Franks Hearing Update
In People v. Williams, 2020 IL App (1st) 190418, the First District Appellate Court reversed a trial court’s ruling that an officer committed a Franks violation when he misstated the number of bedrooms in his search warrant affidavit.
Search warrants are commonly obtained in drug and gun investigations. One method in which defendants can challenge the validity of search warrants is by requesting a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978). The Franks Court held that an evidentiary hearing must be held when a defendant makes a substantial preliminary showing that an allegedly false statement in a search warrant affidavit is (1) necessary to the finding of probable cause and (2) was included in the affidavit either “knowingly and intentionally, or with reckless disregard for the truth.” 98 S.Ct at 2684.
In order to make a “preliminary showing,” a defendant must meet the following conditions: (1) the defendant’s attack “must be more than conclusory and must be supported by more than a mere desire to cross-examine”; (2) the defendant must provide “allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof”; (3) the allegations must “point out specifically the portion of the warrant affidavit that is claimed to be false”; and (4) the defendant must furnish “[a]ffidavits or sworn or otherwise reliable statements of witnesses . . . or their absence satisfactorily explained.” Williams, supra, 2020 IL App (1st) 190418 at ¶15, quoting Franks, supra, and citing People v. Lucente, 116 Ill.2d 133, 506 N.E.2d 1269, 1277, 107 Ill.Dec. 214 (1987). A trial court must balance the affidavit statements against those in support of the defendant’s challenge to the warrant. People v. Creal, 391 Ill.App.3d 937, 910 N.E.2d 118, 124, 331 Ill.Dec. 45 (3d Dist. 2009).
The defendant’s burden for the preliminary showing lies somewhere between mere denials and proof by a preponderance. Williams, supra, 2020 IL App (1st) 190418 at ¶15, citing Lucente, supra, 506 N.E.2d at 1276 – 1277.
A “reckless disregard for the truth” has been defined as proof that the affiant entertained serious doubts about the truth of the allegations in the affidavit or circumstances evincing obvious reasons to doubt the veracity of the allegations. Creal, supra, 910 N.E.2d at 125.
If a defendant is able to establish perjury or a reckless disregard for the truth at the Franks hearing, then the false material must be excised from the affidavit. If the remaining parts of the affidavit are insufficient for probable cause, then the warrant will be voided and the evidence obtained from the warrant will be excluded. 98 S.Ct at 2676.
In Williams, a Chicago police officer and a “John Doe” appeared before a judge with a search warrant for the defendant’s apartment in Chicago. The search warrant alleged that there had been drug transactions in the apartment. The complaint stated twice that it was a one-bedroom apartment. The complaint further alleged that John Doe had seen the defendant “walk into the only bedroom in the apartment” and return from the bedroom with baggies of suspected cocaine. 2020 IL App (1st) 190418 at ¶3.
The search warrant was executed, and the defendant was found to be in be possession of cocaine and a firearm. He was charged with armed habitual criminal and possession with intent to deliver cocaine (and lesser included offenses). 2020 IL App (1st) 190418 at ¶1. During the execution of the search warrant, the police discovered that the apartment was actually a two-bedroom unit. 2020 IL App (1st) 190418 at ¶4. As a result of the discrepancy between the search warrant and the actual layout of the apartment, the defendant was granted a Franks hearing. Id.
At the Franks hearing, the officer testified that his John Doe source told him that a Larry Williams (defendant) sold drugs from the first-floor apartment. Doe described the defendant’s physical appearance and claimed that he had bought drugs from the defendant on three occasions, including within 48 hours of the search warrant’s execution. Doe told the officer that the defendant would retrieve the drugs from a bedroom and swore to the issuing judge that the bedroom was the only bedroom in the apartment. 2020 IL App (1st) 190418 at ¶6.
The trial court found that Doe was lying or recklessly disregarded the truth because of the discrepancy between the amount of bedrooms in the apartment and suppressed the evidence obtained from the warrant. 2020 IL App (1st) 190418 at ¶¶5 – 6.
The Williams court reversed and found that the defendant met all of the conditions for a preliminary showing except for the second condition (the defendant must provide allegations of deliberate falsehood or of reckless disregard for truth, and those allegations must be accompanied by an offer of proof). 2020 IL App (1st) 190418 at ¶19.
