[00:00:00] Speaker 04:
We'll next hear argument in United States versus Welch.

[00:00:33] Speaker 04:
Just one moment, let it get settled.

[00:00:37] Speaker 04:
You may proceed.

[00:00:38] Speaker 00:
Good morning.

[00:00:39] Speaker 00:
May it please the court, Clark Matthews for the appellant, Derek Welch.

[00:00:44] Speaker 00:
We ask that you reverse the order of the district court denying the motion to suppress.

[00:00:49] Speaker 00:
The district court got a lot correct in the first step of the Frank's analysis, but did make some errors.

[00:00:58] Speaker 00:
in the first step and those errors in the first step led to its erroneous conclusion that there was probable cause in the corrected affidavit.

[00:01:06] Speaker 00:
The first thing we want to address is the omission that Welch had reported to law enforcement that Stein had committed a crime that day.

[00:01:18] Speaker 00:
Welch reported, it's in the record that Welch reported to law enforcement, she threw things at him, she broke things,

[00:01:27] Speaker 00:
We presented that, established that it was consistent with the pattern that the affiant had engaged in, and the district court simply didn't make a ruling on that issue, just kind of mischaracterized our argument with respect to that claim.

[00:01:46] Speaker 01:
What's the district court's burden in Frank's proceeding?

[00:01:53] Speaker 01:
What's his job?

[00:01:55] Speaker 00:
So the district court needs to determine whether or not the statements or omissions were made false or intentionally so or with reckless disregard for the truth.

[00:02:09] Speaker 00:
And so with respect to the Welch's report that Stein had thrown things at him and broke the glass,

[00:02:20] Speaker 00:
The affiant said he wasn't aware of that information, and there was evidence in the record that he was.

[00:02:28] Speaker 00:
And it was otherwise consistent with what we saw from the affiant.

[00:02:34] Speaker 00:
Because if that goes in the search warrant affidavit, that she's committing crimes against him, then that affects the probable cause analysis.

[00:02:46] Speaker 00:
That affects her credibility.

[00:02:47] Speaker 00:
She's got a motive to fabricate claims against Welch.

[00:02:50] Speaker 00:
And we see that with the other things, right?

[00:02:55] Speaker 00:
Stein reports that she's strangled and beaten.

[00:03:01] Speaker 00:
Officers don't see injuries consistent with that, so the search warrant author, he makes them up.

[00:03:08] Speaker 00:
Because if there's no injuries that are consistent with that report, that could affect her credibility.

[00:03:15] Speaker 01:
My understanding of the way Frank's works as a district judge, excuse me, in this circumstance is to look at things that are either materially wrong or stated in reckless disregard for the truth, exclude them, and then look at what's left and see if these were the only things in the affidavit would it have justified the issuance of a warrant.

[00:03:40] Speaker 01:
Am I right?

[00:03:42] Speaker 00:
Partially, right?

[00:03:44] Speaker 00:
But the court also has to consider omissions that were left out of the search warrant affidavit with reckless disregard for the truth, right?

[00:03:55] Speaker 00:
That's the standard case.

[00:03:56] Speaker 00:
And so if those omissions are left out, and they're left out with reckless disregard for the truth so that the neutral magistrate is misled about what's going on here, then the district court

[00:04:11] Speaker 00:
can put those omissions in the corrected affidavit and to consider then whether there's probable cause.

[00:04:19] Speaker 04:
But even with, I mean, at the end of the day, the district court is charged with excising first, and then to your point, determining if there is omitted information, and then ultimately making a probable cause determination

[00:04:36] Speaker 04:
I'm having some trouble here.

[00:04:37] Speaker 04:
Maybe you can help me over my hurdle of figuring out why at the end of the day, having done those things, or even if we put back in the statements you'd like, why there is a probable cause.

[00:04:50] Speaker 00:
OK.

