United States of America v. Lance Slizewski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2397
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
LANCE SLIZEWSKI,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14‐cr‐87 — James D. Peterson, Judge.
____________________
A RGUED D ECEMBER 16, 2015 — D ECIDED J ANUARY 5, 2016
____________________
Before MANION, KANNE , and WILLIAMS , Circuit Judges.
KANNE , Circuit Judge. Lance Slizewski pleaded guilty to
possessing a firearm as a felon after police in Madison, Wis‐
consin, executed a warrant to search his rental car and found
a gun in the trunk. Slizewski moved to suppress the gun. He
argued that a detective misrepresented and omitted critical
information in his search‐warrant affidavit, necessitating a
Franks hearing to determine the search’s validity. The district
court denied the motion, and Slizewski pleaded guilty but

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2 No. 15‐2397
reserved his right to challenge the denial of his motion. Be‐
cause the district court permissibly ruled that any misstate‐
ments or omissions were unintentional or immaterial, we
affirm the district court’s judgment.
I. BACKGROUND
Wisconsin police officers arrested Slizewski in July 2014
as they investigated a string of armed robberies. Detective
Joel Peterson prepared an affidavit for a warrant to search
Slizewski’s car. In the affidavit, Peterson described four re‐
cent robberies. The first occurred at a pizza restaurant in
April. A second restaurant was robbed three days later. Two
men, one wearing a St. Louis Cardinals cap, were captured
on surveillance photos at that restaurant before it was
robbed. According to a witness, a robbery suspect fled that
scene in a black sedan “similar” to “a Chevrolet Malibu.”
The next robbery was a few days later. According to Peter‐
son, two men—one a black male and one a “lighter‐skinned
black male or perhaps mixed race”—robbed a sports bar. Pe‐
terson said that a surveillance video shows a black four‐door
sedan passing the bar four times shortly before the robbery.
Finally, Peterson said that a man, identified as James Sexton,
robbed a convenience store a week later and fled in a red
Ford Focus. The driver of the Ford Focus, who knew Sexton,
looked at photos from surveillance video of the previous
robberies. He pointed out that Sexton wore the same gray
basketball shoes (which he referred to as “Jordans”) during
the first and last robberies.
Peterson’s affidavit listed several facts that connected
Slizewski and his car to the robberies. First, Sexton had
Slizewski’s contact information in his phone and called
Slizewski from jail to tell him to change his number. Second,

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No. 15‐2397 3
Slizewski drove to meet his probation officer in a car that re‐
sembles cars seen in two of the robberies. Third, after police
arrested Slizewski for a probation violation, they observed in
plain view of the inside of his impounded car two clothing
items associated with the crimes: a red St. Louis Cardinals
baseball cap and “a pair of gray and white basketball shoes.”
Fourth, Slizewski “appears to possibly be mixed race accord‐
ing to his Dane County Jail booking photo.” Finally, when
Slizewski called his girlfriend from jail, he “repeatedly” told
her to “find where his car is, get it back, and get ‘the stuff’
out of it” or his “life is over.”
A state judge concluded that probable cause existed to
search Slizewski’s rental car and granted the search warrant.
Officers found a firearm in the trunk, which Slizewski is
prohibited from possessing as a result of a previous felony
conviction.
Slizewski moved to suppress the firearm. He argued that
Peterson had intentionally or recklessly misstated or omitted
five points. (1) Slizewski’s rental car is not identical to the car
in the surveillance video of third robbery; (2) The gray bas‐
ketball shoes in the back of Slizewski’s car were “LeBrons,”
not “Jordans”; (3) No suspect wore a St. Louis Cardinals hat
during any robbery; (4) Slizewski does not appear mixed‐
race in his booking photo, which Peterson omitted from his
affidavit; and (5) Slizewski faced a potential parole revoca‐
tion; had Peterson’s affidavit included that fact, it would
have negated an inference that Slizewski thought his life was
over because of the armed robberies. Slizewski asked for a
Franks hearing, see Franks v. Delaware, 438 U.S. 154 (1978), to
determine whether, in light of these problems, the search
was unlawful.

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4 No. 15‐2397
A magistrate judge recommended that the district court
deny the motion to suppress and the request for a Franks
hearing. He reasoned that, even if he granted Slizewski’s
contentions, Peterson supplied ample, truthful reasons to
believe that evidence of the armed robberies was in the car.
Namely: Sexton (himself a suspect) kept Slizewski’s contact
information on his phone; Sexton called Slizewski from jail
to warn him to change numbers; gray basketball sneakers in
Slizewski’s car closely matched the description of shoes
identified at two robberies; and a St. Louis Cardinals hat,
seen on a suspect in a surveillance photo taken shortly be‐
fore one robbery, was also in Slizewski’s car. The district
court adopted the magistrate judge’s recommendation over
Slizewski’s objection.
Slizewski pleaded guilty but reserved his right to appeal
the denial of his motion to suppress, see Fed. R. Crim. P.
11(a)(2). The district court sentenced Slizewski to 180
months’ imprisonment.
II. A NALYSIS
On appeal, Slizewski challenges the district court’s re‐
fusal to conduct a Franks hearing. He insists that the state
judge would not have found probable cause to search his car
if Peterson had not omitted crucial facts and included mis‐
leading statements. We disagree.
The district court permissibly denied Slizewski’s motion.
The Fourth Amendment requires district courts to hold a
Franks hearing when “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,” if that “al‐

