People v. Chambers , 47 N.E.3d 545 ( 2016 )

2016 IL 117911IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 117911)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TERRILL
CHAMBERS, Appellee.
Opinion filed January 22, 2016.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in
the judgment and opinion.
OPINION
¶1 A search warrant was served at a home belonging to defendant Terrill
Chambers’ mother. He was found inside, along with a large quantity of cocaine,
cash, weapons, and ammunition. The circuit court of Cook County denied his
repeated requests for a hearing pursuant to Franks v. Delaware, 438 U.S. 154(1978). After a jury trial, he was convicted of armed violence and unlawful
possession of a controlled substance with intent to deliver and sentenced to
consecutive terms of 25 and 45 years’ imprisonment. On appeal, he argued that the
trial court erred by denying his request for a Franks hearing. The appellate court
held that the trial court should have conducted a Franks hearing and remanded to
allow the trial court to conduct the hearing and to determine whether the search
warrant was properly issued. 2014 IL App (1st) 120147. This court allowed the
State’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315
(eff. July 1, 2013). For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 On April 19, 2007, Markham police officer Tony DeBois filed a complaint for a
search warrant for the house at 15227 Parkside in Markham, Illinois, and for any
safe or lockbox within the residence. In support of the warrant application, DeBois
and a confidential informant identified as “John Doe” signed the complaint and
swore to the truth of its contents in the presence of the judge.
¶4 In the complaint, DeBois stated that he had been a police officer for 11 years
and that he was assigned to a tactical gang and narcotics unit. In that role, he had
been investigating suspected narcotics sales from the 15227 Parkside address for
three months based on numerous calls about marijuana being sold there by
defendant.
¶5 The complaint further stated that at about 4:30 p.m. the previous day, near
15110 Cherry Street, Doe and two other men were detained by police and then
transported to the Markham police department. At the time of his arrest, Doe was in
possession of six plastic bags of marijuana that he stated he had purchased earlier
that afternoon from defendant at the Parkside address for $60.
¶6 The complaint also stated that Doe was known to the officer because he had
previously assisted him in other narcotics and weapons cases. According to the
complaint, Doe told the officer that he knew defendant and had been inside the
Parkside residence on several occasions and that he had seen cannabis and firearms
there. Further, DeBois stated that the informant identified defendant’s mug shot
and signed the photograph on the back. 1
¶7 Later that morning, officers from the Illinois State Police, the Cook County
sheriff’s department, and the Markham police department, including Officer
DeBois, served the search warrant. Inside the home, they found defendant, along
with a quantity of cannabis, two large bags of cocaine weighing 1718.4 grams in
total, and approximately $52,000 in cash. In addition, the officers discovered
1
No signed mug shot is in the record.
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jewelry valued at almost $69,000, several types of ammunition, and firearms
including: a loaded AK-47 assault rifle, a Taurus .40-caliber handgun, a Glock
.40-caliber pistol with an extended 29-round magazine, a Marlin lever-action
.22-caliber rifle, a .410-gauge shotgun, a 12-gauge semiautomatic shotgun, a
.45-caliber semiautomatic rifle, and a .38-caliber snub-nosed revolver.
¶8 Defendant, who was alone in the house at the time of the search, was arrested
and was later charged by indictment with 36 counts of armed violence, nine counts
of unlawful use of a weapon by a felon, two counts of unlawful use of a weapon
based on his possession of a “machine gun,” one count of possession of a controlled
substance with intent to deliver (over 900 grams of cocaine), one count of
possession of a controlled substance, one count of possession of cannabis with
intent to deliver, and one count of possession of cannabis.
¶9 Defendant filed a motion for a Franks hearing alleging that the officer either
knew that the allegations in the complaint were false or that he made the statements
with reckless disregard for the truth. Specifically, defendant claimed that the
officer’s statements that the informant had been known to him for over one year
and that the informant had assisted in other cases were false because the officer had
been employed by the Markham police department for only three days when he
applied for the warrant. Similarly, the officer’s statement that he had been
conducting narcotics-related investigations regarding the 15227 Parkside address
for “the past 3 months” was also false because the officer was not employed in
Markham during that time. In addition, defendant asserted that he had been at
another location at the time Doe claimed to have purchased marijuana from him at
15227 Parkside. Defendant submitted affidavits from his mother, stepfather,
girlfriend, and a family friend. In sum, the affidavits averred that defendant was at
the residence he shared with his mother and stepfather at 3031 Sherwood Avenue in
Markham, doing plumbing work with his stepfather, at the time of the alleged sale
of marijuana at the house on Parkside. His mother stated that she had recently
inherited the home on Parkside and that it was undergoing rehabilitation by a
contractor.
¶ 10 Defendant also asked the trial court to take judicial notice that there is no
Cherry Street in Markham, so the officer could not have stopped Doe’s car there.
He provided exhibits showing that there is a Cherry Lane in Markham, but it ends
south of 152nd Street; thus, the 15100 block of Cherry Lane does not exist. The
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land immediately north of 152nd Street is a heavily-wooded park, with no
automobile access.
¶ 11 The State’s response did not address the specific allegations of falsehoods in
the complaint. Rather, the State argued that because the informant appeared with
the officer at the warrant hearing, this case “clearly falls outside the scope of
Franks,” so the court “need not address whether the defendant made a substantial
preliminary showing that statements in the complaint were either deliberately false
or made with reckless disregard of the truth.”
¶ 12 The court granted defendant’s motion for a Franks hearing. The court noted
that although all but one of the affidavits offered by defendant were by members of
his family, one affidavit was from an unrelated family friend who worked as a
dispatcher for a law enforcement agency. In addition, the stop could not have
occurred at the address listed in the complaint; that address would have placed the
stop “in the middle of a forest preserve.” This led to the court’s conclusion that the
warrant affidavit, “contains deliberately included falsehoods or there was a reckless
disregard for the truth.”
