of 2010. However, Fisher
was overturned by the Supreme Court in Dorsey v. United
States, ___ U.S. ___, 132 S. Ct. 2321 (2011), which held that the
Fair Sentencing Act applies to all persons who were sen-
tenced after its enactment without regard to when the under-
lying criminal conduct occurred. Because we remand on
the Franks issue, defendant’s appeal of his sentence is moot,
but it is now clear that if he faces resentencing, he will
be entitled to application of the Act.
No. 11-3352 5
June 17, 2010, and described 1520 West Aiken as “a gray
with white trim, one and one half story, single family
residence, and the numbers ‘1520’ affixed to the front of
the residence.” It said that a confidential informant
told Lane that a black male known as “Milltown” was in
possession of and was selling cocaine from 1520
West Aiken. The confidential informant had been
present at 1520 West Aiken at least twice in the previous
30 days, most recently within the previous 72 hours,
and said that each time he had observed Milltown
in possession of crack cocaine packaged for sale. The
Lane affidavit was bolstered by a separate affidavit
by this confidential informant.
Officer Lane’s affidavit stated further that he had
spoken with Officer Barisch, who had informed Lane
that he also “had controlled buys” from Milltown at
1520 West Aiken. Milltown was described as approxi-
mately 28 years old, 5 feet, 10 inches tall, and 230 pounds,
with black hair, brown eyes, and a dark complexion. In
a photographic line-up, the confidential informant had
identified McMurtrey as Milltown. Based on the Lane
affidavit and the informant’s affidavit, an Illinois state
judge issued a search warrant for 1520 West Aiken on
June 17, 2010 at 3:00 p.m.
This search warrant, however, was never executed.
Instead, later that day Officer Barisch sought a separate
search warrant for 1514 West Aiken. The Barisch
affidavit supporting the application provided essentially
identical information concerning Milltown’s activities,
but it placed the activities at 1514 West Aiken. Barisch’s
6 No. 11-3352
affidavit described the target residence as a “gray
with white trim, one and one half story, single family
residence, and the numbers ‘1514’ affixed to the front of
the residence.” He affirmed that on June 17th a reliable
confidential informant said he had been inside 1514 West
Aiken at least three times in the previous 30 days,
most recently within the past 72 hours, and on each
of those occasions had observed Milltown in possession
of crack cocaine.
The Barisch affidavit was not supported by a sworn
statement of this confidential informant. Barisch swore,
however, that Officer Lane had told Barisch that Lane’s
confidential informant was also purchasing crack
cocaine from “Milltown” at 1514 West Aiken, not 1520
West Aiken, as Lane and the informant had sworn a
few hours earlier in obtaining the warrant for that
house. Finally, Officer Barisch testified that he had ob-
served 1514 West Aiken and over the past 72 hours
had noticed heavy foot traffic coming and going from
the residence, entering through a side door and staying
only a few minutes. The Barisch affidavit was silent
concerning any knowledge or information about Lane’s
search warrant affidavit for 1520 West Aiken, which
stated that Barisch had observed nearly identical
conduct at 1520 West Aiken during the same period. The
Barisch affidavit was also silent about his having
given Officer Lane information, as set forth in the Lane
affidavit, that directly contradicted his own affidavit.
Again, Lane’s affidavit said that Barisch had told him
that he was overseeing controlled buys from 1520 West
Aiken, not 1514.
No. 11-3352 7
Without knowledge of the contradictory Lane affidavit
and search warrant, or Barisch’s contradictory state-
ments in support of the Lane affidavit, a second Illinois
state judge issued a search warrant based on the Barisch
affidavit later on June 17, 2010, at 7:25 p.m. Officers
executed this search warrant, and the evidence sup-
porting McMurtrey’s indictment was found at 1514
West Aiken.
With the two conflicting affidavits in hand, the
defendant amended his motion to suppress to rely on
Franks v. Delaware. He argued that when the Barisch
and Lane affidavits are read together, one can rea-
sonably infer (a) that Barisch intentionally or recklessly
misstated material facts in either his own affidavit for
the 1514 West Aiken warrant or in the information he
provided to Lane for the 1520 West Aiken warrant, and/or
(b) that Lane intentionally or recklessly misstated
material facts in the information he provided to Barisch
for the 1514 West Aiken warrant or in his affidavit for
the 1520 West Aiken warrant. The defendant sought a
hearing under Franks to determine whether the war-
rant used to search his house had been obtained with
deliberately or recklessly false information.
