IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 14-0303-CG

 )

JONATHAN ROBERT TAYLOR, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant’s Second Motion to Suppress Evidence 

and Request for a Franks Hearing (doc. 51) and his Motion to Dismiss Indictment (doc. 52).

I. Motion to Suppress / Request for Franks Hearing.

Defendant, Jonathan Robert Taylor, is charged with possessing with intent to distribute 

cocaine powder and with possessing a firearm in furtherance of that drug trafficking crime. 

Among the evidence the Government intends to use against Taylor at trial are the fruits of a 

search warrant executed on the afternoon of May 14, 2014 at an apartment on Orleans Street in 

Mobile, Alabama. Several weeks ago, Taylor filed and litigated a motion to suppress all 

evidence seized from the Orleans Street apartment on the grounds that the search warrant 

affidavit was defective because it failed to establish probable cause. In particular, Taylor 

attacked the search warrant affidavit as relying on the hearsay statement of a confidential 

informant (“CI”) whose reliability had not been established.

After briefing and a hearing, Judge Granade entered an Order (doc. 39) on September 25, 

2015, denying Taylor’s motion to suppress. In that Order, Judge Granade reasoned as follows: 

(i) the search warrant affidavit addressed the CI’s reliability by indicating that he carried out the 

controlled buy that culminated in Taylor’s arrest; (ii) the CI’s statements of having purchased 

cocaine from Taylor inside the Orleans Street apartment on numerous occasions in the last four 

months (including just two days earlier) were sufficiently detailed to support a probable cause 

finding; and (iii) the information in the affidavit that linked both Taylor and his criminal activity 

to the Orleans Street apartment was timely. Judge Granade also concluded in the alternative that, 

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even if probable cause were lacking, the exclusionary rule would be inapplicable here by 

straightforward application of the Leon good faith exception.

Nearly two weeks after Judge Granade’s ruling, and a mere five days before trial, Taylor 

filed a Second Motion to Suppress, wherein he once again focuses on the sufficiency of the 

search warrant affidavit. Taylor presents two arguments in support of this request. First, he 

urges this Court to reweigh the evidence presented to Judge Granade and to reconsider her ruling 

on the Motion to Suppress after taking into account certain information recently disclosed by the 

Government. In particular, the Government has now divulged that the CI had a pending charge 

for cocaine trafficking at the time of his/her participation in this case and that the police had 

informed the CI that the district attorney’s office would be notified of his/her cooperation so that 

the informant could be given consideration for same. Second, Taylor asserts that the search 

warrant is void under the principles set forth in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 

2674, 57 L.Ed.2d 667 (1978), because the search warrant affiant omitted information 

undermining the CI’s reliability.

As an initial matter, to the extent that Taylor is urging the Court to reweigh the probable 

cause determination by considering additional facts not before the magistrate independently of 

the Franks issue, as he appears to be doing (see doc. 41, at 2), the Motion is legally unfounded. 

See, e.g., United States v. Kelly, 2014 WL 1153375, *9 (N.D. Ga. Mar. 21, 2014) (“Generally, a 

challenge to the issuance of a search warrant is limited to the sufficiency of the information 

contained within the four corners of the warrant application itself.”).1 Thus, notwithstanding 

defendant’s attempt to advance two distinct grounds for relief, his Second Motion to Suppress 

rises or falls entirely on the strength of his Franks claim. See United States v. Brown, 2008 WL 

5099922, *1 (S.D. Ga. Nov. 25, 2008) (“A defendant who asks the court to look outside the four 

corners of the warrant is entitled to a hearing only if he makes a substantial preliminary showing 

 1 See also United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (“When 

determining whether an affidavit establishes probable cause, we look only to the four corners of 

the affidavit; information known to the officer but not conveyed to the magistrate is irrelevant.”); 

United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999) (“We review the question of probable 

cause de novo, ... assessing the information provided in the four corners of the affidavit 

supporting the warrant application.”) (citations omitted).

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that a false statement knowingly and intentionally, or with reckless disregard for the truth, was 

included by the affiant in the warrant affidavit.”) (citation and internal quotation marks omitted).

