US v. Antone C. Harris,  05-3808.  When a criminal defendant makes a substantial preliminary showing that the warrant to search his property was procured by intentional or reckless misrepresentations in the warrant affidavit, and such statements were necessary to the finding of probable cause, the Fourth Amendment entitles the defendant to a hearing to challenge the constitutionality of the search. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Antone Harris is serving a twenty-year prison sentence for possessing dwith intent to distribute more than fifty grams of cocaine base.   

Because Harris has made a substantial preliminary showing that the search of his home was unlawful pursuant to the Supreme Court’s decision in Franks, we conclude that the Fourth Amendment entitles him to a hearing to challenge the veracity of the affidavit that police used to procure the search warrant. Therefore, we reverse the judgment of the district court. 

In his April 19, 2004 warrant affidavit, Detective Forrest stated in the seventy-two hours preceding his warrant request, a confidential informant ("CI") contacted him and reported that while visiting the Goodlet residence, the CI observed Trent and Antone Harris possessing cocaine that was for sale.

   In his pretrial motion and request for a Franks hearing, Harris attacked the credibility of the affiant Detective Forrest as well as the existence and credibility of the CI. Harris argued that Detective Forrest’s warrant affidavit contained materially false statements and that those false statements were necessary to a finding of probable cause. To support his contentions, Harris submitted an affidavit from an Indiana Department of Corrections official verifying that Harris’s brother, Trent Harris, was incarcerated from March 26, 2004, through and including the date of the search.

The district court concluded Detective Forrest’s affidavit contained intentional or reckless misrepresentations, nonetheless it found that Harris was not entitled to a hearing because under the third Franks factor the misrepresentations were not necessary to the magistrate’s probable-cause determination. The district court reasoned that four other facts set forth in the affidavit established probable cause for the warrant.

The Seventh Circuit concludes that after excising the false statements and reviewing the omitted information from the detective’s affadavit that Harris has made a substantial preliminary showing that the warrant affidavit was not sufficient to establish probable cause to search his home.

The opportunity to cross-examine an officer who has intentionally or recklessly made false statements to procure a search warrant is an important aspect of a Franks hearing. "Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Franks, 438 U.S. at 165.

In addition, the 7th Circuit concludes that  the good-faith exception to the warrant requirement does not apply in cases, such as here, where the officer seeking the warrant was dishonest or reckless in preparing the affidavit. Because Harris has made a substantial preliminary showing that the warrant to search his home was constitutionally infirm and because the good-faith exception does not apply, Harris is entitled to a Franks hearing.

The 7th Circuit  notes that their decision today is not a complete victory for Harris; he has only surmounted the initial hurdle of demonstrating that he is entitled to a Franks hearing. At the hearing, he must still demonstrate by a preponderance  of the evidence that the search warrant must be voided and the fruits of the illegal search suppressed. We do not know whether Harris will successfully carry that burden.

The judgment of the district court is REVERSED and REMANDED for proceedings in accordance with this opinion.

For the Court’s Full Opinion , go to   http://www.ca7.uscourts.gov/fdocs/docs.fwx?dname=opinion .

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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