In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3153

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
HUEY WHITLEY,

Defendant-Appellant.




Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 30066--Jeanne E. Scott, Judge.


Argued JANUARY 16, 2001--Decided April 30,
2001




  Before FLAUM, Chief Judge, POSNER and
COFFEY, Circuit Judges.

  COFFEY, Circuit Judge. On June 30, 1999,
law enforcement officers in Springfield,
Illinois, obtained a warrant to search a
motel room occupied by the Defendant-
Appellant Huey Whitley. At the time of
the execution of the warrant, the
officers discovered cocaine and other
drug paraphernalia demonstrating that
Whitley and his companion, Marcellus
Mitchum, were engaged in the transfer
and/or sale of cocaine and cocaine base.
However, the sworn affidavit used by
officers to obtain the search warrant
contained materially false information.
Additional evidence of drug related
crimes was discovered in a simultaneous
warrantless search of the adjoining motel
room occupied by Mitchum.

  On August 6, 1999, Whitley and Mitchum
were indicted as co-defendants with one
count charging possession of a controlled
substance (cocaine and cocaine base) with
intent to distribute./1 Both defendants
filed separate motions to suppress all
evidence obtained during the searches of
their respective rooms at the Stevenson
Inn. The district court held separate
evidentiary hearings on each defendant’s
motion, Whitley’s on November 5 and 22,
1999, and Mitchum’s on December 28 and
29, 1999. Whitley’s motion was based on
the rule of Franks v. Delaware, 438 U.S.
154 (1978), under which evidence seized
pursuant to a search warrant may be
suppressed if the defendant demonstrates
by a preponderance of the evidence that
(1) the warrant was based upon false
information in the supporting affidavit,
and (2) the affiant either knew the
information was false or included it with
reckless disregard for the truth.

  The district court denied Whitley’s
motion to suppress, and Whitley appeals.
We disagree with the trial court’s ruling
and reverse the court’s determination
that the false statements contained in
the warrant affidavit were neither
included intentionally nor with reckless
disregard for the truth. We further order
the false information stricken from the
affidavit and remand the case for a
determination as to whether the remaining
allegations and information contained in
the affidavit are sufficient to establish
probable cause for issuance of the search
warrant.

BACKGROUND

A.   Obtaining the Search Warrant for Room
422 at the Stevenson Inn.

  On June 30, 1999, Whitley and Mitchum
were staying in rooms 421 and 422 at the
Stevenson Inn Motel in Springfield,
Illinois. Local and federal law
enforcement officers were investigating
the two men for allegedly participating
in the sale of cocaine./2 A
confidential informant working with the
law enforcement officers visited Whitley
at the motel shortly after his arrival,
and subsequently reported to the officers
her belief that Whitley and Mitchum had
transported a large quantity of cocaine
and cocaine base into the city for sale
and distribution. Following the
informant’s report, FBI Special Agent
Steven Bennett and FBI Special Federal
Officer Stephen Welsh/3 took the
informant to Springfield Police
headquarters to secure a warrant to
search Whitley’s motel room, identified
by the informant as Room 422 at the
Stevenson Inn Motel. Meanwhile,
Springfield Police officers Paul
Carpenter and Stephen Peters took up
positions outside the motel and kept the
building under surveillance. In the
course of their surveillance the officers
observed a woman, later identified as
Latisha Benton, enter Whitley’s motel
room, stay for a period of time, and
shortly thereafter depart in her van.
When Benton failed to properly signal for
a turn when leaving the motel, Peters
notified uniformed support officers and
requested a traffic stop. Benton’s car
was pulled over by Springfield Police
Officer Jeffrey Bivens. Officer Bivens
spoke with Benton and during the
conversation obtained her consent to
search. While executing the search,
Bivens discovered twenty-two individually
wrapped bags of marijuana in Benton’s
purse. Shortly after this discovery was
made, Officers Carpenter and Peters
arrived at the scene. Benton was
questioned by Carpenter about the
connection, if any, between the marijuana
in her purse and her visit to Whitley’s
room at the Stevenson Inn. Benton made it
very clear to Carpenter that she had not
obtained the marijuana from anyone at the
Stevenson Inn, and furthermore that she
had the marijuana in her possession prior
to her arrival at the motel.

