Defense counsel acted reasonably in how he pursued defendant’s suppression motion founded on Franks in not arguing more stringently for bad faith. Here, defendant was charged in state court with child pornography. His motion to suppress the search was granted. Then the federal government took up the case, and his cell phone was searched too. Attached was the state affidavit which was also heavily drawn from. The officer failed to mention the state court actually suppressed the search as presented to it. As a strategy, this was reasonable because counsel’s performance must be judged in terms of a calculated choice on likelihood of success in a course of action. Lickers v. United States, 2024 U.S. App. LEXIS 8881 (7th Cir. Apr. 12, 2024):
Just because an argument has some remote chance of prevailing does not mean that a lawyer is constitutionally deficient for failing to bring it. Whether a lawyer provides ineffective assistance by failing to raise an argument depends in important part on its likelihood of success. See Goins v. Lane, 787 F.2d 248, 254 (7th Cir. 1986) (“Trial counsel is not obligated to present every conceivable theory in support of the defense.”); Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013) (“Appellate lawyers are not required to present every nonfrivolous claim on behalf of their clients—such a requirement would serve to bury strong arguments in weak ones.”). Lawyers cannot be faulted for eschewing the proverbial kitchen sink and instead focusing on arguments with better odds. After all, “trial counsel may undermine the credibility of the defense of his client if he simply presents the court with a barrage of attacks.” Goins, 787 F.2d at 254; see also Strickland, 466 U.S. at 681 (describing advocacy as “an art and not a science” and taking pains to emphasize that “strategic choices must be respected” when “based on professional judgment”).
In his affidavit, Dalton anchored his decision not to pursue the question of Agent Telisak’s good faith in the practical disconnect between the content of the state court’s suppression ruling and the nature of the federal warrant application. Several considerations lead us to conclude that this rationale was wholly reasonable in the circumstances of this case.
It would be one thing if the state court’s suppression ruling opined on whether Officer McVey’s state search warrant affidavit sufficed to support a finding of probable cause. In that case, as we observed on direct appeal, it could well have “inform[ed]” the federal court’s determination whether Agent Telisak’s affidavit, modeled as it was on McVey’s, likewise established probable cause. Lickers, 928 F.3d at 619. But remember that the state court suppression ruling said nothing about the state search warrant. It was instead premised on the state court’s conclusion (one with which we disagreed on direct appeal) that Lickers’s arrest in Monmouth Park was unconstitutional.
At most, then, the state court suppression ruling would have alerted the district court to the possibility that evidence described by Agent Telisak in his federal affidavit was the fruit of an unconstitutional search. Although this is no doubt generally important information, it is difficult on the actual facts of this case to see what legal bearing it could have had on the district judge’s decision to issue the warrant. That substance of that ruling—with which we later disagreed—was in no way binding on the district judge. See id. at 620. More importantly, it is not the practice of issuing magistrates to hold quasi-suppression hearings, before the government brings federal charges, to determine whether information described in a search warrant affidavit is the fruit of an unconstitutional search. Instead, such issues are litigated precisely as they were in the district court: through a pre-trial motion to suppress.
In these circumstances, Dalton had no reason to assume that Agent Telisak omitted information about the state court suppression ruling with the intent to withhold facts and mislead the federal court into authorizing an unconstitutional search. And we find this especially so in light of Agent Telisak’s express assurance to the district court that he was seeking the second warrant “out of an abundance of caution” and to ensure “compl[iance] with the Fourth Amendment.” Agent Telisak, like attorney Dalton, may simply have believed that the search warrant application was not the proper time to litigate the constitutionality of Lickers’s arrest.
But even if a reasonably competent attorney would have entertained serious doubts about Agent Telisak’s good faith, neither of the steps Lickers believes Dalton should have taken to explore that issue were so likely to succeed as to make the failure to pursue them constitutionally problematic. In light of the factual and logical disconnect we have described between the state court suppression ruling and the federal search warrant application, Dalton would have faced considerable difficulty making the substantial preliminary showing of materiality necessary to obtain a Franks hearing. See McMurtrey, 704 F.3d at 504-05; Shell v. United States, 448 F.3d 951, 957-58 (7th Cir. 2006).
Our court has long assessed materiality under Franks using the so-called “hypothetical affidavit” test. Applying it is usually straightforward. “We eliminate the alleged false statements, incorporate any allegedly omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish probable cause.” Betker v. Gomez, 692 F.3d 854, 862 (7th Cir. 2012). If it would not, the information is material—not necessarily individually, but at least collectively. Why? Because, in the aggregate, the inclusion or omission from the affidavit of that bundle of information contributed to an erroneous finding of probable cause.
Applying that test is difficult in a case like this, where the affidavit lacks probable cause even before it is corrected to remove the taint of the alleged falsehoods or deceptive omissions. Nonetheless, it is not abundantly clear how the omission of a state court suppression ruling having no logical connection with the task before an issuing magistrate could be deemed material under our precedent—particularly where, as here, the merits of that ruling are erroneous as a matter of law. We need not take a definitive view of that question, however. It is enough to observe that any such contention would be a novel extension of our case law and to reiterate the longstanding “principle that ‘[t]he Sixth Amendment does not require counsel to forecast changes or advances in the law.'” Coleman v. United States, 79 F.4th 822, 831 (7th Cir. 2023) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993)).