¶ 13 The case was transferred to another judge who set a date in July 2010 for the
Franks hearing. On the scheduled hearing date, the State filed a motion to
reconsider, arguing that defendant had not made the requisite preliminary showing
to entitle him to a Franks hearing for two reasons. First, the incorrect Cherry Street
address in the warrant application was due to two typographical errors, one in the
name of the street and the other in the number of the address. The arrest report
showed that the traffic stop occurred at 15410 Cherry Lane, which, the State
asserted, is a real Markham address. Further, the individual who provided the only
affidavit from a nonfamily member claimed that she saw defendant at the
Sherwood Avenue house between 11 a.m. and 2:30 p.m. on the day that Doe
claimed to have purchased marijuana from him at about 4:30 p.m. Only his
stepfather’s and girlfriend’s affidavits claimed to have seen him there in the late
afternoon.
¶ 14 Defendant responded that the motion to reconsider, filed a year and a half after
the motion for a Franks hearing was granted, was untimely. On the merits,
defendant argued that he had made the requisite substantial preliminary showing.
¶ 15 In granting the motion to reconsider, the court noted that it was following the
rule established in People v. Gorosteata, 374 Ill. App. 3d 203 (2007) (Franks
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hearing is not required when the confidential informant appeared in court at the
warrant proceeding).
¶ 16 Defendant filed a second motion seeking a Franks hearing, in which he
reiterated his original arguments and also asserted that the signatures of “John Doe”
on the warrant complaint and on the mug shot did not match and that the police did
not keep a file on the confidential informant.
¶ 17 The second Franks motion was also accompanied by the video-recorded
statement of Aaron Lindsey, who was a 17-year-old high school senior at the time
of his arrest on April 18, 2007. Lindsey stated that after he left school that
afternoon, driving his mother’s car, he picked up two friends, Miles Copeland and
Jeron Cotton. Copeland was behind the wheel, and they were smoking marijuana in
the car before they were stopped on Cherry Lane by two plainclothes officers in an
unmarked police car. The officers found six plastic bags of marijuana and a
handgun in the car, and the three men were arrested and taken to the Markham
police department. After several hours in lockup, Lindsey was questioned by one of
the arresting officers and another officer. He explained that the gun belonged to his
stepfather and that he had purchased the marijuana at school. He did not tell the
officers that he bought the marijuana from defendant; he did not identify or sign a
mug shot of defendant; he did not sign an affidavit for a search warrant; and he did
not appear before the judge who issued the search warrant. He did not meet or
speak to Officer DeBois during this entire process.
¶ 18 Lindsey, who is defendant’s cousin, stated that defendant told him that he had
learned through discovery that the alleged informant was stopped on Cherry Lane
on April 18, 2007, and that he had both marijuana and a gun in the car. Because
these circumstances matched the circumstances of Lindsey’s arrest, he and
defendant began to suspect that Lindsey was the alleged confidential informant
who was purported to have provided the basis for the search warrant. They
concluded that the police must have identified him, without his knowledge or
cooperation, as the source of the information used to obtain the warrant.
¶ 19 Lindsey’s account is corroborated at least in part by a Markham police
department Offense/Incident Report dated April 18, 2007, at 16:45 hours. The
reporting officer, a D. Walker, stated that he observed a vehicle improperly parked
in the roadway on Cherry Lane. The driver was not wearing a seatbelt. The vehicle
sped away and then stopped in front of 15410 Cherry Lane. Three occupants exited
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the vehicle and attempted to walk away, despite the officers’ instructions to remain
in the vehicle. When they were stopped, green plant material was observed on the
shirts of all three subjects and an “extremely strong odor of cannabis” was coming
from inside the car. More green plant material was observed in plain view on the
front seats and floorboards of the car. A search revealed a plastic bag containing six
plastic bags of marijuana. The three occupants of the vehicle were arrested. 2
¶ 20 In addition, defendant’s second Franks motion alleged that Officer DeBois’s
statement in the warrant complaint that he was a Markham police officer with 11
years’ experience was false because he failed to disclose that he had previously
been dismissed from the Harvey police department and was not employed as a
police officer for a significant period of time prior to joining the Markham police
department only days before defendant’s arrest.
¶ 21 The State denied that Aaron Lindsey was the confidential informant upon
whose information the warrant application was based and urged the court to reject
any reliance on Lindsey’s statement because he was defendant’s cousin and
defendant had transported Lindsey to his lawyer’s office to give the recorded
statement.
¶ 22 The court denied defendant’s motion, finding Lindsey’s statement not credible
and again relying on Gorosteata, stating that the “affidavit is sufficient on its face
for probable cause.”
¶ 23 After this court denied defendant’s motion for a supervisory order, he filed a
third motion for a Franks hearing, this time attaching an affidavit from Miles
Copeland, who stated that he had been behind the wheel of Lindsey’s car at the time
of the stop on Cherry Lane. As he and the two other men were being escorted in to
the police station, Lindsey told him that he would take the “wrap” [sic] for the
“weed” and for the gun, which was registered to Lindsey’s stepfather.
¶ 24 Copeland stated that he had been the John Doe witness and that he had signed a
false affidavit because Officer DeBois threatened him with five years in prison if he
did not do so. He claimed that he and Lindsey had acquired the six bags of
marijuana in an armed robbery, not from the defendant. He stated that he did not
know the defendant and had not visited him at the Parkside address. Copeland
further stated that he was never an informant for the police before this arrest and
2
The record contains only one page of the report, although it indicates that it continues onto
another page.
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that Officer DeBois knew that the statements in the affidavit presented to the
issuing judge were false and perjurious.
¶ 25 Copeland asserted in his affidavit that Officer DeBois took him to the Markham
courthouse for the warrant hearing and on the way there “kept schooling” him as to
what he was expected to say and do. When he was brought before the judge, he
raised his right hand and was sworn in. The judge told him that if he was lying, he
faced three to five years in prison for perjury. He signed the forms that were placed
in front of him and was taken back to the police station.
¶ 26 At the hearing on this motion, the State pointed out that the Copeland affidavit
contradicted the Lindsey sworn statement. In addition, the State argued that under
Gorosteata no Franks hearing will be granted when the informant appeared before
the judge at the warrant proceeding. The court denied the defendant’s third Franks
motion, again relying on Gorosteata.
