Search and Seizure - Franks v. Delaware

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Tanguay, 787 F.3d 44 (1st Cir. 2015)

If a police officer is told by fellow officers that an informant is “quirky” and has had a few scrapes with the law, an affiant has a duty to investigate prior to relying on that informant in a search warrant affidavit that fails to reveal this information. An affiant, once red flags are seen, has a duty to investigate, particularly when the informant is the sole basis for obtaining a search warrant. Remand for further development of the record was necessary in this case.

United States v. Glover, 755 F.3d 811 (7th Cir. 2014)

The failure of the search warrant application to reveal any information about the informant rendered it devoid of probable cause. Though a close call, the exclusionary rule would not apply because of Leon. However, because of the absence of information about the informant’s credibility, a Franks hearing was necessary to determine whether the omission of this information would taint the search warrant. The informant, unbeknownst to the magistrate, had more than a dozen prior criminal convictions, including several while he was working as an informant. He was also a gang member and was receiving payments from the police department.

United States v. Gifford, 727 F.3d 92 (1st Cir. 2013)

The police obtained a search warrant for the defendant’s house to search for a marijuana grow operation. The basis for the search was (1) an informant’s tip; (2) information that the electricity usage at the defendant’s house exceeded the neighbor’s electricity usage; and (3) an officer visited the house and smelled burnt marijuana when the defendant opened the door. The First Circuit upheld the lower court’s decision granting the motion to suppress. Regarding the informant’s information, other than the statement that the informant was reliable, no information was provided in the warrant to support the claim that the informant was, in fact, reliable. There was also no information about the informant’s basis of knowledge. Regarding the electricity usage, the lower court found that the officer was reckless in failing to include in the warrant application information that the neighbor’s house was considerably smaller and the fact that the defendant had a horse boarding business on the premises; this was a Franks violation that altered the probable cause calculus. The smell of marijuana was not necessarily indicative of a grow operation.

United States v. McMurtrey, 704 F.3d 502 (9th Cir. 2013)

If a sufficient showing has been made by the defense to prompt a Franks v. Delaware hearing, the court should conduct the hearing, rather than allowing the government to summarily respond to the allegations with an abbreviated showing that the error in the affidavit was illusory. In this case, the government introduced the testimony of the affiant, who explained the apparent discrepancy and the court then concluded that the affidavit was sufficient, without allowing the defense an opportunity to explore the issue further. A remand for a full hearing was required.

United States v. Brown, 631 F.3d 638 (3rd Cir. 2011)

The district court granted a motion to suppress on grounds of a Franks v. Delaware violation and the Third Circuit affirmed. The search warrant application stated the several witnesses observed the defendant’s vehicle meet up with a stolen van that was used to flee from an armed robbery. No such evidence existed. The Third Circuit held that in reviewing the lower court’s decision whether a false statement in an application was made with “reckless disregard for the truth” the appellate court should employ the clear error standard.

United States v. Tate, 524 F.3d 449 (4th Cir. 2008)

The defendant made an adequate Franks showing to require an evidentiary hearing. The search warrant affidavit stated that the probable cause was derived from evidence obtained from a trash pull from garbage bags easily accessible in the back yard. The defendant’s Franks showing established that the garbage bags were only accessible if the police trespassed on the defendant’s property through a fence. Because this allegation, if proven, would have tainted the warrant, the lower court erred in failing to conduct an evidentiary hearing.

United States v. West, 520 F.3d 604 (6th Cir. 2008)

Two search warrants were issued in this case. The first was devoid of probable cause, because it contained bare bones assertions about the defendant (all of which were based on hearsay statements that the affiant learned from other officers and individuals). The warrant also failed to link any criminal activity on the part of the defendant with the location that the police wanted to search. The warrant did not even satisfy the Leon good faith standard. The second warrant set forth facts that an informant told the affiant that the defendant confessed to a murder and the body could be found in a well at a certain location; the warrant sought authorization to search the defendant’s van. The affiant, however, failed to reveal that the informant was serving time in federal custody and that the police went to the location where the body was supposedly located and found nothing – not even a well.

United States v. Rice, 478 F.3d 704 (6th Cir. 2007)

The Leon good faith exception to the exclusionary rule does not apply to Title III wiretap cases. Because suppression is a statutory remedy, the court-made exception to the court-created exclusionary rule in other search cases, does not apply. In this case, the warrant application contained misrepresentations and recklessly-made false statements which, when corrected, negated the necessity requirement for a wiretap. The court also upheld the trial court’s finding that various boilerplate representations about alternative methods were not useful in a wiretap application.

