United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, Judge
matter is before the Court on the Defendant's Motion for
Franks Hearing on Search Warrant for Hotel Room [ECF No.
132], filed on April 15, 2016. The Defendant claims that the
affidavit for a state search warrant contained false
information and did not provide probable cause to search.
Greenwood City Court issued a search warrant on February 8,
2015, to search Room 211 of the Red Roof Inn Hotel located in
Greenwood, Indiana. Detective Jay Arnold of the Greenwood
Police Department submitted the Probable Cause Affidavit that
led to the issuance of the warrant to search for evidence of
drugs. Detective Arnold set forth the following facts:
On 2-3-15 ISP officers received information from other law
enforcement officers that a suspected drug trafficker
(Dewayne Lewis) was staying at the Red Roof Inn located in
Greenwood Indiana. Officers set up surveillance and observed
a female who was identified by law enforcement as possibly
the wife of Dewayne Lewis arrive at the hotel in a vehicle
registered to Dewayne Lewis and enter room 211. She was
observed carrying a black gym bag style bag into the room.
Officers then observed her exit the room without the bag and
leave the property. Dewayne Lewis is suspected in being part
of a large scale Cocaine trafficking organization. The hotel
room was rented by Michael Jackson with an address in
Evansville, Indiana. Officers attempted a stop and talk [at]
room 211, but no one answered the door. ISP Tpr. Greg Magee
walked his narcotics K-9 “Camo” along the
exterior doors of the hotel which is a common area used by
the public to get to different hotel rooms on the second
floor. When his K-9 “Camo” came to room 211 the
K-9 alerted for the presence of narcotics. K-9
“Camo” was last certified in narcotic detection
in September 2014. Based on your affiant's training and
experience, a drug detection dog indicating on a door to a
hotel room indicates illegal drugs are within the room.
(Probable Cause Aff., ECF No. 133 at 4.)
cause is far short of certainty; it requires only a
probability or substantial chance of criminal activity, not
an actual showing of such activity or even a probability that
exceeds 50 percent. United States v. Seiver, 692
F.3d 774, 777 (7th Cir. 2012). Detective Arnold's
probable cause affidavit provided the issuing judicial
officer with a “substantial basis” to find
probable cause. United States v. Koerth, 312 F.3d
862, 866 (7th Cir. 2002) (citing Illinois v. Gates,
462 U.S. 213, 238 (1983)).
search warrant affidavits are presumed to be valid.
Franks v. Delaware, 438 U.S. 154, 171 (1978).
However, a search warrant is invalid if police officers
obtain it by deliberately or recklessly providing the issuing
court with false, material information. United States v.
McMurtrey, 704 F.3d 502, 504 (7th Cir. 2013). In
Franks v. Delaware, the Supreme Court defined the
procedure, evidentiary burdens, and proper remedies
associated with a defendant's attack on the truthfulness
of statements made in a sworn affidavit supporting the
issuance of a search warrant. To obtain a Franks
hearing, the defendant must make a “substantial
preliminary showing” of (1) a material falsity or
omission that would alter the probable cause determination,
and (2) a deliberate or reckless disregard for the truth.
McMurtrey, 704 F.3d at 508. “These elements
are hard to prove, and thus Franks hearings are
rarely held” because a defendant seeking a
Franks hearing “bears a substantial burden to
demonstrate probable falsity.” United States v.
Maro, 272 F.3d 817, 821 (7th Cir. 2001) (citations
omitted). “Conclusory, self-serving statements are not
enough to obtain a Franks hearing.” United
States v. Johnson, 580 F.3d 666, 671 (7th Cir. 2009)
(citing Franks, 438 U.S. at 171). Allegations of
falsehood or reckless disregard for the truth must be
“accompanied by an offer of proof.”
Franks, 438 U.S. at 171.
support of his request for a Franks hearing, the
Defendant maintains that the officers did not know if the
Dewayne Lewis in the hotel room was the same Dewayne Lewis
investigators believed they were looking for earlier in their
investigation. The Defendant claims that the timeline of
events exposes false information in the search warrant
affidavit. For example, he claims that no dog sniff occurred
because police did not broadcast information about the dog
alert until after the warrant was issued. Likewise, he
maintains that the information about the vehicle registered
in his name, and the woman carrying a black bag, must be
false because there was no radio broadcast log entries
detailing these facts. In essence, he is claiming that these
events never happened. Finally, the Defendant attacks
numerous statements on grounds that Detective Arnold did not
actually witness the events he described.
the Defendant's speculation satisfies the substantial
burden to demonstrate probable falsity. The Defendant's
speculation about what police broadcast logs should have
revealed is not a substantial preliminary showing that the
police procured the search warrant with intentional or
reckless misrepresentations in the warrant affidavit. There
is no evidence that radio communication between investigating
officers is recorded in writing, or otherwise maintained in a
way that is accessible later. Presented with the facts that
pointed to the existence of drugs in the hotel room, it was
not critical to the probable cause determination whether the
investigators were certain that the Dewayne Lewis they
believed was in the hotel room was the same Dewayne Lewis
they identified as their target earlier in the investigation.
Finally, there is nothing unusual or inappropriate about an
affiant relying upon the observations and work of his fellow
law enforcement officers, and an affidavit can properly
include hearsay. See United States v. Daoud, 755
F.3d 479, 487 (7th Cir. 2014) (citing Franks, 438
U.S. at 164-65); United States v. Spears, 965 F.2d
262, 277 (7th Cir. 1992) (“In determining whether
probable cause exists, a magistrate is entitled to regard an
affiant's fellow law enforcement officers as reliable
sources.”); United States v. DiNovo, 523 F.2d
197, 200 (7th Cir. 1975). Detective Arnold's Affidavit
revealed that he was relying on information provided to him
by other law enforcement officers, including those who were
conducting surveillance at the hotel, as well as the trooper
whose narcotic detecting K9 alerted to the presence of drugs
in the room.
Defendant has not show that the warrant for the search of the
hotel room would not have issued but for misrepresentations
made in the Affidavit that Detective Arnold submitted to the
Greenwood City Court.
reasons stated above, the Court DENIES the Defendant's
Motion for Franks Hearing on Search Warrant for Hotel Room
[ECF No. 132]. To receive any further review of this
decision, the Defendant ...