  Exactly what happened next is the
subject of a great amount of confusion.
This much is clear: One of the officers
present at the scene of Benton’s vehicle
stop communicated with either Agent
Bennett or Detective Welsh, who were at
police headquarters preparing the
documents necessary for the issuance of
the search warrant for Whitley’s motel
room. Welsh and Bennett claim to have
been informed by someone that Benton had
received the marijuana from Whitley at
the Stevenson Inn. Obviously, this
information was exactly the opposite of
the statement Benton made to Officer
Carpenter only minutes before--that she
had the marijuana in her possession
before arriving at the motel.

   At the hearing on Whitley’s motion to
suppress, none of the officers
involved/4 admitted to a clear
recollection of who told what to whom
concerning the source of Benton’s
marijuana. Officer Bivens recalled
relaying some information to Agent
Bennett and Detective Welsh from the
scene of the traffic stop, but he
emphatically denied conveying any
information regarding the source of
Benton’s marijuana. Carpenter recalled
discussing with Peters the content of his
interview with Benton, and he also
remembered stating to Peters that it
would have been helpful to the
investigation if Benton had received the
marijuana from Whitley. Carpenter was
certain, however, that he did not relay
the content of Benton’s statements to
either Welsh or Bennett. Peters was also
certain that he never spoke with either
Welsh or Bennett regarding any of the
information he received at the scene of
Benton’s traffic stop.

  At Whitley’s suppression hearing, Agent
Bennett was able to recall very little
about the source of the false information
other than that he and Welsh were
informed by someone at the scene that
Benton had received the marijuana from
Whitley at the Stevenson Inn. He
testified that the information came from
a radio or cellular phone communication
emanating from either Bivens or
Carpenter. Agent Bennett was unable to
recall whether the phone or radio call
was directed to himself or Detective
Welsh, or even which of the two actually
heard the fictitious information first.

  Detective Welsh also had very little
recollection regarding the specifics of
the communications received from the
scene of Benton’s traffic stop. He could
not recall which officer was relaying
information from the scene, or whether it
was Bennett or himself who received the
calls. Welsh’s testimony on this point
contradicted the information set forth in
his sworn warrant affidavit, which
positively identified Carpenter as the
source of the information concerning
Benton’s marijuana.

  At Whitley’s suppression hearing, Agent
Bennett testified that when the
confidential informant learned that the
information falsely attributed to Benton
was going to be incorporated into the
warrant affidavit, the informant reacted
with surprise at the idea that marijuana
was being sold from Whitley’s motel room.
The record discloses that the informant
had no reason to believe that Whitley and
Mitchum were involved with the sale of
any controlled substance other than
cocaine.

  Despite the officers’ professed lack of
recollection regarding the identity of
the officer communicating information
concerning the source of Benton’s
marijuana, and the exact content of those
communications, there is no question that
Detective Welsh prepared and signed an
affidavit reading in part as follows:

I was advised by Officer Paul Carpenter
that a black female named Latisha Benton
was stopped for a traffic violation in
the area of Taylor & Ash Streets,
Springfield, Sangamon County, Illinois.
That pursuant to the stop, officers
learned about and found approximately 22
small, Ziploc-type plastic baggies,
commonly known on the street as dime-size
baggies, containing green leafy substance
that field-tested positive for the
presence of THC, indicating the substance
to be cannabis. That Burton [sic] told
officers at the stop that she got the
cannabis from a room at the hotel on
Stevenson Drive from a male known to her
as "Q."/5

  There is no dispute in this case that
the final sentence in the above-quoted
section of Detective Welsh’s affidavit is
untrue. There is also no dispute that the
Sangamon County Circuit Court issued a
search warrant for Whitley’s motel room
(Room 422) based at least in part on the
false information contained in Detective
Welsh’s affidavit.

