United States v. Collet Williams , 718 F.3d 644 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3129
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C OLLET D. W ILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cr-00714-1—James B. Zagel, Judge.
A RGUED N OVEMBER 2, 2012—D ECIDED M AY 20, 2013
Before M ANION, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. On April 9, 2004, federal
agents and local police executed a search warrant at
defendant Collet Williams’ residence and found roughly
five kilograms of marijuana, a handgun, and several
scales. Williams moved to suppress the fruits of this
search before trial. Relying on Franks v. Delaware,
438 U.S. 154 (1978), Williams argued that the warrant
authorizing the search was invalid because the law en-
2 No. 11-3129
forcement officers presented the warrant judge with an
affidavit that contained false statements and misleading
omissions made with at least reckless disregard for the
truth. The district court held a Franks hearing to test
the sufficiency of the warrant. After hearing testimony,
the court issued an oral decision finding that the law
enforcement officers did not recklessly disregard the
truth, and that even if they had, once the errors were
removed and the omitted material included, probable
cause would have remained for a search warrant to issue.
In the ensuing bench trial, Williams was convicted of
being an illegal alien in possession of a firearm in viola-
tion of 18 U.S.C. § 922(g)(5). He now appeals the denial
of his motion to suppress and asks this court to vacate
his conviction. We conclude that the district court
did not clearly err in finding that the officers did not
deliberately or recklessly mislead the court that issued
the warrant. Because this is a sufficient ground to
affirm the conviction, we do not reach the question
whether the errors were material.
I. Factual and Procedural Background
A. The Warrant Affidavit
The story of Williams’ arrest begins with Andre Bell.
Early in the afternoon of April 9, 2004, agents with the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) arrested Bell after he purchased five firearms
from an undercover ATF agent. On his way to a police
station, Bell made clear that he wanted to cooperate. At
No. 11-3129 3
the station he waived his rights and agreed to tell the
police what he knew. ATF Agent Labno and several
Chicago police officers then interviewed Bell around
2:00 p.m. During the initial interview, Bell told the
police that he was planning to resell the guns to
Williams in exchange for cash and marijuana. Bell said
that Williams was his marijuana supplier and that he
regularly purchased between $6,000 and $10,000 of mari-
juana per week from Williams. His most recent visit
to Williams’ apartment had occurred three or four days
earlier, during which he had observed marijuana and
Williams showed him two 9-millimeter handguns. Bell
also told the officers that Williams had left for California
the day before and would be gone for a few days.
Following the interview, the police attempted to build
a case against Williams. Bell placed a series of monitored
phone calls to Williams between 3:30 and 5:30 p.m. In
these calls, Bell sought to sell the guns to Williams and
to arrange for the purchase of ten pounds of marijuana.
Williams, who was in fact in California at the time, ex-
pressed disappointment that he was not in town to ne-
gotiate the purchase of the guns from Bell, but he told
Bell his associate could meet Bell at Williams’ apart-
ment with the drugs that afternoon. Bell agreed to meet
the associate between 5:45 and 6:15 p.m.
The police began preparing an application for a war-
rant to search Williams’ residence before the sched-
uled deal. The agents transported Bell to Williams’ resi-
dence so that he could identify the apartment for them
and they could further corroborate his account. They
4 No. 11-3129
then transported him back to the police station where
Officer Korbas was preparing a search warrant affida-
vit. Officer Korbas then faxed the warrant application
to a prosecutor who signed the application and faxed it
back to the precinct at 5:00 p.m.
The warrant application was supported by a single
affidavit that was signed jointly by both Officer Korbas
and Bell. The affidavit stated:
On 09 Apr 04, I, Dean Korbas, met an individual
who wants to cooperate with the police. This indi-
vidual wishes to remain anonymous. In conversa-
tion with this individual, the following was related
to me.