[00:04:52] Speaker 00:
So let's assume that the district court was incorrect to put back in information that he believes the affiant should have told with respect to the drug amounts and the timing.

[00:05:05] Speaker 00:
So if we assume all that, we go to the corrected affidavit, there's no probable cause because what we've got is we've got a conclusory allegation from Stein that he's dealing drugs.

[00:05:16] Speaker 00:
We've got a claim from Stein that there was recently drugs there, that they're typically kept in the safe.

[00:05:24] Speaker 00:
And you've got a claim that she's been previously given information that's reliable in the past.

[00:05:30] Speaker 04:
Well, there is a history here with Stein, correct?

[00:05:35] Speaker 00:
That's alleged in the search warrant affidavit.

[00:05:37] Speaker 00:
Right.

[00:05:38] Speaker 04:
That there's this history and previously worked with the drug task force, that sort of thing.

[00:05:44] Speaker 04:
So we take that as a given.

[00:05:46] Speaker 00:
Correct.

[00:05:47] Speaker 00:
and so but that her prior reliability is is counteracted by the specific circumstance here where she appears to have a motive to fabricate right she appears to be quite angry with welch angry enough that she's throwing things at him and that she's you know being accused of crime so she's got a motive to to divert law enforcement's attention

[00:06:13] Speaker 00:
counteracts the prior reliability and then you look at the statement that she gave and There's no basis of knowledge right.

[00:06:20] Speaker 00:
There's no predictive information.

[00:06:22] Speaker 00:
There's not a lot of specific factual information in there and all that is heightening our need for some sort of corroboration corroboration that didn't exist which is why the search warrant author fabricated surveillance and

[00:06:38] Speaker 00:
You know, he fabricated this corroboration, says that, you know, he's done this prior surveillance and observed these known drug users that it turns out at the Frank's hearing, there's zero documentation to support any of that.

[00:06:53] Speaker 00:
And I think that's what brings us to kind of we're in the territory of where the Hall case is, right?

[00:06:58] Speaker 00:
So where you've got the report from the, you know,

[00:07:05] Speaker 00:
The guy gets busted by the police and then he tells the police, well, my source is Mr. Hall, here's where he lives, here's where he keeps the drugs, all that.

[00:07:15] Speaker 00:
But what was left out, and he actually testified alive, but what was left out when he testified was the idea of prior conviction for false reports to law enforcement.

[00:07:26] Speaker 00:
And so what this court determined there is when you put in the fact that he had that prior conviction for false report,

[00:07:37] Speaker 00:
without corroboration of the information that he provided there was no longer probable cause and so that's that's why we believe there's no probable cause because the the motive to fabricate is similar to like a prior conviction for false reports we think it's it's equally kind of a

[00:07:59] Speaker 00:
effective in questioning her credibility.

[00:08:02] Speaker 00:
And so that's where we get for the need for corroboration to get to the probable cause.

[00:08:10] Speaker 04:
On this whole point that there has to be some kind of independent corroboration, what case law do you think best supports that proposition?

[00:08:19] Speaker 00:
I think the Hall case is good on that point.

[00:08:27] Speaker 00:
And if there's no further questions at this point, I would like to reserve the remaining time for rebuttal.

[00:08:33] Speaker 04:
You may.

[00:08:55] Speaker 02:
May it please the court, Tori Nicol on behalf of the United States.

[00:09:00] Speaker 02:
This court should affirm the district court's denial of the motion to suppress, and it can reach that result in two ways.

[00:09:06] Speaker 02:
The first and simplest way would be for this court to apply de novo review to the redacted affidavit.

[00:09:13] Speaker 02:
Under that approach, this court should assume the district court correctly found five statements to have been made with reckless disregard for the truth.

[00:09:21] Speaker 02:
and then it should excise those statements completely from the affidavit and consider whether what remains supports probable cause.

[00:09:28] Speaker 02:
What remains does support probable cause.