Rather than hold a Franks hearing, the district court
held what could be termed a “pre-Franks” hearing. The
purpose was to determine whether the defendant had
made a substantial preliminary showing of intentional or
reckless misrepresentations in the warrant affidavit, and
thus whether a true Franks hearing should be held.
8 No. 11-3352
At the hearing, the parties presented brief arguments.
So far, so good. Then, without finding that McMurtrey
either had or had not made his substantial preliminary
Franks showing, the court permitted the government to
call Officer Barisch to testify to respond to the defense’s
allegations. The prosecutor said he was calling Officer
Barisch because otherwise he might “leave hanging in
the air the idea that either one of these officers did any-
thing wrong because I think as the court will hear, if
they testify, that they did everything right. They did
exactly what we would want officers to do.” Tr. 22-23.
The government’s expressed purpose was to bolster the
Barisch affidavit and the issuing judge’s probable cause
finding based on that affidavit. The court permitted
the government to do so.
On direct examination, Officer Barisch testified in
some detail regarding the basis for his search warrant
affidavit, including steps he took on June 17th to verify
that 1514 West Aiken was the correct address. According
to Barisch’s testimony at the pre-Franks hearing, after
the search warrant for 1520 West Aiken had been
issued, he and Lane realized they were both investi-
gating “Milltown” for drug dealing but seemed to be
investigating different houses. Barisch testified that he
and Lane collected their confidential informants and,
one at a time, sent those informants into 1514 West Aiken
to buy crack from Milltown. None of this information
was presented to the judge who, later that day,
reviewed Barisch’s affidavit and issued the 1514 West
Aiken warrant. The affidavit was silent concerning the
existence of Lane’s affidavit and the information it con-
No. 11-3352 9
tained, the fact that a search warrant had been issued
to search 1520 West Aiken based on Lane’s affidavit
(which included information from Barisch), the officers’
discovery of the mistake, and the efforts they say they
made to double-check the target address.
Defense counsel began to cross-examine Officer Barisch.
In the midst of the cross-examination on the explana-
tion Barisch had provided, though, the government
objected that such testimony would be inappropriate
outside of a full-blown Franks hearing.2 The court
sustained the objection but assured defense counsel
that she would be permitted to conduct further cross-
examination of Officer Barisch if the court concluded
that the defense had met its burden to require a full
Franks hearing. The court permitted defense counsel to
continue some cross-examination but kept her from
questioning Officer Barisch further concerning the basis
for his affidavit. After this limited cross-examination,
2
During oral argument on appeal, the government asserted
for the first time that the hearing was actually a full Franks
hearing. Before the district court, however, the government
objected to further cross-examination on the ground that the
hearing was not a true Franks hearing but was instead “a
preliminary hearing to see whether or not [defendant’s
counsel] meets her burden to have that Franks hearing.” Tr. 38.
The district court agreed and sustained the objection on that
basis, Tr. 39, and concluded the hearing by finding that the
defendant was not entitled to a Franks hearing. Tr. 45. We
take the district court at its word and approach the appeal
from the premise that there was no true Franks hearing.
10 No. 11-3352
the court found that a Franks hearing was not needed.
In making that decision, the court relied in large part
on Barisch’s testimony explaining how he and Lane had
discovered the mix-up and had double-checked the
address before drafting his warrant affidavit — facts
that had not been before the issuing judge and that
were not subject to full cross-examination. Defendant
McMurtrey appeals, arguing that this procedure was
inconsistent with Franks.
II. Analysis
A. Franks v. Delaware
We review the district court’s denial of the defendant’s
request for a Franks hearing for clear error. See United
States v. Schultz, 586 F.3d 526, 531 (7th Cir. 2009). While
our clear error inquiry is factually based and requires
that we give particular deference to the district court,
any legal determinations that factor into the court’s
ruling are reviewed de novo. See United States v. Harris,
464 F.3d 733, 737 (7th Cir. 2006). We conclude here that
the district court erred procedurally by: (a) allowing
the government to offer evidence explaining the contra-
dictions and discrepancies in the affidavits, (b) pre-
venting the defendant from cross-examining that explana-
tion, and then (c) relying on the government’s new explan-
atory evidence to deny the Franks motion.
