United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is a motion to suppress (DE 25) filed by Defendant
Kristin M. Ferguson also known as Detroit
(“Ferguson”), which has been referred to the
undersigned magistrate judge for the issuance of a report and
recommendation pursuant to 28 U.S.C. § 636(b) and Local
Rule 72-1 (DE 29). The Court SETS this matter for an
evidentiary hearing on July 18, 2019, at 9:00 a.m.; this
Opinion and Order addresses the scope of such evidentiary
requests that evidence obtained by the search and seizure of
her residence on February 18, 2019, be suppressed because:
(1) the officers allegedly completed a warrantless search
without her consent and used evidence obtained therein in the
search warrant affidavit, which tainted the search warrant;
(2) the search warrant affidavit allegedly contains false
statements and omits material facts-namely, information about
the informant upon which the judge could assess the
informant's credibility and reliability; and (3) in
executing the search warrant, the officer allegedly exceeded
the scope of the warrant, resulting in the seizure of
articles not described in the search warrant. (DE 25 at 1-2).
Ferguson requests an evidentiary hearing pursuant to
Franks v. Delaware, 438 U.S. 154, 155-56 (1978), to
examine the sufficiency of the search warrant, asserting that
the affiant in the search warrant affidavit: (1) knowingly or
recklessly made false statements which were necessary to the
finding of probable cause, and (2) knowingly or recklessly
omitted material information which if included would have
negated probable cause. (DE 25 at 2).
government disputes Ferguson's assertion that the search
of her residence violated the Fourth Amendment. (DE 27). The
government argues that Ferguson is not entitled to a
Franks hearing because she fails to make the
substantial preliminary showing needed to overcome the
presumption that search warrants are valid. The government
states that if the motion to suppress is set for an
evidentiary hearing, the hearing should be limited to the
circumstances of the alleged protective sweep performed in
Ferguson's residence. (DE 27 at 13).
The Search Warrant Affidavit
following is a brief synopsis of the relevant facts in the
search warrant affidavit signed by Officer Don Garab of the
Wolcottville Police Department on February 18, 2019. (DE 25
February 18, 2019, at about 12:00 p.m., Officer Brandon
Garrison and Officer Garab performed a traffic stop of a
vehicle driven by James Mitchell in Wolcottville, Indiana.
Mitchell, whose driving privileges were suspended, had two
small children in the car. Mitchell advised the officers that
the children's mother was Ferguson, and he provided the
officers with her home address. Mitchell told the officers
that Ferguson was selling and using methamphetamine in her
house, that he had observed large quantities of
methamphetamine being sold at her house, and that prior to
the traffic stop he had been at her house where he ingested
methamphetamine. Mitchell also told the officers that
Ferguson uses her cell phone to set up the purchase and sale
of illegal substances.
officers transported Mitchell and the children to
Ferguson's residence. Upon arrival, the officers saw a
burnt marijuana cigarette outside the front door. Ferguson
invited the officers inside, and the officers saw a glass
smoking device that they recognized as an instrument used to
ingest illegal substances. The officers asked for
Ferguson's consent to search the house, but Ferguson
denied the officers' request. The officers then
“secured the house in order to apply for a search
warrant.” (DE 25 at 4-5). While “clearing the
house looking for any other occupants, ” the officers
observed a safe; several more glass pipes that they
recognized as instruments used to used to ingest illegal
substances; and a cell phone belonging to Ferguson, which
received numerous calls and text messages while the officers
were applying for the search warrant. (DE 25 at 5).
Robert Kirsch of the Noble Superior Court signed the search
warrant, and Officer Garab executed the warrant at 4:30 p.m.
on February 18, 2019. (DE 25 at 6-7).
The Law Pertaining to a Franks Hearing
supporting search warrants are presumed valid.”
United States v. Jackson, 103 F.3d 561, 573 (7th
Cir. 1996) (citing Franks, 438 U.S. at 171). The
Fourth Amendment requires an evidentiary hearing concerning
the truthfulness of information included in a search warrant
application only where the defendant makes a
“substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary
to the finding of probable cause.” United States v.
Robinson, 546 F.3d 884, 887 (7th Cir. 2008) (quoting
Franks, 438 U.S. at 155-56). “These elements
are hard to prove, and thus Franks hearings are
rarely held.” United States v. Swanson, 210
F.3d 788, 790 (7th Cir. 2000).
Seventh Circuit Court of Appeals] has interpreted the holding
of Franks to also apply to omissions in
affidavits.” Robinson, 546 at 887 (citing
United States v. Harris, 464 F.3d 733, 737 (7th Cir.
2006)). “Therefore, a defendant may also challenge an
affidavit by showing that the affiant intentionally or
recklessly omitted material information.” Id.
(citing Harris, 464 F.3d at 737; Shell v. United
States, 448 F.3d 951, 958 (7th Cir. 2006)). To obtain a
Franks hearing based on material omissions,
“the defendant must . . . show that if the deliberately
or recklessly false statements were omitted, or if the
deliberately or recklessly misleading omissions included,
probable cause would have been absent.” United
States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013)
(citing Franks, 438 U.S. at 171-72).
of negligent or innocent mistakes do not entitle a defendant
to a hearing, nor do conclusory allegations of deliberately
or recklessly false information.” Id. at 508.
“The defendant must identify specific portions of the
warrant affidavit as intentional or reckless
misrepresentations, and the claim of falsity should be
substantiated by the sworn statements of witnesses.”
Id. (citing Franks, 438 U.S. at 171).
“Ordinarily an omission from a warrant affidavit is
considered ‘material' if the court would not have
authorized the warrant had it known the omitted facts.”
United States v. Owens, No. 16-CR-38-JPS, 2016 WL
7079609, at *5 ...