  The search warrant was issued at
approximately 8:15 a.m. on June 30, 1999.
Officers promptly returned to the motel
and spoke with the motel manager, who
informed them that Whitley had rented not
only Room 422, but also Room 421./6
Faced with a situation in which they
possessed a search warrant for one, but
not both, of the rooms Whitley rented,
officers decided that they would knock on
the door to Room 421 and attempt to gain
entry by obtaining the consent of
whomever answered the door. Once officers
had gained entry into Room 421 and
believed that there was no threat to
their safety, other officers would then
serve the search warrant on Room 422.

  The officers proceeded according to this
plan of entry, and the ensuing search of
both rooms turned up evidence that
Whitley and Mitchum were involved in the
sale of cocaine and cocaine base. In view
of the fact that they had a search
warrant in hand, the officers’ actual
entry into and search of Whitley’s room
(Room 422) is not an issue in this
appeal. However, the officers’ testimony
regarding the means by which they gained
entry into Room 421 (Mitchum’s room), the
premises for which no search warrant had
been issued, is pertinent to Whitley’s
appeal.


  B. The Officers’ Warrantless Entry into
Room 421.

  At Mitchum’s suppression hearing,/7
Detective Welsh and Springfield Police
Detective George Bonnett testified that
at approximately 9:15 a.m., on June 30,
1999, they knocked on the door to Room
421, that Mitchum opened the door, gave
the officers permission to enter, and
consented to a search of the room. When
questioned by Mitchum’s defense counsel,
these officers specifically denied ever
using a key card to open the door to Room
421./8

  Mitchum’s testimony at his suppression
hearing contradicted that of officers
Welsh and Bonnett. Mitchum stated that he
was asleep when there was a knock at the
door, someone announced "room service,"
and before he could get out of bed the
officers opened the door and walked into
his room. Contrary to Detective Welsh’s
testimony, Mitchum specifically denied
ever giving the officers permission to
enter the room or to perform a search. He
categorically denied that officers even
requested permission to conduct a search
of the room.

  After Detectives Welsh and Bonnett had
testified that no key card had been used
to gain entry into room 421, but before
the conclusion of Mitchum’s suppression
hearing, prosecutors went to the
Stevenson Inn to question motel
employees. Defense counsel’s questioning
of Detectives Welsh and Bonnett
concerning the possible use of a magnetic
key card to open the door to Room 421 had
alerted the prosecution to the fact that
this would probably be a continuing issue
at Mitchum’s suppression hearing. At the
motel, prosecutors learned that an
employee specifically recalled making
duplicate key cards for the officers for
both Rooms 421 and 422 on the day in
question. They were also informed that
each electronic door lock at the motel
has a memory device, and that the memory
can be accessed to display the date and
time that a key card was inserted into
the door lock. The memory for Room 421
demonstrated that a key card had been
inserted and removed from the lock at
9:16 a.m. on June 30, 1999--the very time
that officers testified they were
obtaining entry into Room 421./9
Despite the direct conflict between this
evidence and the testimony of the
officers, the prosecution presented this
evidence to the district court at the
continuation of Mitchum’s suppression
hearing the next day.


  C. The District Court’s Decision.

   As noted above, both Whitley and
Mitchum filed separate motions to
suppress the evidence and statements
obtained during the searches of Rooms 422
(Whitley) and 421 (Mitchum). Whitley’s
motion was heard and decided first.
Whitley premised his motion on the false
statements concerning the source of
Latisha Benton’s marijuana that were
contained in Detective Welsh’s affidavit,
arguing that the false statements were
included knowingly, intentionally, or
with reckless disregard for the truth.
See Franks v. Delaware, 438 U.S. 154
(1978). After hearing the officers’
testimony, the district court ruled that
Whitley had failed to meet his burden of
demonstrating that Detective Welsh
included the false information recklessly
or intentionally. The court held that
Detective Welsh’s inclusion of the false
statements may have been the result of
careless or negligent behavior, but that
there was insufficient evidence on which
to base a conclusion that Detective
Welsh, or any other officer involved,
intentionally lied or acted recklessly.

  Two weeks after the denial of Whitley’s
motion, the court proceeded with
Mitchum’s motion to suppress. It was at
this hearing that the officers’
credibility was called into more serious
question over the issue of the key card
used to gain entry into Room 421.
Mitchum’s motion to suppress was granted
on the grounds that the court did not
find the testimony of Detectives Welsh
and Bonnett to be credible regarding the
means of entry into Mitchum’s room. The
government subsequently dismissed all
charges against Mitchum.

