United States v. Tzannos

460 F.3d 128 (2006)

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Nature of the Case

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Facts

Trooper Russolillo submitted an application for a search warrant which included a fourteen-page affidavit in support of the application. The affidavit mentioned a confidential informant named CI-1. CI-1 agreed to provide information to the troopers only if his identity was not revealed. The CI-1 and Russolillo placed a 'controlled call' to Tzannos (D) where CI-1 told Russolillo that D was the person who answered the phone during the controlled call, and that D proceeded to give a rundown of the day's betting lines for baseball. The affidavit stated that CI-1 had provided information to Russolillo and other troopers in the past, and the information 'has proven to be reliable and true.' It said the troopers had known CI-1 for more than two years and that they knew his identity and address. The affidavit also gave extensive details on CI-1's past cooperation, stating, for example, that CI-1 had identified various bookmakers and their identities and telephone numbers, that all of the information had been corroborated by subsequent investigation, and that past information from CI-1 had led to the arrest, prosecution, and conviction of three men for gaming violations. The affidavit stated that CI-1 had also provided general intelligence information regarding other criminal matters, but that the affiant could not detail the particulars of these cases, because doing so would compromise the anonymity of the informant, making him 'susceptible to physical harm and/or retribution.' The magistrate issued the warrant based on the informant information and the information from the officer's investigation. When executed they found a fully equipped gaming office including gaming records, $10,200 in cash, and tape recorders and tapes that had been used to record conversations with customers. They also found and seized a loaded pistol, two loaded revolvers, a sawed-off shotgun, various types of ammunition, three switchblade knives, a pair of brass knuckles, and a blowgun with needles. D was indicted on charges of violating 18 U.S.C. § 922(g)(1). D asked the district court to conduct a Franks hearing so that he could challenge 'the accuracy and truthfulness of the affidavit.' D argued that the affidavit was untruthful. D identified each and every caller to that number on those days, and each and each and every one of those callers had signed a statement denying under oath that he or she was the informant. D argued that no informant existed and that Russolillo had lied. P argued that D had failed to meet 'the substantial preliminary showing that is a prerequisite to obtaining an evidentiary hearing under Franks. There was no guarantee that D had produced all the tapes further, the statements do not reveal the true names of the purported affiants and do not indicate that those affiants were sworn before anyone authorized by law to administer oaths. Further, it would hardly be surprising that CI-1 had denied that he was an informant. The district court granted D's motion for a Franks hearing. Eventually, the court suppressed the evidence seized pursuant to the search warrant. P appealed.