                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-4048

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

T IMOTHY R OBINSON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 07-CR-157—J.P. Stadtmueller, Judge.



   A RGUED S EPTEMBER 16, 2008—D ECIDED O CTOBER 23, 2008




 Before C UDAHY, F LAUM, and R OVNER, Circuit Judges.
  F LAUM, Circuit Judge. Symone Evans told police that
her ex-boyfriend Timothy Robinson possessed a firearm
in his home. Based on this information, police recovered
a firearm and ammunition from Robinson’s residence.
Since Robinson had a previous felony conviction, his
possession of the gun violated 18 U.S.C. § 922(g)(1). After
his indictment, Robinson filed a motion to suppress all
evidence seized from his residence, arguing that the
officer who obtained the search warrant made material
2                                             No. 07-4048

omissions in his supporting affidavit. Robinson also
asked for a hearing pursuant to Franks v. Delaware, 438
U.S. 154, 155-56 (1978). The district court denied his
motion to suppress as well as his request for a Franks
hearing. For the reasons explained below, we affirm.


                     I. Background
  On March 27, 2005, approximately one month before
the search warrant at issue in this case was obtained,
Symone Evans, defendant Timothy Robinson’s ex-girl-
friend, was charged in Wisconsin’s Ozaukee County
Circuit Court with criminal damage to property and
disorderly conduct. The complaining witness in the
case was Robinson. Robinson explained to officers that
he was at the Sybaris Pool Suites hotel with another
woman when Evans came to the hotel. Evans banged on
the door and Robinson went outside of the room to
speak to her. Robinson stated that Evans began yelling
and threatened him with a knife. Robinson ran to the
hotel office; Evans followed him there and proceeded to
bang on the office windows. Evans was arrested and
charged with the two counts noted above. As part of
her bail conditions, she was not to have contact with
Robinson. Although Evans made her initial appearance
on the charge, she failed to appear at a status conference
on April 17, 2007 and a bench warrant was issued. Evans
was charged with bail jumping on April 19, 2007.
  On May 1, 2007, Evans went to Milwaukee police with
information about Robinson’s involvement in a domestic
battery and possession of a firearm. In an affidavit sub-
No. 07-4048                                             3

mitted to the Milwaukee County Circuit Court, police
officer Michael Wawrzyniakowski recounted Evans’s
statements in order to obtain a search warrant for Robin-
son’s home. According to Officer Wawrzyniakowski, Evans
stated that within 24 hours of May 1, 2007, she had ob-
served Robinson armed with a black handgun inside
his residence. The officer noted that Evans “had a very
sound understanding of firearms basics and knew the
difference between semi-automatic weapons, revolvers,
rifles, shotguns, and non-firearm weapons like com-
pressed air guns.” Def. App. at 3. Officer Wawrzynia-
kowski also stated that Evans had described Robinson
in detail and positively identified Robinson in a photo-
graph. Finally, Officer Wawrzyniakowski attested that
he had independently confirmed that Robinson had been
convicted of a felony and that Robinson lived at the
address provided by Evans.
  Regarding Evans’s credibility, Officer Wawrzyniakowski
stated:
   This affiant believes that the “victim/witness” is
   credible because the “victim/witness” has come for-
   ward to this affiant to report the crime of Felon in
   Possession of a Firearm and Battery, Domestic
   Violence related. The “victim/witness” has also given
   personal knowledge of Robinson regarding the fact
   that he has prior felony arrests, is out on bail for
   “dealing drugs,” and has known Robinson for
   thirteen (13) years.
   That the “victim/witness” has given this affiant infor-
   mation about herself regard [sic] the fact that she
4                                                 No. 07-4048

    has outstanding warrants in Ozaukee County regard-
    ing Damage to Property. That the “victim/witness” has
    also given this affiant information on other subject’s
    [sic] wanted on warrants that was confirmed through
    wanted checks.
Def. App. at 4. Officer Wawrzyniakowski did not include
the details of the events at the Sybaris Pool Suites hotel
and resulting charges, nor the fact that Evans had violated
her bail conditions by going to Robinson’s house the
day before.
   A search warrant was issued by the Milwaukee County
Circuit Court on May 2, 2007. Officers seized a firearm
and ammunition in Robinson’s residence. Robinson was
arrested, made incriminating statements to law enforce-
ment, and was charged with possessing a firearm and
possessing ammunition after he had been convicted of
a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
  After Robinson was indicted, he filed a motion to sup-
press all evidence seized from his residence. Robinson
argued that Officer Wawrzyniakowski’s affidavit made
material omissions because it did not include mention
of the events at the Sybaris Pool Suites, the exact charges
resulting from that altercation, or the conditions of
Evans’s subsequent bail. Robinson argued that these
omissions were made either knowingly or with reckless
disregard for the truth, and that the issuing court would
not have found probable cause if the omitted information
had been included. Robinson also asked for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
 The presiding magistrate judge recommended that
Robinson’s motion to suppress be denied without a
No. 07-4048                                                  5