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No. 15‐2397 5
legedly false statement is necessary to the finding of proba‐
ble cause.” Franks, 438 U.S. at 155–56; see United States v.
Johnson, 580 F.3d 666, 670 (7th Cir. 2009). Because these ele‐
ments are hard to prove, Franks hearings are rarely required.
See Johnson, 580 F.3d at 670; United States v. Maro, 272 F.3d
817, 822 (7th Cir. 2001). And no hearing was needed here be‐
cause the affidavit contains no intentional or material errors.
We turn first to the baseball cap. Slizewski asserts that
Peterson misled the state judge into thinking that the hat
was worn during a robbery. But, in fact, the affidavit truth‐
fully notes that a surveillance photo captured an image of a
man in a Cardinals hat at the restaurant before the robbery
took place. See Johnson, 580 F.3d at 670 (requiring defendant
to show that “officer submitting the affidavit perjured him‐
self or acted recklessly because he seriously doubted or had
obvious reason to doubt the truth of the allegations”). So
there is no misstatement.
Slizewski next focuses on the shoes. He says that the
shoes in the rental car are “LeBrons,” a gray basketball shoe
that is different from the gray basketball “Jordans” that a
witness said Sexton wore. But no evidence suggests that Pe‐
terson knew that these two types of gray basketball shoes are
branded differently. Instead he argues that Peterson should
have learned the difference. But an affiant’s negligence does
not justify a Franks hearing. See Johnson, 580 F.3d at 671;
see also United States v. Swanson, 210 F.3d 788, 791 (7th Cir.
2000) (describing allegation that “investigators should have
done more work” as insufficient to meet “high standard re‐
quired for convening a Franks hearing”). As the district court
noted, Peterson cannot be expected to be “as attuned to the
various models of Nike basketball shoes as the clerks at Foot

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6 No. 15‐2397
Locker.” And for all Peterson knew, the witness who called
the gray basketball shoes “Jordans” was himself mistaken.
At oral argument Slizewski argued that, since time was not
of the essence, the officer could have easily obtained a still
photo from the camera recording of the first robbery; he then
could have compared the shoes seen on the suspect with the
shoes visible in the backseat of the car and determined
whether the shoes were the same. But Slizewski never put
into the record the still photo of the suspect wearing the gray
basketball shoes, so the district court could not evaluate
whether the photo was useful. Without the photo in the rec‐
ord, the court did not abuse its discretion in finding that no
Franks hearing was required.
Slizewski next addresses the cars. He contends that Pe‐
terson misled the state judge by suggesting that Slizewski’s
car resembles cars seen in the two robberies, but omitting
that Slizewski’s is an Impala and the car in the surveillance
video of the third robbery was a Malibu. But those two cars
are similar—both are black, four‐door Chevy sedans with
similar body shapes and taillights. True, they are not identi‐
cal—the license plates hang slightly differently and one car
has five‐spoke wheels while the other has six spokes. But
negligence in not noticing those slight differences does not
justify a Franks hearing. See Johnson, 580 F.3d at 671. In any
event, a witness to the second robbery said that the suspect
used a black sedan “similar” to a Malibu. And as the magis‐
trate judge noted, “the Malibu is the Impala’s little brother.”
Thus Slizewski has not shown that Peterson made an inten‐
tional misstatement about the cars’ similarity.
Finally Slizewski attacks how Peterson described
Slizewski’s call to his girlfriend. He argues that Peterson

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No. 15‐2397 7
omitted telling the state judge about his criminal history;
had he done so, the judge could have inferred that Slizewski
thought his “life was over” because of a potential probation
violation, not because he feared evidence of the robberies
was in his car. But the omission is irrelevant: the state court
judge already knew Slizewski was on a state probation hold,
so the judge was aware of the context for Slizewski’s state‐
ment.
III. CONCLUSION
Probable cause that the car contained evidence of the
robberies was adequately based on the sworn presence of
the Cardinals cap and basketball shoes in the car, its renter’s
(Slizewski’s) substantial contacts with another suspect in the
robberies, and Slizewski’s incriminating call to the girlfriend.
See Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013)
(describing probable cause as “practical, commonsense
standard”); United States v. Hines, 449 F.3d 808, 814 (7th Cir.
2006) (same). Accordingly no Franks hearing was necessary.
Because the district court permissibly denied the Franks
hearing and motion to suppress, we affirm the district
court’s judgment.

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