In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3554
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DWAYNE V. DANIELS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 CR 117‐1 — John Z. Lee, Judge.
____________________
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 18, 2018
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Before BAUER, KANNE, and SCUDDER, Circuit Judges.
PER CURIAM. Dwayne Daniels conditionally pleaded
guilty to bank robbery, reserving his right to appeal the dis‐
trict court’s denial of his motion for a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), to probe the credibility of the
FBI agent who procured a warrant for samples of his DNA.
We affirm because, although the wording of the warrant affi‐
davit is misleading, curing the inaccuracy would not defeat
2 No. 17‐3554
probable cause. In any event, Daniels has not made a substan‐
tial preliminary showing that the misstatement was deliber‐
ate or reckless.
I. BACKGROUND
In November 2012, a man entered a bank in Waukegan,
Illinois, pointed an apparent handgun at a teller, gave her a
bag, and demanded money. He fled on foot with $4,765. Po‐
lice interviewed three bank employees and viewed security
footage. The employees described the robber as 5’ 3’’ or 5’ 4’’
tall, and they recounted him wearing some sort of Halloween
mask, white gloves, blue jeans, and a blue, two‐toned hooded
jacket. One employee said she could see the robber’s bare
neck where the mask ended and thought his skin was black.
About 15 minutes after the robbery, Waukegan police re‐
covered several items approximately two blocks away from
the bank and passed them on to FBI examiners: a toy hand‐
gun, a Santa hat, a rubber Halloween mask, a black cap with
eye holes cut into it, a blue jacket, and two white gloves. The
parties now agree that the black cap was not visible from the
security footage, and no witness reported seeing it. The gov‐
ernment’s theory is that the robber wore the cap under the
Halloween mask, and no one disputes that the cap was found
near other items that comported with the security footage and
witness descriptions.
An FBI examination revealed male DNA on the black cap
and one of the gloves, plus male and female DNA on the sec‐
ond glove. A database search returned a preliminary match
between DNA from the cap and Daniels, a 5’ 4’’ black male
then in the custody of Lake County Jail for an unrelated of‐
fense.
No. 17‐3554 3
Based on this initial match, the FBI sought a warrant for a
fresh buccal swab and hair sample. A Special Agent’s affida‐
vit accompanied the warrant application. Paragraph #6 of the
affidavit describes a man “wearing a Halloween mask, white
gloves, blue jeans, and a blue, two‐toned hooded jacket” who
carried “a small handgun” into the bank, robbed it, and then
“ran northbound through a parking lot, and then went east
on Glen Flora Avenue.”
Paragraph #8 continues with the description that led to
this appeal:
Approximately fifteen minutes after the rob‐
bery, officers from the Waukegan Police Depart‐
ment who responded to the robbery recovered
several items that, according to Employees A, B,
and C, and corroborated by video surveillance
footage from the bank, Individual A wore or
used to rob the bank. Officers recovered those
items near the intersection of Glen Flora Avenue
and Green Avenue, which is approximately two
blocks northeast of the bank. Specifically, offic‐
ers recovered a blue, two‐toned hooded jacket,
two white gloves, a black cap with eyeholes cut
into it, a Halloween mask, and a plastic toy gun
partially wrapped in tape.
The affidavit further noted a match between Daniels’s DNA
and DNA collected from the black cap.
A magistrate judge issued the warrant and the FBI ob‐
tained the hair sample and buccal swab. With these new sam‐
ples, the government confirmed the match between Daniels
4 No. 17‐3554
and the cap—and, this time, also matched him to both gloves.
An indictment followed.
Daniels then alerted the district court that “[n]ot one of the
three interviewed bank employees said that a ‘black cap’ was
‘wor[n] or used to rob the bank.’” Arguing that the affidavit
implied the opposite, he moved for a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), to probe the truthfulness of
the FBI’s affiant. But the court denied the motion (and recon‐
sideration).
To be sure, the court found, the supporting affidavit inac‐
curately suggested that bank employees identified (and sur‐
veillance footage showed) a black cap used during the rob‐
bery. But the court found the inaccuracy unnecessary to the
warrant and opined that “probable cause nevertheless ex‐
ist[ed]” if the affidavit were revised to reflect the truth of the
matter: that the black cap was merely found among other
items that had appeared on video or in the witness accounts.
The court also found that Daniels had not made a substan‐
tial preliminary showing that the falsity was knowing or reck‐
less, instead attributing the inaccuracy to a negligent “scrive‐
ner’s error.” Daniels pleaded guilty, reserving his right to ap‐
peal the Franks issue.
II. ANALYSIS
If a defendant makes “a substantial preliminary showing”
that police knowingly or recklessly (rather than negligently)
used a false or materially misleading statement to obtain a
warrant, the Fourth Amendment requires a hearing to further
test the affiant’s veracity and determine whether any evi‐
dence must be suppressed. Franks, 438 U.S. at 155–56. We re‐
No. 17‐3554 5
view the denial of a Franks hearing for clear error, but we re‐
view de novo any legal determinations that factored into the
district court’s ruling. United States v. McMurtrey, 704 F.3d
502, 508 (7th Cir. 2013).
