Opinion
Cause No. IP 04-91-CR-01 B/F.
January 4, 2005
ORDER DENYING DEFENDANT'S MOTION TO SUPRRESS EVIDENCE AND REQUEST FOR FRANKS HEARING
Defendant Antone C. Harris ("Antone Harris") is charged with one felony count of possession with intent to distribute fifty grams or more of a mixture or substance containing a detectable amount of cocaine base (crack cocaine), a Schedule II, Narcotic Controlled Substance, all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). These charges arise in part from evidence obtained during a search conducted pursuant to a search warrant of Harris's residence at 2254 N. Goodlet Avenue, Indianapolis, Indiana.
This matter is now before the Court on Defendant's Motion to Suppress and Request for a Franks Hearing. Antone Harris maintains that the affidavit supporting the application for a search warrant contained false statements and that those false statements were necessary to a finding of probable cause. Antone Harris has requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) to explore the factual errors in the warrant affidavit. For the reasons set forth in detail below, we DENY Defendant's Motion to Suppress and Request for a Franks hearing.
The Defendant filed a separate Motion for Disclosure of Confidential Informant, the gist of which is to corroborate his claim of factual inaccuracies and omissions in the affidavit supporting the search warrant. Because we accept that assertion as true, namely that there were factual inaccuracies and omissions in the affidavit, the motion for disclosure is moot and we DENY it on that basis.
Factual Background
On April 20, 2004, police officers executed a search warrant at 2254 North Goodlet Avenue in Indianapolis, Indiana (the "Goodlet Avenue residence." Defendants Antone Harris and Douglas Tate ("Tate") allegedly fled through the back door of the residence when law enforcement officers entered the front door to conduct the search. The search produced various quantities of cocaine base, cocaine, paraphernalia commonly used to "cook" and package cocaine, marijuana, as well as an array of firearms and ammunition from inside the residence. Antone Harris and Tate were apprehended shortly after their hasty departure in a residence a few blocks away.Antone Harris contends that the original affidavit in support of the search warrant, sworn to by Indianapolis Police Department Detective Michael Forrest ("Forrest"), contains several factual errors the effect of which undermines the probable cause basis for the warrant. The affidavit, in relevant part, states:
This affiant bases his belief on the following information: that within the past seventy-two (72) hours of April 19, 2004 a confidential, credible and reliable informant contacted this affiant and stated that within the past seventy-two (72) hours of April 19, 2004 he/she was personally in the residence located at 2254 N. Goodlet Av., Indianapolis, Marion County, Indiana and observed in the possession of Antone Harris B/M and Trent Harris B/M, a substance said informant believed to be Cocaine, an extract of Coca (sic). Said informant was further told by Antone Harris B/M and Trent Harris B/M, that the substance they had in their possession was in fact Cocaine, and was for sale. Said informant further stated that both Antone Harris and Trent Harris told the CI that they in fact lived at the residence. This affiant had previously received an anonymous tip from the Dope Hotline that both Antone Harris and Trent Harris were selling crack from this residence. This affiant has personally conducted surveillance on the residence located at 2254 N. Goodlet Av. and have observed both Antone Harris and Trent Harris coming and going from the residence. This affiant also checked recent police reports for that residence and found that a report was made on 4-2-04 by an animal control officer reference several dogs at this house. The person the officer talked to at the residence was Antone Harris B/M DOB 7-16-79 and Antone Harris listed his address as 2254 N. Goodlet Av. A check of Antone Harris's criminal history reveals that he has a C felony conviction for Possession of Cocaine and Trent Harris has a conviction for C felony Possession of Cocaine as well as an A felony conviction for Dealing Cocaine and a conviction for Dangerous Possession of a Firearm. The CI further stated to this affiant that several handguns are inside the residence and that both Antone Harris and Trent Harris always keep a firearm close to them when inside the residence.
Def.'s Ex. A at 2.