The Warrant Clause of the Fourth Amendment
requires that, apart from exceptions not applicable
here, the police must obtain a warrant from a neutral
No. 11-3352 11
magistrate before searching private property. The amend-
ment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,”
typically provided by an officer’s 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.
Illinois v. Gates, 462 U.S. 213, 238 (1983).
The Supreme Court held in Franks v. Delaware that
a search warrant is not valid if the police obtain it by
deliberately or recklessly presenting false, material infor-
mation to the issuing judge. The Fourth Amendment
requires an evidentiary hearing on the veracity of a war-
rant affidavit, and ultimately on the constitutionality of
the search, when a defendant requests such a hearing
and “makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and . . . the allegedly
false statement is necessary to the finding of probable
cause.” Franks, 438 U.S. at 155-56; see also United States
v. Spears, 673 F.3d 598, 604 (7th Cir. 2012). Franks also
applies to deliberately or recklessly deceptive omissions.
See Harris, 464 F.3d at 738, citing United States v. Williams,
737 F.2d 594, 604 (7th Cir. 1984); see also Shell v. United
States, 448 F.3d 951, 958 (7th Cir. 2006) (recognizing omis-
sion theory but finding no violation).
It is relatively difficult for a defendant to make
the “substantial preliminary showing” required under
12 No. 11-3352
Franks. Allegations of negligent or innocent mistakes do
not entitle a defendant to a hearing, nor do conclusory
allegations of deliberately or recklessly false informa-
tion. The defendant must identify specific portions of
the warrant affidavit as intentional or reckless misrepre-
sentations, and the claim of falsity should be sub-
stantiated by the sworn statements of witnesses. Franks,
438 U.S. at 171. To obtain a hearing, the defendant
must also show that if the deliberately or recklessly
false statements were omitted, or if the deliberately or
recklessly misleading omissions included, probable cause
would have been absent. See id. at 171-72. That showing
does not necessarily entitle the defendant to a favorable
finding on the merits, but it entitles the defendant to
a hearing where he must prove falsity or recklessness
(as well as materiality) by a preponderance of the evi-
dence. Id. at 156. At the hearing stage, the court recon-
siders the affidavit, this time eliminating any delib-
erately or recklessly false statements and incor-
porating any such omitted material facts, and determines
whether probable cause existed nevertheless. See Spears,
673 F.3d at 604; Harris, 464 F.3d at 738.
B. The Procedural Error in the Pre-Franks Hearing
It’s not always easy to draw the Franks line between
sufficient and insufficient showings, so in some cases
district courts have held “pre-Franks” hearings to give
defendants opportunities to supplement or elaborate on
their original submissions. See, e.g., United States v. Taylor,
154 F.3d 675, 680 (7th Cir. 1998) (noting that in “an excess
No. 11-3352 13
of caution” district court held an evidentiary hearing
to enable defendant to develop his Franks argument,
treating hearing as one to determine whether the prelimi-
nary showing could be met). Such hearings are well
within a district court’s discretion to aid it in making a
sound decision on whether to hold a full Franks hearing.
The problem arises, though, when a “pre-Franks” hearing
becomes a vehicle for the government to present new
evidence to explain the discrepancies identified by the
defense, yet the defense is not given a full opportunity
to challenge or rebut that evidence. Such government
evidence is appropriate for the Franks hearing itself,
where the defense must have the opportunity for full cross-
examination. Harris, 464 F.3d at 739 (“The opportunity
to cross-examine an officer who has intentionally or
recklessly made false statements to procure a search
warrant is an important aspect of a Franks hearing.”). In
the Harris case, the district court allowed the govern-
ment to bolster its affidavits but did not allow full cross-
examination by the defense. For that reason, we reversed
the denial of the Franks motion and remanded for a
full hearing on the merits. Harris, 464 F.3d at 740-41.3
3
The government relies on Spears, 673 F.3d at 602, in which
the district court considered a new affidavit from the gov-
ernment to deny the defendant’s request for a Franks hearing.
Spears does not help the government because the district court
there had later granted a full Franks hearing after the
defendant filed still more evidence. Our description of the
procedures used in Spears should not be construed as having
(continued...)
