United States v. Jones, Anthony, Jr. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY JONES, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 98-30027--Richard Mills, Judge.
Argued December 6, 1999--Decided March 31, 2000
Before Bauer, Diane P. Wood and Evans, Circuit
Judges.
Bauer, Circuit Judge. Anthony Jones, Jr.
("Jones") was indicted by a federal grand jury in
the Central District of Illinois for being a
felon in possession of a firearm in violation of
18 U.S.C. sec.922(g). After the District Court
denied his request for a Franks hearing and his
motion to quash his arrest and suppress evidence,
Jones entered a conditional plea of guilty,
preserving his right to appeal the denials of
those motions. He was sentenced to a term of 60
months imprisonment, to be followed by a three
year term of supervised release, and ordered to
pay a $1,000 fine and a $100 special assessment.
Jones appeals, claiming that the search warrant
was facially invalid, not supported by probable
cause and that its execution was unreasonable
because the police did not knock and announce
their presence before bursting into his home. We
affirm the District Court rulings finding the
warrant and its execution valid.
I. BACKGROUND
On January 25, 1998, police officers obtained
and executed a search warrant for Jones’ home at
2268 South 9th Street, in Springfield, Illinois.
Based upon information from a confidential
informant, they suspected that Jones was dealing
marijuana and was illegally in possession of a
handgun. During their search they seized several
bags of what they suspected to be marijuana,
along with a 9mm semi-automatic handgun, a
shotgun and several thousand dollars in cash.
"Jane Doe", the confidential source, told
Springfield Police Department Officer Steven
Welsh and averred in an affidavit in support of
the complaint for search warrant, that she had
gone to Jones’ house at "2269 S. 9th Street"/1
on the afternoon of January 24th, 1998 to
purchase marijuana. It was not her first buy from
Jones. She stated that she had purchased
approximately twelve pounds of marijuana from him
on at least three previous occasions. On this
afternoon, she paid Jones $1,100.00 for a pound
of marijuana that Jones had "fronted" her and
received another pound of marijuana which she
agreed to pay for in a few days. As she was
leaving, Doe saw an additional pound of marijuana
on the kitchen table. Doe also stated that Jones
told her that he kept a pistol at the house to
protect his drug supply and that he had been in
jail in the past, but he did not say for what
crime.
To corroborate this information, Officer Welsh,
accompanied by Jane Doe, drove by the residence
at 2268 S. 9th Street at 11:30 pm on January 24,
1998. Doe identified it as Jones’ house, and
Officer Welsh observed two vehicles parked in the
driveway. Officer Welsh later confirmed that one
of the vehicles was registered to Anthony Jones
at 2268 S. 9th Street.
Officer Welsh also verified Doe’s story by
checking Jones’ criminal history, which showed
that Jones had been arrested 27 times, with 8
convictions. Two of the convictions were for
homicides, one was for armed robbery and five
were for dangerous drugs.
Officer Welsh presented these facts in an
affidavit and complaint for search warrant to the
judge. Jane Doe also executed an affidavit, which
was attached to and incorporated into Officer
Welsh’s warrant affidavit. She appeared with
Officer Welsh before the issuing judge and swore
to the truth of the information in her affidavit.
Based on all of this, the judge issued a warrant
to search the property at:
2268 S. 9th St., Springfield, Sangamon County,
Illinois. The residence on the property is a two
story single family dwelling, that is light green
in color. The residence is the second structure
north of Princeton street, on the east side of
9th street. The front door faces north. The
numbers 2268 are affixed to the front of the
residence. There is a chainlink [sic] fence that
surrounds the back yard.
The warrant was executed during the early morning
hours of January 25, 1998. The marijuana, cash
and weapons were seized. Jones was then charged
with unlawful possession of a firearm by a felon.
After his indictment, Jones requested a Franks
hearing. He initially challenged only the
adequacy of the search warrant, claiming that it
was fatally defective because it was based on
false information provided by Jane Doe. After
that motion failed, Jones filed a second motion
attacking not only the adequacy of the search
warrant but also the manner of its execution. His
second motion asserted, among other things, that
the warrant was unsupported by probable cause and
that the officers executing the warrant neither
knocked nor announced prior to entering and
seizing the evidence. Both motions were referred
to the Magistrate Judge and the Magistrate
recommended that the motions be denied. The
District Court undertook a de novo consideration
of the motions and adopted the Magistrate Judge’s
recommendations.
