Allen Brown was indicted on bank robbery charges. The robbers used Scream masks. A Scream mask was found in an abandoned van stolen by the robbers. The police had the mask tested for DNA. They had reason to suspect Brown but they did not have probable cause to either arrest him or obtain a warrant to obtain DNA from him.

FBI Special Agent Robert Smith wrote an affidavit, sworn under oath, based upon information he received from Pennsylvania State Trooper Shane Lash, to obtain a warrant to get a sample of Brown’s DNA. Smith did not participate in the interviews leading up to the affidavit but Lash provided him with information. He declared that the robbers used Scream masks and that they stole a van from the Armstrong County School District. He said that the van had been found and that there was a mask in it. Furthermore he said that Brown did not live in Pennsylvania but that he was visiting at approximately the time of the robbery. He had left a family residence in his silver Volkswagon Jetta at 8:00 am and returned two hours later.

He also said that witnesses had seen the stolen van meet up with the Jetta. This is clearly false. Lash and Smith both testified in the District Court that Lash did not tell this to Smith and there is absolutely no evidence to back it up.

After the indictment Brown brought a motion to suppress the DNA on Franks grounds. In Franks v. Delaware the Supreme Court held that evidence seized as a result of a search warrant must be suppressed if it is both material and to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth. The parties agreed that the statement was material and false. The only question is whether it was made “either knowingly and intentionally or with reckless disregard for the truth.”

It all seems rather silly. There was not probable cause to obtain the warrant. Either Smith is lying or he is covering up for Lash who is lying. The District Court suppressed the evidence. Yet the U. S. Attorney appealed the matter and one of the three judges on the Third District Court of Appeals panel supported the government’s position. They claim there is no evidence that Smith acted either knowingly and intentionally or with reckless disregard for the truth. Instead of intending to lie the dissent argues he could have acted negligently in making up the story and negligence, according to Franks does not result in suppression. After all Smith claims that at the time he wrote the affidavit he thought he was telling the truth. ¹ He had copies of the police reports. He could have read them before he swore to the truth of his statements under oath. The Third Circuit correctly ruled that:

Because the total lack of an evidentiary basis for making an averment can constitute an obvious reason for doubting that averment‘s veracity, the District Court did not clearly err in finding that Smith‘s conduct rose beyond the level of negligence, to the point of recklessness.

The only questions remaining are why was so much time and money spent on this case and why isn’t Smith being fired?

The Eighth Circuit Court of Appeals upheld the conviction of Edward Lee Smith due to trial counsel failure to make a Franks motion.

A confidential informant told a Hennepin County (Minneapolis) detective that Smith was a leader of the Vice Lords gang and that he was selling drugs and guns from his residence. Detective Joe Poidinger did a computer search and confirmed the gang ties. He arranged but did not participate in a search of Smith’s garbage. In the garbage officers found evidence of drug sales. Based on this information Poidinger obtained a search warrant for Smith’s duplex.

Smith was tried, convicted, and sentenced to a mandatory minimum sentence of ten years in prison based on the quantity of drugs and his prior conviction.

On appeal he argued that probable cause did not exist for the search warrant and that double jeopardy existed since his sentence was aggravated due to a prior conviction.

The appellate court upheld the conviction. It ruled that probable cause existed for the search based upon his prior conviction and the garbage container search.

Smith argued that there was no evidence that the officers searched the correct trash can. He lived in a duplex and the units had adjoining garbage containers.

The appellate court ruled that Smith did not make a Franks motion in the trial court. Therefore the appellate court limited its review of suppression issues to whether or not probable cause existed on the face of the search warrant affidavit. Under Delaware v. Franks evidence seized as a result of “deliberate falsehood or of reckless disregard for the truth” in an affidavit supporting a search warrant must be suppressed. But in order to get a Franks hearing a defendant must show that

[t]here [are] . . . allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

I have some problem with using the prior conviction. A prior conviction is not really relevant to whether drugs can be found in the defendant’s residence on a particular day. But when we ignore the Franks issues drug related trash in a garbage can is probably sufficient to a showing of probable cause for a search warrant.

The other issue raised by Smith is the mandatory minimum sentence based on his prior conviction. The court held that issue was not timely raised since it was not raised in the trial court. Secondly, the appellate court, relying on precedent, found that the ten year mandatory minimum was “a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.” As a result the court that constitutional provisions against double jeopardy were not violated.