United States of America v. Gregory F. Tzannos
460 F.3d 128 (2006)
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Rule of Law:
To invalidate a search warrant under Franks v. Delaware, a defendant must prove by a preponderance of the evidence that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth. A court abuses its discretion when it devises a procedure that effectively forces the disclosure of a confidential informant's identity without the defendant first meeting the heavy burden under Roviaro v. United States to show that disclosure is essential to a fair defense.
Facts:
- Massachusetts State Trooper Pasquale Russolillo submitted an affidavit for a warrant to search the residence of Gregory Tzannos for evidence of an illegal bookmaking business.
- The affidavit relied on information from a confidential informant, CI-1, who claimed to have placed illegal bets with Tzannos over a specific telephone line.
- Russolillo's affidavit stated that he and CI-1 made a 'controlled call' to Tzannos on August 25, 2003, on the specified line, during which Tzannos gave out betting lines.
- The affidavit detailed CI-1's history of providing reliable information that had led to previous arrests and convictions.
- It also noted that organized crime was involved in local illegal gaming, and that revealing CI-1's identity would make the informant 'susceptible to physical harm and/or retribution.'
- Pursuant to a warrant issued by a state magistrate, police searched Tzannos's residence and discovered a gaming office, over $10,000 in cash, and numerous illegal firearms and weapons, including a sawed-off shotgun.
Procedural Posture:
- A federal grand jury indicted Gregory Tzannos for being a felon in possession of firearms.
- In the U.S. District Court, Tzannos filed a motion for a Franks hearing to challenge the truthfulness of the state trooper's affidavit that supported the search warrant.
- Over the government's objection, the district court granted the motion and convened a Franks hearing.
- The district court refused the government’s request to present evidence about the informant's existence ex parte and in camera.
- The court instead devised a procedure to have Tzannos's alleged callers testify, intending to suppress the evidence if they denied being the informant.
- The government objected to this procedure and requested the court enter a suppression order so the government could immediately appeal the court's procedural ruling.
- The district court granted the motion to suppress all evidence seized pursuant to the warrant.
- The government (appellant) appealed the district court's suppression order to the U.S. Court of Appeals for the First Circuit.
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Issue:
Does a defendant meet the burden required under Franks v. Delaware to suppress evidence by presenting incomplete and inconclusive records purporting to show that a confidential informant did not make a call as described in a search warrant affidavit, when the government asserts its privilege to protect the informant's identity from disclosure due to a risk of serious harm?
Opinions:
Majority - Lynch, Circuit Judge
No. The defendant failed to meet the exacting standard required to suppress evidence under Franks v. Delaware. To void a warrant, a defendant must prove by a preponderance of the evidence that the affiant, not the informant, made a false statement knowingly and intentionally or with reckless disregard for the truth. Tzannos did not meet this burden, as his evidence—consisting of incomplete ledgers and a partial audio tape—failed to definitively prove that the informant's call did not occur as described. He admitted to erasing tapes, and his evidence was insufficient to show the trooper lied, as opposed to the informant being mistaken or one of the bettors lying about being the informant. Furthermore, the district court abused its discretion by devising a hearing procedure that effectively forced the government to choose between revealing the informant's identity (risking their life) or suborning perjury, thereby violating the government's strong privilege under Roviaro v. United States to protect its informants where the defendant has not shown disclosure is essential to his defense.
Analysis:
This decision reinforces the high evidentiary bar established in Franks v. Delaware, making it very difficult for defendants to challenge the veracity of search warrant affidavits based on confidential informants. It clarifies that a defendant's attack must focus on the affiant-officer's intentional or reckless falsehood, not merely on inconsistencies in the informant's story. The ruling also strongly upholds the government's informant privilege under Roviaro, particularly at the pre-trial suppression stage, admonishing lower courts not to create procedures that circumvent this privilege without a compelling showing of necessity from the defendant. This protects law enforcement's ability to utilize confidential sources without fear of their identities being easily compromised through procedural maneuvering.
