                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 05-3808
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.

ANTONE C. HARRIS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 04 CR 91—Sarah Evans Barker, Judge.
                          ____________
    ARGUED MAY 3, 2006—DECIDED SEPTEMBER 27, 2006
                     ____________


  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. When a criminal defendant
makes a substantial preliminary showing that the warrant
to search his property was procured by intentional or
reckless misrepresentations in the warrant affidavit, and
such statements were necessary to the finding of probable
cause, the Fourth Amendment entitles the defendant to
a hearing to challenge the constitutionality of the search.
Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Antone
Harris is serving a twenty-year prison sentence for possess-
ing with intent to distribute more than fifty grams of
cocaine base. In this appeal, Harris claims that the district
court erred when it denied his request for a Franks hearing.
2                                                     No. 05-3808

Because Harris has made a substantial preliminary
showing that the search of his home was unlawful pursuant
to the Supreme Court’s decision in Franks, we conclude that
the Fourth Amendment entitles him to a hearing to chal-
lenge the veracity of the affidavit that police used to
procure the search warrant. Therefore, we reverse the
judgment of the district court.


                      I. BACKGROUND
  On March 25, 2004, an anonymous tipster called the
Indianapolis, Indiana police department’s “Dope Hotline”
and reported that Anthony Harris and his brother, Trent
Harris, were selling crack from a residence located at
2254 N. Goodlet Avenue.1 Indianapolis police detective
Michael Forrest was assigned to investigate the tip. The
propriety of Forrest’s investigation is the core of this
appeal.
  In his April 19, 2004 warrant affidavit, Detective Forrest
stated that he conducted surveillance of the Goodlet
residence beginning on March 29.2 During the surveil-


1
  The police record of the anonymous call indicates that the caller
identified one of the dealers as “Anthony” Harris.
Defendant-appellant’s first name is “Antone” Harris, and the
parties assume the caller was referring to Antone Harris.
2
   Detective Forrest’s warrant affidavit, in relevant part, states as
follows:
    This affiant bases his belief on the following information: that
    within the past seventy-two (72) hours of April 19, 2004 a
    confidential, credible and reliable informant contacted
    this affiant and stated that within the past seventy-two
    (72) hours of April 19, 2004 he/she was personally in the
    residence located at 2254 N. Goodlet Av., Indianapolis,
    Marion County, Indiana and observed in the possession of
                                                       (continued...)
No. 05-3808                                                       3

lance, Forrest allegedly observed Antone and Trent Harris
coming and going from the home. Forrest also discovered
that animal control officials had recently contacted Antone
Harris about dogs at his residence, and that he had a prior
felony drug conviction. Also, according to Forrest, in the
seventy-two hours preceding his warrant request, a confi-
dential informant (“CI”) contacted him and reported that
while visiting the Goodlet residence, the CI observed Trent
and Antone Harris possessing cocaine that was for sale. The



2
    (...continued)
       Antone Harris B/M and Trent Harris B/M, a substance said
       informant believed to be Cocaine, an extract of Coca. Said
       informant was further told by Antone Harris B/M and Trent
       Harris B/M that the substance they had in their possession
       was in fact Cocaine, and was for sale. Said informant fur-
       ther stated that both Antone Harris and Trent Harris told the
       CI that they in fact lived at the residence. This affiant had
       previously received an anonymous tip from the Dope Hotline
       that both Antone Harris and Trent Harris were selling crack
       from this residence. This affiant has personally conducted
       surveillance on the residence located at 2254 N. Goodlet Av.
       and have [sic] observed both Antone Harris and Trent Harris
       coming and going from the residence. This affiant also
       checked recent police reports for that residence and found
       that a report was made on 4-2-04 by an animal control officer
       reference [sic] several dogs at this house. The person the
       officer talked to at the residence was Antone Harris B/M DOB
       7-16-79 and Antone Harris listed his address as 2254 N.
       Goodlet Av. A check of Antone Harris’s criminal history
       reveals that he has a C felony conviction for Possession of
       Cocaine and Trent Harris has a conviction for C felony
       Possession of Cocaine as well as an A felony conviction for
       Dealing Cocaine and a conviction for Dangerous Possession of
       a Firearm. The CI further stated to this affiant that several
       handguns are inside the residence and that both Antone
       Harris and Trent Harris always keep a firearm close to them
       when inside the residence.
4                                               No. 05-3808

