CHRIST SAVIDES, PETITIONER V. UNITED STATES OF AMERICA No. 89-7492 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A49) is reported at 898 F.2d 1218. The opinion of the district court (Pet. App. B1399-B1408) is reported at 658 F. Supp. 1399. JURISDICTION The judgment of the court of appeals was entered on March 15, 1990. The petition for a writ of certiorari was filed on May 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED 1. Whether petitioner made a "substantial preliminary showing" under Franks v. Delaware, 438 U.S. 154 (1978), that material false statements were intentionally or recklessly included in a search warrant affidavit. 2. Whether a magistrate is precluded from issuing a search warrant after another magistrate has denied an application for the warrant. STATEMENT Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted on one count of conspiring to distribute cocaine (Count 1), in violation of 21 U.S.C. 846; three counts of distributing a kilogram or more of cocaine (Counts 2, 3, and 4), in violation of 21 U.S.C. 841(a)(1); three counts of possessing cocaine with intent to distribute it (Counts 5, 6, and 7), in violation of 21 U.S.C. 841(a)(1); and one count of engaging in a continuing criminal enterprise (Count 8), in violation of 21 U.S.C. 848. He was sentenced to consecutive terms of ten years' imprisonment on Counts 1 and 8 and to terms of ten years' imprisonment on each of the other six counts, to be served concurrently with each other and with the sentences on Counts 1 and 8. He also was fined $500,000. The court of appeals affirmed petitioner's convictions but vacated his sentence and remanded for resentencing. Pet. App. A1-A49. 1. On the evening of March 8, 1986, several Chicago police officers arrived at petitioner's condominium apartment in Park Ridge, Illinois, to execute a search warrant that had been issued by a state court judge earlier that day. The warrant was obtained on the basis of the affidavit of Officer Harry McKenna, a member of the Chicago Police Department's Vice Control Section. The affidavit stated that McKenna and his partner, Officer John Nolan, had seen an unidentified man walk up to a pay telephone, pull out a betting form, dial a telephone number, and begin to place wagers on sports events. When the police officers approached the man and questioned him about the call, he told them that he had been placing a bet with his bookmaker. At the officers' request, the man agreed to allow them to observe him dialing two telephone numbers to place wagers. One of the numbers the man dialed was later traced to petitioner at his Park Ridge apartment. Based on McKenna's affidavit, the state court judge found probable cause to believe that a gambling operation was being conducted out of petitioner's apartment, and he issued a warrant authorizing the police to search the apartment for evidence of gambling. Pet. App. A2, A7-A8. The search of petitioner's apartment revealed ten kilograms of cocaine, six firearms, gambling paraphernalia, and $76,000 in cash. Petitioner and three other men who were present at the time of the search were arrested and charged with violations of state narcotics laws. Petitioner was released on bond pending trial on the state charges. Pet. App. A2, B1401. While petitioner was awaiting trial, he was kept under surveillance by members of the Chicago Organized Crime Intelligence Unit. The officers observed that almost every day, petitioner would drive by a circuitous route to a local office building. There, he would enter Room 102, an office for which there was no telephone number and which was not listed on the building's directory, and remain there for a short time. After leaving the office, petitioner would frequently use a public telephone outside the building. He would then meet with various individuals, some of whom were known cocaine dealers, at restaurants, bars, motels, and parking lots in the Chicago area. Pet. App. A3-A4, A5, A19-A20, B1401. On January 8, 1987, an Assistant United States Attorney (AUSA) presented an application to Magistrate Bernard Weisberg for a warrant to search the office used by petitioner. The affidavit in support of the warrant application, which was prepared by an agent of the Drug Enforcement Administration, set forth the observations made by the officers who were conducting surveillance of petitioner, as well as information concerning petitioner's prior involvement in cocaine trafficking. After studying the affidavit, Magistrate Weisberg told the AUSA that he did not believe it established probable cause to search the office, but that he had no objection to the government's resubmitting the affidavit to another magistrate. The prosecutor then presented the affidavit to Chief Magistrate Balog, informing him that Magistrate Weisberg had failed to find probable cause on the basis of the same application. Chief Magistrate Balog reviewed the affidavit and issued a warrant to search the office for evidence of cocaine trafficking. The search uncovered 200 grams of cocaine and assorted cocaine paraphernalia. The DEA agents also found petitioner's fingerprints in 18 different locations in the office. Pet. App. A5-A6, A15-A16, A21-A22, B1402, B1405-B1406. 