14 No. 11-3352
The pre-Franks hearing in this case went astray when
the court allowed the government to bolster Officer
Barisch’s affidavit with additional testimony to explain
the discrepancies and contradictions, but then denied
the defendant the opportunity to cross-examine Barisch
fully on his affidavit. That overstepped the bounds of
a pre-Franks hearing, but fell short of the procedures
required for a full Franks hearing. The court’s restric-
tions on cross-examination would not have mattered if
the defendant had not made a sufficient showing to
obtain a full Franks hearing, but as we explain below,
in this case he had already done so by pointing out
the clear discrepancies and contradictions between
the Barisch and Lane affidavits and their accounts of
what they had told each other. To find that the
defendant had not made his substantial preliminary
showing under Franks, though, the district court expressly
relied on the government’s new bolstering evidence.
The government’s explanation may or may not be
true, but for the reason we explained in Harris, the pro-
cedure used here is not acceptable. The defendant in
Harris challenged the existence of the confidential in-
formant whose statements supported the search war-
rant affidavit. The district court directed the govern-
3
(...continued)
approved the use of the government’s new affidavit to deny
the original motion for a Franks hearing. The district court’s
later Franks hearing rendered that issue moot. It was not
decided in the appeal.
No. 11-3352 15
ment to file a supplemental affidavit from the officer
who had applied for the warrant, and concluded, based
on information included in the supplemental affidavit,
that there had been probable cause for the search.
We reversed:
Considering new information presented in the sup-
plemental filing that supported a finding of probable
cause was beyond the trial court’s analytical reach.
Rather, its consideration of new information omitted
from the warrant affidavit should have been limited
to facts that did not support a finding of probable
cause.
Harris, 464 F.3d at 739. We did not hold that the defendant
in Harris was entitled to suppression, but we remanded
for a full Franks hearing on the merits. Id. at 740-41. The
same remand is needed here for essentially the same
reason.
Allowing the government to offer evidence to ex-
plain the discrepancies and contradictions in the affi-
davits — without allowing the defense a full and
fair opportunity to challenge the explanation, as in this
case — “does not satisfy the Fourth Amendment concerns
addressed in Franks.” Id. at 739. Instead, in deciding the
threshold question whether to grant a Franks hearing,
the court should have limited its consideration of new
information to the defense’s evidence tending to refute
probable cause. The court should not have considered
at that preliminary step the government’s explanation
16 No. 11-3352
of the contradictions and discrepancies.4
C. Whether the Procedural Error Was Harmless
The government argues that the procedural error
here was harmless because McMurtrey simply failed to
show he was entitled to a Franks hearing. According to
the government, the inconsistencies between the Lane
and Barisch affidavits, including the information that
each officer attributed to the other officer and to the
informants, were not sufficient for the preliminary
showing needed to require a full Franks hearing. We
disagree and conclude that McMurtrey’s preliminary
showing was sufficient. Once the government’s new
evidence to explain the contradictions is removed from
consideration, we are persuaded that McMurtrey made
4
To resolve the contradictions, the government also
suggests without evidentiary support that a magistrate ex-
amining both the Lane and Barisch affidavits could have
reconciled them by concluding that McMurtrey was dealing
drugs from both 1514 and 1520 West Aiken. That specula-
tive possibility is not enough to defeat the need for the Franks
hearing. The contradictions and discrepancies here were
sufficient to support a reasonable inference of deliberate or
reckless deception of the issuing judge, and thus required a
full Franks hearing at which the government could offer evi-
dence to explain the discrepancies and contradictions. Besides,
although Officer Barisch testified that a few houses on
West Aiken were being investigated, he also testified that
1520 was not one of them.
No. 11-3352 17
a substantial preliminary showing that the search war-
rant for 1514 West Aiken was obtained on the basis of
deliberately or recklessly false information and/or
material omissions.
It is not easy for a defendant to make the required
preliminary showing under Franks, which requires evi-
dence (1) that the warrant contained false information;
(2) that the false information was included in the
affidavit intentionally or with reckless disregard for
the truth; and (3) that the false information was neces-
sary to find probable cause and issue the warrant.
See Franks, 438 U.S. at 155-56; see also Harris, 464 F.3d at
738; United States v. Whitley, 249 F.3d 614, 620 (7th
Cir. 2001).5 The defendant must include with his allega-
tions of material and intentional or reckless falsehoods
or omissions “an offer of proof.” Franks, 438 U.S. at 171.
