Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-CR-157-J.P. Stadtmueller, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge
ARGUED SEPTEMBER 16, 2008
Before CUDAHY, FLAUM, and ROVNER, Circuit Judges.
Symone Evans told police that her ex-boyfriend Timothy Robinson possessed a firearm in his home. Based on this information, police recovered a firearm and ammunition from Robinson's residence. Since Robinson had a previous felony conviction, his possession of the gun violated 18 U.S.C. § 922(g)(1). After his indictment, Robinson filed a motion to suppress all evidence seized from his residence, arguing that the officer who obtained the search warrant made material omissions in his supporting affidavit. Robinson also asked for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The district court denied his motion to suppress as well as his request for a Franks hearing. For the reasons explained below, we affirm.
On March 27, 2005, approximately one month before the search warrant at issue in this case was obtained, Symone Evans, defendant Timothy Robinson's ex-girlfriend, was charged in Wisconsin's Ozaukee County Circuit Court with criminal damage to property and disorderly conduct. The complaining witness in the case was Robinson. Robinson explained to officers that he was at the Sybaris Pool Suites hotel with another woman when Evans came to the hotel. Evans banged on the door and Robinson went outside of the room to speak to her. Robinson stated that Evans began yelling and threatened him with a knife. Robinson ran to the hotel office; Evans followed him there and proceeded to bang on the office windows. Evans was arrested and charged with the two counts noted above. As part of her bail conditions, she was not to have contact with Robinson. Although Evans made her initial appearance on the charge, she failed to appear at a status conference on April 17, 2007 and a bench warrant was issued. Evans was charged with bail jumping on April 19, 2007.
On May 1, 2007, Evans went to Milwaukee police with information about Robinson's involvement in a domestic battery and possession of a firearm. In an affidavit submitted to the Milwaukee County Circuit Court, police officer Michael Wawrzyniakowski recounted Evans's statements in order to obtain a search warrant for Robinson's home. According to Officer Wawrzyniakowski, Evans stated that within 24 hours of May 1, 2007, she had ob-served Robinson armed with a black handgun inside his residence. The officer noted that Evans "had a very sound understanding of firearms basics and knew the difference between semi-automatic weapons, revolvers, rifles, shotguns, and non-firearm weapons like compressed air guns." Def. App. at 3. Officer Wawrzyniakowski also stated that Evans had described Robinson in detail and positively identified Robinson in a photograph. Finally, Officer Wawrzyniakowski attested that he had independently confirmed that Robinson had been convicted of a felony and that Robinson lived at the address provided by Evans.
Regarding Evans's credibility, Officer Wawrzyniakowski stated:
This affiant believes that the "victim/witness" is credible because the "victim/witness" has come forward to this affiant to report the crime of Felon in Possession of a Firearm and Battery, Domestic Violence related. The "victim/witness" has also given personal knowledge of Robinson regarding the fact that he has prior felony arrests, is out on bail for "dealing drugs," and has known Robinson for thirteen (13) years.
That the "victim/witness" has given this affiant information about herself regard [sic] the fact that she has outstanding warrants in Ozaukee County regarding Damage to Property. That the "victim/witness" has also given this affiant information on other subject's [sic] wanted on warrants that was confirmed through wanted checks.
Def. App. at 4. Officer Wawrzyniakowski did not include the details of the events at the Sybaris Pool Suites hotel and resulting charges, nor the fact that Evans had violated her bail conditions by going to Robinson's house the day before.
A search warrant was issued by the Milwaukee County Circuit Court on May 2, 2007. Officers seized a firearm and ammunition in Robinson's residence. Robinson was arrested, made incriminating statements to law enforcement, and was charged with possessing a firearm and possessing ammunition after he had been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
After Robinson was indicted, he filed a motion to sup-press all evidence seized from his residence. Robinson argued that Officer Wawrzyniakowski's affidavit made material omissions because it did not include mention of the events at the Sybaris Pool Suites, the exact charges resulting from that altercation, or the conditions of Evans's subsequent bail. Robinson argued that these omissions were made either knowingly or with reckless disregard for the truth, and that the issuing court would not have found probable cause if the omitted information had been included. Robinson also asked for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
The presiding magistrate judge recommended that Robinson's motion to suppress be denied without a hearing because the affidavit contained sufficient information to establish probable cause. The judge acknowledged that the criminal charges against Evans could detract from her credibility but noted that a person is less likely to maliciously utilize the criminal justice system for revenge where, as here, doing so exposes the person to criminal liability. The magistrate judge also stated that the battery charge that Evans mentioned to Officer Wawrzyniakowski was significant. As the judge stated: "Although it is not explicitly stated in the affidavit, it is fair to infer that Evans was the victim of the alleged battery. If Evans simply wanted to see to it that [Robinson] was harassed and perhaps arrested by the police, and she was willing to go to the extent of lying to the police to accomplish this, it would have ...