I, J. Doe (not my real name) met with police officer
Dean Korbas on Friday Apr. 9, 2004 in the afternoon
hours. On the date of Apr 8, 2004, I, J. Doe went to
the residence located at 8019 S. Saginaw, located in
Chicago, Cook County, Illinois. I was admitted into
the rear back porch of the second story of the
residence by an individual known to me as
(COLLETT), whom I have known for six years and
been buying “WEED” (street term for cannabis) from
him during that time. I followed (COLLETT) to the
dining room closet of the residence where, COLLETT
removed three pounds of “WEED” that was packaged
by the pound in large clear plastic Ziploc bags and
exchanged with him $1700.00 U.S.C. As COLLETT
was removing the “WEED” I also observed two hand-
guns and additional clear plastic bags containing
“WEED” consistent with what I purchased. Fol-
No. 11-3129 5
lowing the purchase I then left his residence. Later
that evening I smoked a sample of the ‘WEED” that
I had just purchased from (COLLETT) and this gave
me the same feeling of high as in the past purchase
of “WEED” from (COLLETT). (COLLETT’s) residence
was described to Officer Korbas as a two-story resi-
dence with red ashfault [sic] shingle siding with
a front porch painted white with red trim.
Doe also described the rear of the residence as
having white vinyl siding enclosed rear porch with
a single stair case leading up to a glass/metal storm
door in front of a wooden entry door. The residence
also had a detached garage red in color to the east.
...
Based on the information supplied to me, Dean
Korbas, by J. Doe, I believe there is probable cause
to search (COLLETT), as well as the second story
residence of 8019 S. Saginaw, Chicago, Cook County,
Illinois and respectfully request that a search war-
rant be issued.
Notably, the affidavit omitted any reference to the moni-
tored telephone calls between Bell and Williams that
provided the strongest support for a finding of probable
cause.
Because time was of the essence, the police arranged
to meet a state judge in a nearby park to swear out the
warrant. At approximately 5:00 p.m., Officer Korbas
and Bell went to a park located several blocks from the
police station and met the judge on a park bench.
6 No. 11-3129
(April 9, 2004 was Good Friday.) Officer Korbas remem-
bers nothing about the meeting. Bell remembers
that the judge asked him some questions but does not
remember what they were. The judge then signed
the warrant, and the police proceeded to search
Williams’ house, where they found the marijuana
and scales, as well as the handgun that was the basis
for Williams’ conviction under § 922(g)(5).
B. The Franks Hearing
Before trial, Williams filed a motion to suppress the
seized evidence on the ground that the affidavit in
support of the warrant was deliberately or recklessly
false. The district court granted a hearing pursuant
to Franks v. Delaware, 438 U.S. 154 (1978), to examine
the truthfulness of the warrant affidavit. Under Franks,
evidence seized pursuant to a warrant must be sup-
pressed when the defendant shows by a preponderance
of the evidence that (1) the affidavit in support of
the warrant contains false statements or misleading
omissions, (2) the false statements or omissions were
made deliberately or with reckless disregard for the
truth, and (3) probable cause would not have existed
without the false statements and/or omissions. Franks,
438 U.S. at 155-56; United States v. McMurtrey, 704 F.3d
502, 508 (7th Cir. 2013) (noting extension of Franks to
deliberately or recklessly deceptive omissions).
Williams contended that the affidavit had three
flaws, each of which was necessary to a finding of
probable cause. First, the affidavit incorrectly claimed
No. 11-3129 7
that Officer Korbas had firsthand knowledge of Bell’s
account when he really had only secondhand knowl-
edge. Second, the affidavit incorrectly stated that Bell
(J. Doe) was last at Williams’ apartment on April 8 — the
day before Bell was arrested — when Bell had initially
told the agents that he was last there three or four days
earlier. Third, Williams argued, the affidavit omitted
material facts that undermined Bell’s credibility. The
affidavit neglected to mention that (1) Bell was under
arrest for attempting to purchase firearms, (2) Bell had
told officers that Williams was in California on the
day he allegedly had last visited Williams’ apartment,
April 8, and (3) Bell had made inconsistent statements
about the guns he had seen in the apartment and about
when he had last visited Williams’ apartment. Williams
contends that if all of the omitted information had
been included in the affidavit, the judge would not
have found probable cause.
Bell, Agent Labno, and Officer Korbas all testified
at the Franks hearing, and their testimony largely con-
firmed the claimed errors. First, Officer Korbas
did not receive any information directly from Bell.