It is well established that conclusory allegations are not
5
If the defendant’s theory is that the police deliberately or
recklessly omitted information so as to mislead the magistrate,
the standard is even a little more demanding. As the Fourth
Circuit has explained, a police officer applying for a search
warrant must always select, deliberately, which information
about an investigation to give the judge and which informa-
tion to leave out. The police need not report every dead end or
dry hole in the investigation. As a result, a defendant basing
a Franks challenge on omissions must show that a material
omission was designed to mislead or was made in reckless
disregard of whether it would mislead. United States v. Tate,
524 F.3d 449, 455 (4th Cir. 2008), quoting United States v.
Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990).
18 No. 11-3352
enough, e.g., United States v. Johnson, 580 F.3d 666, 671
(7th Cir. 2009); United States v. Souffront, 338 F.3d 809,
823 (7th Cir. 2003), but it is equally true that the
defendant need not come forward with conclusive proof
of deliberate or reckless falsity. Otherwise, there would
be no need for a Franks hearing.
Franks was not yet in play when McMurtrey first
moved to suppress the fruits of the search of his home
at 1514 West Aiken. In that motion, he argued simply
that the search of that property was carried out without
a warrant or any other showing of probable cause. Dkt.
No. 21. In discovery, the government had produced the
warrant for 1520 West Aiken and its supporting papers.
At that point, all McMurtrey could have known was
that the police had seemingly searched the wrong house.
In response to McMurtrey’s initial motion, the govern-
ment produced the correct search warrant, the one for
McMurtrey’s property at 1514 West Aiken. If the state-
ments Officer Barisch made in support of the search
warrant affidavit for 1514 West Aiken were true and
correct, the police had probable cause to conduct the
search. But McMurtrey also had in hand the search
warrant affidavit for 1520 West Aiken, in which
Officers Lane and Barisch each offered evidence in
support of probable cause to search that property that
directly contradicted Barisch’s warrant affidavit for 1514
West Aiken. Between the two conflicting affidavits,
Officers Lane and Barisch each had contradicted
himself and the other officer.
With this conflicting evidence in hand, McMurtrey
then amended his motion to suppress to invoke Franks.
No. 11-3352 19
The amended motion attached the conflicting search
warrants and the affidavits from Officers Barisch and
Lane and the informant, and the motion highlighted
the direct contradictions between the two officers’ af-
fidavits and what each affidavit said about the other
officer’s information. This motion and its sup-
porting evidence must be our focus for determining
whether McMurtrey showed he was entitled to a Franks
hearing. And, as explained above, to evaluate properly
McMurtrey’s initial showing, we need to disregard the
bolstering evidence the government offered in rebuttal
to McMurtrey’s motion, including the evidence it pre-
sented at the pre-Franks hearing. See Harris, 464 F.3d
at 739. We turn to the three elements needed for the
preliminary showing.
First, when viewed side-by-side, the affidavits made a
sufficient showing that the information submitted to
obtain the 1514 West Aiken warrant was false. Barisch’s
affidavit described criminal and suspicious activity
going on at 1514 West Aiken. But Lane’s affidavit said the
same activity was going on at 1520 West Aiken and that
Barisch had also placed the same activity at 1520 West Aiken.
Each officer’s affidavit stated under oath that the other
officer gave him information that conflicted directly with
what the other officer said in his own affidavit. The
contradictions are not conclusive as to which affidavit
was false, but it is obvious from the face of the two
sworn documents that both could not be correct. Taken
together, they made a sufficient preliminary showing
of falsity.
20 No. 11-3352
Second, as for deliberate or reckless falsity, these
were firsthand reports of direct observations by police
officers trained to observe carefully and report accu-
rately. Yet, again, in the Lane affidavit, Officer Lane
and Officer Barisch averred that McMurtrey was dealing
drugs from 1520 West Aiken. Just a few hours later and
without explanation, the same officers contradicted
themselves and each other and asserted that McMurtrey
was dealing drugs from 1514 West Aiken. Without the
bolstering evidence later supplied by the government,
one could reasonably infer that one or both versions of
the officers’ contradictory statements were deliberately
or recklessly false. These were not obvious scrivener’s
errors or minor mistakes in communicating informa-
tion from others. Cf. United States v. Smith, 576 F.3d 762,
765 (7th Cir. 2009) (discrepancy as to whether there
were two or three controlled buys did not require Franks
hearing); United States v. McClellan, 165 F.3d 535, 545
(7th Cir. 1999) (transposed digits in address of target
house in one portion of affidavit not needed for prob-
able cause did not require Franks hearing; remainder of
affidavit had correct address). In this case, again, these
were direct contradictions in firsthand reports by police
officers about their own observations of the critical facts.
