United States v. Kenneth Mullins

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3626
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH MULLINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:13 CR 50048-2 — Frederick J. Kapala, Judge.
____________________
ARGUED SEPTEMBER 10, 2015 — DECIDED OCTOBER 14, 2015
____________________
Before FLAUM, RIPPLE, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. Defendant Kenneth Mullins operat-
ed a cocaine and marijuana stash house, along with Terrance
Washington, in Mullins’s apartment. While executing a
search warrant based on an affidavit filed by Deputy Kyle
Boomer, police uncovered a large quantity of drugs in the
apartment. After Mullins’s indictment, several factual inac-
curacies in the affidavit came to light. Mullins filed a motion
to suppress the evidence seized from the apartment, arguing
2 No. 14-3626
that Deputy Boomer’s affidavit was insufficient to establish
probable cause. Mullins also sought a Franks hearing based
on the inaccuracies in the affidavit. The district court denied
Mullins’s motion to suppress as well as his request for a
Franks hearing, finding that the factual inaccuracies in the
warrant affidavit were immaterial to the probable cause de-
termination. We affirm.
I. Background
Kenneth Mullins began living in apartment #2 in the
complex behind the BigFoot Lounge in Rockford, Illinois on
March 1, 2013. Mullins and Terrance Washington (known as
“T”) used Mullins’s apartment as a stash house for their co-
caine and marijuana distribution operation.
On May 16, 2013, Winnebago County Sheriff’s Deputy
Kyle Boomer submitted to the Circuit Court of Winnebago
County an affidavit in support of a search warrant for Mul-
lins’s apartment. The affidavit professed to be “based on
[Deputy Boomer’s] personal knowledge, on [his] review of
records and other materials, including police reports ob-
tained during the course of this investigation, as well as in-
formation provided to [him] by other investigators.”
The affidavit relayed information gleaned from a confi-
dential informant (“CI”). Specifically, it averred that the CI
had told members of the Winnebago County Sheriff’s Police
Narcotics Unit that a black male known as T was selling
large quantities of cocaine and marijuana in the Winnebago
County area and that T was storing the drugs in an apart-
ment behind the BigFoot Lounge. The CI claimed that T
drove a black Cadillac Escalade with Minnesota registration
161EKT when he delivered drugs to buyers. Deputy Boom-
No. 14-3626 3
er’s affidavit reported that he had driven to the area of the
BigFoot Lounge and discovered—consistent with the CI’s
information—the Cadillac Escalade with Minnesota registra-
tion 161EKT in the parking lot of the apartment building be-
hind the lounge.
The affidavit also described periodic surveillance that
members of the Narcotics Unit had undertaken. It stated that
Deputy Boomer, along with Winnebago County Sheriff’s
Deputy Kaiser, observed a black male exit apartment #2 and
drive away in the Cadillac Escalade. Deputies Boomer and
Kaiser had also seen multiple people visit the apartment and
only stay for approximately three to four minutes at a time,
which, based on Deputy Boomer’s training and experience,
was indicative of illegal narcotic sales.
Finally, the affidavit detailed a controlled drug buy that
Deputy Boomer, Deputy Kaiser, and Winnebago County
Sheriff’s Deputy Jurasek conducted using the CI during the
week of May 12, 2013. First, the officers met the CI and
searched his person and vehicle to ensure the absence of
narcotics and money. Next, Deputy Boomer provided the CI
with currency from Narcotics Unit Funds, which he instruct-
ed the CI to use to purchase marijuana from T. Then, Deputy
Boomer instructed the CI to call T and ask to buy drugs. The
CI placed the call and T advised the CI to meet him at the
Family Dollar, one block from Mullins’s apartment. The affi-
davit stated that Deputy Boomer “then followed the CI to
the Family Dollar parking lot.”
According to the affidavit, Deputy Kaiser observed a
black male exit the apartment and drive away in the Cadillac
Escalade. The vehicle “was followed” (the affidavit does not
say by whom, but suggests that it was Deputy Kaiser) “with
4 No. 14-3626
a clear and unobstructed view” to the Family Dollar. The CI
approached the driver-side window and conducted a “hand-
to-hand transaction.” Deputy Kaiser then followed the sus-
pect back to the apartment. Meanwhile, the CI was followed
to a predetermined location, where the CI handed Deputy
Boomer a clear plastic bag filled with marijuana, which the
CI purportedly purchased from T.