CI also allegedly told Forrest that the brothers admitted
that they lived in the Goodlet residence and that there were
several handguns stashed in the home.
  On April 19, based on the information provided in
Detective Forrest’s affidavit, the magistrate issued a
warrant authorizing a search of the residence for cocaine
and drug contraband. The next day, police officers executed
the warrant and seized several firearms, cocaine base, and
paraphernalia commonly used to cook and package crack
cocaine.
  Harris was charged in a superseding indictment with one
count of possession with intent to distribute more than fifty
grams of a mixture containing cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Harris filed a
pretrial motion to suppress evidence seized during the
search, and he requested a Franks hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), to challenge the
veracity of the search warrant affidavit. Harris also filed a
related motion for an in camera proceeding to compel
disclosure of the CI’s identity.
  In his pretrial motion and request for a Franks hearing,
Harris attacked the credibility of the affiant Detective
Forrest as well as the existence and credibility of the CI.
Harris argued that Detective Forrest’s warrant affidavit
contained materially false statements and that those
false statements were necessary to a finding of probable
cause. To support his contentions, Harris submitted an
affidavit from an Indiana Department of Corrections official
verifying that Harris’s brother, Trent Harris, was incarcer-
ated from March 26, 2004, through and including the date
of the search. Thus, Harris maintained that it would have
been impossible for either Detective Forrest or the CI to
have seen his brother at the residence as alleged in the
warrant affidavit. In addition, Harris submitted his own
affidavit swearing that he was not present at the residence
No. 05-3808                                                 5

within seventy-two hours of April 19 when the warrant was
requested.
  The district court ordered the government to file a
supplemental affidavit from Detective Forrest detailing
when he surveilled the Goodlet residence, describing how he
came to believe that the second person with Antone Harris
was Trent Harris, and accounting for the alleged misstate-
ments contained in the search warrant affidavit. The
parties do not dispute that the details in Detective Forrest’s
supplemental affidavit to the court differ from those in his
warrant affidavit. In his supplemental affidavit, Forrest
admitted that he could not recall the exact dates or times of
his surveillance, that he (rather than the CI) initiated
contact with Antone Harris, and that the CI’s visit to the
Goodlet residence occurred at least a week, rather than
seventy-two hours, prior to the warrant request.
   On January 4, 2005, the district court denied Harris’s
motion to suppress and request for a Franks hearing. The
district court concluded that when compared with the
supplemental affidavit, it was evident that Detective
Forrest’s initial search warrant affidavit contained three
false and misleading statements and omissions. First, the
warrant affidavit erroneously identified Trent Harris as the
second individual with Antone Harris at times when, in
light of his incarceration, it would have been impossible for
him to have been present at the residence. Second, the
warrant contained misleading information regarding the
date of the CI’s conversations with Antone Harris and the
second individual about purchasing cocaine. Third, the
warrant affidavit failed to include the dates of the Dope
Hotline tip and of Detective Forrest’s surveillance of the
residence.
  In addition, the district court concluded that Detective
Forrest made the false statements and omissions either
intentionally or recklessly. The court found that Detective
Forrest failed to disclose that the anonymous tip was
6                                                  No. 05-3808

