United States v. Mason McMurtrey
2013 U.S. App. LEXIS 588
| 7th Cir. | 2013Background
- Two affidavits (Lane for 1520 West Aiken; Barisch for 1514 West Aiken) contained direct contradictions about Milltown’s drug activity.
- Barisch and Lane each claimed the other provided information; the warrants were issued for different addresses based on conflicting facts.
- A warrant for 1520 West Aiken was never executed; later, Barisch sought a separate warrant for 1514 West Aiken with largely identical information.
- Defense moved to suppress, invoking Franks v. Delaware, alleging deliberate or reckless false statements or omissions.
- District court held a limited “pre-Franks” hearing allowing the government to bolster its evidence but did not permit full cross-examination, and relied on that bolstering to deny a full Franks hearing.
- On appeal, the Seventh Circuit vacated and remanded for a full Franks hearing, holding the pre-Franks procedure was improper and the government’s bolstering evidence could not substitute for a full evidentiary Franks hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by using a pre-Franks procedure | McMurtrey argues pre-Franks allowed government bolstering without full cross-examination | United States contends pre-Franks is permissible to determine need for full hearing | Procedural error; remand for full Franks hearing |
| Whether McMurtrey made a substantial preliminary showing under Franks | McMurtrey shows direct contradictions suggesting falsity or omissions | Statements were not shown false or reckless without bolstering | Sufficient showing; remand for merits-based Franks hearing |
| Whether the procedural error was harmless | Exclusion of defense cross-examination and reliance on bolstering evidence prejudiced McMurtrey | Error harmless as the threshold showing failed | Not harmless; remand for full Franks proceedings |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (requires evidentiary hearing if substantial showing of false statements necessary to probable cause)
- United States v. Harris, 464 F.3d 733 (7th Cir. 2006) (limits pre-Franks use of new information and cross-examination in Franks process)
- United States v. Spears, 673 F.3d 598 (7th Cir. 2012) (full Franks hearing required for falsity claims; pre-Franks insufficient)
- United States v. Tate, 524 F.3d 449 (4th Cir. 2008) (omissions must be deliberate or reckless to mislead; applicability in Franks omissions)
- United States v. McNeese, 901 F.2d 585 (7th Cir. 1990) (Franks as applied to omissions; cautions on omissions to mislead)
- United States v. Whitley, 249 F.3d 614 (7th Cir. 2001) (recognizes recklessness standard for falsity; supports showing of falsity through circumstantial evidence)
- United States v. Williams, 737 F.2d 594 (7th Cir. 1984) (recognizes need to show falsity not mere scrivener errors)
- United States v. Fisher, 635 F.3d 336 (7th Cir. 2011) (reliance on later decisions; noted but superseded by later law on Franks)