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NOT DESIGNATED FOR PUBLICATION

No. 124,118

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARCUS JACKSON,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed May 27, 2022. 

Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Milesha Segun, assistant district attorney, Zahi Omari, assistant district attorney, Mark A. Dupree 

Sr., district attorney, and Derek Schmidt, attorney general, for appellee. 

Before SCHROEDER, P.J., GREEN and GARDNER, JJ.

PER CURIAM: A jury convicted Marcus Jackson of one count of aggravated 

burglary and one count of eluding a police officer. After an unsuccessful direct appeal, 

Jackson filed a pro se K.S.A. 60-1507 motion which the district court denied after an 

evidentiary hearing. Jackson appeals, claiming that his trial counsel was ineffective for 

not pursuing a Franks hearing and suppressing evidence from a tracking device police 

had installed on his car.
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Factual and Procedural Background

A jury convicted Jackson of aggravated burglary and felony eluding a police 

officer. Part of the evidence against Jackson came from a GPS tracker that police had 

placed on his Buick Rendezvous after getting a search warrant authorizing them to do so. 

Before trial, Jackson moved pro se to suppress the evidence obtained from the GPS 

tracker. The district court held a hearing and denied the motion, finding the affidavit 

supporting the warrant established probable cause. 

Soon after his conviction, Jackson moved to dismiss his trial counsel based on 

ineffective assistance, and the district court appointed new counsel. Jackson later moved 

for a new trial, asserting, in part, ineffective assistance of trial counsel. He later withdrew 

that motion in exchange for a plea agreement. The district court sentenced Jackson to 84 

months' imprisonment. 

After losing his direct appeal, State v. Jackson, No. 119,235, 2019 WL 491206, at 

*6 (Kan. App. 2019) (unpublished opinion), Jackson filed a voluminous pro se K.S.A. 

60-1507 motion. That motion included an argument that trial counsel was ineffective for 

failing to pursue a Franks hearing to challenge the affidavit supporting the search 

warrant. The district court appointed counsel for Jackson. 

The district court then held an evidentiary hearing that focused mainly on 

ineffective assistance of counsel. Trial counsel testified and admitted that Jackson had 

asked him to challenge the GPS evidence and to try to suppress the evidence it had 

garnered. Trial counsel had reviewed the affidavit in support of the search warrant then 

decided not to challenge the search warrant. He found the only discrepancy in the 

affidavit was the color of the Buick Rendezvous—a technicality that did not defeat 

probable cause. The district court agreed. It denied Jackson's 60-1507 motion, finding 
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Jackson's attorney was not deficient in his performance and did not prejudice Jackson. 

Jackson appeals.

Did the District Court Err in Finding Trial Counsel Did Not Provide Ineffective 

Assistance?

Jackson raises only one issue—whether the district court erred in finding trial 

counsel was not ineffective for failing to pursue a motion for a Franks hearing. Jackson 

argues the search warrant was defective because it listed the wrong color for his vehicle 

and trial counsel failed to challenge the warrant on this basis. 

Because the trial court conducted a full evidentiary hearing, we use a mixed 

standard of review to analyze the district court's findings of fact and conclusions of law. 

See State v. Adams, 311 Kan. 569, 577-78, 465 P.3d 176 (2020). We determine whether 

substantial competent evidence in the record supports the district court's factual findings, 

and we determine de novo whether the factual findings support the district court's legal 

conclusions. Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334 (2020).

We focus, as Jackson does, on his claim that his trial counsel provided ineffective 

assistance. The Sixth Amendment to the United States Constitution guarantees an 

accused in a criminal prosecution the right to assistance of counsel, applied to the states 

through the Fourteenth Amendment to the United States Constitution. Khalil-Alsalaami v. 

State, 313 Kan. 472, 484-85, 486 P.3d 1216 (2021). The right to counsel includes the 

right to effective assistance of counsel to ensure a criminal defendant receives a fair trial. 