Because the district court found that the affidavit conveys
a falsehood—a finding that neither party challenges on ap‐
peal—we limit our discussion to two questions: whether the
falsehood is necessary to the finding of probable cause and, if
so, whether there is evidence to suggest that the Special Agent
knowingly or recklessly misled the magistrate judge.
A. Probable Cause
The role of a judge considering a defendant’s motion for a
Franks hearing is to remove any overt falsehood from the affi‐
davit—or else incorporate any omitted material facts that un‐
dermine probable cause, if an omission is what rendered the
affidavit misleading—and see if probable cause remains.
United States v. Harris, 464 F.3d 733, 738 (7th Cir. 2006). Prob‐
able cause exists when, under the totality of the circum‐
stances, a prudent person would find it is fairly probable that
evidence of a crime is present. Florida v. Harris, 568 U.S. 237,
243–44 (2013).
The parties disagree about how to frame the falsehood and
excise it from the affidavit. Daniels argues that all references
to the black cap must be removed; this approach, of course,
would defeat probable cause for a warrant to collect more of
his DNA. The government counters that only the language
implying that witnesses saw (or the video revealed) a black
cap should be removed.
6 No. 17‐3554
The district court, for its part, determined that probable
cause remained if the paragraph were re‐ordered and edited
as follows to reflect the precise truth:
Approximately fifteen minutes after the rob‐
bery, officers from the Waukegan Police Depart‐
ment who responded to the robbery recovered
a blue, two‐toned hooded jacket, two white
gloves, a Halloween mask, and a plastic toy gun
partially wrapped in tape. According to Em‐
ployees A, B, and C, and corroborated by video
surveillance footage from the bank, Individual
A wore or used these items to rob the bank. Of‐
ficers recovered these items—as well as a black
cap with eyeholes cut into it, which employees
did not see and video surveillance did not cap‐
ture—near the intersection of Glen Flora Ave‐
nue and Green Avenue, which is approximately
two blocks northeast of the bank.
Daniels, however, contends that courts evaluating a Franks
motion should refrain from finessing the details in the man‐
ner of the district judge’s comprehensive rewrite here, and
should instead confine themselves to either deleting any mis‐
leading statements or including any material omissions that
undermine probable cause. But we need not weigh in on that
question, because it is clear that an alternative approach ad‐
vanced on appeal by the government fits clearly within the
Franks framework and leads to the same result.
Specifically, paragraph #8’s misleading description can be
winnowed by discretely eliminating the implication that the
cap was worn by the bank robber:
No. 17‐3554 7
Approximately fifteen minutes after the rob‐
bery, officers from the Waukegan Police Depart‐
ment who responded to the robbery recovered
several items that, according to Employees A, B,
and C, and corroborated by video surveillance
footage from the bank, Individual A wore or
used to rob the bank. Officers recovered those
items near the intersection of Glen Flora Avenue
and Green Avenue, which is approximately two
blocks northeast of the bank. Specifically, offic‐
ers recovered a blue, two‐toned hooded jacket,
two white gloves, a black cap with eyeholes cut
into it, a Halloween mask, and a plastic toy gun
partially wrapped in tape.
This information, combined with paragraph #6’s true state‐
ments of the direction of the robber’s flight, of what bank em‐
ployees saw, and of what the video showed, is enough for a
prudent observer to infer a fair probability that the black cap
was linked to the crime. And the robber’s height and skin
color, found in paragraph #7 of the affidavit, add at least a
little bit to probable cause.
Daniels asserts that this rendering of the affidavit elimi‐
nates probable cause. Not so; the showing of probable cause
is somewhat diminished, but not appreciably.
We are not persuaded by Daniels’s argument that the
court should have removed all references to the black cap.
That the police found the cap along the robber’s flight path is
not false. What the affidavit misconveyed was a suggestion
that employees stated (and video corroborated) that the black
cap was visible during the robbery. Removing that suggestion
does not defeat probable cause.
8 No. 17‐3554
B. Affiant’s State of Mind
For the sake of completeness, we note that Daniels has not
made a substantial preliminary showing that the Special
Agent’s misstep was reckless or deliberate. To secure a Franks
hearing, a defendant must put forth “an offer of proof” that is
“more than conclusory” and gestures toward more than neg‐
ligent mistakes. 438 U.S. at 171. What is needed is “direct evi‐
dence of the affiantʹs state of mind” or else “circumstantial ev‐
idence” of “a subjective intent to deceive.” United States
v. Glover, 755 F.3d 811, 820 (7th Cir. 2014). Although “the de‐
fendant need not overcome the courtʹs speculation regarding
an innocent explanation,” id., the defendant’s task remains
“relatively difficult,” McMurtrey, 704 F.3d at 509.
In the district court, Daniels flatly asserted that an infer‐
ence of recklessness or worse “is inescapable.” On appeal he
is more specific: the government’s motive to overstate the
connection between the black cap and the robbery is obvious;
the subsequently‐drafted criminal‐complaint affidavit does
not contain the same misrepresentation; and the affiant re‐
moved the Santa hat from the list of items recovered, thus il‐
lustrating his overall deliberateness. But these specific conten‐
tions were not made in the district court. In any event, given
the slight gap between what the affidavit said and what it
should have said, a reasonable observer would find it difficult
to infer anything worse than negligence. The district court did
not err.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.