hearing because the affidavit contained sufficient infor-
mation to establish probable cause. The judge acknowl-
edged that the criminal charges against Evans could
detract from her credibility but noted that a person is
less likely to maliciously utilize the criminal justice
system for revenge where, as here, doing so exposes the
person to criminal liability. The magistrate judge also
stated that the battery charge that Evans mentioned to
Officer Wawrzyniakowski was significant. As the judge
stated: “Although it is not explicitly stated in the affidavit,
it is fair to infer that Evans was the victim of the alleged
battery. If Evans simply wanted to see to it that [Robinson]
was harassed and perhaps arrested by the police, and she
was willing to go to the extent of lying to the police to
accomplish this, it would have been far easier to have
just reported the crime of battery.” Def. App. at 18. The
magistrate judge concluded that even if all the informa-
tion on Evans’s arrest had been included in the affidavit,
probable cause still would have existed.
  Robinson objected to the magistrate judge’s recommen-
dation. However, in an oral ruling from the bench, the
district judge adopted the recommendation. Regarding
Evans’s credibility, the district court stated:
    On the one hand, one might reasonably conclude
    that information regarding Miss Evans’s criminal
    complaint demonstrates that there was clearly animos-
    ity between herself and Mr. Robinson. And had Miss
    Evans informed law enforcement of Mr. Robinson’s
    offense due to a desire to harass Mr. Robinson this
    would clearly undermine her veracity and credibility.
6                                               No. 07-4048

    On the other hand, it is important to consider the
    reality that Miss Evans was reporting not only the
    felon in possession crime but also a crime of domestic
    violence that he allegedly committed. In this sense
    the information that Evans and Robinson had been
    previously involved in altercations would only cor-
    roborate in the view of this Court a finding of probable
    cause.
Def. App. at 27-28. The district court ruled that the affida-
vit was supported by probable cause and that Robinson
had not pointed to anything in the record demonstrating
that the omission was intentional or reckless.
  Robinson appeals the district court’s denial of a Franks
hearing.


                       II. Analysis
  This Court reviews a district court’s denial of a Franks
hearing for clear error. See United States v. Harris, 464
F.3d 733, 737 (7th Cir. 2006). Although the factual portion
of the clear error inquiry requires deference to the
district court, any legal determinations that factored
into the district court’s ruling are reviewed de novo. Id.
  The Fourth Amendment requires that, absent certain
exceptions not applicable here, police must obtain a
warrant from a neutral and disinterested magistrate
before commencing a search. See Jones v. Wilhelm, 425
F.3d 455, 462 (7th Cir. 2005). No warrant shall issue
unless there is probable cause, as typically set forth in a
warrant affidavit, to justify the search. Probable cause is
No. 07-4048                                                7

established when, considering the totality of the circum-
stances, 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). The Fourth Amendment requires an evidentiary
hearing regarding the veracity of information included
in 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.” Franks, 438 U.S. at 155-56. This Court has inter-
preted the holding of Franks to also apply to omissions
in affidavits. Harris, 464 F.3d at 738 (citing United States
v. Williams, 737 F.2d 594, 604 (7th Cir. 1984)). Therefore,
a defendant may also challenge 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).
   Robinson argues that the district court erred in finding
that the omissions in this case were not material or neces-
sary to the probable cause determination. On review, we
examine whether a hypothetical affidavit that included
the omitted material would still establish probable cause.
See Harris, 464 F.3d at 737. In this case, an examination
of the “hypothetically inclusive” affidavit still supports a
finding of probable cause. Probable cause is supported,
first, by the fact that the affidavit referenced information
provided by Symone Evans, a named source with long-
standing ties to the defendant, not an anonymous or
8                                               No. 07-4048