¶ 27 The State nol prossed all but eight counts of armed violence and one count of
possession of a controlled substance with intent to deliver. At trial, defendant
presented no evidence. The jury found him guilty of four counts of armed violence,
deadlocked on one count, and acquitted him on three counts. The jury also found
him guilty of the narcotics charge. The court sentenced defendant to 25 years in
prison for the armed violence convictions and 45 years for the narcotics conviction,
the sentences to run consecutively.
¶ 28 On appeal, he argued that the trial court erred by denying him a Franks hearing
and that his sentence was excessive. Applying an abuse of discretion standard, the
appellate court rejected the premise that a Franks hearing is never warranted if the
informant who provides information necessary to the issuance of the warrant
appears before the magistrate. 2014 IL App (1st) 120147, ¶ 16. Rather, the
appellate court concluded, the informant’s appearance and testimony before an
issuing judge is “but one factor to consider in determining whether to grant a
Franks hearing, but it does not categorically preclude the court from holding a
Franks hearing.” Id. ¶ 15. Thus, the court held, if a defendant “has evidence that the
affiant-officer acted intentionally or with reckless disregard for the truth by
presenting a warrant affidavit with false allegations, he should be given the
opportunity to present that evidence before the trial court.” Id. ¶ 17.
¶ 29 Applying these principles to the facts of the present case, the appellate court
found that the affidavits submitted by the defendant “raise a question of
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defendant’s presence at the relevant address at the time of the incident and are
sufficiently detailed to subject the affiants to the penalties of perjury if their
allegations are untrue.” Id. ¶ 21. In addition to the alibi affidavits, defendant “also
submitted an affidavit from the purported confidential informant, Copeland, who
explicitly averred that he made false allegations against defendant because he was
threatened by Officer DeBois.” Id. Copeland’s affidavit, if believed, meets the
standard of a sufficient showing that the officer “had knowledge that the allegations
in the complaint for a search warrant were false.” Id. Thus, the court concluded, the
defendant should be afforded the opportunity to present this evidence at a Franks
hearing. Id. The appellate court held that the trial court abused its discretion by
failing to hold an evidentiary hearing to determine the credibility of the affiants and
to resolve the inconsistencies between the Lindsey and Copeland affidavits. Id.
¶ 22.
¶ 30 ANALYSIS
¶ 31 As appellant before this court, the State argues that the appellate court’s
decision should be reversed for two reasons. First, the State argues for the adoption
of a bright-line rule that the appearance of the nongovernmental confidential
informant before the judge prior to the issuance of a search warrant completely
removes this case from the ambit of Franks. Second, the State argues that even if
the appearance of the informant before the issuing judge does not necessarily
preclude a Franks hearing, the appellate court in the present case failed to give
proper deference to the trial court’s decision to deny a Franks hearing.
¶ 32 Defendant argues that the proper standard of review of the denial of a Franks
hearing is de novo. Further, he argues that, as a matter of law, his request for a
Franks hearing comes well within the ambit of the rule enunciated by the Supreme
Court in Franks. Finally, he argues that the appellate court properly found that he
has made a sufficient showing to warrant a Franks hearing.
¶ 33 The Ambit of the Rule of Franks v. Delaware
¶ 34 In Franks, the issue presented was whether “a defendant in a criminal
proceeding ever [has] the right, under the Fourth and Fourteenth Amendments,
subsequent to the ex parte issuance of a search warrant, to challenge the
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truthfulness of factual statements made in an affidavit supporting the warrant.”
Franks, 438 U.S. at 155.
¶ 35 The Court held that “where the defendant 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 if
the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s request.” Id.
at 155-56. This rule, the Court stated, maintains the traditional “presumption of
validity with respect to the affidavit supporting the search warrant.” Id. at 171.
Thus, the “challenger’s attack must be more than conclusory and must be supported
by more than a mere desire to cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof.” Id.¶ 36 The Court emphasized that the rule it announced in Franks “has a limited
scope, both in regard to when exclusion of the seized evidence is mandated, and
when a hearing on allegations of misstatements must be accorded.” Id. at 167.
Further, the “deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongovernmental informant.”
Id. at 171.
¶ 37 This court considered the issue in a case involving a warrant application based
on an informant’s tip in People v. Lucente, 116 Ill. 2d 133 (1987). The defendant,
who was charged with possession of a controlled substance with intent to deliver,
filed a motion for a Franks hearing, seeking to quash the warrant and arrest and to
suppress the seized evidence. Id. at 140. In support of his motion, he alleged that the
officer’s affidavit in support of the warrant application contained intentional
misrepresentations, specifically that a confidential informant had told the officer
that he purchased marijuana from the defendant at his apartment at 8:30 p.m. the
previous evening. Id. at 139-40. The officer’s affidavit also stated that the
informant had provided information in eight previous cases, each leading to an
arrest and five resulting in convictions. Id. at 140. The defendant’s motion was
supported by affidavits from himself, his sister, and his wife stating that they were
together at the sister’s home at the time of the alleged sale to the informant. Id. The
circuit court granted the motion, held a Franks hearing, quashed the warrant, and
suppressed the evidence seized. Id. at 139. The appellate court affirmed, as did this
court. Id. at 155.
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¶ 38 The first issue this court addressed was the State’s contention that the defendant
should not have been granted a Franks hearing because he failed to make the
requisite substantial preliminary showing, which we called the “linchpin” of the
Franks procedure. Id. at 147. After noting the presumption of validity regarding the
affidavit supporting a search warrant, we noted that this case differed from Franks
in one crucial respect: “the warrant affidavit [in the present case] was based entirely
on information furnished by a confidential informant.” (Emphasis omitted.) Id. at
147-48. We observed that “the defendant’s preliminary showing is in the nature of
an alibi, tending to establish that someone—either the informant or the
officer—fabricated the transaction described in the warrant affidavit.” Id. at 148.