The Franks doctrine provides that “a warrant affidavit violates the Fourth Amendment 

when it contains omissions made intentionally or with a reckless disregard for the accuracy of 

the affidavit.” Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997) (citation and 

internal quotation marks omitted). Notably, “even intentional or reckless omissions will 

invalidate a warrant only if inclusion of the omitted facts would have prevented a finding of 

probable cause.” Id. at 1327. To be eligible for a Franks hearing, Taylor must make “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 [that] the 

allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 

438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); see also United States v. 

Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009) (“The defendant bears the burden of showing 

that, absent those misrepresentations or omissions, probable cause would have been lacking.”) 

(citation and internal quotation marks omitted). He has not done so.

The gravamen of Taylor’s Motion is that the search warrant affiant wrongfully failed to 

include facts that the CI was facing cocaine trafficking charges and that the CI had been notified 

that prosecutors would give him/her consideration for cooperating in the Taylor investigation. 

However, Taylor identifies no authorities supporting his premise that a search warrant affidavit 

contravenes the Fourth Amendment whenever it omits information spelling out a confidential 

informant’s criminal charges and motivations to assist law enforcement. Movant’s failure to cite 

to such case law is understandable; after all, the Eleventh Circuit and other courts have cast a 

dim view on the argument that omission of details about the CI’s criminal history and potential 

biases triggers a Franks remedy. See, e.g., United States v. Haimowitz, 706 F.2d 1549, 1555-56 

(11th Cir. 1983) (rejecting Franks argument that omission of facts concerning informant’s “prior 

felony convictions and bad acts may have led the magistrate to a misconception of [informant]’s 

credibility” where the affidavit would have supported probable cause finding even if the 

magistrate had known of informant’s prior acts).2

 2 See also United States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987) (where 

affidavit stated that informant had received cocaine from defendant, “[t]his fact ... told the 

(Continued)

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A fundamental reason why omission of an informant’s legal troubles and potential 

motivations to cooperate does not ordinarily implicate Franks concerns is this: “It would have to 

be a very naïve magistrate who would suppose that a confidential informant would drop in off 

the street with such detailed evidence and not have an ulterior motive. The magistrate would 

naturally have assumed that the informant was not a disinterested citizen.” United States v. 

Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988); see also United States v. Fowler, 535 F.3d 408, 416 

(6th Cir. 2008) (“it is no surprise that most confidential informants are engaged in some sort of 

criminal activity”); United States v. Martin, 920 F.2d 393, 398-99 (6th Cir. 1990) (“it is often 

people involved in criminal activities themselves that have the most knowledge about other 

criminal activities”); United States v. Hanhardt, 157 F. Supp.2d 978, 995 (N.D. Ill. 2001) (“The 

affidavit portrays the informants as persons involved in, or associated with, organized crime, and 

it is plain that they are some unsavory characters. The court does not construe the omission of 

the informants’ full criminal histories as a deliberate or reckless attempt to mislead the court into 

believing the informants are merely angels with dirty faces. There is no need to hold a Franks 

hearing ....”). These common-sense cases defeat Taylor’s contention that, in the absence of such 

disclosure by the affiant, the magistrate who issued the search warrant must have been misled 

into believing that the CI was an “unimpeachable citizen who [did] their civic duty and 

report[ed] criminal activity to law enforcement.” (Doc. 51, at 3.) Confidential informants in 

narcotics investigations are rarely, if ever, cut from such wholesome cloth.

 

district court enough about the informant’s background. Therefore, the omission of the 

informant’s criminal convictions and incarceration, when considered with all the information 

contained in the application, does not invalidate the warrant.”); United States v. Williams, 477 

F.3d 554, 558 (8th Cir. 2007) (“We have held that an affidavit is not robbed of its probative effect 

by its failure to mention that the informant was a paid informant who avoided prosecution by 

virtue of her testimony.”) (citations and internal quotation marks omitted); United States v. Dale, 

991 F.2d 819, 844 (D.C. Cir. 1993) (“an affiant’s failure to disclose the backgrounds and alleged 

biases of informants does not establish the affiant’s reckless disregard for the truth”); United 