  After the granting of Mitchum’s motion,
Whitley filed a motion asking the court
to reconsider its prior denial of his
motion to suppress. In his motion for
reconsideration, Whitley argued that the
officers’ very questionable testimony re
garding the facts surrounding their entry
into Mitchum’s room cast a dark shadow on
the credibility of Detective Welsh’s
testimony regarding the inclusion of
false information in his affidavit. The
district court declined to reconsider its
prior ruling, holding that "Welsh’s
testimony regarding the circumstances
surrounding the preparation of the
affidavit corroborated that from other
officers who were not involved in the
entry into Mitchum’s room."

  Whitley subsequently entered a
contingent guilty plea and was sentenced
to 176 months imprisonment, while
reserving his right to pursue this appeal
from the adverse rulings on his motion to
suppress.

DISCUSSION

  In Franks v. Delaware, 438 U.S. 154
(1978), the Supreme Court defined the
procedure, evidentiary burdens, and
proper remedies associated with a
defendant’s attack on the truthfulness of
statements made in a sworn affidavit sup
porting the issuance of a search warrant.
The Fourth Amendment requires the trial
court to conduct an evidentiary hearing
upon a defendant’s preliminary showing
that: (1) the warrant affidavit contained
false information; (2) the false
information was included in the affidavit
intentionally or with reckless disregard
for the truth; and (3) that the
misrepresentations were necessary to the
determination of probable cause to issue
the warrant. Franks, 438 U.S. at 155-56.

  If a defendant makes this initial
showing and a hearing has been granted,
as it was in this case, Franks goes on to
discuss the particularities of the
inquiry to be made at the hearing:

In the event that at that hearing the
allegation of perjury or reckless
disregard is established by thedefendant
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.

Franks, 438 U.S. at 156.

  Under this standard there are two levels
of inquiry that must be made in assessing
the evidence presented at a Franks
hearing. Initially, the court must
determine whether the defendant has
demonstrated that the false information
was included intentionally or recklessly.
If not, the inquiry is at an end and the
fruits of the search should not be
suppressed. However, should the defendant
meet his burden of establishing that
false information in the affidavit was
included as the result of intentional
deceit or reckless disregard, the court
must expand its inquiry and determine
whether the affidavit, when stricken of
its falsity, is nonetheless sufficient to
establish probable cause for issuance of
the search warrant. In the present case,
the court ruled against Whitley on the
question of intentional deceit or
reckless disregard for the truth, and
accordingly did not reach the second
issue.

  The Franks decision did not define
"reckless disregard for the truth," other
than to suggest that the standard
required more than mere negligence on the
part of the affiant. Franks, 438 U.S. at
171. In United States v. Williams, 737
F.2d 594 (7th Cir. 1984), we defined the
concept of "reckless disregard for the
truth," as used in the context of a
Franks hearing, as follows:

[T]o prove reckless disregard for the
truth, the defendants had to prove that
the affiant ’in fact entertained serious
doubts as to the truth of his
allegations.’ Because states of mind must
be proved circumstantially, a factfinder
may infer reckless disregard from
circumstances evincing ’obvious reasons
to doubt the veracity’ of the
allegations.
Id. at 602 (citations omitted).

  Subsequent decisions have slightly
expanded the Franks principle to include
the state of mind not only of the
affiant, but also of those governmental
agents from whom the affiant received
false information incorporated into the
affidavit. In other words, the validity
of the search is not saved if the
governmental officer swearing to the
affidavit has incorporated an intentional
or reckless falsehood told to him by
another governmental agent. United States
v. Pritchard, 745 F.2d 1112, 1118 (7th
Cir. 1984); United States v. McAllister,
18 F.3d 1412, 1417 (7th Cir. 1994).

  In the context of the denial of a Franks
motion following an evidentiary hearing,
we review the court’s decision for clear
error. Williams, 737 F.2d at 602. Under
this standard, we will reverse the
district court’s decision only if, after
reviewing the record as a whole, we are
of "the definite and firm conviction that
a mistake has been committed."
McAllister, 18 F.3d at 1416; United
States v. Soria, 965 F.2d 436, 439 (7th
Cir. 1992). Several factors lead us to
conclude that a serious mistake was made
in this case.