The Circuit Court of Winnebago County issued a search
warrant based on Deputy Boomer’s affidavit. Winnebago
County Sheriff’s Deputies executed the warrant, recovering
626 grams of marijuana, sixteen grams of powder cocaine,
more than 150 grams of crack cocaine, drug packaging mate-
rials, digital scales, and mail addressed to Mullins. On Au-
gust 27, 2013, Mullins and Washington were charged with:
(1) conspiracy to possess with intent to distribute twenty-
eight grams or more of crack cocaine, cocaine, and marijua-
na, in violation of 21 U.S.C. §§ 846 and 841(a)(1); and (2) pos-
session with intent to distribute twenty-eight grams or more
of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
On April 24, 2014, Mullins filed a motion to suppress the
evidence seized from the apartment, arguing that Deputy
Boomer’s affidavit was insufficient to establish probable
cause because it failed to establish the CI’s reliability. The
district court disagreed, finding that probable cause existed
based on the specific details the CI provided and the fact
that these details were corroborated by the officers, thereby
substantiating the CI’s reliability.
No. 14-3626 5
Alternatively, Mullins requested an evidentiary hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978),1 arguing
that he was entitled to a Franks hearing for three reasons.
First, he contended that Deputy Boomer’s affidavit conflict-
ed with the police report that Deputy Boomer prepared after
submitting the affidavit. The police report indicated that
Deputy Boomer had maintained “surveillance of the resi-
dence to be searched near the time of the [controlled buy].”
Mullins argued that this contradicted the affidavit’s state-
ment that Deputy Boomer had maintained surveillance of
the CI throughout the controlled buy, while Deputy Kaiser
conducted surveillance of the apartment.
Second, Mullins pointed out that the government admit-
ted an error in the affidavit related to the CI’s phone call.
Although Deputy Boomer’s affidavit averred that the CI ar-
ranged the controlled drug purchase by speaking with T on
the phone, the CI actually spoke with an unknown third par-
ty, who then communicated with T and told the CI to meet T
at the Family Dollar. Mullins argued that the specific person
the CI spoke with matters for establishing probable cause.
Third, Mullins pointed out that, contrary to Deputy Boom-
er’s affidavit, which represented that the affidavit was based,
1 Franks v. Delaware held:
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and intention-
ally, or with reckless disregard for the truth, was includ-
ed by the affiant in the warrant affidavit, and if the al-
legedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.
438 U.S. at 155–56.
6 No. 14-3626
in part, on Deputy Boomer’s review of police records, no po-
lice reports pertaining to the surveillance of the apartment
existed at the time the warrant affidavit was filed.
The district court found that the affidavit established
probable cause. The court also concluded that Deputy
Boomer’s police report did not directly contradict his war-
rant affidavit and that Deputy Boomer’s mischaracterization
of the CI’s phone call and his erroneous claim that he had
relied on police reports in preparing his affidavit were im-
material to the probable cause determination. Accordingly,
the district court denied Mullins’s motion to suppress and
his request for a Franks hearing. Mullins entered a condition-
al plea of guilty to conspiracy to distribute and to possess
with intent to distribute controlled substances,2 and the dis-
trict court sentenced Mullins to ninety-four months in pris-
on.
Mullins appeals the district court’s denial of a Franks
hearing.
II. Discussion
We review de novo the district court’s determination that
a search warrant was supported by probable cause. United
States v. Roth, 201 F.3d 888, 891 (7th Cir. 2000). We review the
district court’s denial of a Franks hearing for clear error. Unit-
ed States Harris, 464 F.3d 733, 737 (7th Cir. 2006). “Although
the factual portion of the clear error inquiry requires defer-
ence to the district court, any legal determinations that fac-
2Mullins reserved the right to appeal the district court’s denial of his
motion to suppress.
No. 14-3626 7
tored into the district court’s ruling are reviewed de novo.”
United States v. Robinson, 546 F.3d 884, 887 (7th Cir. 2008).