Officer Korbas testified that he was in the room while
Bell’s interview took place but that he did not speak
with Bell and that the search warrant was based on
“information that I received that was accurate from
the other officers.” 1 That testimony was consistent
1
It is unclear from the record whether the interview took
place in a closed interrogation room or in a more open office
(continued...)
8 No. 11-3129
with Agent Labno’s report of the interview, which did
not list Officer Korbas as one of the officers in attendance,
and with Agent Labno’s testimony that the informa-
tion in the affidavit was provided by “myself, Mr. Bell,
basically through our interview.”
The court also heard testimony about the decision
to include only the April 8 date in the affidavit. Bell
testified that he initially told the officers that he was
last in Williams’ apartment three or four days before
April 9. Agent Labno’s contemporaneous written sum-
mary of his interview with Bell confirms that Bell said
he was last at Williams’ four days earlier. Agent Labno,
however, testified that he continued to question Bell
after the initial interview because it was his experience
that people often minimize the extent of their criminal
conduct. Agent Labno testified that in the later conver-
sation, Bell said that he had actually purchased
marijuana from Williams on April 8, the day before
Bell’s arrest. Agent Labno decided to include only the
April 8 date in the affidavit based on the tone of the
monitored phone calls that gave him the impression
that Williams and Bell had met more recently than
four days ago. Agent Labno did not believe that his
ability to obtain a warrant depended on Bell having
purchased drugs from Williams more recently than
four days earlier.
1
(...continued)
space. The district court did not make a factual finding on
this question.
No. 11-3129 9
Agent Labno also testified about some of the omitted
information. Regarding Williams being in California,
Agent Labno testified that he was skeptical of this infor-
mation. He had experience with criminals lying to each
other about their whereabouts, so he believed it was
possible that Williams was still in Chicago. Concerning
the alleged inconsistencies over whether Williams
actively showed Bell a gun or whether Bell simply
saw a gun and the type of gun Bell saw, Agent Labno
considered these alleged inconsistencies to be insignifi-
cant. As for the omission of the police’s strongest evi-
dence — the monitored phone calls — Agent Labno
recalled that the police omitted this information because
they did not have time to prepare a full transcript and
they wanted to protect the identity of Bell as their infor-
mant.
After hearing the evidence, the district court allowed
the parties to file further briefs and then denied the
motion to suppress in an oral ruling. The district court
concluded that the affidavit contained mistakes but
found it “difficult to conceive of [the mistakes] in cir-
cumstances as representing actual reckless disregard of
the truth.” The police were assembling a warrant ap-
plication during a rapidly developing investigation
that had to be completed quickly that afternoon.
Officer Korbas drafted the warrant in this hurried en-
vironment. While there was a good deal of haste, sloppi-
ness, and error in the drafting process, the court found
that any errors did not reflect reckless indifference to
the truth.
10 No. 11-3129
The district court also considered the issue of
materiality by subtracting the erroneous information,
adding in the omitted information, and determining
whether probable cause remained. The court concluded
that probable cause remained, noting that “[p]robable
cause was corroborated in a variety of other ways,”
though the court did not specify them. Ultimately, the
court concluded that “if you subtract all of the things
that were misstated, you would still have probable
cause” — though again the court did not say what
things it subtracted or what evidence from the
affidavit constituted probable cause.
In this appeal, Williams argues that the district court
erred in finding that the law enforcement officers did
not recklessly disregard the truth and that probable
cause would have remained even if the false informa-
tion had been omitted.
II. Analysis
In Franks v. Delaware, the Supreme Court held that a
criminal defendant is entitled to an evidentiary hearing
to examine the sufficiency of a search warrant when
the defendant makes a “substantial preliminary show-
ing” that the warrant application contained a materially
false statement made by law enforcement with delib-
erate or reckless disregard for the truth and that the
false statement was necessary for the finding of probable
cause. Franks, 438 U.S. at 155-56; McMurtrey, 704 F.3d
at 504. Under Franks, the evidence recovered from a
search must be suppressed if the defendant is able to
No. 11-3129 11
prove by a preponderance of the evidence that (1) the
affidavit contained material false statements or omis-
sions, (2) these false statements or omissions were
made with deliberate or reckless disregard for the
truth, and (3) these false statements or omissions were
necessary to a finding of probable cause. Franks, 438
U.S. at 155-56.