Antone Harris asserts that certain material references to his brother, Trent, in the affidavit are false, and in support of that, Antone Harris has produced an affidavit from Charles Evans, a case manager at Liberty Hall, and an intake record, both of which indicate that beginning on March 26, 2004, Trent Harris was a resident of Liberty Hall, serving a six-month sentence on lockdown status and unable to leave Liberty Hall. Defendant maintains that it would therefore have been impossible for the confidential informant to speak to Trent Harris at the Goodlet Avenue residence within 72 hours of April 19, 2004. Antone Harris has also produced his own affidavit denying that he had been at the Goodlet Avenue residence within 72 hours of April 19, 2004. Antone Harris has requested an evidentiary hearing to explore these alleged factual inaccuracies in the warrant affidavit.
Defendant notes that Liberty Hall contracts with the Indiana Department of Corrections to provide a variety of residential, work release, community transition, and parolee programs.
In a December 13, 2004, order we directed the government to file a supplemental affidavit from Detective Forrest detailing the time his surveillance of Antone Harris occurred; how he came to believe that the second person with Antone Harris was Antone's brother, Trent Harris, and any response to the alleged misstatements contained in the warrant affidavit. On December 20, 2004, the government submitted a supplemental affidavit by Detective Forrest which included the following information: (1) the Dope Hotline tip concerning Antone Harris and Trent Harris was received on March 25, 2004; (2) Detective Forrest began his surveillance of the Goodlet Avenue residence in or around March 29, 2004; (3) Detective Forrest conducted additional surveillance on approximately six separate, but unspecified occasions in early April 2004; (4) Detective Forrest had first become familiar with Antone Harris in 1994 and continued to have contact with him over the ensuing years, including in connection with two previous investigations of Antone Harris for violations of controlled substance laws; (5) since approximately 1995, Detective Forrest has known that Trent Harris is Antone Harris's brother, but Trent Harris had not been the subject of any of Detective Forrest's previous investigations; (6) Detective Forrest contacted the confidential informant concerning Antone Harris on April 9, 2004, who confirmed that he/she knew Antone Harris and that Antone Harris frequented the North Goodlet Avenue area of Indianapolis; (7) on or about April 12, 2004, the confidential informant visited the Goodlet Avenue residence and spoke with individuals he alleged were Antone Harris and Trent Harris and observed cocaine base (crack) at the residence; (8) subsequent to their April 12, 2004, conversation, Detective Forrest discovered two police reports from April 1 and April 2, 2004, involving Antone Harris and the Goodlet Avenue residence; (9) at unspecified times, presumably during his mid-April 2004 surveillance, Detective Forrest observed individuals coming and going from the Goodlet Avenue residence; (10) Detective Forrest learned that Antone Harris and Trent Harrris had prior convictions involving cocaine; and (11) on or about April 18, 2004, the confidential informant informed Detective Forrest that controlled substance violations were ongoing at the Goodlet Avenue residence. Government's Ex. 1.
Legal Analysis
Antone Harris contends that he has established factual inaccuracies in the assertions in the affidavit concerning whether the confidential informant told Detective Forrest about cocaine at the 2254 Goodlet Avenue residence and whether the confidential informant actually spoke to Antone Harris or Trent Harris, and whether the confidential informant even exists. Defendant requests an evidentiary hearing (a "Franks hearing") to address the inaccuracies in the warrant affidavit.
Before a court is required to conduct a Franks hearing, however, the defendant must make a substantial preliminary showing, typically in a written motion to suppress, that: (1) the warrant affidavit contained a false statement or omitted a statement; (2) the affiant made or omitted the statement either intentionally or recklessly; and (3) the statement was material or necessary to the finding of probable cause. United States v. Merritt, 361 F.3d 1005, 1010 (7th Cir. 2004) (citing Franks v. Delaware, 438 U.S. 154, 155-156 (1978); United States v. Jackson, 103 F.3d 561, 574 (7th Cir. 1996)). We address each requirement in detail below.
(1) The warrant affidavit contained false or omitted statements.