We analyze claims of ineffective assistance of counsel under the two-prong test of 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

adopted by the Kansas Supreme Court in Chamberlin v. State, 236 Kan. 650, 656-57, 694 

P.2d 468 (1985). Khalil-Alsalaami, 313 Kan. at 485. The defendant must satisfy both 

prongs: (1) that defense counsel's performance was deficient under the totality of the 
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circumstances; and (2) that the deficient performance prejudiced the defendant meaning a 

reasonable probability exists a different result would have occurred without the 

deficiency. Adams, 311 Kan. at 578; see Strickland, 466 U.S. at 687.

To establish deficient performance under the first prong, "'the defendant must 

show that counsel's representation fell below an objective standard of reasonableness.' 

Strickland, 466 U.S. at 688." Khalil-Alsalaami, 313 Kan. at 485. A court's scrutiny on an

attorney's past performance "is highly deferential and viewed contextually, free from the 

distorting effects of hindsight." 313 Kan. at 485. The court indulges in a strong 

presumption that counsel's conduct falls within the wide range of reasonable, effective 

representation. Strickland, 466 U.S. at 688.

Under Strickland's second prong, a defendant must show the attorney's deficient 

performance was prejudicial.

"To do so, defendant must establish with reasonable probability that the deficient 

performance affected the outcome of the proceedings based on the totality of the 

evidence. '"A reasonable probability is a probability sufficient to undermine confidence 

in the outcome. A court hearing an ineffectiveness claim must consider the totality of the 

evidence before the judge or jury."' [Citations omitted.]" Khalil-Alsalaami, 313 Kan. at 

486.

It is within the lawyer's province to decide what witnesses to call, whether and 

how to conduct cross-examination, as well as other strategic and tactical decisions.

Strategic decisions made after a thorough investigation of law and facts are "'virtually 

unchallengeable.'" 313 Kan. at 493. But strategic choices made after less than complete 

investigations are reasonable to the extent reasonable professional judgments support the 

limitations on the investigation. State v. Butler, 307 Kan. 831, 853-54, 416 P.3d 116 

(2018). "'"In any ineffectiveness case, a particular decision not to investigate must be 
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directly assessed for reasonableness in all the circumstances, applying a heavy measure 

of deference to counsel's judgments.'" [Citations omitted.]" 307 Kan. at 854.

Jackson alleged his trial counsel was deficient for not pursuing a Franks hearing 

because the affidavit in support of the search warrant stated the wrong color for his Buick 

Rendezvous. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 

(1978). According to Jackson, his car is champagne or cream, while the affidavit listed its 

color as silver. Jackson acknowledges that his trial counsel's decision not to pursue a 

Franks hearing was a strategic choice but he argues trial counsel's testimony at the 1507 

hearing lacked any explanation to support that decision, as is necessary. 

We disagree. The record shows that Jackson's trial counsel reviewed the affidavit, 

considered Jackson's claims, and found the color discrepancy to be a technicality that did 

not defeat the affidavit. At the 1507 hearing, trial counsel explained he had not pursued a 

Franks motion even though Jackson had asked him to because he did not believe there 

was a sufficient basis to challenge it—he viewed the only discrepancy as an immaterial 

"technicality." If he is correct, that is good reason not to pursue a Franks hearing.

The challenger must make more than a conclusory allegation supported by a mere 

desire to cross-examine to require an evidentiary hearing. Franks, 438 U.S. at 171. This 

is partly because a presumption of validity attaches to an affidavit supporting the search 

warrant. In Franks, the United States Supreme Court established a high bar for the kind 

of hearing Jackson contends his attorney should have requested:

"[W]here the defendant makes a substantial preliminary showing that a false statement 

knowingly and intentionally, or with reckless disregard for the truth, was included by the 

affiant in the warrant affidavit, and if the allegedly false statement is necessary to the 

finding of probable cause, the Fourth Amendment requires that a hearing be held at the 

defendant's request." 438 U.S. at 155-56.
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If, at that hearing, the defendant establishes his allegation of perjury or reckless disregard 

by a preponderance of the evidence, and the affidavit's content with its false material 

removed cannot establish probable cause, then the search warrant must be voided, and the 

fruits of the search excluded. 438 U.S. at 156.