We review the district court’s determinations of
fact, including the determination of deliberate or
reckless disregard for the truth, for clear error. United
States v. Spears, 673 F.3d 598, 604 (7th Cir. 2012). We will
not upset a district court’s factual findings unless we
are “left with the definite and firm conviction that a
mistake has been committed.” United States v. Sauerwein,
5 F.3d 275, 278 (7th Cir. 1993) (quotations omitted).
We review de novo questions of law and the question
whether the reformed affidavit establishes probable
cause. Spears, 673 F.3d at 604-05.
An affiant acts with reckless disregard for the truth
when he “ ‘in fact entertain[s] serious doubts as to the
truth of his allegations.’ ” United States v. Lowe, 516 F.3d
580, 584 (7th Cir. 2008), quoting United States v. A
Residence Located at 218 Third Street, 805 F.2d 256, 258
(7th Cir. 1986). This is a subjective inquiry that focuses
on the officer’s state of mind. A showing of reckless
disregard requires more than a showing of negligence
and may be proved from circumstances showing
obvious reasons for the affiant to doubt the truth of the
allegations. McMurtrey, 704 F.3d at 512. In reviewing
for clear error, our task is to determine whether, based
12 No. 11-3129
on the totality of the circumstances, it was reasonable
for the district court to conclude that law enforcement
did not doubt the truth of the affidavit.2
To prevail on appeal, Williams must show by a pre-
ponderance of the evidence both that the affidavit con-
tained false statements or omissions made with delib-
erate or reckless disregard for the truth and that without
these statements or omissions the remaining affidavit
would have been insufficient to establish probable
cause. (There is one additional important nuance:
because officers must always make deliberate deci-
sions about what to include in and omit from a warrant
application, a Franks violation based on an omission
requires a showing that the material information was
omitted deliberately or recklessly to mislead the issuing
magistrate. See McMurtrey, 704 F.3d at 513, citing
United States v. Tate, 524 F.3d 449, 454-55 (4th Cir. 2008).)
The district court found that the law enforcement
officers did not act with deliberate or reckless disregard
for the truth or with deceptive intent. We may not
upset those findings unless we conclude they were
clearly erroneous.
2
Although Mr. Bell also signed the affidavit, the issue
under Franks is whether law enforcement lied or acted with
reckless disregard for the truth, not whether others who
provided information did so. See Franks, 438 U.S. at 171 (“The
deliberate falsity or reckless disregard whose impeachment
is permitted today is only that of the affiant, not of any
nongovernmental informant.”).
No. 11-3129 13
On this record, a reasonable judge could have
inferred either that the police acted with reckless
disregard for the truth or that their errors and omissions
reflected only honest haste and negligence. While we are
troubled by the officers’ errors, the record does not
compel the conclusion that the officers acted with delib-
erate or reckless disregard for the truth. The police
were rushing to draft an application for a warrant
and hastily omitted both favorable and unfavorable
evidence from the affidavit. The district court in this
case inferred no reckless disregard, and that finding
was not clearly erroneous. We take particular note of the
officers’ omission of the information from the moni-
tored calls between Bell and Williams. That information
was clearly sufficient to establish probable cause for
the warrant, yet it was omitted. That omission provides
a reasonable basis to believe that the police did not
intend to mislead.
A. Officer Korbas’ Knowledge
Williams’ first argument is that all of the information
provided by Bell should be struck from the affidavit
because Officer Korbas improperly identified the source
of the information. In the affidavit, Officer Korbas
swore that Bell provided information directly to him.
The Franks hearing revealed instead that other officers
provided Officer Korbas with all the information.
When asked if he participated in the interview with
Bell, Officer Korbas responded, “I did not talk to the
individual, no.” He said that the search warrant was
14 No. 11-3129
based on “information that I received . . . from
the other officers.” These statements show that
Officer Korbas made a literally false statement in the
warrant. He did not receive the information included in
the warrant affidavit directly from Bell, as he swore in
the affidavit. Yet a false statement must be made delib-
erately or with reckless disregard for the truth to
require exclusion from the probable cause determina-
tion under Franks.
