The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Jesse Johnson was arrested and indicted on federal
drug and weapon charges after a search executed pursuant to a
warrant turned up cocaine, guns, and drug paraphernalia. He moves
for a "Franks-type" hearing on the issue of whether Officer
Jackson lied in his warrant affidavit. He also moves for an order
to quash the search warrant and to suppress evidence attained
from the resultant search. I deny both motions.
After a suppression hearing before Magistrate Judge Bobrick on
a separate motion to suppress Mr. Johnson's confession, the
government decided not to use the confession. Mr. Johnson argues
that this decision, together with certain phone records in his
possession, shows that Officer Jackson lied at the suppression
hearing. Mr. Johnson he believes that Officer Jackson is a liar,
and he requests a "Franks-type" hearing on the separate
question of the validity of the search warrant because Officer
Jackson's "credibility has been so shaken by the developments in
the proceedings before the Magistrate."
A Franks hearing allows a defendant to challenge the validity
of a warrant by showing, by a preponderance of the evidence, that
the warrant affidavit contained perjury or a reckless disregard
for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978). To qualify for a Franks
hearing the defendant must make an offer of proof demonstrating
that: (1) the affidavit for the search warrant contained a false
statement; (2) the affiant's state of mind in making the false
statement was reckless; and (3) "the false statement was material
to the finding of probable cause (i.e., that probable cause
cannot be established without the false statement)." United
States v. McClellan, 165 F.3d 535, 545 (7th Cir. 1999). The
defendant must make an offer of all three elements to qualify for
a hearing. See id.
Mr. Johnson falls short on the offer of proof. He does not
specifically allege any falsity with regard to the search
warrant, he only says that he believes that Officer Jackson is a
liar in general. Be that as it may, and although he argues that
there were false statements during the suppression hearing on the
confession, Mr. Johnson can point to no specific statement in
the warrant affidavit that is false. The Supreme Court clearly
held that "the challenger's attack must be more than conclusory
and must be supported by more than a mere desire to
cross-examine." Franks, 438 U.S. at 171, 98 S.Ct. 2674. Mr.
Johnson does not even offer a conclusory attack on the warrant
affidavit; at best he offers only a hunch that the warrant
affidavit must be false because he believes that Officer Jackson
testified falsely in an unrelated hearing in the same case, and
therefore is a liar. This is insufficient.
More importantly, even if there were false statements, Mr.
Johnson has made no showing that they were material to the
finding of probable cause. Specifically, he has not shown that
Judge Rozak could not
have found probable cause on the basis of the confidential
informant's affidavit alone. The search warrant was supported by
the affidavits of Joliet Police Officer Dave Jackson and his
confidential informant ("CI"), Pat Doe. In Pat Doe's affidavit,
sworn under oath and penalty of perjury, he*fn1 testifies that
he (1) knows Jesse Johnson, (2) has been inside the residence
that was searched, (3) observed Mr. Johnson to have a quantity of
cocaine inside this residence within fourteen days of swearing
the affidavit, (4) knows Mr. Johnson intended to sell this
cocaine, (5) is familiar with cocaine from his past experience,
and (6) has read Officer Jackson's complaint for a search warrant
and all representations indicated therein as having been made by
him are true and correct.
The determination of probable cause varies with the facts of
each case. United States v. Jones, 208 F.3d 603, 608 (7th Cir.
2000). Where the credibility of an informant is at issue, the
relevant considerations are: (1) the informant's personal
observations, (2) the degree of detail given, (3) independent
police corroboration of the informant's information, and (4)
whether the informant testified at the probable cause hearing.
Jones, 208 F.3d at 608 (citing United States v. Singleton,
125 F.3d 1097, 1103-04 (7th Cir. 1997)). "[A] deficiency in one
factor may be compensated for by a strong showing in another or
by some other indication of reliability." United States v.
Brack, 188 F.3d 748, 756 (7th Cir. 1999). "First-hand
observations [by a confidential informant] support a finding of
reliability." United States v. Buckley, 4 F.3d 552, 555-56 (7th
Cir. 1993). Although corroboration by an officer's independent
investigation bolsters a finding of reliability, first hand
observations of a CI alone are enough. United States v. Lloyd,
71 F.3d 1256, 1263 (7th Cir. 1995). Pat Doe's affidavit contained
first hand observation about what he had seen in Johnson's home.
This is sufficient.
Even more importantly, however, Pat Doe appeared in court with
Officer Jackson and was subject to questioning by the issuing
judge. "[W]hen a CI accompanies the officer and is available to
give testimony before the judge issuing the warrant, his presence
adds to the reliability of the information used to obtain the
warrant, because it provides the judge with an opportunity to
`assess the informant's credibility and allay any concerns he
might have had about the veracity of the informant's
statements.'" Lloyd, 71 F.3d at 1263, citing United States v.
Causey, 9 F.3d 1341, 1343 (7th Cir. 1993). In Lloyd, the CI
was present before the judge, but there is no record that he
actually testified. Therefore, it is apparent that presence and
mere opportunity to testify are sufficient indicia of
reliability. Here, Pat Doe appeared and swore to an affidavit
before Judge Rozak, "under oath and under penalty of perjury."
This was sufficient for Judge Rozak to assess Pat Doe's
credibility and reliability. See United States v. Wilson,
169 F.3d 418, 424 (7th Cir. 1999). Reliable information from Pat
Doe's affidavit was sufficient evidence to support a finding of
probable cause. Therefore, regardless of whether Officer Jackson
lied, any false statements that he might have made were not
material. Mr. Johnson has not made a sufficient showing to
qualify for a Franks hearing.
Mr. Johnson also claims that the search warrant is facially
invalid because the two supporting affidavits do not establish
probable cause. I do not disturb a judge's probable cause
determination and issuance of a warrant if there is a substantial
basis for concluding that a search would uncover evidence of
wrongdoing. Illinois v. Gates, 462 U.S. 213, 236,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v.
Markling, 7 F.3d 1309, 1317 (7th Cir. 1993). An affidavit
provides a "substantial basis" for that conclusion if it "sets
forth facts sufficient to induce a reasonably prudent person to
believe that a search . . . will uncover evidence of a crime."
United States v. McNeese, 901 F.2d 585, 592 (7th Cir. 1990)
(citations omitted). When reviewing an affidavit attached to a
search warrant and a judge's issuance of the warrant, "the task
of a reviewing court is not to conduct a de novo determination
of probable cause, but only to determine whether there is
substantial evidence in the record supporting the [judge's]
decision to issue the warrant." Massachusetts v. Upton,
466 U.S. 727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Moreover, I
interpret affidavits in a common-sense, rather than a
hypertechnical, manner. Illinois v. Gates, 462 U.S. 213, 236,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Mr. Johnson claims that there was insufficient information to
justify relying on the credibility of Pat Doe. He maintains that
the affidavit Officer Jackson used to obtain the warrant failed
to set forth facts sufficient to establish Pat Doe's reliability
or veracity, and that the information contained therein was
insufficient to corroborate Pat Doe testimony and support a
finding of probable cause. However, as I have already recognized,
Pat Doe's affidavit contained first-hand observations, and Pat
Doe appeared before the issuing judge. This was sufficient
evidence for Judge Rozak to conclude that ...