2. An indictment returned in April 1987 charged petitioner and five co-defendants with various cocaine distribution offenses committed as part of a continuing criminal enterprise headed by petitioner. Pet. App. A6-A7. Before trial, petitioner moved to suppress evidence seized during the search of his apartment. He claimed that Officer McKenna's account in the affidavit supporting the application for a search warrant, which described the officers' having obtained petitioner's telephone number from an unidentified informant, was a complete fabrication. Petitioner asserted that under this Court's decision in Franks v. Delaware, 438 U.S. 154 (1978), he was entitled to an evidentiary hearing to determine if McKenna intentionally or recklessly included false information in the warrant affidavit. /1/ In his initial motion and on reconsideration, petitioner submitted a total of 29 search warrant affidavits prepared by Chicago vice officers, including a number filed by McKenna or Nolan, that were similar to the affidavit used to obtain the warrant to search petitioner's apartment. On reconsideration, petitioner also submitted his own affidavit, asserting that he had never accepted any bets over the telephone number that McKenna purportedly saw the informant dialing, that the number was not registered to his apartment, and that his telephone number was unlisted. After reviewing these materials and hearing oral argument, the district court denied petitioner's request for a full evidentiary hearing under Franks. In response to petitioner's initial motion, the court noted that "sufficient differences existed between the prior affidavits and the one supporting the March 8, 1986, search warrant to dispel any fear of fabrication." Pet. App. B1403. After allowing petitioner to submit the additional materials, the court explained that the similarity among the affidavits prepared by the Chicago police officers was "merely indicative of a standard investigative approach employed by gambling unit officers to obtain grounds for gambling search warrants," and that petitioner's own affidavit "fail(ed) to persuade this court that the affiant police officer merely invented the incident described in the affidavit to obtain the search warrant." Ibid.; see generally id. at A8-A9, B1402-B1403. /2/ Petitioner also moved to suppress evidence seized during the January 1987 search of his office, arguing that Magistrate Weisberg's initial denial of the search warrant application precluded the government from presenting the same application to a second judicial officer. The district court rejected petitioner's estoppel claim, reasoning that because a magistrate's probable cause determination is not a final, appealable order, collateral estoppel and res judicata principles do not apply. The court noted that there was no evidence that the government acted in bad faith in resubmitting the warrant application to a second magistrate, and that application of the exclusionary rule therefore would not serve to deter any improper conduct. Accordingly, the court concluded that the evidence seized from petitioner's office should not be suppressed. Pet. App. B1403-B1405. 3. The court of appeals affirmed petitioner's convictions. Pet. App. A1-A49. /3/ a. The court of appeals rejected petitioner's contention that he had made a sufficient threshold showing to obtain an evidentiary hearing on the question whether Officer McKenna had intentionally or recklessly included material false statements in his search warrant affidavit. Pet. App. A9-A12. As an initial matter, the court declined to undertake a de novo review of the district court's determination that petitioner had not made the requisite "substantial preliminary showing" to warrant a hearing under Franks. Id. at A9-A11. The court concluded for several reasons that "it would make little sense for this court to redo the district court's work in deciding whether to hold a Franks hearing," id. at A10, and that "the more deferential clearly erroneous standard is proper." Id. at A9. First, the court pointed out that "the district court's task involved sorting through the materials (petitioner) submitted, weighing the possible inferences those materials raised, and determining the likelihood that (McKenna) lied in his warrant affidavit." Pet. App. A10. "This task," the court explained, "involved essentially the same process as fact-finding," something that "district courts do every day," and "(w)ith this repetition comes expertise, an expertise the courts of appeals do not have." Ibid. Accordingly, the court found it unlikely that de novo review would lead to more "correct" decisions over the general run of cases about whether a Franks hearing was called for. Second, the court of appeals observed that even if de novo review would be likely to identify more "mistakes" by the district