The defendant must allege deliberate falsehood or reckless disregard for the truth, 

and those allegations must accompany an offer of proof, pointing out the specific portion 

of the warrant affidavit claimed to be false, and accompanied by a statement of 

supporting reasons. That proof should take the form of affidavits or sworn or otherwise 

reliable statements of witnesses. If that proof is absent, the absence must be satisfactorily 

explained. 

"Allegations of negligence or innocent mistake are insufficient. . . . [I]f these 

requirements are met, and if, when material that is the subject of the alleged falsity or 

reckless disregard is set to one side, there remains sufficient content in the warrant 

affidavit to support a finding of probable cause, no hearing is required." 438 U.S. at 171-

72. 

If the remaining content is insufficient, a defendant is entitled to a hearing, but whether 

the defendant will prevail is a different issue. 438 U.S. at 172.

The Kansas Supreme Court applies an elements test to determine whether a 

Franks hearing is required:

"Under the Franks exception, an evidentiary hearing is required if a defendant 

shows by a sworn allegation that an affidavit in support of a search warrant is unreliable 

in that it: (1) contains statements that are material to the issuance of the search warrant 

because the statements were necessary to find probable cause and (2) the material 

statements (a) were a deliberate falsehood, (b) were made in reckless disregard for the 

truth, or (c) deliberately omitted a material fact." State v. Adams, 294 Kan. 171, 179, 273 

P.3d 718 (2012).
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Jackson meets none of those requirements. First, our review of the affidavit in 

support of the search warrant fails to support Jackson's assertion of a color discrepancy. 

The affidavit does state that a canvas of a neighborhood to which a stolen iPad was 

tracked revealed a silver SUV. But the affidavit refers to the Buick Rendezvous law 

enforcement was seeking to attach a tracker to as "light or silver colored," "light colored 

possibly silver," and "silver or light colored." The affidavit thus stated the Buick 

Rendezvous was light colored or silver, not just silver. Jackson did not include a picture 

of his car as evidence, but cream and champagne qualify as "light colored." So Jackson 

fails to show that the affidavit contained any false information or deliberate omission. 

Second, even if we assume that the officer's affidavit contained some car color 

discrepancy, Jackson did not provide any affidavit or sworn statement alleging that the 

affidavit's car color discrepancy was a deliberate falsehood, was made in reckless 

disregard for the truth, or was a deliberate omission. See Adams, 294 Kan. at 179. Nor 

did he testify to anything of the sort at trial. Without that affidavit, trial counsel could not 

have succeeded on any request for a Franks hearing. 

Third, even if trial counsel had moved for a Franks hearing, and if the district 

court had found that the officer's affidavit contained a deliberate falsehood, the district 

court still would not have held a hearing because the affidavit's remaining information 

was enough to support probable cause. The affidavit had the correct make and model of 

Jackson's vehicle and it tied the vehicle to an address connected with Jackson. It also 

connected Jackson with Carl Williams, another suspect in this burglary and in several 

other thefts, and it described law enforcement's suspicion of their participation in several 

other thefts. The information in the affidavit was still enough to support the search 

warrant even if one deletes all references to the car's color. Thus, the failure to pursue a 

Franks hearing did not prejudice Jackson. See 438 U.S. at 155-56.
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Jackson thus established no basis to support a Franks motion. The failure to bring 

a motion that the district court would have denied cannot sustain a claim for ineffective 

assistance of counsel. See State v. Gleason, 277 Kan. 624, 648, 88 P.3d 218 (2004)

(finding counsel was not ineffective for failing to object to admissible, relevant evidence 

that the court would have admitted even if counsel had objected). 

We find substantial competent evidence supporting the district court's factual 

findings, and we agree with its legal conclusions that Jackson's trial counsel's 

performance was not deficient and that his performance did not prejudice Jackson.

Affirmed.