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United States v. Bell

United States District Court, C.D. Illinois

November 4, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMONTAE BELL, Defendant.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge.

         This matter is now before the Court on Defendant Bell's Motion [68] to Quash Arrest Warrant and to Suppress Evidence and Motion [72] for Franks Hearing. For the reasons set forth below, Defendant's Motion [68] to Quash and Motion [72] for Franks Hearing are DENIED.

         Background

         On November 6, 2014, the Pekin Police Department responded to a report of a burglary where a Glock pistol, two AR-15 style rifles, an air rifle, and an AK-47 style rifle were stolen from a residential building in Pekin, Illinois. The resident reported a name to the police who he believed stole the firearms. The police interviewed that person, (“C/S-1” or “Turner”) who had been arrested on charges related to the manufacture of methamphetamine. C/S-1 admitted to stealing the firearms, and told the police that he sold them in Peoria to a drug dealer known as “Jay” for money and cocaine.

         After the interview, the informant began working with the FBI and Illinois State Police as part of a proffer agreement in order to recover the firearms. The agents and C/S-1 arranged a controlled purchase of a small amount of cocaine from “Jay, ” where video and photographs were taken of the suspect. Later, an FBI agent interviewed an inmate at Peoria County Jail. After the agent showed the inmate photos taken during the controlled buy, the inmate recognized Defendant as Demontae Bell, or “Tay Tay.” The agent accessed the Peoria County Jail's online record system after the interview and printed a photo of Bell without any identifiers. When the agent showed the photo to C/S-1, the informant confirmed that the individual in the photo was “Jay.” On February 23, 2015, the FBI agent searched Bell's criminal history and found a prior felony conviction for delivery of controlled substances.

         On February 25, 2015, the FBI and State Police conducted a second controlled buy of cocaine from Bell, again recording audio and video of the transaction. Bell entered C/S-1 's vehicle and conversed with the informant about attempts to locate magazines for the stolen AK-47 rifle, and Bell informed C/S-1 that he sold the weapon. Bell told C/S-1 that he had a photo of the AK-47 on his phone, which he sent to C/S-1 via picture message and the FBI agent later viewed. A warrant for Bell's arrest was issued on April 8, 2015. Bell was arrested the next day for possession of the stolen AK-47 and charged with being a felon in possession of a firearm in violation of Title 18 United States Code, Section 922(g).

         A black mobile flip phone was found on Bell's person upon his arrest. Bell was then transported to the Peoria Police Department and placed in an interview room. Before Bell was given a Miranda warning, Officer Sinks entered the room after picking up Bell's cell phone from a container outside of the door. Sinks opened the flip phone in front of Bell and showed him the home screen depicting the rifle with an inquisitive look. In response to Officer Sinks' gesture, Bell allegedly made a statement indicating he downloaded the picture of the firearm from the internet.

         Bell previously moved to suppress the picture, arguing that it was obtained as the result of an unconstitutional warrantless search, and that the two subsequent cell phone search warrants (issued on April 17 and October 20, respectively) were not supported by probable cause. Specifically, Defendant argued that: (1) the affidavit submitted in support of the warrant application relied on a confidential source who did not testify before the issuing judge and whose reliability was not established; (2) the recording and transcripts were not provided to the issuing judge; (3) the affidavit did not state whether the confidential source or the theft victim confirmed that the firearm depicted in the photograph was the same firearm that was stolen and later sold to the Defendant; and (4) the affidavit did not state the telephone number associated with the February 25, 2015 picture message was the same number as the one assigned to the cell phone seized from Defendant. The first application for warrant contained a paragraph reciting Officer Sinks' observation of the picture on the home screen of Bell's cell phone.

