by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated Michael Clark’s conviction and remanded for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Investigator Todd Maas is a police officer in Superior, Wisconsin. He prepared a warrant application and signed the supporting affidavit. Maas swore that a confidential informant told him that earlier the same day the informant had driven another party to a parking lot adjacent to the Baywalk Inn to buy heroin from a black male called “Big Mike,” the brother of “Toonchie.”

Maas swore that he and another officer surveilled the parking lot where they observed a black male leave the hotel and enter then exit at least five vehicles in the parking lot.

Maas also discovered that the occupant of Room 203 was the only guest who had paid in cash and was staying only one night—behavior typical of drug traffickers according to Maas’ training and experience.

This information convinced a state trial judge to issue a search warrant for Room 203. But Maas did not include in his affidavit any damaging information about his confidential informant, viz., the informant was being paid for his services; he had 15 prior convictions and had two pending criminal charges; had a history of opiate and cocaine abuse; and was hoping to receive a reduced sentence in exchange for his cooperation.

Clark was in Room 203 when police executed the warrant. Cellophane bags, a digital scale, and 82 grams of a heroin/fentanyl mixture were recovered.

Clark filed a motion to suppress with a request for an evidentiary hearing pursuant to Franks (“Franks hearing”) in federal district court, alleging that Maas deliberately or recklessly omitted the critical information that affected the credibility of the unidentified confidential informant.

The district court agreed that the police provided no information about the informant’s credibility but denied the motion on the grounds that the police had provided sufficient corroboration so that the warrant did not depend on the informant’s credibility. Clark was convicted, and he appealed.

He argued, inter alia, that the district court erred when it denied his motion to suppress without conducting a Franks hearing.

The Seventh Circuit observed the Fourth Amendment’s strong preference for search warrants requires probable cause determinations to be made by a “neutral and detached magistrate” as opposed to “officer[s] engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10 (1948). The application for a warrant “must provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. Gates, 462 U.S. 213 (1983). A search warrant is not valid if the police obtain it by deliberately or recklessly presenting false, material information or by omitting material information from the affidavit presented to the issuing judge. Franks.

The purpose of a Franks hearing is to give the defendant an opportunity to prove by a preponderance of the evidence either falsity or recklessness and materiality. United States v. McMurtrey, 704 F.3d 502 (7th Cir. 2013). To obtain a Franks hearing, a defendant need not prove the Franks violation, but the defendant must make a substantial preliminary showing (1) that the warrant application contained a material falsity or omission that would alter the issuing judge’s probable cause determination and (2) that the affiant included the material falsity or omitted information intentionally or with a reckless disregard for the truth. United States v. Glover, 755 F.3d 811 (7th Cir. 2014).

The Court determined in the instant case that the warrant application depended heavily on the credibility of the informant. The police had no controlled drug buys from Clark. They never saw money or drugs change hands. Even the informant did not claim to see drugs or money change hands.

The Court concluded the credibility of the informant was material to this case. The Government argued that Maas’ own observations supplied probable cause, independent of the informant. But in this case, Maas’ failure to include the adverse information about the informant’s credibility called Maas’ own credibility into question.

The Court stated, “This is where materiality and intent become intertwined. If the omissions were deliberate or reckless, it would not be unreasonable to take seriously the prospect that other portions of the same warrant application may have been deliberately or recklessly false.”

The Court compared it to judges instructing jurors that if they believed a witness has lied intentionally about a material matter, they may (but are not required to) discount the witness’ testimony on other matters. United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971).

The Court concluded that the district court erred when it denied the motion to suppress without affording Clark a Franks hearing.

Accordingly, the Court vacated the district court’s judgment and remanded for a Franks hearing and appropriate action based on that hearing, to wit: either granting the motion to suppress, or if the motion is denied, reinstating the convictions and sentences. If the judgment is reinstated, then the denial of Clark’s motion to suppress and the district court’s sentence are affirmed. See: United States v. Clark, 935 F.3d 558 (7th Cir. 2019). 

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