States v. Wold, 979 F.2d 632, 634 (8th Cir. 1992) (“Jones did not inform the magistrate issuing 

the warrant that Byers had been a drug dealer for a number of years, was cooperating with the 

police in order to receive leniency, and was being paid by the police. This court has held, 

however, that omissions such as these are not misrepresentation.”); United States v. Fussell, 366 

Fed.Appx. 102, 104 (11th Cir. Feb. 17, 2010) (“Other omissions Fussell challenges – that Mount 

was a drug addict and seller, that Castillo sold large quantities of cocaine, and that both faced 

potentially harsh penalties – were implied in the warrant and serve to bolster probable cause.”).

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Furthermore, there can be no finding of intentional or reckless misrepresentation here 

because it was implicit in the search warrant affidavit that the CI was indeed a drug dealer whose 

participation was driven by ulterior motives to gain consideration for his own legal troubles. On 

the face of that affidavit, the magistrate was notified that the CI had purchased $1,300 worth of 

powder cocaine from Taylor on May 13, 2014 (i.e., one day before the warrant application), that 

the CI had purchased another $1,300 worth of powder cocaine from Taylor on May 12, 2014 

(i.e., two days before the warrant application), and that the CI had purchased powder cocaine 

from Taylor on “numerous occasions” over a four-month period. These facts divulged in the 

affidavit unambiguously portray the CI as a drug dealer; after all, one does not typically buy 

$1,300 worth of powder cocaine each day for personal use. If the CI were a drug dealer, as the 

affidavit implied, then it would require no leap of logic for a magistrate to conclude that the CI

was facing harsh penalties and that the desire to mitigate such penalties was a substantial 

motivating cause of the CI’s participation. Again, magistrates reviewing search warrant 

applications are not naïve. Affiants need not connect the dots to make explicit that which is 

already implicit in the affidavit, to-wit: that the CI is something other than an unimpeachable 

citizen performing his or her civic duty. Simply put, the Court finds it hard to believe that any 

reasonable magistrate would have been tricked or deluded by the challenged omissions into 

thinking the CI was a benevolent, disinterested, law-abiding citizen, rather than what he/she was: 

a bad actor in serious legal trouble who was cooperating in hopes of cutting a deal with 

prosecutors. In Franks terms, Taylor has failed to make a substantial preliminary showing that 

the search warrant affidavit is infected by omissions made with reckless disregard for the truth. 

There has been no showing – and there is simply no reason to believe – that the search warrant 

affiant engaged in deliberate falsehoods or proceeded with reckless disregard for the truth by not 

setting forth in the affidavit the criminal charges against the CI or the inducement that law 

enforcement had told the CI that prosecutors would be informed of his/her cooperation.

Moreover, even if there were a deliberate falsehood or omission made with reckless 

disregard for the truth (which there is not), Taylor’s Franks argument misses the mark because, 

as Judge Granade noted in her September 25 Order, the search warrant affidavit adequately 

reinforced the CI’s statements. In particular, the affidavit accurately recited that the CI had 

orchestrated a controlled buy with Taylor earlier that day. The CI’s participation with law 

enforcement officers on a controlled purchase of powder cocaine from Taylor is powerful 

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corroboration of his/her story. Additionally, as Judge Granade observed, the CI’s statements 

included sufficient detail to support a probable cause finding. Further, the CI’s statements that 

he/she had purchased $1,300 worth of cocaine from Taylor on each of the previous two days 

were admissions against penal interest that buttressed the CI’s credibility.

