Criminal Defense Attorney in U.S. Federal & Florida and Illinois Courts

Frank’s Hearing Denial Clear Error

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.


    January 18, 2010 at 11:05

    i was denied a franks hearing when i had not only sworn affidavits from the alleged confidential informant, as well as the informant personally in court to testify to the truth of the matter that the affiant officer not only lied to the magistrate but also coerced the informant to accompany him before the magistrate to lie; furthermore in the alternative i was able as supported by my affidavits to prove if not intentional false statements i was able to prove reckless disregard for the truth that the informant did not observe contraband on the premises on the times relevant to the complaint as asserted because the informant was incarcerated and or lived elsewhere at the times relevant to the complaint. i was denied a hearing by my judge where he stated inspite of what evidence i possessed that a lie was told or reckless disregard , he said i am not entitled to a hearing because the informant personally appeared with the offficer before the judge at the probable cause hearing he cited people v. gorosteata (illinois appellate court 1st dist 2007) i cited people v caro (illinois appellate court 1st dist 2008) and UNITED STATES V. MICHAEL CAUSEY (7TH CIRCUIT) CAN SOMEONE TELL ME WHAT DO YOU THINK

  2. Robert Striffler
    Robert Striffler
    December 13, 2013 at 08:54

    Ha! Ha! HA! I live in Florida. I’m charged with 2 misuse of 911 calls. I beat previous 2 abuse of 911 calls as they were to complain of police abuse! (The irony) I’m now being charged with Misuse in 2 more charges of this. On these 2 incidences I both have witnesses from where I live incl. the Manager and a video taped call to 911 where the culprit, a documented schizophrenic is rambling like he does so often here (witnessed and recorded also) with threats of stabbing my f__’n a$$ etc. (The dispatcher heard this as is on video) I have other incidences involving this man recorded as well where he rambles off about shooting and stabbing other neighbors, the bug spray man (who is not certified by the right federal agencies) the manager, Mike another neighbor etc… I have recordings of other incidences of altercations with other tenants as well! One occasion this Schizophrenic came out and was rambling about “Killing everyone on the property” This I don’t have on tape but is part of what I caught the end of on tape which resulted in the altercation with my neighbor mentioned above. Schitzo Joe the next morning when questioned by the Manager and myself witnessed by another neighbor Neil Robbins admitted he was not going to “Kill everybody on the property” but was dreaming about it! Yikes! (He really is crazy-14 meds) This man as well documented has served 2 prison terms in Utah on Felonies and one term here in Florida. He has been accused of incidences with a knife before. I know a landlord of his past residence years ago where he had similar altercations with police involvement! The states case for this must be trying to say that this is not a public safety issue and has left out any of this. Granted the police were called multiple times as the investigating officers refused to even look into these tapes or speak to any (all) the witnesses to these incidences. (Due Diligence) On both of these nights of charges Schitzo Joe initiated calls to the police against me. The second night he started calling 911 on me was because he said, I was trying to break in to my neighbors house Mary. When the police arrived she came out and told the police that Joe instigated all of this and I certainly was not breaking into her room! I’m being denied a Franks (evidentiary) hearing (with this preponderance) when I’ve had them before on charges I beat before on a different misleading/omissions arrest which I beat! My own attorney is denying me this hearing now and the Judge said in open court he will only entertain going to trial, pleading out or guilty! (Canons violation) I’ve now beaten 41 previous frivolous charges practically in a row and have a well documented series of complaints to the appropriate checks and balances! It’s oppression when in organized effort the court doesn’t want to acknowledge the truth any more! I’ve looked up the case law and estoppel wouldn’t work! Justice is Just-us! I’m putting all this and more on the internet! I don’t care about the big threats of Jail time as I have stage 4 cancer anyway. The Jail won’t pay for my radiation and chemo! Ha! HA! Ha! I don’t care about my cancer but do care about officially sanctioned well organized oppression! Most of my other charges (41 beat) were for Constitutionally Vague Laws used against “groups deemed to meet their displeasure!” US Supreme Court Kolender Ruling! Misuse of 911 is being used in this state just like loitering…. and resist, obstruct… which by the way these laws identically written, were ruled unconstitutionally vague in other State Supreme Courts, Federal District Courts and Federal District Court of Appeals! Where they determined under Kolender that even they could not determine the prohibited conduct by the wording of these laws, so how could the average citizen. Here in Florida laws even after Kolender are deliberately being written vague like misuse of 911 so as to avoid probable cause issues to go after “groups deemed to meet their displeasure!” I’m poor now, so much for Gideon, equal protection and adequate representation. Why need all that when false arrests, malicious prosecutions, in-effective council and Judicial Cannon Violations work together just fine in the 18th Judicial Circuit of Florida! Ha!, Ha!, Ha! Satan stand behind me! You have no power over me! When you’re dying it kind of makes you free! And I haven’t felt this free in a long time! Ha! Ha! Ha!

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