¶ 39 The State’s position was that the defendant’s showing was insufficient because
it did not negate the possibility that it was the informant, rather than the officer,
who was the source of the false statement. Id. This court noted that if this were the
requirement, an alibi, no matter how strong, would never be sufficient to justify a
Franks hearing because the source of a falsehood in the warrant complaint could
not be determined without a Franks hearing. Id.¶ 40 Rejecting such a framework, this court declined to apply Franks “so inflexibly
as to make hearings unattainable.” Id. at 149. In keeping with the purpose of
Franks, “to provide meaningful, albeit limited, deterrence of and protection against
perjurious warrant applications,” this court held that “Franks does not require
defendants faced with anonymous-informant-based warrants to do the impossible.
As a preliminary matter, the defendant cannot be required to establish what an
anonymous, perhaps nonexistent, informant did or did not say.” Id. at 150.
¶ 41 What is required is that the defendant’s preliminary showing be more than a
mere request and more than an unsubstantiated denial. Id. at 151. However,
because the defendant’s burden at the Franks hearing itself is preponderance of the
evidence, the preliminary showing may, logically, be something less. Id. at 151-52.
This court did not precisely define this threshold, except to say that it “lies
somewhere between mere denials on the one hand and proof by a preponderance on
the other.” Id. at 152.
¶ 42 Lucente differs from the present case in one vital respect. While Lucente
involved allegedly false statements attributed by the officer to a confidential
informant, the informant did not appear at the hearing on the warrant application.
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The appellate court, however, has considered several cases in which the informant
did appear.
¶ 43 The State urges us to adopt the bright-line rule set out by the appellate court in
People v. Gorosteata, 374 Ill. App. 3d 203 (2007). In that case, a police officer’s
complaint for issuance of a search warrant stated that the officer had spoken to a
“concerned citizen,” who had told him that he had purchased marijuana from the
defendant at a specific address on a specific date. Id. at 205-06. The concerned
citizen, identified as John Doe, accompanied the officer when he presented his
complaint to the circuit court. Id. at 206.
¶ 44 Prior to trial, the defendant filed a motion for a Franks hearing; the motion was
accompanied by affidavits from the defendant and several family members. The
gist of the affidavits was that the family was gathered at the address on that date to
celebrate a child’s birthday and that no one else came to the apartment on that date
to be shown, smoke, or purchase marijuana. Thus, the defendant averred, the
officer relied on the informant’s account in reckless disregard of the truth. Id.
¶ 45 The appellate court acknowledged the purpose of allowing Franks hearings is
to deter police misconduct, but noted that Franks itself was concerned with
deliberate falsity or reckless disregard of the truth by the affiant police officer,
“ ‘not of any nongovernmental informant.’ ” Id. at 212 (quoting Franks, 438 U.S. at
171). The court also quoted United States v. Owens for the proposition that “ ‘[i]t is
not enough to show that the informant lied to an unsuspecting affiant, or that an
affiant’s negligence or innocent mistake resulted in false statements in the
affidavit.’ ” Id. (quoting United States v. Owens, 882 F.2d 1493, 1499 (10th Cir.
1989)).
¶ 46 The court rejected the defendant’s claim of error on two separate bases. First,
the affidavits were “suspect to begin with, since they all derive[d] from family
members,” and they did not preclude the possibility of the narcotics transaction that
John Doe recounted to the officer because they did not assert that the defendant was
constantly in the company of family members on the date in question. Id. at 212-13.
This alone would have been a sufficient basis for affirming the trial court’s denial
of defendant’s motion for a Franks hearing. Id. at 213.
¶ 47 The court nevertheless considered the fact that “John Doe personally testified
before the magistrate at the time [the officer] applied for the search warrant.” Id.
This fact, the court concluded, “removed this case from the ambit of Franks.” Id.
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The court reasoned that “when a nongovernmental informant is personally brought
before the magistrate to testify to the facts that will establish probable cause in a
warrant, the burden of determining the reliability of the informant then shifts to the
court and away from law enforcement personnel.” Id.
¶ 48 Thus, even if the officer avoided making any representations about the
reliability of the informant because he was “an unknown quantity to police,” any
failure to elicit information from the informant that would have tested his
credibility “ ‘lies with the issuing magistrate and not with the law enforcement
officers.’ ” (Emphasis omitted.) Id. at 214 (quoting State v. Jensen, 915 P.2d 109,
116 (Kan. 1996)). As a result, Franks “ ‘does not apply in such instances because
there exists no governmental misconduct that could be detected or deterred by a
Franks hearing.’ ” Id. (quoting State v. Moore, 773 P.2d 96, 98 (Wash. Ct. App.
1989) (Franks hearing is not required even if the testimony of nongovernmental
affiant is later shown to have been intentionally false or gathered in a manner that
would have been unconstitutional if done by a governmental agent)).
¶ 49 Finally, the appellate court noted one of its own earlier decisions in which it
held that when an informant appears before the magistrate, “it is not even necessary
for the police to corroborate the informant’s account since ‘the judge issuing the
search warrant ha[s] an opportunity to *** determine the basis of [the informant’s]
knowledge.’ ” Id. (quoting People v. Phillips, 265 Ill. App. 3d 438, 448 (1994)).
¶ 50 Another division of the same district of the appellate court reached a different
result in People v. Caro, 381 Ill. App. 3d 1056 (2008). The defendant was charged
with unlawful use of a weapon after a search of his apartment revealed a shotgun
with a barrel measuring less than 18 inches. Id. at 1058. The search had been
conducted pursuant to a warrant obtained based on information provided by a John
Doe informant, who claimed to have purchased cocaine from the defendant at his
apartment on a particular date. The officer who submitted the complaint and
affidavit for the search warrant brought John Doe before the judge, who
interviewed him, under oath, for approximately ten minutes regarding the facts
alleged in the warrant application. Id. at 1057-58.