The court noted that the defendant did not make an allegation of deliberate falsehood or a reckless disregard for the truth. All that was alleged was the discrepancy in the number of bedrooms. The court stated that this discrepancy did not indicate either an intentional falsehood or a reckless disregard for the truth. More importantly, the court noted that the number of bedrooms was not necessary for a probable-cause finding. Id.
The court emphasized that the limited purpose of a Franks hearing would be defeated if a hearing was granted every time that a search warrant was contained a mistake that was not material for probable cause. The Williams court pointed out that the Franks Court “recognized that allegations of negligence or innocent mistake were insufficient to obtain an evidentiary hearing.” 2020 IL App (1st) 190418 at ¶20, citing Franks, supra, 98 S.Ct. at 2684.
The Williams court ultimately held that an informant’s false statements alone can be the basis for granting a Franks hearing. The critical inquiry is the materiality of the informant’s false statements. 2020 IL App (1st) 190418 at ¶23.
The court concluded that the defendant was unable to show deliberate misstatements or a reckless disregard for the truth or a material falsity for the probable cause determination. The court noted that there were sufficient allegations for a probable-cause finding even if the number of bedrooms was set aside. Therefore, the defendant in this case failed to make a substantial preliminary showing and was not entitled to a Franks hearing. 2020 IL App (1st) 190418 at ¶24.
Supreme Court Affirms Forfeiture of PSI Requirement
In a recent decision by the Illinois Supreme Court, the court held that a criminal defendant may waive his right to have a presentence investigation (PSI) report issued to the circuit court for consideration of his sentence if “there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.” People v. Sophanavong, 2020 IL 124337, ¶1, quoting 730 ILCS 5/5-3-1. Further, the court found that a defendant who fails to timely raise the issue of a court’s improper noncompliance with the presentence investigation statute forfeits any such argument. 2020 IL 124337 at ¶25.
This holding certainly emphasizes the importance of a defendant’s understanding of his right to appeal, as well as the ability for a defendant to waive an otherwise statutorily mandated right.
Defendant Phouvone V. Sophanavong was indicted by a grand jury on three counts of first-degree murder, one count of aggravated kidnapping, and one count of violating an order of protection. 2020 IL 124337 at ¶4. A few months later, the defendant entered into a plea agreement and pleaded guilty to the murder charge in exchange for having the other charges dropped. 2020 IL 124337 at ¶5. Additionally, the agreement provided that the prosecution would “recommend a sentence of 55 years in prison, which included 30 years for first degree murder and a 25-year firearm enhancement.” Id., citing 730 ILCS 5/5-8-1(a)(1)(d)(iii).
After offering a factual basis for the defendant’s guilty plea, the circuit court found the defendant guilty as per the plea agreement. At sentencing, the circuit court inquired into the defendant’s criminal history. At this point, “the parties informed the court that they were waiving a PSI report.” 2020 IL 124337 at ¶10. Although the PSI report was waived, the prosecution did inform the circuit court of prior criminal convictions on the defendant’s record, but “the State did not mention the disposition of any of defendant’s prior offenses.” Id. Upon conclusion of the sentencing hearing, the circuit court sentenced the defendant to 55 years in prison. 2020 IL 124337 at ¶11. The circuit court then addressed the defendant directly, informing him of his right to appeal and timely file a motion to withdraw his guilty plea and vacate the judgment and sentence. Id. Importantly, the circuit court specifically told the defendant, “that Motion must be in writing and set forth with particularity why it ought to be granted, or any claim not stated may be waived for purposes of appeal.” Id.
While the defendant did timely file his motion, as the Illinois Supreme Court noted, “he did not raise a claim that the circuit court failed to comply with section 5-3-1.” 2020 IL 124337 at ¶12. The defendant’s motion was later amended once he was appointed counsel, and again the motion did not raise any claim regarding the circuit court’s misuse of the PSI statute. After having his motion denied, almost three years later another newly appointed counsel filed a second amended motion. Once again, this motion made no mention of any claim under §5-3-1. After having this second amended motion denied, the defendant then appealed, now arguing that his motion should be granted “because the court failed to strictly comply with section 5-3-1 of the Code when it accepted the parties’ plea agreement without ordering a PSI report or being informed of the dispositions of defendant’s prior criminal offenses.” 2020 IL 124337 at ¶15, citing People v. Sophanavong, 2018 IL App (3d) 170450, ¶9, 121 N.E.3d 516, 428 Ill.Dec. 104.