“The Fourth Amendment requires that, absent certain ex-
ceptions not applicable here, police must obtain a warrant
from a neutral and disinterested magistrate before com-
mencing a search.” Id. (citing Jones v. Wilhelm, 425 F.3d 455,
462 (7th Cir. 2005)). No warrant shall issue unless there is
probable cause, as typically set forth in a warrant affidavit,
to justify the search. See U.S. Const. amend. IV. Probable
cause is established when, in light of the totality of the cir-
cumstances, the issuing judge can make a practical, com-
mon-sense determination that there is a fair probability that
contraband or evidence of a crime will be found in a particu-
lar place. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
A defendant is entitled to a Franks hearing—an eviden-
tiary hearing regarding the veracity of information included
in a search warrant application—if he can make a substantial
preliminary showing that: (1) the warrant affidavit contained
false statements, (2) these false statements were made inten-
tionally or with reckless disregard for the truth, and (3) the
false statements were material to the finding of probable
cause. See United States v. Williams, 718 F.3d 644, 647 (7th Cir.
2013). This Court has interpreted the holding of Franks to
apply to omissions in addition to affirmative misrepresenta-
tions. Robinson, 546 F.3d at 888 (citing Harris, 464 F.3d at 738).
If sufficient allegations existed warranting the search irre-
spective of the affiant’s alleged errors, a hearing is unneces-
sary and the motion should be denied. See Harris, 464 F.3d at
738. If a defendant at a Franks hearing establishes by a pre-
ponderance of the evidence that the false statements or
omissions were made intentionally or with reckless disre-
8 No. 14-3626
gard for the truth, and without the false material the affida-
vit’s remaining content is insufficient to establish probable
cause, the search warrant is invalid and the fruits of the
search must be excluded from evidence. Franks, 438 U.S. at
56.
Mullins argues that the district court erred in finding that
the factual inaccuracies in the warrant affidavit were not ma-
terial to the probable cause determination and thus did not
meet the third requirement of the Franks inquiry. On review,
we consider “the affidavit, eliminating any false statements
and incorporating omitted material facts, and determine[]
whether probable cause existed.” Harris, 464 F.3d at 738. In
this case, correcting the factual inaccuracies in the affidavit
would not have altered the probable cause determination.
Since Mullins’s argument fails to satisfy the materiality ele-
ment of the Franks inquiry, we need not determine whether
Deputy Boomer’s erroneous statements and omissions were
intentional or reckless.
As a preliminary matter, we address the allegedly con-
flicting statements: first, Deputy Boomer’s affidavit indicated
that Deputy Boomer maintained surveillance of the CI
throughout the controlled buy, while Deputy Kaiser con-
ducted surveillance of the apartment; then, the police report
that Deputy Boomer prepared after submitting the affidavit
stated that Deputy Boomer had maintained surveillance of
the residence near the time of the controlled buy. We note
that the district court did not offer an explanation for its con-
clusion that “[t]he court also disagrees that Deputy Boomer’s
report about his own observations contradicts the statement
he made in the warrant affidavit about Deputy Kaiser’s ob-
servations.” However, it does not matter for our analysis
No. 14-3626 9
whether these statements were conflicting. We do not need
to reach the issue of whether the statements were contradic-
tory because we find that this detail about the controlled buy
is not material to the probable cause determination. Cf. Unit-
ed States v. McMurtrey, 704 F.3d 502, 513 (7th Cir. 2013) (find-
ing the inconsistencies between two affidavits material to the
finding of probable cause because if the contradictory infor-
mation is disregarded, “the probable cause disappears”).
Even accepting that the report did conflict with the affidavit
and assuming, arguendo, that Deputy Boomer intentionally
or recklessly misrepresented the extent of his surveillance of
the CI during the drug buy in the affidavit, this inaccuracy
fails the materiality requirement of the Franks inquiry. Mul-
lins argues that if Deputy Boomer did not have sight of the
CI throughout the controlled buy, then the CI had the oppor-
tunity to obtain the marijuana from another source, so the
affidavit does not support a finding of probable cause. We
disagree.