It is reasonable to infer that such direct contradictions
by and between capable and careful police officers were
unlikely to be merely negligent. Deliberate or reckless
disregard for the truth, like other states of mind, must
be shown by circumstantial evidence. The circumstantial
evidence in McMurtrey’s Franks motion permitted a
reasonable inference of falsity because it provided “obvi-
No. 11-3352 21
ous reasons to doubt the veracity” of the allegations. See
United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)
(reversing denial of Franks motion after evidentiary
hearing), quoting United States v. Williams, 737 F.2d 594,
602 (7th Cir. 1984) (affirming denial of Franks motion
after evidentiary hearing). Though a more searching
exploration of the circumstances in a full eviden-
tiary hearing may demonstrate otherwise, of course,
McMurtrey satisfied his preliminary obligation to
show recklessness by these officers.
Third, the apparently false information went to the
heart of probable cause for the search. Were the
controlled buys made in the 1514 house or the 1520
house? Each warrant application on its own was
sufficient to support probable cause for a search, but
if we disregard the information about McMurtrey’s
apparent drug-dealing activity at 1514 West Aiken,
which is contradicted by the application for 1520 West
Aiken, the probable cause disappears. The apparently
false information was critical to probable cause for
the search.
The government argues that the inconsistencies
between the Lane and Barisch affidavits, including the
information that each officer attributed to the other
officer and to his informants, fell short of the preliminary
showing needed to require a full Franks hearing. For
the reasons set forth above, we disagree. The gov-
ernment also argues that McMurtrey failed to show the
Barisch affidavit was false and that in fact the Barisch
affidavit was true. To make this argument, however,
22 No. 11-3352
the government must rely on a source of evidence that
is not properly available to it: Barisch’s testimony from
the pre-Franks hearing, where he was not subject to full
cross-examination. Gov’t Br. 22. In other words, the
government relies on the results of the hearing to show
that the hearing was unnecessary and the search was
proper. The argument is circular and conflicts with
both Franks and Harris. It underscores the need for a
full hearing.
When we focus properly on just the amended motion
to suppress in which McMurtrey sought a Franks
hearing, we conclude that he came forward with
sufficient specific evidence, not just allegations and
conclusions, to support a reasonable inference of
deliberate or reckless falsity. The government was not
entitled to defeat his request for a hearing by pre-
senting its evidence and explanations without subjecting
them to full scrutiny and cross-examination at a Franks
evidentiary hearing, as Harris made clear. Such a hearing
is the proper forum for the government to present its
explanations for the contradictions, including what
it asserts were the officers’ discovery of the apparent
confusion about the proper address and their efforts to
sort things out.
On remand, if the district court credits Barisch’s ex-
planation of events, the Franks issue will become
whether the police deliberately or recklessly misled
the judge who issued the 1514 West Aiken warrant by
omitting information about the officers’ confusion and
efforts to confirm the correct information. On this issue,
No. 11-3352 23
the Fourth Circuit’s explanation of the Franks standard
as applied to omissions may be useful. See United States
v. Tate, 524 F.3d 449, 454-55 (4th Cir. 2008) (officer
applying for warrant must select which information to
include and which to omit; issue is whether material
information was omitted deliberately or recklessly to
mislead the magistrate); see also United States v. McNeese,
901 F.2d 585, 594 (7th Cir. 1990) (discussing Franks as
applied to omissions), overruled on other grounds as
recognized by United States v. Westmoreland, 240 F.3d
618, 632-33 (7th Cir. 2001); United States v. Simmons, 771
F. Supp. 2d 908, 916-18 (N.D. Ill. 2011) (finding omissions
were intended to mislead). The police need not
provide every detail of an investigation, nor describe
every wrong turn or dead end they pursued. But they
may not deliberately omit information the magistrate
needs to assess fairly the issue of probable cause.
Conclusion
In sum, because it is impossible to resolve the officers’
factual contradictions as set forth in their conflicting
warrant affidavits without improperly relying on the
bolstering information that was supplied in the district
court, we remand for a full Franks hearing. In that
hearing, the government will have a full opportunity
to explain the contradictions and omissions in the affida-
vits for the two warrants, and the defendant will have
a full opportunity for cross-examination and presenta-
tion of additional evidence of his own.
24 No. 11-3352
The judgment of the district court is V ACATED and the
case is R EMANDED for proceedings consistent with this
opinion.
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