  Our task is to gauge Detective Welsh’s
culpability for including the false
information in his affidavit. At the
outset, this obligation is hampered by
the officers’ collective lack of
recollection regarding almost all aspects
of the pertinent communications. Not a
single officer present at the scene of
Benton’s traffic stop admits to telling
Welsh and Bennett anything concerning the
source of the marijuana, whether accurate
or inaccurate. Because no one remembers
who specifically said what to whom, we
are left with a big black hole, and no
starting point from which to assess
Detective Welsh’s state of mind. The
collective testimony of the officers
involved does not permit us to conclude
that Welsh misheard the communicating
officer, that the communicating officer
misspoke, that the communicating officer
was confused about the content of
Benton’s statement, or whether the
erroneous information was ever
transmitted from the scene at all. We are
left only with Detective Welsh’s
statement that he knows he heard the
information from somebody. Needless to
say, it is difficult to assess the facial
veracity of a statement that no one
admits to making. Indeed, it is
difficult to label the officers’ conduct
as mere negligence when the record is
barren of any evidence that might explain
the nature of and reasons for the
breakdown in communication and by whom it
was initiated. The blame for the absence
of this important information lies with
the government’s witnesses and their
inability to provide direct, clear and
convincing testimony concerning a most
crucial event.

  We know that Welsh’s affidavit states
that he heard the false information from
Officer Carpenter. Welsh executed the
affidavit immediately after he allegedly
obtained the false information, so we
must presume that the source of the
information was relatively fresh in his
mind at the time the affidavit was
prepared. However, Officer Carpenter
denies being the source of the false
information. At the suppression hearings,
Welsh backtracked from his affidavit’s
identification of Carpenter as the
source, and instead claimed that he
simply could not remember who told him
about the connection between Whitley and
the twenty-two bags of marijuana found in
Benton’s purse. Welsh’s decision to
identify Carpenter as the source of the
false information, if in fact he did not
know from whom he received the
information, certainly raises a red flag
with respect to his credibility on
crucial events.

  Even if we assume for the moment that
the communicating officer at the scene
incorrectly identified Whitley as the
source of Benton’s marijuana, there was
still good reason for Welsh to harbor
some serious questions concerning the
accuracy of this information. Whitley and
Mitchum were being investigated for the
possible sale of cocaine and crack, not
marijuana. The confidential informant
believed the two men to be involved with
the sale of cocaine and crack, and she
expressed surprise at the notion that
Whitley and Mitchum might be involved in
the sale of marijuana. The false
information similarly came as a surprise
to Welsh and Bennett, who also had no
prior information that Whitley and/or
Mitchum were involved with marijuana. The
false information constituted an entirely
new and independent basis for obtaining a
search warrant, yet Welsh, an experienced
law enforcement officer, did nothing to
verify this sudden change in the
direction of the investigation. He did
not simply ask the communicating officer
to repeat the information to make certain
he heard it accurately. He did not ask to
speak with Officer Carpenter (assuming
that Carpenter was not the original
source of the information) to obtain a
firsthand account of Carpenter’s
interview with Benton. By the
government’s own admission, the false
information regarding the source of
Benton’s marijuana became the lynchpin
for a finding of probable cause to issue
the search warrant./10 The fact that
the Benton information did not correspond
with the officers’ understanding of the
activities for which Whitley and Mitchum
were being investigated should have at
the very least raised a question in
Welsh’s mind as to the accuracy of the
information.

  Nonetheless, we might have been willing
to agree with the district court’s
characterization of Welsh’s inclusion of
false information in his affidavit as
merely negligent, sloppy police work were
it not for the very enlightening damage
done to his credibility at Mitchum’s
suppression hearing. It is clear that
Welsh was less than truthful in his
testimony regarding the means of entry
into Mitchum’s motel room. The district
court made findings on the credibility
issue as follows:

There are a lot of things that are
striking about the credibility of the
officers. And I don’t really like this
that [sic], but we’ve got keys that were
obviously received from the motel manager
to the two rooms and no reference to that
in any police report.