[00:09:32] Speaker 02:
In the alternative, this court could reach that same result if it applies clear error review and looks back to each of the findings the district court made on Officer Matthew's statements.

[00:09:43] Speaker 02:
Under that approach, this court should determine that the district court clearly erred in finding those statements were made with reckless disregard for the truth, in which case those statements would remain in the affidavit, which is sufficient to establish probable cause.

[00:09:57] Speaker 04:
So let me go to your first line, and that is the de novo, and you say we should take these various statements, excise them out of the affidavit, and then see what's left and on a de novo review.

[00:10:08] Speaker 04:
But there's also, as you indicated in the reply brief, the district court

[00:10:13] Speaker 04:
didn't just excise certain things, the district court supplemented the affidavit.

[00:10:17] Speaker 04:
So that puts us in a little bit of a different territory.

[00:10:21] Speaker 04:
Would you address that?

[00:10:23] Speaker 02:
Yes, Your Honor.

[00:10:24] Speaker 02:
The district court did err here, but our argument is that error is ultimately harmless and it's also limited.

[00:10:30] Speaker 02:
The district court, and this speaks a bit to what Judge Hawkins was raising in terms of the Franks framework, the district court correctly identified five or it identified five statements as required under that first step of Franks and said these statements were made with reckless disregard for the truth.

[00:10:48] Speaker 02:
The proper remedy would have been to eliminate those statements completely.

[00:10:52] Speaker 02:
But the district court here, with regard to the drug amount and timing, went a step further and inserted information because it believed that would reflect the more truthful showing that Franks requires.

[00:11:06] Speaker 02:
But that was in error because information should be added to an affidavit only when that information is required to prevent otherwise truthful information from being misleading.

[00:11:19] Speaker 04:
And I appreciate the government has acknowledged that this was error.

[00:11:23] Speaker 04:
then the ultimate question is, but where does that then leave this rather riddled affidavit?

[00:11:29] Speaker 02:
Yes, Your Honor.

[00:11:30] Speaker 02:
On de novo review, we go back to that second step of Frank's, which is this material was found to be made with reckless disregard for the truth, and it itself is material, which means that it's eliminated completely.

[00:11:45] Speaker 02:
So then this court should look to what's left in the four corners of the affidavit

[00:11:50] Speaker 02:
and consider whether that supports probable cause.

[00:11:54] Speaker 02:
And the district courts, I believe it's on page 11 of the excerpts of record where the district court says, here's what remains in the affidavit.

[00:12:02] Speaker 02:
And apart from putting in the corrected five to six eight balls and that Welch had received the drugs within a week, everything the district court identifies as supporting probable cause is proper.

[00:12:17] Speaker 02:
such as Stein saying that she had personally observed the meth and coke in the safe, that she knew Welch was distributing drugs.

[00:12:26] Speaker 02:
She had previously been a reliable informant in drug investigations in the past.

[00:12:32] Speaker 02:
And that's a point that I think addresses some of the concerns Welch raises as far as Stein's credibility, because under Frank's

[00:12:41] Speaker 02:
Welch is free to attack the veracity of the affiant, Officer Matthews.

[00:12:46] Speaker 02:
But because Stein is an informant and not the affiant, her veracity can't be challenged.

[00:12:53] Speaker 02:
In effect, Welch can raise a collateral attack to Stein's reliability by saying, well, she had this motive to lie, and so that obviates any value in her past.

[00:13:08] Speaker 02:
role as an informant, but that's not accurate under Illinois v. Gates, which says that even when the court entertains some doubt as to the motives of an informant, his or her tip is nonetheless entitled to wait so long as they've proven to be reliable in past investigations, and that wait is even greater if the investigations are of the same type as the investigation currently at issue.

[00:13:38] Speaker 01:
I'm trying to imagine being the magistrate that's being asked to issue this search warrant.