II. DISCUSSION
We review the District Court’s denial of Jones’
request for a Franks hearing for clear error.
United States v. Amerson, 185 F.3d 676, 688 (7th
Cir. 1999). A clear error standard is also used
to review the District Court’s ruling on the
motion to suppress, but we must keep in mind that
"our inquiry is factually based and requires that
we give particular deference to the district
court that had the opportunity to hear the
testimony and observe the demeanor of the
witnesses." United States v. Williams, 945 F.2d
192, 195 (7th Cir. 1991), quoting United States
v. Edwards, 898 F.2d 1273, 1276 (7th Cir. 1990).
Any legal determinations that factor into the
court’s ruling, however, are subject to de novo
review. United States v. Adames, 56 F.3d 737, 747
(7th Cir. 1995).
A. Jones’ Request For A Franks Hearing
Jones contends that the District Court erred by
denying his request for a Franks hearing and
finding that he did not produce sufficient
evidence to make the "substantial preliminary
showing" required for a hearing. He asks this
Court to remand the matter for an evidentiary
hearing on his Franks allegations. We believe
that Jones has utterly failed to establish by a
"substantial preliminary showing" that the search
warrant affidavit contained material
misrepresentations that were necessary to the
finding of probable cause. We thus affirm the
District Court’s denial of the request for a
Franks hearing.
In Franks v. Delaware, the Supreme Court held
that the Fourth Amendment requires an evidentiary
hearing into the truthfulness of an allegation
contained in an affidavit supporting an
application for a search warrant "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."
438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57
L. Ed. 2d 667 (1978) (emphasis added). Franks makes
it clear that affidavits supporting a search
warrant are presumed valid, and that the
"substantial preliminary showing" that must be
made to entitle the defendant to an evidentiary
hearing must focus on the state of mind of the
warrant affiant, that is the police officer who
sought the search warrant. 438 U.S. at 171, 98
S.Ct. at 2684. The defendant must offer evidence
showing either that the warrant affiant lied or
that the warrant affiant recklessly disregarded
the truth because he "in fact entertained serious
doubts as to the truth of his allegations" or had
"obvious reasons to doubt the veracity of the
allegations." United States v. Williams, 737 F.2d
594, 602 (7th Cir. 1984), quoting St. Amant v.
Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325,
20 L. Ed. 2d 262 (1968) (internal quotation marks
omitted).
Jones’ request for a Franks hearing rests on
his assertion that Jane Doe provided false
information in her affidavit. He claims that he
could not have sold marijuana to Doe in
Springfield on January 24, 1998, as she alleges,
because he was at his sister’s apartment in
Chicago with his father and his father’s
girlfriend at the time. He presents affidavits
from his wife, sister, father and his father’s
girlfriend in support of his alibi and argument.
His argument is, however, misdirected. "[T]he
fact that a third party lied to the affiant, who
in turn included the lies in a warrant affidavit,
does not constitute a Franks violation. A Franks
violation occurs only if the affiant knew the
third party was lying, or if the affiant
proceeded in reckless disregard of the truth."
United States v. McAllister, 18 F.3d 1412, 1417
(7th Cir. 1994), quoting United States v.
Pritchard, 745 F.2d 1112, 1119 (7th Cir. 1984).
Since Jones’ first motion challenged only the
veracity of statements made by Doe, not
statements made by warrant affiant Officer Steven
Welsh, Jones’ first motion for a Franks hearing
was properly denied.
In his second motion, Jones questioned whether
Officer Welsh was reckless in incorporating Jane
Doe’s allegations into his affidavit without
first doing more to corroborate them. He opines,
for instance, that Officer Welsh could have set
up a controlled buy or conducted surveillance of
his home to verify the veracity of Jane Doe’s
statements.
The fact that Jones can point out additional
things which could have been done but were not
does not in any way detract from what was done.
The District Court meticulously recounted all of
the actions that were taken by Officer Welsh
before he sought the search warrant. These
included driving Jane Doe to the area and having
her identify which house was the defendant’s,
conducting a vehicle registration check on the
cars that were parked in the driveway at 2268 S.
