The opinion of the court was delivered by: Judge Joan H. Lefkow
On September 20, 2011, this court denied Ronald Johnson's motion to quash search warrant and suppress evidence seized from his condominium unit located at 728 West Jackson Street in Chicago. Johnson filed a motion to reconsider on September 28, 2011, reiterating one of the arguments he had made in his original motion and which the court had rejected. Soon thereafter, Johnson retained new counsel. The court continued the motion to reconsider and allowed Johnson's new counsel to supplant the motion with a new motion to suppress. For the following reasons, Johnson's renewed motion to suppress [#44] will be denied.
Johnson requests a hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), to determine whether the warrant for the search of his condominium unit was supported by probable cause. Franks requires the court to hold an evidentiary hearing if a defendant makes a substantial preliminary showing that (1) the warrant affidavit included a false statement or omitted a statement, (2) the statement was made or omitted either knowingly and intentionally or with reckless disregard for the truth, and (3) the misrepresentation was necessary to the determination of probable cause. See, e.g., United States v. McNeese, 901 F.2d 585, 594--95 (7th Cir. 1990), overruled on other grounds by United States v. Vance, 236 F.3d 820 (7th Cir. 2000); Franks, 438 U.S. at 155--56. If the allegation of perjury or reckless disregard is subsequently proved by a preponderance of the evidence, then the false material must be excluded from the warrant affidavit. Franks, 438 U.S. at 156. The search warrant must be voided and the fruits of the search excluded if the remaining material in the affidavit does not establish probable cause. Id.
Johnson argues that the warrant affidavit sworn by Special Agent Matuszczak omitted material information that fatally undermined the credibility of Loren Coleman and his wife, Charisse Coleman, identified as Individual A and Individual B in the affidavit.*fn1
The first alleged omission comes from interviews that ATF agents conducted with Charisse Coleman at her residence on April 12, 2011. In his motion to suppress, Johnson asserts that Charisse Coleman told ATF agents that her husband was afraid of Johnson because he owed Johnson approximately $16,000 that he had stolen from Johnson two years ago. Dkt. #44 at 5. Johnson further asserts that Charisse Coleman stated that she was paying off her husband's debt at $200 per week. Johnson argues that these statements show that Charisse Coleman had a motive to fabricate information in order to obtain Johnson's incarceration and to shift the focus of the government's investigation to Johnson in order to hide her own involvement with drug dealing.
As Johnson concedes, his motion misstates the facts. In fact, the ATF report indicates that Charisse Coleman stated that Johnson was afraid of her husband. The report states, in relevant part:
Mrs. Coleman stated that "Little Ron" [Johnson] was scared of "Ricco" [Loren Coleman]. Mrs. Coleman related that sometime in 1992, "Ricco" stole a large amount of heroin and approximately $16,000.00 from "Little Ron." Mrs. Coleman related that "Little Ron" didn't do anything to "Ricco." Mrs. Coleman related [that] "Little Ron" stopped talking to "Ricco" for two years. Mrs. Coleman further related that she had agreed to pay "Little Ron" $200.00 a week to pay off the debt and that was the reason why they started talking again.
Gov't Ex. C, at ¶ 24. This statement does not support the conclusion that Charisse Coleman wanted to secure Johnson's incarceration so that she and her husband could avoid paying off a debt or because they were afraid of Johnson. The debt was approximately twenty years old. Johnson never attempted to collect.
To the extent that the statement suggests that Charisse Coleman was involved in her husband's drug dealing, it is "of such minimal significance that its omission could not reasonably have affected the magistrate's judgment in finding probable cause to search." McNeese, 901 F.2d at 594. It is clear from the search warrant affidavit that Charisse Coleman knew of her husband's drug dealing activities.*fn2 Therefore the magistrate judge could readily have discerned that Charisse Coleman might have a motive to embellish Johnson's role in the drug dealing scheme in order to deflect attention from herself. Moreover, nothing in the quoted portion of Charisse Coleman's statement to the ATF agents indicates that she was dealing drugs with her husband. Her statement is not inconsistent with the information in the search warrant affidavit. The fact that Charisse Coleman attempted to pay off a debt related to stolen heroin does not have any greater significance than the other, more recent, conduct that is set forth in the search warrant affidavit.
Johnson also suggests that Charisse Coleman's statement reflects poorly on her husband's credibility because it shows that he was willing to steal. But the significance of the twenty-year old theft from Johnson is minimal, particularly when compared to the information regarding Loren Coleman's criminal history that was included in the affidavit. The search warrant affidavit states Loren Coleman had three previous convictions for manufacturing/delivering a controlled substance, one conviction for passing a forged check, one conviction for possession of a controlled substance, and one conviction for aggravated unlawful discharge of a firearm in a vehicle. Loren Coleman's conviction for passing a forged check and his prior drug dealing convictions are more probative to his veracity and any general suspicion of law enforcement than the alleged twenty-year-old theft. For all of these reasons, the alleged omission was not material.
The second alleged omission relates to information from Loren Coleman's interview with ATF agents. Johnson states that Loren Coleman contradicted his wife's statement regarding a $16,000 "debt" by stating that he had been fired by Johnson after he "messed up money during a drug transaction." Johnson argues that the discrepancy between Loren Coleman's statement and his wife's statement shows that Loren Coleman or Charisse Coleman must have been lying.
The government responds that Loren Coleman's statement that he "messed up" a drug transaction is taken from a report of a proffer interview that took place on May 9, 2011, nearly one month after the search warrant affidavit was submitted. Johnson does not contest the government's assertion. Thus, Loren Coleman's statement was not "omitted" from the search warrant affidavit because it was not even known to law enforcement at the time the affidavit was signed. Moreover, it is clear that ...