In light of the sworn attestations provided by Antone Harris in support of his motion and the supplemental affidavit from Detective Forrest, it is clear that the affidavit by Detective Forrest in support of the search warrant contained false, misleading, and omitted statements. First, the warrant affidavit erroneously identified Trent Harris as the second individual with Antone Harris at times when Trent Harris could not possibly have been present at the Goodlet Avenue residence because of his incarceration. Second, the warrant affidavit contains misleading information as to the date of the confidential informant's conversations about purchasing cocaine with Antone Harris and the second individual in the Goodlet Avenue residence. Third, the warrant affidavit failed to include the dates of the Dope Hotline Tip and Detective Forrest's surveillances of the Goodlet Avenue residence. Accordingly, we conclude that Antone Harris has satisfied his burden to demonstrate the warrant affidavit contained materially false or omitted statements.
The warrant affidavit implies this conversation took place within 72 hours of April 19, 2004 (which would have been April 16 at the earliest); however, the supplemental Forrest affidavit implies this conversation took place on April 12, 2004, and that on April 18, 2004, the confidential information merely confirmed Antone Harris was continuing to sell narcotics at the Goodlet Avenue residence. The supplemental affidavit is disturbingly vague as to the information conveyed by the confidential informant in the April 18, 2004, conversation.
(2) The affiant made the false or omitted statement(s) either intentionally or recklessly.
While we lack any direct evidence as to whether or not the errors contained in the warrant affidavit were made intentionally or recklessly, we reasonably infer that at least some of the errors were likely intentional on the part of Detective Forrest. The totality of the warrant affidavit is written to create the erroneous impression that the investigation information was acquired either immediately prior to or contemporaneously with the preparation of the affidavit. For example, Detective Forrest omitted mention that the Dope Hotline tip was received almost a month prior to his seeking the search warrant, and he did not disclose that his surveillance of the Goodlet Avenue residence had occurred several weeks prior. Detective Forrest also implies in his affidavit that the confidential informant's visit to the Goodlet Avenue residence and his conversation with Antone Harris occurred within 72 hours of his preparation of the affidavit; in fact, Forrest's supplemental affidavit indicates these events occurred a week prior to the request for a search warrant. These omissions, both individually and in their cumulative effect, suggest an intentional design to create an incorrect or at least misleading impression that the evidence relied upon to obtain the warrant was more current than it actually was. Accordingly, we conclude that Antone Harris satisfied the second prong of the required showing by demonstrating that Detective Forrest intentionally made these omissions/misstatements in the affidavit.
We are not quite so easily convinced, however, that the erroneous naming of Trent Harris as the second individual with Antone Harris was either intentional or reckless on Forrest's part. Detective Forrest and the confidential informant could reasonably have assumed that the second individual with Antone Harris was his brother, Trent Harris, only to learn thereafter that the second person's identity was instead most likely Tate. Though Detective Forrest had had previous encounters with Antone Harris, he apparently had not had any such contact with Trent Harris. Similarly, we do not have any reason to believe the confidential informant possessed personal knowledge of the identity of Trent Harris. Moreover, Detective Forrest had nothing to gain by incorrectly identifying the second individual accompanying Antone Harris. Thus, we conclude that, with regard to the misidentification of Trent Harris, it was likely the result of an honest mistake, and as such would not entitle the defendant to a Franks hearing.
(3) The false or omitted statement(s) were material or necessary to the finding of probable cause.
Although Antone Harris has satisfied the first two requirements for a Franks hearing, his motion ultimately founders because the false or omitted matters were not necessary to a finding of probable cause. Even in disregarding the false statements and in including the previously omitted facts, there is sufficient evidence to establish probable cause for the issuance of the search warrant. The Seventh Circuit has directed under Franks v. Delaware that "if a defendant can demonstrate by a preponderance of the evidence that the signatory of the warrant affidavit made a false statement (or omitted a material fact) either intentionally or with reckless disregard for the truth, then a court will consider whether the content of the affidavit, setting aside the false material (or including the omitted material), is sufficient to establish probable cause."Merritt, 361 F.3d at 1010 (citing Franks, 438 U.S. at 155-156; United States v. Pace, 898 F.2d 1218, 1232 (7th Cir. 1990)).