9th Street and finding that one of them was
registered to the defendant at that address, and
verifying, as Jane Doe had told him, that the
defendant had served time in jail.
Based upon all of this, the District Court
concluded that "Officer Welsh had neither the
reason to know nor to suspect that the
information provided by Jane Doe was false."
Since he did not know or have reason to suspect
that any information was false, he cannot be said
to have recklessly disregarded the truth. We
agree and thus affirm the District Court’s denial
of the request for a Franks hearing.
B. Jones’ Motion To Quash Arrest And Suppress
Evidence
Having been unsuccessful in obtaining a Franks
hearing, Jones next filed a motion to quash
arrest and suppress evidence. For the most part,
it was merely the same arguments re-styled, with
a challenge to the execution of the warrant
added. Because we have already found that Jones
did not make even a minimal preliminary showing
under Franks that the warrant was
constitutionally defective, we discuss his
challenges to the adequacy of the search warrant
by way of this second motion only cursorily. His
objection to the manner in which the officers
carried out the search will be discussed more
thoroughly.
Complaining about the typographical error in
Jane Doe’s affidavit listing his address as "2269
S. 9th Street" instead of the correct 2268 S. 9th
Street, Jones argues that this inadvertent error
renders the search warrant facially defective. He
augments this with a claim that the incorrect
address in Doe’s affidavit could cause the
officers to mistakenly search the wrong house.
These arguments are specious at best.
The search warrant itself lists the correct
address to be searched. Given the expediency with
which officers typically serve a search warrant
after it is obtained it is doubtful that they
would have had the time to proof read all of the
supporting documentation. Furthermore, even if
they did, this warrant provided other, ample,
descriptions of the location of Jones’ house. It
describes the location of defendant’s home in
relation to intersecting and adjoining streets
and neighboring houses. An officer could have
relied on the remaining guides, without the
numeric address, and still found the correct
house. "It is enough if the description is such
that the officer with a search warrant can, with
reasonable effort, ascertain and identify the
place intended." Steel v. United States, 267 U.S.
498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757 (1925).
Jones next argues that the affidavit in support
of the search warrant did not provide probable
cause to support the warrant. Jones argues that
Doe’s statements are inadequate by themselves and
that there is insufficient independent evidence
to corroborate Doe’s statements. He also adds
that there was no evidence that Jane Doe was
credible and, without this indicia of
reliability, the judge did not have probable
cause to issue the search warrant.
A search warrant affidavit establishes probable
cause when it "sets forth facts sufficient to
induce a reasonable prudent person to believe
that a search thereof will uncover evidence of a
crime." United States v. McNeese, 901 F.2d 585,
592 (7th Cir. 1990), citing Berger v. New York,
388 U.S. 41, 55, 87 S. Ct. 1873, 1881, 18 L. Ed. 2d
1040 (1967). See also Ornelas v. United States,
517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134
L. Ed. 2d 911 (1996). The Supreme Court has refused
to define probable cause, saying that whether it
has been established varies with the facts of
each case. Ornelas, 517 U.S. at 696. The Court
has, instead, adopted a "totality of the
circumstances" standard, Illinois v. Gates, 462
U.S. 213, 230-39, 103 S. Ct. 2317, 2328-33, 76
L. Ed. 2d 527 (1983), which includes a
consideration of the "veracity" of the informant.
Id.
Citing case law from other circuits, Jones
postulates that Officer Welsh could have, and
should have, recited Jane Doe’s past experiences
as an informant and given instances of previous
reliability in his affidavit. He derides the
failure to do so and claims that its absence
deprives the warrant of its "indicia of
reliability."
Where the credibility of an informant is at
issue, we consider (1) the personal observations
by the informant, (2) the degree of detail given,
(3) independent police corroboration of the
informant’s information, and (4) the informant
testifying at the probable cause hearing. United
States v. Singleton, 125 F.3d 1097, 1103-04 (7th
Cir. 1997) (citation omitted). Here, the District
Court weighed these factors and found the
information sufficiently reliable to support
probable cause. The court noted that Jane Doe’s
information came from her personal observations
and was "specific and detailed." Furthermore, as
we have already discussed, Officer Welsh
corroborated as much of Jane Doe’s information as
he could before seeking the search warrant. And
perhaps most importantly in this case, Jane Doe
appeared at the probable cause hearing and was
subject to questioning by the issuing judge.