made to the “Dope Hotline” almost a month before he
sought the search warrant, and that his surveillance of the
residence occurred sporadically and at unspecified times.
The court also noted that Detective Forrest implied that the
CI’s visit to the residence occurred within seventy-two
hours of his warrant request when, in fact, the visit had
occurred at least a week prior to the request. The court thus
concluded that Detective Forrest’s “omissions, both individ-
ually and in their cumulative effect, suggest an intentional
design to create an incorrect or at least misleading impres-
sion that the evidence relied upon to obtain the warrant
was more current than it actually was.”3
  Although these findings satisfy two of the three Franks
requirements, the district court determined that Harris was
not entitled to a hearing because the misstatements in the
search warrant affidavit were not material to the magis-
trate’s finding of probable cause. After it disregarded the
false statements and incorporated the omitted information,
the court reasoned that there was sufficient evidence to
establish probable cause. In so doing, the court relied upon
the “Dope Hotline” tip, Detective Forrest’s surveillance,
information from the informant, and Harris’s prior drug
conviction.
  Following a three-day jury trial in June 2005, Harris
was convicted on one count of possession with intent to
distribute more than fifty grams of a mixture containing
cocaine base. The district court sentenced Harris to twenty


3
  Order Denying Pl.’s Mot. To Suppress (January 4, 2005).
Because the district court accepted Harris’s assertion that there
were factual misrepresentations and omissions in the affidavit,
the district court denied as moot the motion for an in camera
proceeding to disclose the CI’s identity. Because, as discussed
below, we believe Harris is entitled to a Franks hearing, we
will not review the trial court’s ruling on the motion for an in
camera proceeding.
No. 05-3808                                                7

years’ imprisonment with ten years of subsequent super-
vised release. Harris timely filed this direct appeal, and
we now consider whether the court’s denial of a Franks
hearing violated Harris’s Fourth Amendment right to be
free from an unreasonable police search.


                      II. ANALYSIS
  We review the district court’s denial of Harris’s request
for a Franks hearing for clear error. Zambrella v. United
States, 327 F.3d 634, 638 (7th Cir. 2003). While our clear-
error inquiry is factually based and requires that we give
particular deference to the district court, see United States
v. Williams, 945 F.2d 192, 195 (7th Cir. 1991), any legal
determinations that factor into the court’s ruling are
reviewed de novo, United States v. Adames, 56 F.3d 737,
747 (7th Cir. 1995).
  The Warrant Clause of the Fourth Amendment requires
that, absent certain exceptions that are not applicable here,
police must obtain a warrant from a neutral and disinter-
ested magistrate before commencing a search. See Jones v.
Wilhelm, 425 F.3d 455, 462 (7th Cir. 2005). The warrant
shall not issue unless there is probable cause, as typically
set forth in the warrant affidavit, to justify the search.
Probable cause is established when, considering the totality
of the circumstances, there is sufficient evidence to cause a
reasonably prudent person to believe that a search will
uncover evidence of a crime. See Illinois v. Gates, 462 U.S.
213, 238 (1983).
  Whether a defendant may attack the veracity of a war-
rant affidavit was first addressed by the Supreme Court in
Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In Franks,
the Court held that the Fourth Amendment requires an
evidentiary hearing on the veracity of a warrant affidavit,
and ultimately on the constitutionality of the search, when
a defendant requests such a hearing and “makes a substan-
8                                               No. 05-3808

tial 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 [ ]
the allegedly false statement is necessary to the finding of
probable cause.” Id.; see also United States v. Jones, 208
F.3d 603, 607 (7th Cir. 2000). We have interpreted the
holding of Franks to also apply to omissions. United States
v. Williams, 737 F.2d 594, 604 (7th Cir. 1984) (internal
citations omitted). Therefore, a defendant may also chal-
lenge an affidavit by showing that the affiant intentionally
or recklessly omitted material information. See id.; see also
Shell v. United States, 448 F.3d 951, 958 (7th Cir. 2006);
United States v. Pace, 898 F.2d 1218, 1232-33 (7th Cir.
1990).
  Allegations of negligent or innocent mistakes contained in
a warrant affidavit do not entitle a defendant to a hearing.
Rather, to make a substantial preliminary showing, the
defendant must identify specific portions of the warrant
affidavit as intentional or reckless misrepresentations, and
the defendant should submit sworn statements of witnesses
to substantiate the claim of falsity. See Franks, 438 U.S. at
171. A court then considers the affidavit, eliminating any
false statements and incorporating omitted material facts,
and determines whether probable cause existed. See United
States v. Merritt, 361 F.3d 1005, 1010 (7th Cir. 2004),
vacated and remanded in light of United States v. Booker,
543 U.S. 220 (2005); Pace, 898 F.2d at 1232-33.
  The district court concluded Detective Forrest’s affidavit
contained intentional or reckless misrepresentations,
nonetheless it found that Harris was not entitled to a
hearing because under the third Franks factor the misrep-
resentations were not necessary to the magistrate’s
probable-cause determination. The district court reasoned
that four other facts set forth in the affidavit established
probable cause: the CI had visited the home and observed
cocaine for sale; police had received an anonymous tip
No. 05-3808                                                 9