The appellate court found for the defendant, vacated the sentence, and remanded for a new trial. Id. Specifically, the appellate court “found the PSI requirement of section 5-3-1 is a mandatory legislative requirement that cannot be waived by the defendant.” 2020 IL 124337 at ¶17 , citing Sophanavong, supra, 2018 IL App (1st) 170450 at ¶12.
The issues for consideration at the Illinois Supreme Court were (1) whether a criminal defendant could legally waive his right to a PSI report, as prescribed by the written exception under §5-3-1, and (2) whether a criminal defendant could forfeit such a claim by failing to timely raise this issue.
As Written, a Defendant May Waive the Right to a PSI Report
The court began its analysis by first distinguishing the terms “waiver” and “forfeiture,” defining “waiver” as “an intentional relinquishment or abandonment of a known right or privilege.” 2020 IL 124337 at ¶20, citing People v. Lesley, 2018 IL 122100, ¶36, 123 N.E.3d 1060, 429 Ill.Dec. 1. The court next turned to caselaw surrounding Illinois Supreme Court Rule 604(d), finding that “[u]pon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” 2020 IL 124337 at ¶22, citing S.Ct. Rule 604(d), and People v. Evans, 174 Ill.2d 320, 673 N.E.2d 244, 248, 220 Ill.Dec. 332 (1996) (“Any issue not raised in the motion to reconsider or to withdraw the plea shall be deemed waived.”).
In the opinion of the court, there is no special exception to be carved into the statutory right granted to defendants under §5-3-1. In fact, the statute explicitly provides for an avenue for waiver of the right to a PSI report. 730 ILCS 5/5-3-1. In rejecting, then, the argument that the right to a PSI report provided under §5-3-1 is a mandatory requirement that cannot be waived, the court looked at the language of the law that provides for the specific circumstance under which such a right is waived:
[T]he court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. 2020 IL 124337 at ¶43.
In the court’s view, there was no need for further analysis of the issue of whether a PSI report can be waived (although the court did provide an extensive analysis of caselaw and the legal force of waivers).
A Defendant’s Failure To Timely Raise Will Result in Forfeiture
The court made clear that the defendant had numerous opportunities to raise a claim under §5-3-1 and took issue with that fact that “now more than six years after pleading guilty, defendant seeks a new sentencing hearing based on the circuit court’s failure to comply with section 5-3-1.” 2020 IL 124337 at ¶25. Still, the court analyzed caselaw in order to specifically address the question whether a criminal defendant can forfeit a claim under the PSI report statute.
In reviewing whether a criminal defendant can forfeit a claim under §5-3-1, the court again turned to Supreme Court Rule 604(d), finding:
If Rule 604(d)’s requirement that issues be raised in a motion to withdraw the guilty plea or otherwise risk forfeiture is to have any force, defendant’s failure to raise the issue within 30 days of the imposition of sentence must be found to be what it is — forfeited. 2020 IL 124337 at ¶25.
The court’s appreciation for clarity and consistency outweighs any prejudice incurred by criminal defendants who fail to timely raise a legal issue. The court’s refusal to carve an exception to the rule on forfeiture for claims brought under §5-3-1 establishes a clear-cut rule that defendants must raise any claims they may have in a timely manner and that failure to include any potential claims in motions to withdraw guilty pleas and vacate judgments and sentences will be viewed with incredible deference by the court that such claims are forfeited.
While the court’s ruling may seem harsh, the defendant in this case had multiple opportunities to raise his §5-3-1 claim. Importantly, the court’s decision emphasizes the importance of a criminal defendant’s understanding how to appeal a decision and what must be included in a motion in pursuit of the same.
Additionally, the court’s decision highlights the effect that waivers have on a defendant’s final outcome. While perhaps the decision of the defendant in this case to waive was particularly difficult given that the waiver of a PSI report was included as part of his plea agreement, the court’s decision only emphasizes the importance of an attorney’s responsibility to ensure that a client fully understands the potential consequences of the terms of such an agreement.
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