As to Moore's motion to suppress the evidence seized at the 1615 South 16th Avenue residence, the court concludes that an evidentiary hearing is not necessary. There exists no factual dispute that would require a hearing since Moore attacks the search on the basis of false information provided in the affidavit supporting the search warrant. As to the 1615 South 16th Avenue residence search warrant, the government has conceded the falsity of the underlying affidavit. Hence no hearing pursuant to Franks v. Delaware is necessary. Having concluded that no evidentiary hearing is necessary for the resolution of this motion, the court now turns to the merits of defendant Moore's arguments in favor of suppression.
C. Suppression of the Evidence Seized at the 1615 South 16th Avenue residence
Defendant Moore argues that the inclusion of perjured testimony in the affidavit supporting the search warrant of the 1615 South 16th Avenue residence requires suppression of all evidence seized as a result of this search. Under Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), a search warrant may be voided if three conditions exist: (1) a factual statement in the affidavit is false; (2) the false statement was made knowingly or intentionally; and (3) "without the false statement, the remainder of the affidavit is insufficient to establish probable cause." United States v. McNeese, 901 F.2d 585, 594 (7th Cir. 1990). The government concedes the first two elements. The government admits that with respect to the statements attributed in the affidavit to the CI, the CI had not seen guns in the 1615 South 16th Avenue residence or the South Boeger Avenue residence two days prior to the date of the affidavit, but had only seen firearms in the 1615 South 16th Avenue residence approximately one year prior to the date of the affidavit. The government also admits that the false statement was made knowingly. See Government's Response, at 25-26.
The court must focus therefore on the third element of Franks: whether without the false statement, the remainder of the affidavit is insufficient to establish probable cause. "An affidavit has made a proper showing of probable cause when it sets forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of a crime." McNeese, 901 F.2d at 592 (citing Berger v. New York, 388 U.S. 41, 55, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967)). "In deciding whether a search warrant is supported by probable cause, courts must use the flexible totality-of-the-circumstances standard set forth in Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)." McNeese, 901 F.2d at 592. We agree with the government's contention that there is a sufficient basis to conclude that the search warrant authorizing the search of the 1615 South 16th Avenue residence was supported by probable cause even without the false testimony contained in the affidavit.
As the government notes, the only false information in the affidavit was that the CI had seen firearms in the 1615 South 16th Avenue and the 2606 South Boeger residences two days earlier. The CI had actually seen firearms only in the 1615 South 16th Avenue residence approximately one year earlier. The rest of the CI's affidavit was accurate. The CI had known Rufus Sims for more than five years; the CI had seen Rufus Sims store firearms at the 1615 South 16th Avenue residence; the CI knew Rufus Sims was a member of the street gang known as the "Four Corner Hustlers"; Rufus Sims had taken the CI to the 1615 South 16th Avenue residence and shown him firearms including a fully loaded UZI machine gun; Rufus Sims told the CI that he kept the guns at the house to protect the house against rival gangs; and the CI knew Rufus Sims transacted narcotics out of the 1615 South 16th Avenue residence. Other information in the affidavit established that Rufus Sims had several felony convictions.
The age of the information in a search warrant affidavit is a factor to be considered but is not determinative. United States v. Certain Real Property, 943 F.2d 721, 724 (7th Cir. 1991). Courts have upheld search warrants based upon so-called "stale" information. See, e.g., McNeese, 901 F.2d at 597 (listing cases from five months to nine months); United States v. Batchelder, 824 F.2d 563, 564 (7th Cir. 1987) (noting average age of firearm search warrants in the Northern District of Illinois is eleven months). "Moreover, when a conspiracy to distribute drugs is ongoing for years, and is clearly an activity protracted and continuous in nature, the passage of time between the last act and the application for the warrant diminishes in significance." McNeese, 901 F.2d at 597 (citing Andresen v. Maryland, 427 U.S. 463, 478, 96 S. Ct. 2737, 49 L. Ed. 2d 627 n.9 (1976)). Given the alleged ongoing nature of the "Four Corners Hustlers", the passage of time does not render the information stale. Therefore, the Court concludes that probable cause existed in spite of the false information in the affidavit and the search warrant was valid.
In summary, the Court denies the Motions to Adopt the suppression motions of their codefendants filed by defendants Boyles, Chambers and Thomas. The Court denies the Motions to Suppress Evidence seized at the South Boeger residence filed by defendants Moore and Thomas since they lack standing to challenge on Fourth Amendment grounds the underlying search upon which their motions are based. Thomas' Motion to Suppress Evidence seized outside the Forest Park National Bank is denied since Thomas had no expectation of privacy in that evidence and no standing to challenge the search. Sims' Motion to Suppress Evidence seized during the 241 North Waller Street search is denied since Sims lacks standing to challenge the searches at the South 16th Avenue and South Boeger residences. The Court denies defendant Moore's motion to suppress evidence seized at the 1615 South 16th Avenue residence because the Court concludes that the search warrant authorizing the search was supported by probable cause even without the false testimony contained in the affidavit. An evidentiary hearing will be held to resolve the factual disputes necessary to dispose of defendant Donald Moore's Motion to Suppress Evidence seized during his arrest on March 5, 1992. All other Motions to Suppress Evidence, as noted above, are denied.
Date: SEP 17 1992
JAMES H. ALESIA
United States District Judge