Williams argues that Officer Korbas’ false statement
was necessarily made deliberately or with reckless disre-
gard for the truth. Officer Korbas consciously knew
both that he did not speak to Bell and that he claimed
in the warrant affidavit that he had a direct conversa-
tion with Bell. Because it is impossible for Officer Korbas
to have had a conversation with someone he never
spoke with, Officer Korbas therefore could not have
believed he was providing truthful information when
he swore in the affidavit that he had talked with
Bell. Q.E.D.
This argument is supported by United States v. Davis,
714 F.2d 896 (9th Cir. 1983), in which the Ninth
Circuit invalidated a warrant based on an affidavit
falsely identifying the source of information. The facts
of Davis are remarkably similar to this case. There an
officer submitted a search warrant affidavit swearing
that he had personal knowledge of the facts stated.
In truth, the officer had personal knowledge of only
some of the facts; the other facts he learned from other
members of the investigation. When questioned about
No. 11-3129 15
the affidavit after the search, the officer said that he
realized after typing the affidavit that he did not have
personal knowledge of all the facts he claimed. Never-
theless, he submitted the affidavit because he was told
that this misstatement did not matter as long as he
was aware of all the information in the affidavit. Id. at
899. The district court had concluded that this was
simply an inadvertent error, but the Ninth Circuit re-
versed, reasoning that the statement was deliberately
or recklessly false because the officer knew it to be
false when he signed it. Id.
We do not disagree with this reasoning; however, it
is not equally clear that Officer Korbas was similarly
aware of his mistake when he signed the affidavit. We
conclude that it was not clearly erroneous for the
district court to reach the opposite conclusion from
the Ninth Circuit in Davis on these facts. Officer Korbas
prepared the warrant during a fast-paced investiga-
tion. There is evidence in the record that he was present
in the interview room for at least portions of the
interview with Bell. And it is possible that he began
drafting the affidavit assuming he would receive all of
his information from Bell and then, in the haste of the
investigation, failed to revise the warrant to reflect that
the information came from other officers. There is no
evidence that Officer Korbas, like the officer in Davis,
recognized his mistake when there was still time to fix it
yet decided to include it in the affidavit anyway.
The conclusion that Officer Korbas’ false statement —
along with the other problems with the affidavit — was
16 No. 11-3129
more likely negligent than reckless is further supported
by the strong evidence the police omitted from the af-
fidavit. Evidence from the Franks hearing shows that
the police had good reason to believe there were drugs
at Williams’ residence. Williams told Bell in a moni-
tored telephone call that ten pounds of marijuana were
on the way to his apartment. The police omitted this
information in part because they had to prepare the
warrant with great haste, so much so that they arranged
a park bench meeting with a judge late on Good Friday
afternoon in a scene reminiscent of a fictional police
procedural.
It is true that the monitored telephone call may not
be considered in the probable cause determination
itself because it was omitted from the warrant affidavit.
See United States v. Harris, 464 F.3d 733, 739 (7th Cir.
2006). Yet this information supports the reasonableness
of the district court’s conclusion that Officer Korbas
acted with hasty negligence rather than reckless dis-
regard for the truth. The fact that time pressure led
the police to exclude both significantly favorable and
unfavorable evidence from the warrant application sup-
ports the inference that the police acted negligently
rather than recklessly or deceptively. The district court
did not clearly err in concluding that Officer Korbas did
not deliberately or recklessly disregard the truth.
B. April 8 Drug Buy
Next Williams argues that the reference to the April 8
drug buy in the affidavit was false and was included
No. 11-3129 17
by police with reckless disregard for the truth. In
support of this claim, Williams points to the facts that
Bell initially said he was last at Williams’ apartment
three or four days prior and that Williams had left for
California on the 8th. If the police knew that Williams
was in California on the 8th, then they could not
have believed that Bell bought drugs from Williams in
Chicago that same day. On this record, it is not clear
that the police actually believed Williams was in
California, so we conclude that the district court did
not clearly err in finding that the police did not
recklessly disregard the truth.