[00:13:47] Speaker 01:
And having done it a few times in my past, I can remember magistrates, district judges, magistrate judges saying to me or the agent or officer with me, is there anything else you'd like to tell me that would help me analyze this situation and

[00:14:08] Speaker 01:
In this situation,

[00:14:15] Speaker 01:
I put in the affidavit that Stein had marks and bruises on her arm but I'm not really sure that's true.

[00:14:22] Speaker 01:
I also said that these drugs had been packaged for sale but that's not quite accurate.

[00:14:30] Speaker 01:
And I said there were eight balls in the safe and there were only two or three or whatever.

[00:14:38] Speaker 01:
And I'm probably wrong on the timing of when Welch received these drugs.

[00:14:45] Speaker 01:
and having an affiant tell me that as the magistrate and saying, and you want me to issue a search warrant?

[00:14:54] Speaker 01:
Tell me why that's wrong.

[00:14:56] Speaker 02:
Well, Your Honor, first I'll start with the description of the drugs as being packaged.

[00:15:01] Speaker 02:
And I think that United States v. Elliott is helpful for that, because it was clear error for the district court to find that statement wasn't accurate.

[00:15:10] Speaker 02:
Under, in United States v. Elliott, the affiant had written that the informant described drugs as being in possession of the defendant.

[00:15:18] Speaker 02:
And then at the Franks hearing,

[00:15:20] Speaker 02:
the officer testified, well, he didn't actually use the word possession, but he described the defendant as having drugs right in front of him.

[00:15:28] Speaker 02:
And the district court in this court affirmed that that was not a recklessly false statement, even though the informant didn't verbatim use that terminology.

[00:15:38] Speaker 02:
And so here, the fact that Stein said,

[00:15:41] Speaker 02:
He has drugs.

[00:15:42] Speaker 02:
I've seen them.

[00:15:43] Speaker 02:
I've seen his friends coming and he's giving them to him.

[00:15:46] Speaker 02:
They're an eight ball quantities, which is a method of selling meth on the street.

[00:15:52] Speaker 02:
It wasn't reckless for Officer Matthews to describe the drugs as being as Stein describing them as being packaged to sell, even if she didn't use those exact words.

[00:16:03] Speaker 02:
So then that leaves the

[00:16:05] Speaker 02:
amount of the drugs the timing of receipt and the marks or bruises that you identified as being concerning and officer Matthews testified about why Those marks wouldn't have shown up on his body cam and he said he simply didn't put that information in that in his follow-up report the district court decided that that

[00:16:29] Speaker 02:
was not necessarily believable, and so it struck that statement.

[00:16:33] Speaker 02:
As far as the timing of the, or excuse me, the amount of the drugs, that one is a bit less obvious in terms of if that was made recklessly, because Stein said initially that there would definitely be more than two eight balls in the safe.

[00:16:51] Speaker 02:
Then she said there were five to six at least, and Officer Matthews put

[00:16:57] Speaker 02:
six to ten eight balls in the affidavit.

[00:17:00] Speaker 04:
For purposes of possession... The guy has an amazing stretch of facts, doesn't he?

[00:17:09] Speaker 04:
Two to five to six to eight to ten.

[00:17:12] Speaker 04:
It's an expanding universe of facts for him.

[00:17:17] Speaker 02:
And as far as the drug amounts, that's most relevant to the crime of distribution of drugs, which is one of the

[00:17:27] Speaker 02:
crimes that's identified in the search warrant as being under investigation.

[00:17:32] Speaker 02:
But Officer Matthews also identified possession of dangerous drugs as one of the crimes under investigation.

[00:17:38] Speaker 02:
And for mere possession, a single eight ball would have been sufficient to show that that crime was occurring.

[00:17:45] Speaker 02:
So while the number of eight balls in the safe is not exactly clear in the affidavit, for the crime of possession,

[00:17:55] Speaker 02:
less material than number of eight balls that are in the safe.