In this case, probable cause is supported by the totality of
the circumstances, particularly the level of detail that the CI
provided and the officers’ corroboration of these details,
which substantiated the CI’s reliability. In United States v.
Sutton, we stated:
When probable cause is supported by infor-
mation supplied by an informant, we particu-
larly look to several factors: (1) the degree to
which the informant has acquired knowledge
of the events through firsthand observation, (2)
the amount of detail provided, (3) the extent to
which the police have corroborated the in-
formant’s statements, and (4) the interval be-
10 No. 14-3626
tween the date of the events and the police of-
ficer’s application for the search warrant.
742 F.3d 770, 773 (7th Cir. 2014). “None of these factors is de-
terminative,” and “a deficiency in one factor may be com-
pensated for by a strong showing in another or by some oth-
er indication of reliability.” United States v. Peck, 317 F.3d 754,
756 (7th Cir. 2003) (citation and internal quotation marks
omitted). Mullins challenges the finding of probable cause
based on the first Sutton factor, arguing that the affidavit did
not establish that the CI had personal knowledge that con-
trolled substances were within Mullins’s residence. Howev-
er, we find that the second and third factors weigh strongly
in favor of a finding of probable cause, and therefore, taken
as a whole, the Sutton factors support the conclusion that
there was a fair probability that a search would uncover con-
traband or evidence of a crime.3
First, the CI provided specific details about a black male
called T dealing marijuana and cocaine out of an apartment
located behind the BigFoot Lounge. The CI also supplied
specific details about the car T drove when he sold drugs,
noting that it was a black Cadillac Escalade with a specific
Minnesota registration. Compare United States v. Lloyd, 71 F.3d
1256, 1263 (7th Cir. 1995) (finding informant’s information
sufficiently detailed to support issuance of a warrant when
informant gave a detailed description of the building, the
3We note that Mullins did not raise an argument regarding the
fourth Sutton factor before the district court or on appeal, but we agree
with the district court’s determination that since the controlled buy oc-
curred during the week of May 12, 2013 and Deputy Boomer submitted
his search warrant application on May 16, 2013, the fourth factor also
weighs in favor of finding probable cause.
No. 14-3626 11
location of the apartment, and the weapons within the build-
ing, and some of the information was independently verified
by officers), with Peck, 317 F.3d at 756–57 (finding informant’s
statement that she had been in the target’s house and was
shown a substance that she recognized as drugs lacked suffi-
cient detail to support probable cause, especially since the
police did not corroborate the allegations).
Second, Deputies Boomer and Kaiser corroborated the
CI’s information by locating the Cadillac Escalade in the
parking lot of the apartment complex behind the BigFoot
Lounge and verifying the vehicle’s Minnesota registration.
Further, they observed a black male exit the apartment and
drive away in the Cadillac Escalade and witnessed pre-
sumed buyers making three to four minute visits to the
apartment, thereby substantiating the CI’s reliability. See
United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995) (“Re-
liability [of an informant] may be shown … through inde-
pendent confirmation or personal observation by the police,
or by other methods.”).
Finally, Deputies Boomer, Kaiser, and Jurasek further
corroborated the CI’s information by executing a controlled
purchase of marijuana from T. See United States v. McKinney,
143 F.3d 325, 329 (7th Cir. 1998) (“Controlled buys add great
weight to an informant’s tip.”); United States v. Reddrick, 90
F.3d 1276, 1281 (7th Cir. 1996) (concluding that the officer’s
testimony concerning the controlled buys, combined with
the informant’s information, was enough to support a find-
ing of probable cause). Deputy Boomer instructed the CI to
arrange a drug buy with T, who told the CI, through an in-
termediary, to meet him at the Family Dollar. Shortly there-
after, as expected, T drove the Cadillac Escalade from the
12 No. 14-3626
target apartment to the Family Dollar, where the officers ob-
served a hand-to-hand transaction. The CI was then fol-
lowed to a predetermined meet-up location, where the CI
gave Deputy Boomer a plastic bag of marijuana.