"[W]hen a CI accompanies the officer and is
available to give testimony before the judge
issuing the warrant, his presence adds to the
reliability of the information used to obtain the
warrant, because it provides the judge with an
opportunity to ’assess the informant’s
credibility and allay any concerns he might have
had about the veracity of the informant’s
statements.’" United States v. Lloyd, 71 F.3d
1256, 1263 (7th Cir. 1995), citing United States
v. Causey, 9 F.3d 1341, 1343 (7th Cir. 1993),
cert. denied, 511 U.S. 1024, 114 S. Ct. 1412, 128
L. Ed. 2d 83 (1994).
The District Court noted the fact that Jane Doe
made statements against her penal interest was an
additional factor pointing toward reliability and
credibility of her assertions. We agree that all
of this, taken together, establishes the
requisite indicia of reliability. We are
satisfied that the search warrant was valid and
supported by probable cause. The order of the
District Court denying Jones’ motion to quash and
suppress based upon claimed inadequacies in the
warrant is affirmed.
The only issue left for us to consider is
whether the execution of the search warrant was
unreasonable because the officers did not knock
and announce their presence and purpose and did
not wait a reasonable time before forcibly
entering Jones’ home. The Magistrate Judge held
a hearing on this issue and heard testimony from
the defendant’s wife and the four officers who
conducted the search before concluding that the
officers did knock and announce and did wait a
reasonable time before forcibly entering the
home.
The defendant’s wife, Maria D. Jones, testified
that during the early morning of January 25,
1998, she was asleep with her husband in their
bedroom. She claims that she did not hear any
type of knock or announce even though their
bedroom is near the front door, but, rather, it
was a loud explosion that awoke her./2 The four
officers testified that Officer Edwards loudly
and repeatedly knocked and declared "Springfield
Police. Search Warrant." Officer Edwards even
demonstrated how he knocked and the tone he used.
As to the amount of time the officers waited
after knocking and before entering the home, the
cumulative testimony showed that it was between
5 and 13 seconds.
Generally, police officers are required to knock
and announce their presence unless there are
exigent circumstances. See 18 U.S.C. sec.3109;
United States v. Soria, 965 F.2d 436, 439 (7th
Cir. 1994). If no exigent circumstances exist and
the officers are "refused admittance," they may
forcefully enter. The phrase "refused admittance"
is not restricted to an affirmative refusal. It
includes circumstances that infer a refusal.
United States v. Bonner, 874 F.2d 822, 824 (D.C.
Cir. 1989). In this case, the officers could
reasonably infer that Jones’ failure to
acknowledge their presence or open the door was
a refusal and we find that they were thus
justified in using force to enter.
The District Court found that 5 to 13 seconds
was a reasonable time to wait after knocking and
announcing. Jones urges us to reject that
finding. Each side cites to us cases from our
circuit and others wherein waits of minutes and
seconds are found to be reasonable and
unreasonable. We decline to adopt any bright line
test and state our belief that the period of time
that officers must wait before forcible entry is
determined by what is reasonable under the
circumstances of the particular case. Here, the
District Court was persuaded that 5 to 13 seconds
was reasonable because the officers had
information that the defendant was a dangerous
felon in possession of a gun. Additionally, it
noted that to wait a lengthy period of time would
give the defendant an opportunity to destroy the
drug evidence.
Reviewing the facts in the record before us we
cannot say that the court erred in its
conclusions. The District Court’s denial of the
motion to quash arrest and suppress evidence is
thus affirmed.
III. CONCLUSION
For the foregoing reasons, the thoughtful
judgment of the District Court is affirmed in all
regards.
AFFIRMED.
/1 In an affidavit submitted in response to
defendant’s Motion to Quash Arrest and Suppress
Evidence, Officer Welsh stated that he
incorrectly typed the address as 2269 S. 9th
Street when typing Jane Doe’s affidavit and that
the error was merely typographical. Jones’
correct address is 2268 S. 9th Street.
/2 The Magistrate Judge did not find the testimony
of Mrs. Jones to be credible.