that crack was being sold from the home; Forrest had
conducted surveillance of the residence; and Harris had
a prior felony drug conviction.
   Whether a warrant affidavit contains sufficient indicia of
probable cause is a legal question that we review de novo.
United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003).
After excising the false statements and reviewing the
omitted information that undermines a finding of probable
cause, see Merritt, 361 F.3d at 1010, we conclude that
Harris has made a substantial preliminary showing that
the warrant affidavit was not sufficient to establish proba-
ble cause to search his home. First, in attacking the verac-
ity of the warrant affidavit, Harris challenges the very
existence of the CI. In light of Harris’s pretrial motion, the
district court directed the government to file
a supplemental affidavit from Detective Forrest answer-
ing questions about his investigation and specifically
about his conversations with the CI. The court then con-
cluded, based on revised information included in the
supplemental affidavit, probable cause existed to search the
Goodlet residence. Here, the district court erred. Consider-
ing new information presented in the supplemental filing
that supported a finding of probable cause was beyond the
trial court’s analytical reach. Rather, its consideration of
new information omitted from the warrant affidavit should
have been limited to facts that did not support a finding of
probable cause. Those facts are as follows: that the tip was
made almost a month before Detective Forrest requested
the warrant; that the exact dates of the detective’s surveil-
lance were unknown; and that the CI’s conversation with
Harris about purchasing cocaine occurred at least a week
before rather than within seventy-two hours of the April 19
warrant request. Allowing the government to bolster the
magistrate’s probable cause determination through post-hoc
filings does not satisfy the Fourth Amendment concerns
addressed in Franks. The opportunity to cross-examine an
10                                               No. 05-3808

officer who has intentionally or recklessly made false
statements to procure a search warrant is an important
aspect of a Franks hearing. “Because it is the magistrate
who must determine independently whether there is
probable cause, it would be an unthinkable imposition upon
his authority if a warrant affidavit, revealed after the fact
to contain a deliberately or recklessly false statement, were
to stand beyond impeachment.” Franks, 438 U.S. at 165
(internal citations omitted). Therefore, because the affidavit
reviewed by the magistrate did not contain the details in
Forrest’s supplemental filing that support a finding of
probable cause, we will not consider them on appeal.
   When an assertion of probable cause is based upon a
confidential informant’s tip, our totality-of-circumstances
inquiry includes four factors: (1) the degree to which the
informant has acquired knowledge of the events through
firsthand observation; (2) the amount of detail provided; (3)
the interval between the date of the events and the police
officer’s application for the search warrant; and (4) the
extent to which the police have corroborated the informant’s
statements. United States v. Koerth, 312 F.3d 862, 866 (7th
Cir. 2002).
  Here, the first two factors weigh in the government’s
favor because the CI’s information does include some indicia
of firsthand knowledge and credible detail. The CI stated
that he or she had been in the Goodlet residence, observed
several handguns in the home, and observed cocaine for
sale. The third and fourth factors counsel against a finding
of probable cause, however. After excising the false state-
ment that the CI’s visit to the home and subsequent
conversation with Detective Forrest occurred within
seventy-two hours of the warrant application, no temporal
guidepost remains in the affidavit allowing us to determine
whether the CI’s information was stale. Stated differently,
all that we know from the warrant affidavit is that at some
unspecified time the CI allegedly visited the home and
No. 05-3808                                                 11

