United States Court of Appeals For the Seventh Circuit
Search and Seizure — Franks motions
The district court was not clearly erroneous in finding that omissions and inconsistencies in a search warrant application were not the product of reckless disregard by the affiant.
“The preparation of the warrant affidavit in this case put this investigation and prosecution at serious risk. The officers in this investigation presented the warrant judge with a sanitized affidavit that made an independent determination of probable cause more difficult than it should have been. The officers made decisions about which way inconsistencies should be resolved and whether contradictory information should be provided to the judge rather than presenting this information to the judge to assess. It is the job of the issuing judge, and not the police, to weigh competing information and to decide how inconsistencies affect the probable cause determination. When police make decisions about what information to provide judges, the idea of an independent, detached magistrate reviewing the evidence is compromised, and the constitutional command that ‘no Warrants shall issue, but upon probable cause’ is weakened.”
“On this record, the district court might have reasonably found that the errors and omissions in the warrant application were the product of deliberate deception or reckless disregard for the truth. The district court found otherwise here. Our decision to affirm the district court’s judgment is governed by the clearly erroneous standard of review. Based on the totality of the circumstances in this case, including the favorable but omitted evidence of the telephone calls, the district court did not clearly err by finding that the police were not acting with reckless disregard for the truth in making their mistakes and failing to include the inconsistent information.”
Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Hamilton, J.