United States v. Isaac M. Jenkins and Isaac F. Jenkins

728 F.2d 396, 1984 U.S. App. LEXIS 24861

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 5, 1984
• Docket: 81-3592
• Status: Published

Opinions

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

This is an appeal by the United States from an order of the District Court, which suppressed evidence on the ground that a search warrant under which said evidence had been seized from the home and car of appellee Isaac M. Jenkins was invalid. The reason for suppression was that the FBI agent who had signed the search warrant had not had personal knowledge of the facts on the basis of which a Magistrate issued the search warrant. After the District Judge granted the motion to suppress, counsel for the United States moved to reopen the suppression hearing in order to present further, evidence designed to indicate, the government asserted, that there was no intention on the part of the agent who signed the search warrant to mislead the Magistrate as to the source of the information, and that in fact the Magistrate was not misled and knew the source of the information. It is the government’s contention that on such a rehearing they would be able to show that, although the agent who signed and swore to the affidavit had no personal knowledge of the facts, he derived them from other FBI agents who had personal knowledge, and that the Magistrate knew that as to the agent signing the affidavit, the affidavit was of a hearsay nature. (See Appendix A.)

This case arises out of alleged “shylock-ing” operations in Youngstown where operators of usurious lending schemes collected interest from “reluctant” clients by beating them with rubber mallets if they failed to make the payments sought to be exacted. These practices are not before us on the merits of this appeal. All that is before us is the question as to whether or not the record should be enhanced by full elucidation before the District Court of the factual background of the affidavit or affidavits which were presented to the Magistrate. We believe the ultimately controlling law in relation to this case is established by Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978):

This case presents an important and longstanding issue of Fourth Amendment law. Does a defendant in a criminal proceeding ever have the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?

In the present case the Supreme Court of Delaware held, as a matter of first impression for it, that a defendant under no circumstances may so challenge the veracity of a sworn statement used by police to procure a search warrant. We reverse, and we hold that, 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, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit (Emphasis added.)

While we recognize that the Supreme Court has recently revisited the whole area of search warrant procedures in Illinois v. Gates,— U.S. —, 103 S.Ct. 2317, 76 L.Ed.2d 527, decided June 8, 1983, we find nothing therein which tends to negate the Franks v. Delaware standard that an affidavit, like the one before us, may be challenged successfully only on proof that it contains “deliberate falsehood or reckless disregard for the truth” without which the affidavit would be an insufficient basis for the warrant.

The record at this point does not reveal exactly how the facts contained in the warrant were derived, nor does it reveal the degree to which its hearsay aspects were known to the Magistrate before the warrant was issued.

It will be time enough for this court to make its ultimate determination on these issues when they have been fully explored at the District Court level and an adequate record written thereon. For the purposes of the hearing on this issue, we call the attention of the District Judge to United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), wherein the Supreme Court said:

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

See also Illinois v. Gates, supra, wherein the Supreme Court majority reestablished a “totality of circumstances” standard¹; Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); United States v. Bowling, 351 F.2d 236 (6th Cir.1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966).

Applicable also to this hearing, of course, is Rule 41 of the Federal Rules of Criminal Procedure.

Under what we deem to be settled Supreme Court standards and the facts of this case, we believe that the denial of the government’s motion to reopen the suppression hearing in order to take further testimony was error which requires reversal. It will be time to consider an ultimate decision on the suppression motion when all the facts are on the record.

For the reasons outlined above, we vacate the suppression order previously entered by the District Court and remand to the District Court for further consideration in accordance with this opinion.

APPENDIX A

MISS SCHUSTER: Your Honor, some evidence that was not elicited from Special Agent Owen has come to our attention, and I would proffer what that is to the Court and then ask the Court’s permission to reopen the hearing for putting Agent Owen on the stand so that he can testify to the information. And that is on the day before the warrant was signed, which I believe would have been April 22nd, Mr. Owen personally took the affidavit as it is submitted to the Court, but without the last paragraph, to the magistrate; that he and the magistrate-personally discussed the affidavit, and that the magistrate was concerned to have more corroboration in the affidavit in regard to the statements of Merry Wright and Major Talley.

It was after that that certain conversations which were tape recorded were had. The paragraphs in regard to those conversations were then added to the warrant and the warrant returned to Magistrate Laurie in Akron by Mr. Hamilton while Mr. Owen supervised the situation out at the house. Tr. of Suppression Hearing at 126-27.

1 . The court there stated:

For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697], supra; United States v. Ventresca, supra; Brinegar v. United States, supra. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Jones v. United States, supra, 362 US, at 271, 4 L Ed 2d 697, 80 S.Ct. 725 [736], 78 ALR2d 233. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.

Illinois v. Gates,— U.S. —, —, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (footnote omitted).