*   *   *

Officer Welsh was asked yesterday if he
used a key on Room 421. He expressly
stated no, he did not. He was also asked
whether he ever inserted a key into the
lock of Room 421 and he said he did not.
Officer Bonnett was asked yesterday
whether he saw Officer Welsh put the
computer key card into the lock at Room
421. He testified that he did not see
Officer Welsh do that. He stated that he
himself did not do that and that he
didn’t see anyone do that. And yet we
know today that somebody stuck the
computer key card into the door lock of
Room 421 twice in the minute of 9:16. And
that is pretty unrefuted evidence from
the computer that goes with the key card
to the room.

*   *   *

And so we have no explanation of how this
computer key card was used in that door
and that casts a lot of doubt on the
credibility of the officers. And again, I
don’t like reaching this conclusion, but
it is thrown in my face in this case that
somebody is not being forthright
concerning what was done with those
computer key cards.

And the fact that it was initially kept
from us that they even had a key card to
Room 421; that there was noreport made of
it; which would seem to be an important
thing that should have been in a report.
That the case is replete with
inaccuracies, to put it mildly, causes
the Court to conclude that on the issue
that is before me, the Defendant
[Mitchum] is more credible than the
officers. And while I dislike being put
in a position to suppress evidence, I
don’t see how I can avoid it.

  Admittedly, the district court had not
made this credibility determination at
the time it decided Whitley’s original
motion to suppress evidence. However,
Whitley asked the court to reconsider its
earlier ruling after the completion of
Mitchum’s suppression hearing. In its
decision denying the motion for
reconsideration, the court acknowledged
the questions surrounding Welsh’s
credibility, but did not find them
determinative due to "corroborative
testimony" from other officers regarding
preparation of the affidavit:

The Court will not reconsider its ruling
on Whitley’s prior motions. Officer
Welsh’s testimony regarding the
circumstances surrounding preparation of
the affidavit corroborated that from
other officers who were not involved in
the entry into Mitchum’s room. The facts
surrounding the entry into Mitchum’s room
do not call into question any of those
other officers’ corroborative testimony
regarding the preparation of the
affidavit. The motion to reconsider is
denied.

  This is where the district court’s
conclusions cross the boundary into the
clearly erroneous. We are unable to iden
tify the "corroborative testimony" to
which the court is referring in its
decision, nor has the government
enlightened us as to what testimony is
supposed to corroborate Welsh’s version
of events. Not one of the officers at the
scene of Benton’s traffic stop admits to
supplying Welsh with any information
regarding the source of Benton’s
marijuana. Agent Bennett recalls being
aware of the erroneous information, but
for reasons unexplained in the record he
was unable to recall whether he received
the information, whether Welsh received
it, or whether he heard it from Welsh.
Obviously, this recollection falls far
short of corroborating Welsh’s testimony
that he heard the erroneous information
from someone at the scene of Benton’s
interview. As stated above, we are left
with nothing other than Welsh’s question
able recollection and subsequent
testimony that he heard the false
information "from somebody." In short,
the record is barren of any evidence
corroborating Welsh’s testimony that he
was misinformed regarding the connection
between Benton’s marijuana and defendant
Whitley.

  We refuse the government’s invitation to
consider the officers’ credibility
regarding the preparation of the
affidavit in isolation, divorced from a
consideration of their lack of
credibility in connection with the entry
into Room 421. The two events concerned
the same investigation, occurred within a
very short time of one another, and
Detective Welsh was the primary
protagonist in both incidents. Testimony
regarding the two events was taken in the
same prosecution.

  The district court unequivocally found
Detective Welsh to have given less than
truthful testimony concerning aspects of
his participation in the searches at
issue. In our view, this credibility
determination casts an entirely different
light on the officers’ convenient
collective lack of recollection regarding
the source of the erroneous information
contained in the warrant affidavit. We
are compelled to conclude that the
officers’ lack of recollection was merely
an excuse for the intentional or reckless
inclusion of false information into the
affidavit. Officers who have previously
been exposed as being less than truthful
in their testimony regarding searches
incident to an investigation simply
cannot expect us to accept a collective
"we can’t remember" as explanation for
false affidavit information. Regrettably,
conduct of this type by one or two
officers casts a dark cloud over the
thousands of dedicated law enforcement
personnel working at the local, state and
federal levels to protect and safeguard
the rights of all citizens guaranteed in
the United States Constitution. We refuse
to excuse and accept questionable conduct
of this nature.