unidentified person. Second, the type of information
given by Evans bolstered the credibility of her story.
Evans’s allegation regarding the firearm in Robinson’s
residence was based on first-hand observations. Evans
observed the firearm within 24 hours of approaching the
police, so the gun was likely to still be in the home. Per-
haps most importantly, Evans demonstrated a thorough
and accurate understanding of firearms and provided
credible detail about the type of firearm possessed by
Robinson. Finally, police verified Evans’s information as
much as possible: police had Evans identify a photograph
of Robinson, they verified that she had accurately identi-
fied Robinson’s residence, and they verified Evans’s
information regarding Robinson’s criminal history. See, e.g.,
United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000)
(listing factors to consider when weighing an informant’s
credibility, including the personal observations by the
informant, the degree of detail given, and independent
police corroboration of the informant’s information).
  While the omitted information could have detracted
from the warrant-issuing judge’s assessment of Evans’s
credibility, we agree with the magistrate and district
judges that it might also have bolstered Evans’s credi-
bility in some ways. For instance, Evans’s conduct at the
Sybaris Pool Suites and resulting criminal charges
certainly demonstrate that there was animosity between
Evans and Robinson, and it would be reasonable for a
judge to infer that such animosity could lead Evans to lie
to the police about Robinson’s criminal activity in an
effort to harass him. However, in evaluating this omitted
material, it is important to note that, in addition to re-
No. 07-4048                                                9

porting Robinson’s possession of a firearm, Evans re-
ported a “Battery, Domestic Violence related.” Since
Officer Wawrzyniakowsi referred to Evans as the “vic-
tim/witness” throughout the affidavit, it is reasonable to
infer that Evans was the victim of the alleged battery.
Thus, information regarding a prior violent altercation
between Evans and Robinson could have bolstered
Evans’s credibility with regard to the alleged battery as
it provided further evidence of a history of violence
between the two.
  Evans’s violation of bail conditions also could have
played a dual role in the issuing judge’s evaluation of
Evans’s credibility. On the one hand, Evans’s credibility
could have been harmed if the issuing judge had known
of Evans’s violation of bail conditions, because a person
who commits crimes and violates the terms of bail could
be seen as categorically less trustworthy than a person
who obeys court orders. On the other hand, Evans’s
admission that she had gone to Robinson’s house the
day before (where she saw the gun) was in itself an ad-
mission that she had violated her bail conditions. The
issuing judge could have inferred that Evans’s allega-
tions were credible because she was providing the infor-
mation about Robinson’s crime despite her own contrary
interest. As the magistrate judge said, “[a] judicial officer
may infer that a person is less likely to maliciously utilize
the criminal justice system as an instrument of revenge
when doing so would subject her to criminal consequences
not only if it was shown that she was fabricating allega-
tions, but the mere act of making the allegations was
an apparent admission to [a] crime . . . .” Def. App. At 17.
10                                              No. 07-4048

Significantly, Robinson does not dispute that Evans’s
credibility could have been enhanced if the issuing
judge knew that she provided information to police
despite her contrary interest.
  Finally, we find it somewhat persuasive (though cer-
tainly not dispositive) that if Evans had decided to
falsify a report in order to harass Robinson, she could
have more easily accomplished that by only reporting a
battery. By providing details regarding a felon-in-posses-
sion gun crime—including details regarding the residence,
the gun in question, and Robinson’s criminal history—
Evans went over and above what was needed to harass
Robinson. Moreover, Evans probably had some notion
that, for the gun charge to stick, the police would have to
recover the weapon. Her detailed account of the gun’s
description and location was therefore that much more
credible.
  Although the information regarding Evans’s conduct at
the Sybaris Pool Suites, the resulting criminal charges, and
Evans’s violation of bail conditions should have been
included in the affidavit, we find that the omitted infor-
mation would not have altered the probable cause deter-
mination. Including this information in the calculus, it is
still the case that a named informant with long-standing
ties to the defendant provided detailed first-hand infor-
mation about the alleged crime against her own interest.
Significant portions of this information were verified by
police. Taking account of the totality of the circumstances,
that was “sufficient evidence to cause a reasonably
prudent person to believe that a search will uncover
No. 07-4048                                              11

evidence of a crime.” See Gates, 462 U.S. at 238. Especially
in light of Robinson’s acknowledgment that some of the
omitted information could have actually bolstered Evans’s
credibility, we do not find the district judge’s determina-
tion that the omitted information was not material to be
clearly erroneous.
  Because we have concluded that the district court was
not clearly erroneous in finding that the omissions were
not material, we need not determine whether Officer
Wawrzyniakowski’s omissions were intentional or reck-
less. However, we note that even if we looked to this
portion of the Franks analysis, Robinson has not pointed
to any evidence that would establish that the district
court’s finding was clearly erroneous in this regard. See,
e.g., United States v. McNeese, 901 F.2d 585, 594 (7th
Cir. 1990) (a defendant has the burden to “offer direct
evidence of the affiant’s state of mind or inferential evi-
dence that the affiant had obvious reasons for omitting
facts in order to prove deliberate falsehood or reckless
disregard”).


                     III. Conclusion
  For the foregoing reasons, we A FFIRM the district court’s
denial of a Franks hearing.




                          10-23-08