courts in denying Franks hearings, those mistakes do not go to a defendant's guilt or innocence. Third, because the adequacy of a Franks proffer "'may depend on the circumstances of each case,'" de novo appellate review of such "case-specific" determinations would be "unlikely to produce precedents to guide future cases" and therefore would "impose() too great a cost for the benefits it might obtain." Id. at A10-A11 (quoting People v. Lucente, 116 Ill. 2d 133, 149, 506 N.E.2d. 1269, 1275 (1987)). For these reasons, the court concluded that "where the district court has reasonably and conscientiously reviewed the defendant's Franks proffer," its judgment should not be disturbed on appeal if it is "'within permissible limits.'" Pet. App. A11 (quoting People v. Lucente, 116 Ill. 2d at 153, 506 N.E.2d at 1277). Applying that standard, the court of appeals sustained the district court's decision that a Franks hearing was not required. Pet. App. A11-A12. Although the court acknowledged that the affidavits' similarity "could raise an inference of falsity," it agreed with the district court that the similarity could also be "'merely indicative of a standard investigative approach' and an example of police officers using language that courts had approved in earlier warrant applications." Id. at A11 (quoting id. at B1403). The court of appeals also noted that there were "significant differences in many of the affidavits, which could help dispel fears of fabrication." Finally, it concluded that "petitioner's self-serving statement in his affidavit that he never accepted bets on the number listed in the warrant affidavit is not sufficient to require a Franks hearing, and the fact that his number was unlisted ignores that police have access to phone numbers that private citizens do not." Id. at A11. b. The court of appeals also rejected petitioner's contention that evidence seized during the January 8, 1987, search of his office should have been suppressed because the government improperly resubmitted the warrant application to Chief Magistrate Balog after it had been denied by Magistrate Weisberg. Pet. App. A15-A18. The court held that in the context of a search warrant application, the "Fourth Amendment commands only that a 'neutral and detached magistrate' determine that probable cause exists." Id. at A17. Accordingly, it refused to adopt a "blanket rule" that evidence seized during a search pursuant to a warrant issued by a magistrate who properly found probable cause must be suppressed merely because another magistrate had previously denied the warrant application. ARGUMENT 1. Petitioner argues (Pet. 3-11) that the court of appeals erred in declining to order the district court to conduct a full evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine if the police officers intentionally or recklessly included false statements in the affidavit supporting the March 8, 1986, warrant for the search of his apartment. In our view, this question does not warrant review. a. Petitioner first contends (Pet. 6-8) that the court of appeals erred in applying a clearly erroneous rather than a de novo standard in reviewing the district court's determination that he had not made the requisite showing to warrant a Franks hearing. Under Franks, the Fourth Amendment requires a hearing to be held where the defendant makes a "substantial preliminary showing" of intentional or reckless inclusion of false statements by the affiant in the warrant affidavit and the allegedly false statement is necessary to the finding of probable cause. 438 U.S. at 155-156. See also id. at 169 ("suitable preliminary proffer of material falsity"); id. at 170 ("sensible threshold showing"). Contrary to petitioner's contention, the court of appeals correctly concluded that a de novo standard of review is not appropriate in this setting. The Court made clear in Franks that there is a "presumption of validity" with respect to the affidavit supporting a search warrant. 438 U.S. at 171. The question here is whether petitioner made a sufficient threshold showing to overcome that presumption. As the court of appeals explained, Pet. App. A9-A11, a number of factors indicate that an appellate court should accord deference to the district court's resolution of that question. First, the district court's task in a case such as this involves sifting through the materials submitted in the warrant application and the materials the defendant has submitted, and then assessing the relative strength of the possible inferences those materials raise. This fact-intensive inquiry is essentially the same as the fact-finding in which district courts routinely engage, subject to a clearly erroneous standard of review. Although the district court's determination at the threshold stage under Franks is based on a review of documentary material and does not require an assessment of credibility as such, these considerations do not in themselves render a deferential standard of appellate review inappropriate. See Anderson v. Bessemer City, 470 