  In summary, we are convinced that the
district court erred in concluding that
Whitley failed to carry his burden of
demonstrating that the false information
was included in Welsh’s affidavit either
intentionally or with reckless disregard
for the truth. The factors that lead us
to this conclusion are (1) the officers’
inability to identify and explain the
source of the erroneous information; (2)
the fact that Welsh’s affidavit
positively identified Officer Carpenter
as the source of the false information,
combined with Carpenter’s testimony
denying that fact and Welsh’s subsequent
retraction of his affidavit testimony;
(3) the fact that no effort was made to
verify the accuracy of information that
did not comport with the officers’ belief
concerning the defendants’ allegedly
illegal activities; and (4) the
unequivocal lack of credibility of
Detective Welsh’s testimony regarding his
participation in the search of Room 421.
Whether it is characterized as
intentional deceit or reckless disregard,
we hold that the evidence is sufficient
to tip the balance in Whitley’s favor on
his motion for reconsideration.

  This does not end the inquiry, however.
Franks requires a determination as to
whether the affidavit, when purged of the
false information, is nonetheless
sufficient to support probable cause for
the issuance of a search warrant. The
district court did not reach this issue.
We reverse the decision of the court that
false information was not inserted into
the affidavit intentionally or with
reckless disregard for the truth, order
the false information in Detective
Welsh’s affidavit stricken, and remand
the case for a consideration of whether
the remaining facts contained in the
affidavit are sufficient to support a
finding of probable cause.


/1 See 21 U.S.C. sec. 841(a)(1) and 841(b)(1)(A).

/2 The investigation was conducted by an FBI "Safe
Streets Task Force" comprised of both FBI Agents
and local officers from the Springfield Police
Department.
/3 Welsh was a Springfield Police Department Detec-
tive assigned to the FBI Safe Streets Task Force.
He is hereafter referred to as "Detective Welsh."

/4 The officers who testified at Whitley’s suppres-
sion hearing were Steven Bennett, Paul Carpenter,
Stephen Peters, Jeffrey Bivens, and Stephen
Welsh.

/5 The confidential informant previously told offi-
cers that Whitley was also known as "Q."

/6 As it turned out, Whitley was staying in Room
422, and Mitchum was in Room 421.

/7 As previously noted, Whitley and Mitchum were co-
defendants in the district court and both defen-
dants filed separate motions seeking to suppress
any evidence obtained in the searches of their
respective motel rooms. Whitley’s motion was
decided first, before testimony was taken regard-
ing the officer’s entry into Room 421 (Mitchum’s
room). Whitley’s motion was denied, but Mitchum’s
was granted, and Mitchum is not a party to this
appeal. However, for a complete understanding of
the facts and issues in Whitley’s case it is
necessary to review and understand the testimony
taken at Mitchum’s suppression hearing on Decem-
ber 28-29, 1999.

/8 At the suppression hearing, Detective Welsh
testified as follows:

Q: Did you at any time use a key to either pre-
pare to enter Room 421 or to enter Room 421?

A: No.

Q: Did you ever insert a key into the lock of Room
421?

A: No.
Q: Do you recall even having such a key with you?

A: No.

  Detective Bonnett also denied the use of a key:

Q: At any point in time before the door was
opened, did anyone put a key in that door?

A: No, nobody put a key in the door.

/9 The memory for the lock on Room 422 demonstrated
that a key was used in the lock of that room at
approximately the same time that a key was used
on the door to Room 421. At the suppression
hearings, officers acknowledged using a key in
the lock of Room 422 prior to entering. As
previously noted, officers unequivocally denied
the use of a key card in the door of Room 421.

/10 We note that the government’s appellate brief
states, at page 17, "Without [the] erroneous
allegation, the remaining facts alleged in the
affidavit would not support a finding of probable
cause."