3

 And the CI’s 

identification of the location where he/she had purchased $1,300 in cocaine from Taylor on May 

12 and on numerous occasions previously was corroborated by Taylor’s statement to police (as 

set forth in the search warrant affidavit) that Taylor’s girlfriend lives there and that Taylor 

frequents such location. Considering the totality of the circumstances, the search warrant 

affidavit adequately demonstrated the CI’s veracity and reliability, so as to establish probable 

cause. In light of these facts set forth in the affidavit, and the plain, obvious implication therein 

that the CI was a drug dealer with an ulterior motive, the Court concludes that the affidavit 

would have supported a finding of probable cause even had it included information detailing the 

cocaine charges against the CI and the CI’s pursuit of leniency in those criminal proceedings 

based on cooperation with law enforcement. In the Franks vernacular, inclusion in the search 

warrant affidavit of the omitted information challenged by Taylor would not have defeated 

probable cause. Therefore, Taylor is not entitled to a Franks hearing or to any relief on his 

Franks claim predicated on omissions of the CI’s circumstances.4

 3 See, e.g., United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 

L.Ed.2d 723 (1971) (“Admissions of a crime ... carry their own indicia of credibility – sufficient 

at least to support a finding of probable cause to search.”); United States v. Buchanan, 574 F.3d 

554, 561-62 (8th Cir. 2009) (“We have also recognized that statements against the penal interest 

of an informant typically carry considerable weight in establishing reliability.”) (citation and 

internal quotation marks omitted); United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996) 

(“The fact that an informant’s statements are against his or her penal interest adds credibility to 

the informant’s report.”); United States v. Barnes, 909 F.2d 1059, 1069 (7th Cir. 1990) 

(“Lonnie’s statement that he purchased cocaine from Barnes and then sold some of it to Chris 

Ford is an admissible statement against Lonnie’s penal interest, thus providing further support 

for Lonnie’s credibility.”).

4 In his most recent filings, Taylor makes much of the Government’s nondisclosure of certain details of the CI’s criminal proceedings (such as the quantities of controlled 

substances and currency with which the CI was caught, the CI’s criminal history, how law 

enforcement came to arrest the CI, and so on). Defendant is seeking a Franks hearing to flesh 

out these and other details (the very same facts that defendant tried and failed to force the 

Government to divulge via Brady / Giglio motion). Such a hearing is unnecessary because those 

facts – whatever they are – would not have negated a finding of probable cause for the search 

(Continued)

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At its core, defendant’s Franks argument fails because it is antithetical to the Supreme 

Court’s admonition that search warrant affidavits “must be tested and interpreted by magistrates 

and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in 

the midst and haste of a criminal investigation. Technical requirements of elaborate specificity 

once exacted under common law pleadings have no proper place in this area.” United States v. 

Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Taylor’s argument would 

reduce the task of preparing a search warrant affidavit to a game of “gotcha” by finding 

malfeasance of constitutional proportions whenever a search warrant affiant failed to include a 

detailed dossier on a confidential informant’s background, character, criminal charges and 

motivations. The law simply does not require such specificity, particularly where (as here) it 

was implicit on the face of the affidavit upon any common-sense reading that the informant was 

in legal trouble and was cooperating in an attempt to mitigate the likely punishment.

For all of these reasons, the Second Motion to Suppress Evidence and Request for Franks

Hearing (doc. 51) is denied in its entirety.

II. Motion to Dismiss Indictment.

In a separate Motion, Taylor requests dismissal of the Indictment based on what he calls 

“[t]he government’s withholding of Brady material in this case.” (Doc. 52, at 1.) Taylor 

contends that dismissal is appropriate under the Due Process Clause, pursuant to the Court’s 

supervisory powers, and as a discovery sanction pursuant to Rule 16(d)(2)(D), Fed.R.Crim.P. 

The primary basis for Taylor’s request for such a draconian sanction is the Government’s refusal

 

warrant, such that their omission from the affidavit cannot amount to a Franks violation, as a 

matter of law. Again, the magistrate reviewing the search warrant affidavit had the CI’s 

statements, which were corroborated and bolstered in terms of reliability by (i) the CI’s 

participation in the controlled buy, (ii) the fact that Taylor had been arrested earlier that day with 

40 grams of cocaine on his person, (iii) the CI’s admissions against penal interest, and (iv) 

Taylor’s statement that he in fact frequented the Orleans Street apartment where the CI claimed 

to have purchased cocaine from him. It was already implicit in the warrant affidavit that the CI 

was a drug dealer who was cooperating in an attempt to save his/her own skin. Further 

elaboration on the specifics of the CI’s legal trouble would neither have defeated probable cause 

nor, frankly, have made any difference in the probable cause calculus; therefore, no Franks

hearing is necessary. See, e.g., United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011) 

(“[E]ven discounting the purported tainted statements, there was still probable cause to support 

the search for the reasons stated above. As such, no Franks hearing was required.”).