United States v. Harris, 464 F.3d 733 (7th Cir. 2006)

The defendant made a sufficient showing to entitle him to a Franks hearing. The district court erred in refusing to conduct a hearing on the basis of additional information that was supplied to the court by the government (i.e., information supplied in response to the defendant’s Motion to Suppress) about the circumstances leading up to the application of the search warrant.

United States v. Coreas, 419 F.3d 151 (2d Cir. 2005)

The Second Circuit reviews a “Candyman” search that involved searches of dozens of individuals around the country based on their “membership” in an Internet group that purportedly advertised the availability of child pornography. The FBI search warrant affidavit contained numerous erroneous statements about the method by which subscribers became members and whether they automatically received illicit images. The panel indicated that it would have reversed the trial court’s denial of the Motion to Suppress, but for a prior decision of another panel that found no Franks violation (or sufficient residual information to support probable cause) and that the prior decision was binding on this panel. The other “Candyman” decisions in which a Franks violation was found to taint the warrant, include United States v. Strauser, 247 F.Supp.2d 1135 (E.D. Mo. 2003); United States v. Perez, 247 F.Supp.2d 459 (S.D.N.Y. 2003); United States v. Kunen, 323 F.Supp.2d 390 (E.D.N.Y. 2004). See also United States v. Bailey, 272 F.Supp.2d 822 (D.Neb. 2003); United States v. Martin, 426 F.3d 68 (2d Cir. 2005); United States v. Shields, 458 F.3d 269 (3rd Cir. 2006).

United States v. Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005)

The information in the wiretap affidavit did not satisfy the necessity requirement of the wiretap statute. In addition, the application suffered from a Franks violation. With regard to the Franks violation, the defendants offered sufficient information relating to the false statements and the materiality of the false statements in their pleadings to prompt the trial court to grant a hearing (which the district court did conduct). Regarding the necessity issue, the normal investigative techniques available to the government had not been exhausted; moreover, if traditional investigative procedures were used, there would have been no need for a wiretap.

United States v. Hammond, 351 F.3d 765 (6th Cir. 2003)

A considerable amount of the information in the search warrant affidavit was incorrect. The remaining information was not sufficient to support a probable cause determination.

United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997)

The defendant showed a videotape to a police officer. The video depicted a minor who briefly exposed her breast. The officer applied for a search warrant, stating that the defendant had shown him a video that contained a minor engaged in sexual conduct. The officer later testified that he was basing this on the state law that defined sexual conduct as including "lewd exhibition of the genitals," and his belief that breasts were genitals. The evidence should have been suppressed based on this recklessly false search warrant affidavit. Among other problems, there was no reason why the officer could not have set forth the basic facts in the affidavit (i.e., exactly what he observed on the video) rather than simply giving his conclusion that what he observed qualified as sexual conduct.

Hale v. Fish, 899 F.2d 390 (5th Cir. 1990)

An application for an arrest warrant contained material false statements. Furthermore, the affidavit failed to reveal statements obtained from other witnesses which contradicted the statements which were offered in support of the arrest warrant. Absent the material misstatements, and including the omitted statements which were exculpatory, there was no probable cause to support the arrest.

United States v. Bennett, 905 F.2d 931 (6th Cir. 1990)

The police obtained a search warrant on the basis of an affidavit which recited the information received from a confidential informant that the defendant was manufacturing and selling marijuana out of his house. The search of the residence revealed no marijuana, but did reveal the presence of firearms in the house. The affidavit was false, however, in that it stated that the informant claimed to have actually seen marijuana in the house and in the defendant’s barn. At the suppression hearing, the officer acknowledged that the informant did not, in fact, tell him that he had seen marijuana in the house, or in the barn; rather, he had simply gone to the house and purchased marijuana from the defendant, without knowing exactly where the marijuana was kept. The Sixth Circuit concludes that these constitute materially false statements by the affiant and the search warrant, absent these statements, was not backed up by probable cause. The motion to suppress should have been granted.