[00:18:01] Speaker 03:
What troubles me is that the district court made this finding that viewing all of the false statements together, he found a clear intentional pattern in the officer's actions.

[00:18:15] Speaker 03:
He selectively included information bolstering probable cause.

[00:18:20] Speaker 03:
Isn't the remainder of this conclusion

[00:18:24] Speaker 03:
doesn't that contradict this finding that he made?

[00:18:29] Speaker 02:
Your honor, it doesn't contradict the finding he made because the district court stopped short of making an adverse credibility finding as far as officer Matthews and he did credit the statements that officer Matthews testified to at the Frank's hearing concerning Stein's credibility in previous drug investigations.

[00:18:47] Speaker 02:
And so that line that's quoted in the district court's order, citing to Perkins, omits the part that the pattern the court found troubling in Perkins there was the insertion of information coupled with omission of information that would have been possibly detrimental to a probable cause determination.

[00:19:10] Speaker 02:
And Officer Matthews here did not omit any information like that, like the defendant in Perkins.

[00:19:17] Speaker 02:
or excuse me, Affiant and Perkins.

[00:19:19] Speaker 02:
I see my time is up.

[00:19:21] Speaker 02:
So with that, I will simply request that this court affirm the district court's denial of the motion to suppress.

[00:19:27] Speaker 02:
Thank you.

[00:19:31] Speaker 02:
Mr. Matthews.

[00:19:32] Speaker 00:
Thank you.

[00:19:35] Speaker 00:
So successful Frank's challenges are pretty rare.

[00:19:41] Speaker 00:
I think I found three in this circuit.

[00:19:45] Speaker 00:
and hopefully there's good reasons for that, but When I look at those three cases the Perkins Hall and and Davis case The affiance actions in those case are pretty tame compared to what occurred here.

[00:20:03] Speaker 00:
I mean this the be the pattern of behavior

[00:20:07] Speaker 00:
I think there's a lot of evidence in this search warrant application that goes beyond the findings the district court made and even the things that are perhaps

[00:20:23] Speaker 00:
You know, he claims in the search warrant application that Welch had to be called out of the residence when the police got there.

[00:20:31] Speaker 00:
That wasn't true.

[00:20:31] Speaker 00:
I mean, it's like, why would that be something that would be misrepresented in a search warrant application other than to just paint this fiction, fictional story so that he can ensure the neutral magistrate

[00:20:52] Speaker 00:
grants to search warrant and being unaware of the true facts of this situation.

[00:20:59] Speaker 01:
Let me flip the question I asked your friend on the other side.

[00:21:03] Speaker 01:
Suppose the magistrate in this case, this is hypothetical, had laid out this affidavit and said, I'm now going to go through it and unless you're absolutely certain about everything that I go through, tick off each one, I'm going to run a red line through them and let's suppose the magistrate did that and had the result that Judge Morris had in front of him.

[00:21:28] Speaker 01:
What's the problem?

[00:21:31] Speaker 00:
Well, we don't think, we think if with the properly conducted, corrected affidavit, there is not probable cause, right?

[00:21:42] Speaker 00:
Because that affidavit, and again, I think it's really important that we, the court considers this omission of Stein's crimes, because it's gone unaddressed by the district court below, the government didn't address it in briefing, didn't address it here in argument.

[00:21:56] Speaker 00:
We think that drives the probable cause analysis, right?

[00:21:59] Speaker 00:
Because that fact that she was being accused of a crime by Welch is central to the probable cause analysis here.

[00:22:11] Speaker 00:
And when that's factored in without the additional corroboration, there's no other probable cause.

[00:22:17] Speaker 00:
So with that, we ask you reverse the district court.

[00:22:20] Speaker 00:
Thank you.

[00:22:21] Speaker 04:
Thank you.

[00:22:21] Speaker 04:
Thank both counsel for your argument this morning.

[00:22:24] Speaker 04:
United States versus Derek Ron Welch is submitted.