¶ 51 The trial court granted the defendant’s motion for a Franks hearing, which was
supported by the defendant’s own affidavit and affidavits from his two roommates,
one of whom, David, was also his brother. Id. at 1058-59. As in Gorosteata, these
affidavits offered an alibi for the date of the purported drug sale. The defendant
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stated that the night before the alleged drug sale, he had gone to bed at about
10 p.m. He woke at 6:30 a.m. and left for work at 7 a.m. At approximately 7:30
p.m., he returned from work. His roommates were home when he arrived; he ate
dinner, watched television, and went to bed. No one came to the apartment that
evening. Id. at 1058.
¶ 52 His brother’s affidavit stated that he, too, had gone to bed early. He got up at
3:30 a.m. and left for his job as a machine operator at 4 a.m. He worked until 1:30
p.m. and returned home to an empty apartment at 2 p.m. The third roommate came
home at 4 p.m., and the two men cooked dinner and watched television until he
went to bed about 7:30 p.m. He heard defendant enter the apartment at about 8 p.m.
He did not see anyone else in the apartment on that date. Id. at 1059.
¶ 53 The third roommate stated in his affidavit that he woke up at 6:15 a.m. on the
date of the alleged drug sale and left for work at 6:45. He returned home about 4
p.m. and made dinner and watched television with David. The defendant returned
to the apartment as he was getting ready to go to bed. No one, other than he and his
two roommates, was in the apartment on that date. Id.
¶ 54 Based on these three affidavits, the trial court granted the motion for a Franks
hearing. After the hearing, the trial court granted the defendant’s motion to quash
the search warrant and suppress evidence. Id. at 1061. On appeal, the State, relying
on Gorosteata, argued that the trial court erred as a matter of law by granting a
Franks hearing when the informant had personally testified at the hearing on the
warrant application.
¶ 55 The appellate court rejected the State’s argument that this case fell outside the
scope of Franks, holding that the informant’s testimony at the warrant hearing does
not categorically preclude a Franks hearing. Id. at 1065. Rather, the court
concluded, such a rule would defeat the purpose of Franks “by allowing a warrant
affidavit, revealed after the fact to contain a deliberately or recklessly false
statement, to stand beyond impeachment as long as the nongovernmental informant
testified before the judge issuing the search warrant.” Id. at 1066. Further, “Franks
simply contains no language precluding an attack on the warrant affidavit when a
nongovernmental informant testifies before the issuing judge.” Id. The appellate
court not only rejected the State’s position that the case fell outside the scope of
Franks, it also ruled on the merits that the trial court did not err by granting a
Franks hearing. Id. at 1063.
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¶ 56 The defendant urges this court to reject the rigid approach of Gorosteata and to
adopt the more flexible approach of Caro, which would look at the substance of the
Franks motion and supporting documents to determine whether the defendant has
made the required substantial preliminary showing.
¶ 57 The State argues that this approach would undermine the purpose of Franks,
which is to deter police misconduct in the obtaining of search warrants. According
to the State, when a warrant is procured based on a false statement made by an
informant, the officer satisfies his obligation by bringing the informant to court and
subjecting him to questioning under oath by the issuing judge. The judge, not the
officer, should question the basis of the informant’s knowledge and determine his
credibility. The State further insists, without explanation, that the Caro rule will
actually discourage officers from bringing informants to a judge for questioning.
¶ 58 In the present case, the informant appeared with Officer DeBois at the warrant
proceeding, was sworn in, and signed the affidavit as “John Doe” in the presence of
the court. There is some disagreement about what else occurred during the hearing.
The informant, now tentatively identified as Copeland, states in his affidavit that he
was not questioned by the judge and did not actually testify. Indeed, he claims that
he was specifically instructed by the officer not to speak. In its reply brief, the State
asserts that it “strains credulity to believe that any judge would place a confidential
informant under oath and then issue a search warrant based on that informant’s
information without asking him any questions.” At oral argument, the State’s
position was that the judge “almost certainly asked the affiant” about the
underlying facts and, therefore had the opportunity to test the veracity of his
allegations.
¶ 59 Under the reasoning of Gorosteata, however, it would not matter whether the
informant actually testified or even that he remained silent because he was directed
to do so by an officer who intentionally falsified the information in the warrant
affidavit. Once the officer presented the informant to the court, the burden of
finding the truth would have been entirely on the court. Gorosteata, 379 Ill. App.
3d at 213.
¶ 60 We decline to adopt such a rule, which would shield police misconduct such as
conspiring with an informant or coercing an informant into making false statements
in an affidavit or in testimony to the court. Such a rule would undermine the
purpose of Franks.
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¶ 61 In Franks, the Court noted that the warrant requirement of the fourth
amendment is predicated on the assumption that there will be a “truthful showing”
to the issuing court, from which it can determine whether probable cause exists.
“This does not mean ‘truthful’ in the sense that every fact recited in the warrant
affidavit is necessarily correct, for probable cause may be founded upon hearsay
and upon information received from informants, as well as upon information within
the affiant’s own knowledge that sometimes must be garnered hastily. But surely it
is to be ‘truthful’ in the sense that the information put forth is believed or
appropriately accepted by the affiant as true.” Franks, 438 U.S. at 165. “Because it
is the magistrate who must determine independently whether there is probable
cause, [citations], it would be an unthinkable imposition upon his authority if a
warrant affidavit, revealed after the fact to contain a deliberately or recklessly false
statement, were to stand beyond impeachment.” Id.¶ 62 The Court acknowledged the reality that the warrant “hearing before the
magistrate not always will suffice to discourage lawless or reckless misconduct.
The pre-search proceeding is necessarily ex parte ***. The usual reliance of our
legal system on adversary proceedings itself should be an indication that an
ex parte inquiry is likely to be less vigorous. The magistrate has no acquaintance
with the information that may contradict the good faith and reasonable basis of the
affiant’s allegations. The pre-search proceeding will frequently be marked by haste,
*** [and the] urgency will not always permit the magistrate to make an extended
independent examination of the affiant or other witnesses.” Id. at 169.
