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United States v. Bacon

United States District Court, N.D. Indiana, Fort Wayne Division

June 4, 2019

SHAWN BACON, Defendant.



         This matter comes before the Court on Defendant's Motion for a Franks Hearing (ECF No. 57), filed on April 22, 2019. The Government filed its sealed Opposition to Defendant's Request for Hearing Pursuant to Franks v. Delaware (ECF No. 64) on May 20, 2019. Having reviewed the Motion and the Opposition, the Court determines that no Franks hearing is warranted.


         On December 14, 2017, Detective Craig Wise of the Fort Wayne Police Department (“FWPD”) submitted a Search Warrant Affidavit (ECF No. 57-1) to the Allen County, Indiana, Superior Court seeking a search warrant for Defendant's residence.[1] This affidavit has been the subject of two prior rulings by this Court (ECF Nos. 42, 49), so this Court will not repeat a thorough summary of the affidavit.

         It is sufficient for this Opinion and Order to note the following testimony from the affidavit. On November 2, 2017, the FWPD received a tip regarding Defendant. The tip stated that Defendant lived at 1728 ½ High Street, that he was a known drug dealer, and that he had been arrested for selling cocaine out of his residence in the past. The tip additionally advised that Defendant had almost killed the tipster's brother twice by supplying the brother with heroin. Finally, the tip stated that Defendant used two vehicles (a silver Chevrolet Impala and a black Chevrolet Impala) to deliver narcotics.

         On November 13, 2017, the FWPD received a second tip. This tip advised that Defendant lived at 1728 High Street in the upstairs apartment and that he was selling heroin, cocaine, and methamphetamine to his addict friends. The tip also advised that Defendant was a convicted felon and had multiple guns.

         On two occasions (November 16, 2017, and December 7, 2017), the FWPD conducted “controlled buys” at Defendant's residence. On each occasion, the FWPD utilized a confidential informant (“CI”). The CI did not perform the buys; instead, the CI recruited one of his/her acquaintances to purchase drugs from Defendant. According to the affidavit, the acquaintances did not know that they were involved in a controlled buy.


         A. Standard of Review

         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.

         The Seventh Circuit has interpreted the holding of Franks to also apply to omissions. United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984) (internal citations omitted). Therefore, a defendant may also challenge an affidavit by showing that the affiant intentionally or recklessly omitted material information. See id.; see also Shell v. United States, 448 F.3d 951, 958 (7th Cir. 2006); United States v. Pace, 898 F.2d 1218, 1232-33 (7th Cir. 1990).

         B. Anonymous Tips

         Defendant first asserts that Wise intentionally or recklessly omitted the fact that the tips received by the FWPD were anonymous. As a result, Defendant argues, the magistrate was unable to properly make an evaluation of the reliability of those tips. The Court finds that the anonymous nature of the tips is evident from the face of the affidavit and, further, that the information was not material to the probable cause analysis in any event.

         While it is true that the word “anonymous” is not used in the affidavit in relation to the tips, it is not difficult to discern the anonymous nature of the tips from the affidavit. See United States v. A Residence Located at 218 Third Street, New Glarus, Wis., 805 F.2d 256, 259-60 (7th Cir. 1986) (noting that inferences should be drawn against holding a Franks hearing). Initially, the affidavit specifically identifies by name or designation the CIs and the individuals that purchased the drugs in the controlled buys. The individuals making the tips are not identified. A reasonable inference to be drawn from this distinction is that Wise did not know the identity of the tipsters. Additionally, the affidavit vouches for the reliability of both CIs, stating that they had “proven to be credible and reliable.” No. such vouching ...

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