observed crack for sale, and at some unspecified time
thereafter the CI reported this information to Detective
Forrest. Although the “[p]assage of time is less critical when
the affidavit refers to facts that indicate ongoing criminal
activity,” United States v. Spry, 190 F.3d 829, 836 (7th Cir.
1999) (quoting United States v. Pless, 982 F.2d 1118, 1126
(7th Cir. 1992)), after omitting its falsities, there is little
left in Detective Forrest’s affidavit to suggest that there was
ongoing criminal activity in the home.
   As to the fourth factor, the district court concluded that
the anonymous hotline tip, Forrest’s surveillance, and
Harris’s prior drug conviction corroborated the CI’s informa-
tion. We disagree. An anonymous tip “alone seldom demon-
strates the informant’s basis of knowledge or veracity.”
Alabama v. White, 496 U.S. 325, 329 (1990). The anony-
mous tip in this case is no exception to the general rule.
There is no indication in the warrant affidavit as to when
the hotline tip was received, the identity of the tipster, or
the basis of the tipster’s knowledge. See United States v.
Olson, 408 F.3d 366, 371 (7th Cir. 2005) (reasoning that the
corroborative weight of an anonymous tip was compromised
when the warrant affidavit failed to indicate how police
obtained tip information, whether the officer knew the
identity of the tipster, and the basis of the tipster’s knowl-
edge). Further, the tip indicates that “Anthony” Harris and
Trent Harris were selling drugs from the Goodlet residence;
but, as we now know, Trent Harris was incarcerated when
the illegal activity was purportedly occurring. So the tip is
not only insufficient to create probable cause, but it adds
little corroborative value to the probable cause calculus
because it contains misinformation that casts doubt on its
credibility.
  Also, Detective Forrest’s surveillance of the residence does
not corroborate that there was ongoing criminal activity.
The only statement contained in the affidavit concerning
Detective Forrest’s surveillance is that he “observed both
12                                               No. 05-3808

Antone Harris and Trent Harris coming and going from the
residence.” The portion of the statement regarding Trent
Harris must be excised, leaving merely a bare-bones
statement that, at some undetermined time, Forrest
observed Harris coming and going from the home. Yet
Harris does not dispute that he lived in the Goodlet resi-
dence, and the fact that he was seen regularly leaving his
home is not indicative of unlawful activity. The fact that
Harris has a prior felony drug conviction, while having
some corroborative value, is not dispositive because
“[a]lone, a record check cannot serve to corroborate an
informant’s account.” Olson, 408 F.3d at 372.
  To be sure, we recognize that the whole may be more than
the sum of the parts when assessing probable cause. In
Olson, we found that the evidence corroborating an infor-
mant’s otherwise weak account validated the search
warrant. Here, on the other hand, there is little corrobora-
tive weight to the evidence remaining in the affidavit after
the misrepresentations are severed. We also recognize that
a search based upon a defective warrant affidavit may
nonetheless be lawful if a police officer requested the
warrant in good faith. See Koerth, 312 F.3d at 868 (“An
officer’s decision to obtain a warrant is prima facie evidence
that he or she was acting in good faith.”). However, the
good-faith exception to the warrant requirement does not
apply in cases, such as here, where the officer seeking the
warrant was dishonest or reckless in preparing the affida-
vit. See United States v. Dumes, 313 F.3d 372, 380-81 (7th
Cir. 2002). Because he has made a substantial preliminary
showing that the warrant to search his home was constitu-
tionally infirm and because the good-faith exception does
not apply, Harris is entitled to a Franks hearing.
  We note that our decision today is not a complete victory
for Harris; he has only surmounted the initial hurdle of
demonstrating that he is entitled to a Franks hearing.
At the hearing, he must still demonstrate by a preponder-
No. 05-3808                                             13

ance of the evidence that the search warrant must be voided
and the fruits of the illegal search suppressed. We do not
know whether Harris will successfully carry that burden.


                  III. CONCLUSION
 The judgment of the district court is REVERSED and
REMANDED for proceedings in accordance with this opinion.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—9-27-06