¶ 63 We, therefore, reject the bright-line rule of Gorosteata and hold that the
presence of the informant at the ex parte hearing on the warrant application does
not, standing alone, foreclose the possibility of a Franks hearing. When the
defendant claims intentional, knowing, or reckless conduct by the affiant officer
resulting in the presentation of false information to the issuing judge, the presence
of the informant who allegedly provided that information is merely a factor to be
considered when deciding whether a substantial preliminary showing has been
made. Thus, Gorosteata, 374 Ill. App. 3d 203, and all cases applying the rule
enunciated therein are hereby overruled.
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¶ 64 Standard of Review
¶ 65 Before considering whether the defendant made such a showing, we must
address the parties’ dispute over the standard of review to be applied to a trial
court’s ruling on a defendant’s motion for a Franks hearing. This court has not had
occasion to specifically identify the standard of review, although the appellate court
has stated that the abuse of discretion standard is appropriate. Caro, 381 Ill. App.
3d at 1062; Gorosteata, 374 Ill. App. 3d at 212. The State argues that this court
should expressly hold that the abuse of discretion standard applies.
¶ 66 The defendant responds that the first stage of the Franks process, in which the
court determines whether a full Franks hearing is warranted, is a “pleadings-based
inquiry” and that because the trial court is in no better position than a reviewing
court to evaluate the sufficiency of the allegations, no deference to the trial court is
required. He compares this inquiry to the first stage of postconviction proceedings,
in which the trial court determines whether the allegations raised in the
postconviction petition are frivolous and patently without merit, a legal
determination not afforded any deference on review. See People v. Hodges, 234 Ill.
2d 1, 9 (2009). The defendant also argues that some federal circuits apply de novo
review to a district court’s denial of a request for a Franks hearing. See, e.g., United
States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985) (“The decision to hold a Franks
hearing is a determination about the legal sufficiency of a set of allegations ***.
This decision should be reviewed de novo.”); United States v. Mueller, 902 F.2d
336, 341 (5th Cir. 1990) (“The denial of a Franks hearing is reviewed de novo.”).
¶ 67 The State disputes this assertion, stating that none of these courts apply a “true
de novo standard of review” that gives no deference at all to the trial court. The
State is correct only in the sense that these courts distinguish between review of the
any factual findings for clear error and de novo review of the court’s ultimate ruling
on the sufficiency of the Franks motion. See, e.g., People v. Allen, 631 F.3d 164,
171 (4th Cir. 2011) (“We assess de novo the legal determinations underlying a
district court’s suppression rulings, including the denial of a Franks hearing, and
we review the court’s factual findings relating to such rulings for clear error.”);
United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001) (“We review the
district court’s denial of a Franks hearing under the same standard as for the denial
of a motion to suppress: the district court’s factual findings are reviewed for clear
error and its conclusions of law are reviewed de novo.”). However, the State goes
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further, arguing that the clear error standard of review is “very similar” to the
highly deferential abuse of discretion standard.
¶ 68 We reject the notion that clear error review is indistinguishable from review for
abuse of discretion. As we have noted, review for clear error review applies to
findings of historical fact and gives due weight to any inferences drawn from those
facts by the fact finder, warranting reversal only when those findings are against the
manifest weight of the evidence. People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
This stands in sharp contrast to the requirement that an abuse of discretion will be
found only when the trial court’s decision was “arbitrary, fanciful or unreasonable
or where no reasonable man would take the view adopted by the trial court.”
(Internal quotation marks omitted.) People v. Santos, 211 Ill. 2d 395, 401 (2004).
¶ 69 In the present case, the appellate court reviewed the trial court’s ruling for
abuse of discretion, relying on certain language in our opinion in Lucente, where
we said that given the presumption of validity with respect to an affidavit
supporting a search warrant, “[s]o long as the trial court’s judgment is exercised
within permissible limits, that judgment will not be disturbed.” Lucente, 116 Ill. 2d
at 153. The State characterizes this comment in Lucente as implicitly settling the
question of the proper standard of review and invokes the doctrine of stare decisis
to state that this question is settled law under this court’s precedents. The State also
suggests that this court’s mention of the “unavoidably subjective nature” of “these
determinations” (id.), was an indication of our approval of a deferential standard of
review.
¶ 70 Lucente came to this court in a different procedural posture: the trial court had
granted the defendant’s motion for a Franks hearing and after that hearing quashed
the warrant and suppressed the evidence. Id. at 139. This court affirmed, finding
that the decision to quash the warrant and suppress evidence was not against the
manifest weight of the evidence. Id. at 155. Prior to reaching this issue, however,
this court addressed the State’s threshold argument that the trial court erred by
allowing the Franks hearing because the defendant had not made the “substantial
preliminary showing” required by Franks.
¶ 71 While this court did not invoke a particular standard of review, it did discuss the
nature of the inquiry. First, the trial court must give effect to the presumption of
validity of the search warrant. Id. at 147. Second, the motion must allege deliberate
falsehood or reckless disregard for the truth, and these allegations must be
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accompanied by an offer of proof. Id. “Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or their absence satisfactorily
explained.” (Internal quotation marks omitted.) Id. at 148. This type of assessment
of the adequacy of the motion does not require an exercise of discretion.
¶ 72 This court also noted the purpose of the substantial preliminary showing
requirement: “to discourage abuse of the hearing process and to enable spurious
claims to ‘wash out at an early stage.’ ” Id. at 151 (quoting Franks, 438 U.S. at
170). This threshold standard of a “substantial” showing requires something more
than mere denial but something less than a preponderance of the evidence. Id. at
152. Again, determining whether a motion and the accompanying offer of proof
reach this level is not a discretionary determination.
¶ 73 We did say in Lucente that the decision as to whether there has been a
substantial preliminary showing “must be made by the trial judge, and to a degree
the decision on the issue will be final” (id. at 152 (citing McCray v. Illinois, 386
U.S. 300, 308-13 (1967))), and this statement could be read to suggest a degree of
deference to the trial court’s ruling on a motion for a Franks hearing. McCray,
however, was decided in 1967—11 years before Franks—so it could not have been
speaking to the issue of whether a defendant seeking a Franks hearing has made a
substantial preliminary showing.
