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United States v. Hunter

June 12, 1996

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JOHN T. HUNTER, JR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 318 Marvin E. Aspen, Chief Judge.

Before POSNER, Chief Judge, CUMMINGS and BAUER, Circuit Judges.

BAUER, Circuit Judge.

ARGUED FEBRUARY 16, 1996

DECIDED JUNE 12, 1996

In crime as in other things, life sometimes imitates art. Moviegoers who saw the film "Point Break" will have vivid recollections of bank robbers masked as American presidents. John T. Hunter, Jr. and his father may not have been surfers in pursuit of the perfect wave, but they did use a similar modus operandi. Hunter, masked as various presidential figures including Michael Dukakis, conspired with his father to rob numerous banks in several states. A jury convicted him of conspiring to rob banks, of robbing sixteen banks, and of using and carrying a firearm during each of those robberies. 18 U.S.C. sec. 371; 18 U.S.C. secs. 2113(a) & (d); and 18 U.S.C. sec. 924(c)(1). Hunter raises several claims concerning the denial of his motion to suppress, the jury impanelment, and certain statements made by the prosecutor during closing argument. We affirm.

I. Search Warrant

After Federal Bureau of Investigation agents told his mother they were looking for him, Hunter turned himself in to the authorities. Several days later, the FBI obtained a search warrant for Hunter's residence at 510 Palace Court in Schaumburg, Illinois. During the search, FBI agents recovered various items linking Hunter to the bank robberies. Not surprisingly, Hunter filed a motion to suppress the evidence. The district court denied the motion. Hunter argues (as he did before the district court) that the search warrant was issued without probable cause because it failed to state that 510 Palace Court was his residence and because it did not identify a sufficient nexus between 510 Palace Court and the items sought. He further contends that the affidavit submitted to secure the warrant contained intentionally or recklessly misstated facts and thus the district court should have suppressed the evidence.

We review de novo the district court's determination that probable cause existed to issue the warrant. Ornelas v. United States, 116 S. Ct. 1657 (1996). *fn1 In doing so, however, we take care "both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. at __.

Hunter contends that the search warrant issued without probable cause because the warrant application and affidavit did not state how the FBI knew that 510 Palace Court was his residence, and therefore failed to establish any nexus between him, the address, and the items sought. Hunter misreads one sentence in United States v. Brown, 832 F.2d 991, 994 (7th Cir. 1987), cert. denied, 485 U.S. 908 (1988), to support his contention that failure to state in a warrant affidavit how the police knew an address was the defendant's address automatically negates a finding of probable cause. We actually stated that the totality of the circumstances, including not only the failure to show "how the police knew that the . . . apartment was truly one of Brown's addresses" but the "paucity of information suggesting that a search of the . . . address would uncover evidence of wrongdoing," did not support a finding of probable cause. Id. at 994 (emphasis added). The affidavit's failure to state explicitly that 510 Palace Court was Hunter's residence, by itself, is not a fatal flaw.

Furthermore, the warrant application and affidavit in this case clearly established that the place to be searched was Hunter's residence. Attachment A to the search warrant and affidavit described the place to be searched as "[t]he residence at 510 Palace Court, Schaumburg, Illinois . . . ." The affidavit referred four times to Hunter's residence; it made no reference to any other place connected to Hunter. Although Hunter correctly notes that the affidavit did not explicitly state that 510 Palace Court was his residence, that is the only logical conclusion supported by a common-sense reading of the affidavit. See Illinois v. Gates, 462 U.S. 213, 236 (1983).

Hunter further contends that the warrant application and affidavit failed to establish any link between him, 510 Palace Court, and the items sought. We disagree. Hunter does not challenge the existence of probable cause to believe that he was the "Dukakis robber." Indeed, he turned himself in to the FBI three days before the search. That in itself weighed in favor of finding probable cause to search Hunter's residence.

Moreover, the warrant application and affidavit contained numerous facts that supported the magistrate's conclusion that it would be reasonable to seek evidence of the bank robberies in Hunter's residence. See United States v. Malin, 908 F.2d 163, 166 (7th Cir.), cert. denied, 498 U.S. 991 (1990). The application indicated that FBI agents had recovered a number of incriminating items during a search of John Hunter, Sr.'s house. See United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993) (magistrate may consider evidence seized from co-conspirator's residence in evaluating probable cause to search defendant's residence). Furthermore, Hunter and his father used the same modus operandi for the numerous robberies, including the clothing and masks they wore and the guns they carried. The continuous nature of the crimes made it reasonable to conclude that they preserved those items for future use, and that Hunter might keep them in his residence. Additionally, the affidavit stated that Hunter's ex-wife told the FBI that he maintained an office in his residence and that he kept meticulous records. In light of these facts, it was reasonable to seek incriminating evidence in Hunter's residence.

Hunter next contends that the district court erred in denying him an evidentiary hearing about alleged material misstatements and omissions in the warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). We review a district court's refusal to hold a Franks hearing for clear error, and we presume that the affidavit supporting the search warrant is valid. United States v. Walker, 25 F.3d 540, 544 (7th Cir.), certs. denied, 115 S. Ct. 371, 531 (1994).

To obtain a Franks hearing, Hunter had to make a "substantial preliminary showing" that the affiant intentionally or recklessly made a false statement in the affidavit, and that the false statement was "material," or necessary for a finding of probable cause to issue the warrant. United States v. Skinner, 972 F.2d 171, 177 (7th Cir. 1992). After reviewing the affidavit, we conclude that none of the statements challenged by Hunter was false. For example, the various statements attributed to his ex-wife in the affidavit accurately reflect the ...


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