         On April 20, 2016, the Court issued an Opinion finding that Officer Sinks conducted an unconstitutional search of Bell's cell phone. However, the Court denied the motion to suppress the picture because (1) both of the subsequent search warrants provided detailed, collaborated information from which the issuing judge reasonably concluded there was a fair probability that contraband or evidence of a crime would be found on Defendant's cell phone, Gates, 462 U.S. at 238; (2) omitting the first search warrant affidavit's reference to the officer opening the phone did not alter the probable cause determination; and (3) the picture of the AK-47 on Bell's cell phone was not discovered inadvertently through the warrantless search because the officers knew that Bell had a picture of the gun on his phone before the search ever took place. Thus, the Court found that the picture should not be suppressed because it would have been discovered despite Officer Sinks' search.

         Defendant now brings a Franks motion challenging the veracity of affidavits in support of the arrest and search warrants, and a motion to quash the arrest warrant. On October 20, 2016, the Court held a “pre-Franks” hearing where Defendant was allowed to develop his arguments and the Government was limited to arguing that Defendant has not met the requirements for a Franks hearing based on the information contained in the affidavits.

         Legal Standard

         In order to obtain a Franks hearing, a defendant must first make a substantial preliminary showing that a false statement was knowingly or intentionally, or with reckless disregard for the truth, included by the affiant in the warrant affidavit. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Next, the defendant must show that the alleged false statement was essential to the establishment of probable cause. Id. If the warrant affidavit, stripped of the allegedly false information, still suffices to establish probable cause, no hearing is required. United States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003).

         If a defendant makes such a showing, the Fourth Amendment entitles him to an evidentiary hearing to challenge the constitutionality of the search. United States v. Spears, 673 F.3d 598, 604 (7th Cir. 2012). At a Franks hearing, the court first determines whether the defendant has shown by a preponderance of the evidence that false information was intentionally or recklessly included in the affidavit. If the defendant makes such a showing, the court then determines whether the affidavit, stripped of the false information, is nevertheless sufficient to establish probable cause. Id.

         The defendant is not limited to challenging affirmative statements appearing in the warrant affidavit; omissions from the affidavit may also be challenged. United States v. McNeese, 901 F.2d 585, 594 (7th Cir. 1990) overruled on other grounds, United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001); United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984). The defendant bears a substantial burden with respect to such omissions. He must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting the facts disregarded. Souffront, 338 F.3d at 822. The mere fact that the affidavit omitted information about the informant's criminal background or a motive to provide information against the defendant will not destroy the probable cause determination where the remainder of the affidavit establishes reliability. United States v. Taylor, 471 F.3d 832, 840 (7th Cir. 2006).

         District Courts may hold a “pre-Franks” hearing to determine whether the preliminary showing can be met. Such preliminary hearings can aid the court's determination by giving defendants an opportunity to develop their arguments or elaborate on their original submissions. United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013). However, courts should not consider “the government's explanation of the contradictions and discrepancies” at the pre-Franks hearing. Id. Rather, a court should “limit[] its consideration of new information to the defense's evidence tending to refute probable cause.” Id.

         Analysis

         A. DEFENDANT'S MOTION FOR FRANKS HEARING

         1. The Nixon Affidavit

         On April 8, 2015, FBI Special Agent Nixon presented an affidavit in support of an arrest warrant for Demontae Bell to Magistrate Judge Hawley. Under the heading of “probable cause, ” the affidavit included the following paragraphs:

3. On November 6, 2014, the Pekin Police Department responded to a burglary at the residence of Joel Weakley, 1915 Windsor Street, Pekin, Illinois. Among the items stolen were included one Glock pistol, two AR-15 style rifles, one Polish AK-47 style rifle, and one air rifle with a scope. Upon being interviewed by Pekin Police officers, Weakley advised a probable suspect for the burglary was a co-worker named [NAME REDACTED - hereinafter referred to as C/S-1], who Weakley believed had knowledge of his gun collection and was "into selling guns."
4. On January 7, 2015, Pekin Police officers interviewed C/S-1 in the presences of his/her attorney and pursuant to a proffer agreement after C/S-1 had been arrested on charges related to manufacture of Methamphetamine. During the interview, C/S-1 confessed to committing the above burglary. Further, C/S-1 advised after taking possession of the firearms, C/S-1 transported them to Peoria, ...

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