¶ 74 Our prior decisions have neither implicitly nor explicitly stated the standard of
review of a trial court’s determination of whether a defendant has made a
substantial preliminary showing in his motion for a Franks hearing and
accompanying documents. To resolve this open question, we must examine the
nature of the Franks inquiry to determine whether a ruling on the motion is a matter
of judicial discretion, a factual determination, or an application of the law.
¶ 75 Review for abuse of discretion is proper when the trial court is called upon to
exercise its equitable powers (Seymour v. Collins, 2015 IL 118432, ¶ 41), or when
it must, for lack of a better phrase, make a judgment call. As we have recently
observed, “we review a trial court’s exercise of discretion for abuse of discretion.”
Id. ¶ 48. Thus, because the admissibility of evidence rests within the discretion of
the trial court, its decision will not be disturbed absent an abuse of that discretion.
People v. Becker, 239 Ill. 2d 215, 234 (2010). Similarly, the extent of
cross-examination with respect to an appropriate subject of inquiry rests in the
sound discretion of the trial court. Only in the case of a clear abuse of discretion,
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resulting in manifest prejudice to the defendant, will a reviewing court interfere.
People v. Stevens, 2014 IL 116300, ¶ 16. In these contexts, the trial court’s
familiarity with the facts and circumstances of the case and the progress of the
litigation give it particular insight into the admissibility of evidence or the scope of
permissible cross-examination. A motion for a Franks hearing does not require the
trial court to draw upon any particular familiarity with the case. Instead, the motion
asks the trial court to assess the sufficiency of the allegations in the motion, giving
effect to a presumption of validity that attaches to a warrant affidavit. People v.
Petrenko, 237 Ill. 2d 490, 499 (2010). We conclude that the court’s ruling on a
motion for a Franks hearing is not a matter of judicial discretion comparable to the
admissibility of evidence or the scope of cross-examination.
¶ 76 We also reject the manifest weight of the evidence standard and the clearly
erroneous standard for review of this question. In criminal cases, these standards
are applied in limited circumstances. Due to the trial court’s “pivotal role in the
evaluation process,” its ultimate conclusion on a claim of racial bias in jury
selection under Batson v. Kentucky, 476 U.S. 79 (1986), will not be overturned
unless it is clearly erroneous. People v. Davis, 233 Ill. 2d 244, 261-62 (2009). We
apply the manifest weight of the evidence standard to certain factual determinations
of the trial court. Specifically, we review a trial court’s ruling on a motion to
suppress under a two-part standard: the trial court’s factual findings will be
reversed only if they are against the manifest weight of the evidence, but the trial
court’s ultimate ruling on whether suppression is warranted is reviewed de novo.
People v. Gaytan, 2015 IL 116223, ¶ 18.
¶ 77 Thus, in People v. Stewart, 105 Ill. 2d 22 (1984), this court reviewed the trial
court’s ruling on a motion to suppress evidence obtained pursuant to a search
warrant. Id. at 41. The defendant had been afforded a Franks hearing on his claim
of improper police conduct in obtaining the warrant. Id. at 40. The evidence at the
Franks hearing showed that while there were a number of incorrect statements in
the warrant affidavit, no evidence showed that they were inserted to deceive the
magistrate or were the product of reckless disregard for the truth. Id. at 41. Thus,
denial of the suppression motion was affirmed under the manifest error standard.
Id. at 42.
¶ 78 We conclude that while the manifest weight of the evidence standard is
applicable when reviewing the trial court’s ruling on the merits after a full Franks
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hearing, the same court’s ruling on the threshold question of whether to hold an
evidentiary hearing invites review under a less deferential standard.
¶ 79 We, therefore, hold that review of a trial court’s ruling on a motion for a Franks
hearing is subject to de novo review. A reviewing court is as capable as the trial
court of determining whether the motion and supporting documents have made a
substantial preliminary showing.
¶ 80 Application to the Facts of the Present Case
¶ 81 The specific question that we must address is whether defendant made a
substantial preliminary showing that a false statement was intentionally,
knowingly, or recklessly included by the affiant in the warrant affidavit. Franks,
438 U.S. at 155-56. The guilt or innocence of the defendant is not relevant to this
question. See Lucente, 116 Ill. 2d at 153. Thus, it is irrelevant that the officer’s
suspicions about the presence of guns and drugs at the Parkside address turned out
to be well-founded.
¶ 82 The State argues that defendant’s first motion was properly denied because the
alleged misstatements therein were all satisfactorily explained. The nonexistent
address in the warrant complaint was due to two typographical errors. Officer
DeBois’s three-day tenure as a Markham police officer did not necessarily
contradict his claim of a three-month investigation of the defendant because he had
previously been a police officer in the neighboring suburb of Harvey, Illinois.
Finally, the alibi affidavits from defendant, his family members, and a family friend
were self-serving and not entitled to consideration.
¶ 83 We agree that the affidavits were “self-serving” in the sense that they were
provided by friends and family members for defendant’s benefit. Indeed, any
affidavit provided in support of a motion for a Franks hearing will be self-serving
because a defendant is highly unlikely to submit an affidavit that undermines his
position. Further, the mere fact that an affidavit serves the defendant’s interests
does not render it inherently incredible.
¶ 84 Thus, in Lucente, this court rejected the State’s argument that the trial court had
erred by allowing a Franks hearing. The defendant submitted three affidavits—his
own, his wife’s, and his sister’s—all of which stated that he was with them at a
family gathering at the sister’s apartment during the time of the alleged drug sale.
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Id. at 154. “Furthermore,” this court observed, all three affidavits were “sufficiently
detailed so as to subject the affiants to the penalties of perjury if they [were]
untrue.” Id. Because the defendant’s allegations of intentional falsehoods in the
warrant affidavit were supported by “such sworn corroboration,” the defendant’s
preliminary showing was more than a “mere denial” of guilt, and an evidentiary
hearing was warranted. Id.¶ 85 However, we need not consider whether defendant’s first two motions were
properly denied by the trial court, because we conclude that the third motion, taken
together with the alibi affidavits, meets the standard of a substantial preliminary
showing.