On these facts, all of which members of the Winnebago
County Sheriff’s department averred to have witnessed,
there was a fair probability that drugs would be found in
Mullins’s apartment. See United States v. Orozco, 576 F.3d 745,
749 (7th Cir. 2009) (discussing the showing needed to estab-
lish probable cause to search a drug dealer’s home). Any ad-
ditional details are superfluous and immaterial to the find-
ing of probable cause, including whether Deputy Boomer
maintained surveillance of the CI throughout the controlled
buy, whether the CI spoke directly to T or to an intermediary
on the phone to set up the drug buy, and whether Deputy
Boomer relied on police reports. Even if Deputy Boomer had
not maintained surveillance of the CI throughout the entire-
ty of the controlled buy, this detail is not necessary for a
finding of probable cause. With three officers—Deputies
Boomer, Kaiser, and Jurasek—conducting the controlled buy,
it is reasonable that among them they were able to observe
both the CI and T at the necessary times to establish proba-
ble cause. As the district court noted, there is no indication
that the third party intermediary on the phone was the
source of any information in the affidavit except for the loca-
tion of the controlled buy, and that information was corrobo-
rated when the officers observed the hand-to-hand transac-
tion at the Family Dollar.
Additionally, Deputy Boomer’s misrepresentation that he
relied on police reports that did not yet exist was not materi-
al to the probable cause determination. Even if Deputy
No. 14-3626 13
Boomer’s affidavit professed to be “based on [Deputy Boom-
er’s] personal knowledge, on [his] review of records and
other materials, as well as information provided to [him] by
other investigators,” and had no mention of police reports,
this would not alter the finding of probable cause. The offic-
ers’ surveillance efforts provided Deputy Boomer with suffi-
cient information to prepare a warrant affidavit without po-
lice reports. The inclusion of “police reports” on the list of
items Deputy Boomer relied upon may well have been the
application of boilerplate language for a standard search
warrant affidavit.
Finally, Mullins cites United States v. Glover, 755 F.3d 811
(7th Cir. 2014), and United States v. Bell, 585 F.3d 1045 (7th
Cir. 2009), in support of the proposition that a Franks hearing
is required when an affiant omitted credibility information
relating to a confidential informant. Yet, both cases are readi-
ly distinguishable. In Glover, a Chicago police officer submit-
ted an affidavit in support of a search warrant application,
which relayed information from a CI about a suspected drug
dealer. 755 F.3d at 814–15. We reversed the district court’s
denial of a Franks hearing based on the affidavit’s lack of in-
formation regarding the CI’s credibility. Id. at 818. However,
the search warrant in Glover was issued based almost entire-
ly on the informant’s report. See id. at 817 (noting that the in-
formant’s tip was minimally corroborated). Here, by con-
trast, Deputy Boomer’s affidavit did not rely exclusively on
the CI’s tips, as the critical information was corroborated by
the officers’ firsthand observations. In Glover, the Court
acknowledged that where information about credibility is
not available, other factors such as extensive corroboration
may overcome the doubt inherent in relying on an informant
without a track record. Id. at 818.
14 No. 14-3626
Bell is also distinguishable. In Bell, we deemed a search
warrant application lacking where officers failed to provide
information relating to the CI’s track record, background, or
relationship to the target, depriving the district court of a fair
opportunity to assess the CI’s reliability and basis of
knowledge. 585 F.3d at 1048–52. Sufficient corroborative ef-
forts on the part of the officers or a sufficient amount of de-
tail provided by the CI could have compensated for such a
dearth of information. Id. at 1050–51. However, the CI’s in-
formation was fairly general, and the extent of the officers’
corroborative efforts was a conclusory statement about other
unnamed informants implicating the target as a drug dealer.
Id. Here, by contrast, the CI provided specific details about
the suspected criminal activity occurring in Mullins’s apart-
ment, and the critical details were corroborated through the
officers’ surveillance efforts and firsthand observations.
In sum, Mullins has not made a substantial preliminary
showing that Deputy Boomer’s erroneous statements and
omissions were material to the probable cause determina-
tion. Taking into account the totality of the circumstances,
there was a fair probability that contraband or evidence of a
crime would be found in Mullins’s apartment. See Gates, 462
U.S. at 238. The district court did not clearly err in determin-
ing that the factual inaccuracies in the warrant affidavit
failed the materiality requirement of the Franks inquiry.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Mullins’s request for a Franks hearing.