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to produce information to the defense concerning (i) “dates, times, place, and the amounts of 

currency the informant agreed to let the police seize;” (ii) “the nature of this person’s prior 

criminal involvement;” (iii) “the nature and quantities of each (of the apparently very many) 

types of drugs this informant possessed;” (iv) “how and when this informant was caught,” (v) 

“the specific timing of the police officers’ promises and inducements,” and (vi) “when the search 

warrant affiant first became aware of the informant’s criminal involvement.” (Doc. 52, at 4.) 

Alternatively, Taylor requests dismissal of the Indictment pursuant to Roviaro v. United States, 

353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Taylor posits that the appropriate analysis consists of “two requirements, prejudice and 

willful misconduct.” (Doc. 52, at 5.) He has shown neither. As set forth in the Order (doc. 54) 

entered on October 9, 2015, the Court has already concluded that the Government’s nondisclosure of the above-listed specifics of the CI’s criminal proceedings does not violate Brady

because the requested information is neither exculpatory nor impeaching, as required to satisfy

the first element of Brady. What’s more, Taylor’s claims of prejudice are unfounded. Again, the 

Government is not going to call the CI to testify at trial. The requested impeachment 

information would be of no value to Taylor at trial because he cannot introduce evidence to 

impeach a non-testifying witness, nor can he call a witness for the sole purpose of impeaching 

his/her credibility. All of this was explained at length in the October 9 Order. Furthermore, 

Taylor could not make the requisite showing of prejudice by arguing that the non-disclosed 

evidence was necessary to his repeated, unsuccessful motions to suppress and request for Franks

hearing. After all, the Court has held, supra, that there is no indication of a deliberate or reckless 

omission by the affiant, and the subject information would not have deprived the search warrant 

application of probable cause even if it had been disclosed in the affidavit. In short, despite 

Taylor’s recognition that he must show prejudice and willful misconduct in order to prevail on 

his request for dismissal of the Indictment, his Motion falls well short on both metrics.

Nor is Taylor’s position strengthened by invoking Roviaro. In that case, the Supreme 

Court observed that “[w]here the disclosure of an informer’s identity ... is relevant and helpful to 

the defense of an accused ... the trial court may require disclosure and, if the Government 

withholds the information, dismiss the action.” 353 U.S. at 60-61. Here, Taylor has not shown 

that disclosure of the CI’s identity would be relevant and helpful to his defense. He has not 

moved for this Court to compel the Government to furnish the CI’s identity to the defense. This 

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Court has not ordered the Government to disclose such information. And the Government has 

not defied any such court order. Accordingly, Roviaro is inapposite.

The Eleventh Circuit has instructed that “dismissal of an indictment for prosecutorial 

misconduct is an extreme sanction which should be infrequently utilized.” United States v. 

White, 846 F.2d 678, 693 (11th Cir. 1988) (citations and internal quotation marks omitted); see 

also United States v. Darden, 688 F.3d 382, 387 (8th Cir. 2012) (“Where a defendant alleges 

prosecutorial misconduct, dismissal of the indictment is proper only when the defendant 

demonstrates flagrant misconduct and substantial prejudice.”) (emphasis added and citation 

omitted). The information presented by defendant does not come close to justifying such an 

extreme sanction. Indeed, after careful review of Taylor’s flurry of filings on the eve of trial, the 

Court finds that defendant has made no threshold showing of either flagrant misconduct or 

substantial prejudice to the defense, much less both. The Motion to Dismiss Indictment is 

therefore denied.

III. Conclusion.

For all of the foregoing reasons, defendant’s Second Motion to Suppress Evidence and 

Request for a Franks Hearing (doc. 51) and Motion to Dismiss Indictment (doc. 52) are denied. 

This action remains set for trial before the undersigned beginning at 9:00 a.m. on Tuesday, 

October 13, 2015.

DONE and ORDERED this 12th day of October, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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