¶ 86 As an initial matter, we note the unusual facts of this case. In his warrant
affidavit, the officer stated that the informant had been arrested during a traffic stop
that occurred at a specific location at a specific time. The police report of the traffic
stop identifies three people who were in the car that was stopped by the Markham
police on Cherry Lane that afternoon: Aaron Lindsey, Miles Copeland, and Jeron
Cotton. Defendant, in his third Franks motion, was not seeking to learn the identity
of the confidential informant. He had already narrowed the possibilities to these
three persons and had eliminated Lindsey from consideration.
¶ 87 Copeland has sworn that he was the confidential informant who accompanied
Officer DeBois to the warrant hearing and that he perjured himself by signing an
affidavit he knew to be false. He explains his conduct as being the result of threats
and coercion by Officer DeBois. He has admitted that he obtained the marijuana
not by purchasing it from defendant, but by committing an armed robbery.
¶ 88 The State attempts to discount the Copeland affidavit, noting that it has not
acknowledged that Copeland was the confidential informant and that his identity
“cannot be independently established in the record.” This, of course, is the nature of
the confidential informant—his identity is deliberately omitted from the record.
The State would have us create a catch-22 so that even if the informant comes
forward with evidence that would justify a Franks hearing, the State would be able
to defeat the motion by refusing to acknowledge that he is the informant. We reject
this approach. If the informant has self-identified and the defendant has otherwise
sufficiently alleged intentional, knowing, or reckless falsehoods in his Franks
motion, whether this individual was the actual informant can be ascertained at an
evidentiary hearing.
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¶ 89 The State also points to the Lindsey affidavit and the second motion for a
Franks hearing to suggest that the Copeland affidavit should be given no weight
because of the inconsistencies between the two. We need not speculate as to why
Lindsey falsely stated that he had purchased the marijuana at school rather than
admitting that he had been a party to an armed robbery, or why he might have
believed that he was falsely identified by the officer as an informant after he was
arrested in his mother’s car, with his stepfather’s gun, and he claimed ownership of
the marijuana. Any explanations of his involvement can be elicited at the Franks
hearing where he can be cross-examined by the State.
¶ 90 We are similarly unpersuaded by the State’s urging that we defer to the “neutral
and detached magistrate’s determination” of probable cause for two reasons. First,
we are not reviewing the decision of the issuing judge, and second, we will not
adopt a rule that would shield a police officer’s intentional, knowing, or reckless
misleading of the magistrate.
¶ 91 We conclude that the Copeland affidavit, which includes several inculpatory
admissions, taken together with the affidavits of four individuals who swear to have
been with defendant at a different location during the day of the alleged sale,
overcome the presumption of validity generally afforded a sworn warrant affidavit.
¶ 92 In Franks, the Supreme Court stated that the presumption of validity will be
overcome and an evidentiary hearing will be justified if several conditions are met.
Franks, 438 U.S. at 171. First, “the challenger’s attack must be more than
conclusory and must be supported by more than a mere desire to cross-examine.”
Id. Defendant in the present case did more than merely assert his entitlement to a
Franks hearing. Second, “[t]here must be allegations of deliberate falsehood or of
reckless disregard for the truth.” Id. Defendant has alleged police coercion to obtain
false statements for inclusion in the warrant affidavit. Third, “those allegations
must be accompanied by an offer of proof” and must “point out specifically the
portion of the warrant affidavit that is claimed to be false.” Id. The Copeland
affidavit meets this requirement. Finally, the defendant must furnish “[a]ffidavits or
sworn or otherwise reliable statements of witnesses.” Id. Defendant has done so by
providing affidavits from several alibi witnesses and from the confidential
informant.
¶ 93 When these requirements are met, the next step is for the court to examine the
warrant affidavit, setting aside the allegedly false or reckless statements, to
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determine whether sufficient content remains to support a finding of probable
cause. Id. at 172. In the present case, if the statement of the confidential informant
is disregarded, all that remains of the warrant affidavit is the officer’s suspicions
that illicit drug sales and gun possession were occurring at a particular address.
This would not meet the probable cause standard. When, as here, the remaining
content of the warrant affidavit is not sufficient to support probable cause, the
defendant is entitled to a Franks hearing. Id.¶ 94 We, therefore, affirm the judgment of the appellate court. Defendant has made a
substantial preliminary showing that entitles him to a Franks hearing, at which he,
DeBois, 3 Copeland, and other witnesses can testify under oath, be cross-examined,
and have their credibility assessed by the trial court.
¶ 95 CONCLUSION
¶ 96 In sum, we hold that a Franks hearing is not foreclosed on the sole basis that a
confidential informant whose statements formed the basis for a warrant application
appears before the judge at the warrant hearing. We further hold that appellate
review of a trial court’s ruling on a motion for a Franks hearing is de novo. Finally,
we find that the defendant made a substantial preliminary showing that a false
statement was intentionally, knowingly, or recklessly included in the warrant
affidavit, and he is, therefore, entitled to a Franks hearing to determine whether the
warrant must be quashed and the evidence obtained thereby suppressed.
¶ 97 Appellate court judgment affirmed.
¶ 98 Circuit court judgment reversed.
3
We decline the defendant’s request that we take judicial notice of several cases in which
Officer DeBois has been sued for fourth amendment violations and of his imprisonment after
pleading guilty to lying to the Federal Bureau of Investigation regarding a sexual assault on a
woman in police custody. Although these facts are a matter of public record, and we may take
judicial notice of matters that are readily verifiable from sources of indisputable accuracy (People v.
Mata, 217 Ill. 2d 535, 539 (2005)), this information would not have been available to the trial court
when it ruled on defendant’s motions for a Franks hearing and, as such, is not relevant to the issues
raised in this appeal. Any after-acquired evidence relevant to the officer’s credibility may be offered
by the defendant at the Franks hearing.
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