United States v. Bowling, 900 F.2d 926 (6th Cir. 1990)

After obtaining a search warrant in good faith, officers learned that certain facts contained in the affidavit were not correct and would have cast a doubt on the existence of probable cause. The Sixth Circuit holds that in such circumstances the appropriate course of action is for the agents to return to the Magistrate and obtain a new warrant if the Magistrate feels that probable cause still exists. In this case, prior to executing the search warrant, other law enforcement officers obtained the subject’s consent to search the property and did not find any of the evidence and contraband which the agents had stated were present on the property in their search warrant application. The Court goes on to hold that such a search does not pass the Leon test of good faith. The law was clear that probable cause must exist both when the warrant is applied for and when it was executed. The officers knew that probable cause was questionable when they executed the warrant and thus they did not act in objective good faith.

United States v. Baxter, 889 F.2d 731 (6th Cir. 1989)

A police officer applied for a search warrant stating that a confidential informant had advised him that drugs were at a certain location. In fact, there was no confidential informant, but rather an anonymous phone caller. The anonymous caller had not, contrary to what the police officer stated in the affidavit, provided any reliable information in the past. The Sixth Circuit holds that this constitutes a Franks violation and under Leon, there is no good faith exception to the exclusionary rule in cases where the police officer intentionally makes misstatements in the search warrant affidavit.

United States v. Residence (Appeal of Lewallen), 805 F.2d 256 (7th Cir. 1986)

The Seventh Circuit suggests that it will adopt a new standard in reviewing district courts’ determinations that a misrepresentation in a search warrant affidavit was made with reckless disregard for the truth. In the future, the Seventh Circuit will review such a determination with independent judgment in determining whether the record established reckless disregard for the truth with convincing clarity. In the future, therefore, the “clearly erroneous” standard will not be employed in reviewing the district courts’ decisions on such questions.

United States v. Jacobs, 986 F.2d 1231 (8th Cir. 1993)

The police believed that a package shipped by Federal Express contained drugs. They subjected the package to a dog sniff. The dog indicated some interest in the package, but did not give a positive alert. On the warrant application, however, the affiant stated that the dog showed an interest in the package, but failed to reveal that this did not amount to an alert – and that the dog did not, in fact, alert to the package. This violated Franks and required suppression of the evidence uncovered during the ensuing search.

United States v. Hall, 113 F.3d 157 (9th Cir. 1997)

A state trooper took an informant to a magistrate to obtain a search warrant of the defendant’s trailer. The informant, under oath, told the magistrate that his source of supply was the defendant, and he lived at the trailer. The informant and the trooper did not tell the magistrate about the informant’s criminal history, including his probation violation for making death threats to a wounded police officer and his conviction for falsely reporting a crime. The search warrant was tainted by this Franks violation and the evidence should have been suppressed.

United States v. Barton, 995 F.2d 931 (9th Cir. 1993)

The government’s destruction of evidence prior to an evidentiary hearing on a motion to suppress (alleging a Franks v. Delaware violation) must be analyzed under the principles of Brady and Arizona v. Youngblood to determine if the defendant’s right to due process has been violated. Thus, if the evidence was exculpatory – in the sense of supporting the Franks violation – and the government acted in bad faith in destroying the evidence, a due process violation might be found.

United States v. DeLeon, 979 F.2d 761 (9th Cir. 1992)

The search warrant affidavit omitted material facts which, if included, would have negated the probable cause basis for searching the premises. The fact that the person who deliberately omitted information was not the affiant, but another law enforcement agent, is not critical. What matters is that the government, generally, deliberately kept material information from the issuing magistrate. “Police cannot insulate one officer’s deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.” In this case, one agent was aware that one of the three witnesses who had been to the location had not seen or smelled any marijuana in the location sought to be searched. The agent failed to tell this fact to the affiant, who then wrote in the affidavit that all three men saw the marijuana. Had this information been included in the affidavit, there would not have been probable cause to search the premises.

United States v. Johns, 851 F.2d 1131 (9th Cir. 1988)

The defendants offered expert testimony, as well as their own affidavits, to establish that there was no possibility that any narcotics agent had smelled what the agent claimed to have smelled in his search warrant affidavit. This was sufficient evidence to require a Franks hearing to determine whether the agent included deliberately false information in his affidavit to search a storage compartment.

United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987)

In an affidavit used to obtain a wiretap, misrepresentations were made about the necessity for the wiretap. In particular, the affidavit failed to reveal that an informant had established a close relationship with the target and had been present on several occasions while the target conducted business with other members of the alleged drug ring. These omissions constitute a violation of Franks v. Delaware and tainted the wiretap application.