United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
Joseph Michalski is facing charges for unlawfully possessing
an explosive device and a stolen firearm. Mr. Michalski was
arrested when officers discovered an explosive device in his
home while executing a search warrant on February 1, 2017.
Officers believed that Mr. Michalski also possessed a firearm
in the home, but they did not find it during the search. The
following day, an officer listened to a call that Mr.
Michalski made from the jail to his mother, during which Mr.
Michalski revealed the location of the firearm and said it
was stolen. With that information, the officer applied for
and received another search warrant and found the firearm,
leading to the charge for possessing a stolen firearm.
Michalski now moves to suppress, arguing that his statement
during the phone call was coerced. He alleges that the
officer told his mother that if he produced the firearm to
law enforcement so that they could perform a ballistics test,
he would not be charged with possessing the explosive device
and, as long as “there were not bodies on the gun,
” they would return the firearm and would not charge
him with possessing it. He further alleges that the officer
told his mother to get him “to give up the gun.”
When Mr. Michalski then called his mother from the jail in a
recorded call, she related that alleged promise to him and
encouraged him to turn the firearm over to the officer. In
the course of the conversation, Mr. Michalski disclosed the
location of the firearm to his mother and further admitted
that it was stolen (though he also repeatedly expressed
skepticism at the genuineness of the promise and never
explicitly indicated an intent to accept the deal). After
listening to a recording of that conversation, the officer
included Mr. Michalski's comments in a new search warrant
application, and found the firearm in an ensuing search.
Michalski moves to suppress his statement, as well as the
firearm that was found as a result of that statement. The
motion appears to raise two theories. First, Mr. Michalski
argues that his statement was coerced by the false promises
of leniency, and that his resulting statement was involuntary
under the totality of the circumstances. See Arizona v.
Fulminante, 499 U.S. 279 (1991). Second, he requests a
hearing under Franks v. Delaware, 438 U.S. 154
(1978), arguing that the officer improperly omitted the false
promises of leniency from the affidavit he submitted in
support of the search warrant, so the search was invalid for
response, the government argues only that a Franks
hearing is not warranted, as the alleged omissions would not
have changed the existence of probable cause. In that
respect, the Court agrees. Under Franks, evidence
will be suppressed if officers procure a warrant by
intentionally or recklessly making false statements that are
necessary to a finding of probable cause, or by intentionally
or recklessly omitting such information. Franks, 438
U.S. at 171-72; United States v. Robinson, 546 F.3d
884, 887-88 (7th Cir. 2008). Suppression is not warranted,
though, if the warrant affidavit would still support a
finding of probable cause even if the false statements were
corrected or the omitted information was included.
Franks, 438 U.S. at 171-72; Robinson, 546
F.3d at 887-88.
the alleged omissions would not undermine the existence of
probable cause. During the phone call with his mother, Mr.
Michalski specifically described the location of the firearm
in his home, and he also stated that the firearm was stolen.
The affidavit recounts those facts in support of a finding of
probable cause. In requesting a Franks hearing, Mr.
Michalski argues that the affidavit should have also stated
that the officer made false promises of leniency, as noted
above. That additional information would only add to a
finding of probable cause, though. The alleged promise was
that Mr. Michalski would not face charges if he actually
produced the firearm to the officers; giving them false
information about the firearm's location would not have
secured him any benefits. Thus, if Mr. Michalski was told and
believed that he would receive immunity by leading officers
to the firearm, that would only bolster the reliability of
his statement and increase the likelihood that the firearm
would be where he said. Including those facts in the
affidavit would therefore not alter the existence of probable
cause, so a Franks hearing is not warranted.
Michalski's request for a Franks hearing appears
to proceed on the premise that if his statements during the
call had been coerced, then they could not be used in support
of probable cause. That is not a Franks issue,
however, but rather an argument that the warrant was the
fruit of the poisonous tree of an underlying constitutional
violation. Thus, the critical question is whether, as Mr.
Michalski argues in the rest of his motion, his statement was
involuntary as a result of unlawful coercion, in violation of
the Due Process Clause. “A conviction obtained by the use
of an involuntary confession violates due process, ” so
an involuntary confession and its fruits are subject to
suppression. United States v. Stadfeld, 689 F.3d
705, 709 (7th Cir. 2012). “A confession is involuntary
if it is the result of coercive police conduct, ” and a
false promise of leniency has been recognized as an example
of coercive police conduct. Id.; United States
v. Montgomery, 555 F.3d 623, 629 (7th Cir. 2009). If
coercive police conduct is present, then a court must
determine whether, under the totality of the circumstances,
the statement was voluntary. Fulminante, 499 U.S. at
Mr. Michalski alleges that the officer conveyed a false
promise of leniency (albeit through his mother as an
intermediary), and that his statement was involuntary under
the totality of the circumstances given his age and mental
health. However, the circumstances of the alleged promise are
somewhat unclear and may be disputed, and there is little
factual development in the record as to any other
circumstances that may inform a determination as to
voluntariness, so the Court cannot resolve those issues on
the existing record. Accordingly, the Court will set this
matter for an evidentiary hearing for the parties to submit
any evidence on the question of whether Mr. Michalski's
statement was involuntary as a result of coercive police
 Mr. Michalski does not raise any
argument under Miranda or argue that his mother
should have read him his rights prior to their conversation.
The Court agrees that Miranda would not apply here.
Though Mr. Michalski was in custody at the time, he was not
subject to custodial interrogation. The statements in
question came during a phone call he voluntarily placed to
his mother-a situation that carries none of the coercive
pressure of an interrogation in a “police-dominated
atmosphere”-so Miranda warnings were not
required. See Illinois v. Perkins, 496 U.S. 292
(1990) (holding that Miranda warnings were not
required when a defendant was questioned by an undercover
officer posing as a fellow inmate). That does not preclude a
finding, though, that the statements were ...