This is not to suggest in any way that we are not troubled by the errors that afflict this officers's statements given under oath to the court to obtain permission to search.
In re-evaluating the probable cause affidavit after setting aside the false material and including the omitted material, we find that the information known by Detective Forrest as of April 19, 2004, establishes that: (1) on March 25, 2004, an anonymous tip was received on the Dope Hotline implicating Antone Harris and Trent Harris in selling crack at the Goodlet Avenue residence; (2) Beginning on or about March 29, 2004, and continuing through early April 2004 Detective Forrest conducted surveillance of the Goodlet Avenue residence and observed Antone Harris, a second unidentified suspect, and various other individuals entering and exiting the residence; (3) on or about April 12, 2004, a confidential informant visited the Goodlet Avenue residence, observed cocaine base (crack) at the residence and spoke with Antone Harris and the second unidentified suspect who confirmed the substance was cocaine and that the cocaine was for sale; (4) on or about April 18, 2004, the confidential informant confirmed that controlled substances violations were continuing at the Goodlet Avenue residence; (5) Antone Harris had a prior conviction involving cocaine; (6) in police reports from April 1, 2004, and April 2, 2004, involving two incidents unrelated to this investigation, Antone Harris listed the Goodlet Avenue address as his residence. Based on this revised information, we conclude that probable cause still existed for the search of the Goodlet Avenue address.
The overall, general effect of the false statements and omissions in the original Forrest affidavit was to create the impression that the evidentiary and investigative basis for the warrant was more current than was actually the case. However, the ripeness of the evidence referenced in the affidavit is only one factor that the issuing judicial officer considers and, here, the evidence considered as a whole establishes sufficient probable cause for the judge to reasonably conclude that on-going criminal activity was being conducted by Antone Harris at the Goodlet Avenue residence.
Well-established case law undergirds our conclusion that staleness alone in an application for a search warrant does not necessarily undermine a finding of probable cause. "Age of inculpatory information is of course one element that magistrates should consider in determining whether probable cause exists."United States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir. 1992) (citing United States v. Lamon, 930 F.2d 1183, 1187-88 (7th Cir. 1991)). However, age is only one factor, and "'[i]f other factors indicate that the information is reliable and that the object of the search will still be on the premises, the magistrate should not hesitate to issue the warrant'" Id. (quoting United States v. Batchelder, 824 F.2d 563, 564 (7th Cir. 1987)). Ultimately determinative in this case is the Seventh Circuit's repeated view that "[p]assage of time is less critical when the affidavit refers to facts that indicate ongoing continuous criminal activity." United States v. Spry, 190 F.3d 829, 836 (7th Cir. 1999) (quoting Pless, 982 F.2d at 1126; citing Lamon, 930 F.2d at 1188).
The information before us here in the warrant affidavit, after correcting the false portions and including the omitted information, clearly supports a reasonable belief that Antone Harris was involved in ongoing cocaine dealing. Considering together the Dope Hotline Tip, the two trips by the confidential informant to the Goodlet Avenue residence and his/her reports to Detective Forrest, as well as Detective Forrest's own surveillance, there is probable cause to believe Antone Harris was engaged in narcotics dealings. Antone Harris's prior conviction for possession of cocaine provides additional support for that conclusion. Accordingly, we hold that the information Detective Forrest misstated and/or omitted from the warrant affidavit was not essential to a finding of probable cause because the evidence relied upon was more than sufficient to indicate a likelihood that Antone Harris was involved in ongoing narcotics transactions at the Goodlet Avenue residence.
Conclusion
For the reasons stated above, we DENY Defendant Harris's Motion to Suppress and Request for a Franks Hearing.