The April 8 date came from a conversation
Agent Labno testified he had with Bell after Bell’s formal
interview. Since Agent Labno, a fellow law enforcement
officer, relayed this information to Officer Korbas for
inclusion in the warrant, the inquiry into reckless
disregard properly focuses on Agent Labno’s state of
mind. See United States v. Whitley, 249 F.3d 614, 621
(7th Cir. 2001) (explaining Franks inquiry properly
includes states of mind of government agents from
whom affiant receives information). If we were to focus
only on the affiant Korbas’ knowledge, police would
be able to shield false information in affidavits from
review simply by providing secondhand information to
the drafting affiant.
Based on the testimony at the Franks hearing, though,
it is not clear that Agent Labno intentionally or recklessly
provided Officer Korbas with false information. At the
Franks hearing, Bell confirmed that he provided the
18 No. 11-3129
officers with inconsistent statements about when he
was last at Williams’ residence. Agent Labno testified
that he included the April 8 date because it was the
date he believed to be “true and accurate” based
on the tone of the monitored phone call Bell had with
Williams. Agent Labno also testified that his experi-
ence with criminals lying to each other made him
skeptical that Williams was in fact in California, so he
did not believe that an April 8 meeting was impossible.
Once Bell told Agent Labno that he met Williams on
April 8, the district court could reasonably find that
Agent Labno believed that Bell had actually met
Williams on April 8.
Perhaps most important, Agent Labno does not appear
to have had a motive to misrepresent the date. Agent
Labno was a party to the monitored telephone calls
and knew that Williams was organizing a drug deal at
his apartment for that afternoon. This was clear
evidence of probable cause that would have provided
more than an adequate basis for a search warrant.
Agent Labno did not believe the date mattered for a
finding of probable cause, suggesting that he had no
motive to include in the warrant affidavit a date he
doubted. Agent Labno testified that he believed either
date would have been sufficient to get a warrant and
that he did not choose the more recent date to “freshen
up” the probable cause. As it turned out, Agent Labno
was wrong in his choice, and he was wrong not to
include the inconsistency in the affidavit, but it was not
clearly erroneous for the district court to conclude
that Agent Labno did not make this mistake with
reckless disregard for the truth.
No. 11-3129 19
C. Omissions
Williams also argues that the officers omitted sev-
eral pieces of material information from the affi-
davit with reckless disregard for the issuing judge’s
ability to assess the evidence accurately. Specifically,
the affidavit did not state the following: (1) Bell was
currently under arrest for illegally buying firearms;
(2) Williams was in California; or (3) Bell made
inconsistent statements about the guns he saw in Wil-
liams’ apartment and when he had last seen drugs
in Williams’ apartment. These omissions gave the false
impression that Bell made consistent statements to
the police and that there were no reasons to doubt his
credibility. Williams contends that the statements were
omitted with reckless disregard for the truth because
experienced law enforcement officers know that
“omitting facts that [would give] significant reasons
to doubt Mr. Bell’s truthfulness would provide the magis-
trate with an inaccurate impression of Mr. Bell and
the information he provided.” We take each alleged
omission in turn.
We begin with the omission of Bell’s arrest. It is clear
that the police should have mentioned in the affidavit
that Bell was under arrest for illegally purchasing fire-
arms. This information bore directly on Bell’s credi-
bility. E.g., United States v. Simmons, 771 F. Supp. 2d 908,
918-20 (N.D. Ill. 2011) (explaining that fact of arrest is
important for probable cause determination and that
proper way to put judge on notice is to indicate this in
affidavit). Bell was looking to secure a reduced sentence
20 No. 11-3129
by cooperating with the police and may have been
willing to lie to appear to be cooperating fully.
It is not clear, however, that the omission of this infor-
mation was deliberately or recklessly deceptive. The
affidavit noted that Bell had been buying marijuana
from Williams for six years and that he had purchased
three pounds of marijuana the previous week. While
the affidavit did not say that Bell was under arrest, the
statements about the significant recent drug purchases
could easily be read as giving the impression that
the police were not trying to hide the fact that Bell was
currently in trouble with the law. Moreover, Bell
was brought by a police officer to see the issuing judge
face-to-face. As the district judge commented, that step
provided the issuing judge with an opportunity to
learn more about Bell’s status and credibility. On
this record, the district court was not required to find
that the police deliberately or recklessly deceived the
judge by omitting the fact of Bell’s arrest.
The exclusion of information about Williams being
in California was also not clearly made with reckless
disregard for the truth or deceptive intent. At the
Franks hearing, Agent Labno testified that he be-
lieved it possible that Williams had lied to Bell about
his whereabouts and that Williams was actually still
in Chicago. In the context of the rapidly developing in-
vestigation, Bell’s statement that Williams was in Cali-
fornia was far from indisputable proof of this fact. Agent
Labno’s experience led him to question the informa-
tion Williams provided to Bell, and in making this judg-
No. 11-3129 21
ment, he did not disregard more probative evidence
that might have existed but of which he was not
aware, such as a flight itinerary or an eyewitness
placing Williams in California. On these facts, it was
not unreasonable for the district court to conclude
that Agent Labno did not entertain serious doubts that
he was excluding material information from the warrant.
Finally, the district court did not clearly err by
finding that the officers’ decision to exclude incon-
sistent statements about the guns and when Bell had
last been at Williams’ apartment did not recklessly disre-
gard the truth. The inconsistencies concerning the
guns appear to be immaterial in the end. In Bell’s
interview with police, he reported seeing two 9-millimeter
pistols in Williams’ closet. In the monitored phone call
between Williams and Bell, Williams told Bell he had
seen a .40-caliber pistol, not a 9-millimeter. The dif-
ference between a .40-caliber and a 9-millimeter pistol
is only one millimeter in barrel diameter. It is not as
if Bell told police he had seen a 12-gauge shotgun at
Williams’ apartment and Williams later denied having
a shotgun. A 9-millimeter and .40-caliber pistol are so
close in size that it is not difficult to believe someone
could mistake the two. The content of the phone call
was also vague enough to make it unclear whether
there was actually an inconsistency about the number
or type of guns Bell had seen and whether Williams
actually presented the guns to Bell. There is no
evidence that the monitored conversation caused the
officers to question whether Bell in fact saw a gun in
Williams’ apartment. The officers did not act to mislead
22 No. 11-3129
the issuing judge by omitting these details regarding
the number and type of guns.
The omission of the inconsistency concerning when
Bell was last at Williams’ apartment is more significant,
but we have already concluded that it was not clear
evidence of reckless disregard for the truth for the
officers to include only the April 8 date in the affidavit.
Rather, many of the omitted facts, especially the infor-
mation gained from the monitored calls that would
have supported probable cause, provided reasonable
support for the district court’s finding that the officers’
mistakes were the product of time and negligent haste
rather than reckless disregard for the truth.
III. Conclusion
The preparation of the warrant affidavit in this case
put this investigation and prosecution at serious risk.
The officers in this investigation presented the war-
rant judge with a sanitized affidavit that made an inde-
pendent determination of probable cause more difficult
than it should have been. The officers made decisions
about which way inconsistencies should be resolved
and whether contradictory information should be
provided to the judge rather than presenting this infor-
mation to the judge to assess. It is the job of the
issuing judge, and not the police, to weigh competing
information and to decide how inconsistencies affect
the probable cause determination. When police make
decisions about what information to provide judges,
the idea of an independent, detached magistrate
No. 11-3129 23
reviewing the evidence is compromised, and the con-
stitutional command that “no Warrants shall issue,
but upon probable cause” is weakened.
On this record, the district court might have rea-
sonably found that the errors and omissions in the
warrant application were the product of deliberate de-
ception or reckless disregard for the truth. The district
court found otherwise here. Our decision to affirm
the district court’s judgment is governed by the clearly
erroneous standard of review. Based on the totality of
the circumstances in this case, including the favorable
but omitted evidence of the telephone calls, the district
court did not clearly err by finding that the police were
not acting with reckless disregard for the truth in
making their mistakes and failing to include the incon-
sistent information. The denial of the motion to sup-
press and the district court’s judgment are A FFIRMED.
5-20-13