U.S. 564, 574-575 (1985). Consideration of evidentiary submissions, determinations of fact, and decisions regarding the need for a hearing are at the core of a district judge's role, "and with experience in fulfilling that role comes expertise." Id. at 574. Moreover, the district judge's determination whether the defendant has made a sufficient threshold showing to require a Franks hearing is made in the context of his familiarity with the record as a whole. Accordingly, as the court of appeals observed, Pet. App. A10, it is unlikely that duplication of the district court's role under a de novo standard of appellate review would lead to more correct decisions over the run of cases generally, and any contribution that de novo review might make to that end would come at the cost of diverting scarce judicial resources. Compare Anderson v. Bessemer City, 470 U.S. at 574-575. Second, because the adequacy of a Franks proffer typically depends on the circumstances of each case, case-specific determinations by the courts of appeals as to whether the defendant made a sufficient proffer to satisfy the necessarily imprecise standard of a "substantial preliminary showing" would be unlikely to produce sufficiently broad precedents to guide the resolution of future cases. Pet. App. A10. Franks itself seems implicitly to have acknowledged this point, because the Court there declined to prescribe detailed substantive or procedural rules for reviewing Franks claims or to pass on the sufficiency of the particular proffer in that case. Indeed, the Court observed that "the framing of suitable rules to govern proffers is a matter properly left to the States." 438 U.S. at 172. Deferential review of the district court's determination is also consistent with the policies underlying the "substantial preliminary showing" requirement of Franks, which is intended to wash out claims that lack merit at an early stage, thereby discouraging defendants from seeking evidentiary hearings "for purposes of discovery or obstruction." 438 U.S. at 170. For these reasons, the decision regarding the need for a hearing "must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards (the Court) has outlined, and subject to the appropriately limited review of appellate courts." Palermo v. United States, 360 U.S. 343, 353 (1959). Application of a deferential standard of review also is supported by recent decisions of this Court holding that the deferential abuse-of-discretion standard is appropriate for reviewing particular determinations by district courts. See Pierce v. Underwood, 487 U.S. 552 (1988) (whether the position of the United States was substantially justified for purposes of an attorney's fee award under the Equal Access to Justice Act); Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2457-2461 (1990) (whether sanctions should be imposed under Fed. R. Civ. P. 11). The Court explained in Pierce v. Underwood that in determining the proper standard of appellate review of a mixed question of law and fact, one relevant consideration is whether "'as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.'" 487 U.S. at 559-560 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)); accord, Cooter & Gell v. Hartmarx Corp., 110 S. Ct. at 2459-2460. As we have explained, the district judge is better positioned than an appellate court to decide whether the defendant has made the requisite "substantial preliminary showing" under Franks. Second, in both Cooter & Gell v. Hartmarx Corp. and Pierce v. Underwood, the Court stressed that resolution of the particular issues turned on multifarious, special and narrow facts that resisted generalization, so that de novo review would be "unlikely to establish clear guidelines for lower courts." 110 S. Ct. at 2460; 487 U.S. at 561-562. The same is true here. b. Petitioner argues (Pet. 6-8) that the Court should grant certiorari because although the Seventh Circuit's decision applying the "clearly erroneous" standard of review is consistent with a line of First Circuit decisions to the same effect, /4/ it conflicts with Ninth Circuit decisions applying a de novo standard in reviewing a district court's decision denying a Franks hearing. Petitioner is correct that the Ninth Circuit has applied the de novo standard of review in these circumstances, beginning with United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985). On balance, however, we do not believe that this circuit conflict requires resolution by the Court at this time. In explaining its decision in Ritter, the Ninth Circuit simply stated that "(t)he decision to hold a Franks hearing is a determination about the legal sufficiency of a set of allegations, much like the district court's ruling on a Fed. R. Civ. P. 12(b)(6) or summary judgment motion," and concluded that under general standard-of-review principles it had announced in another context, "(t)his decision should be reviewed de novo." 752 F.2d at 439. Subsequent Ninth Circuit decisions recite that a de novo standard is appropriate, citing Ritter or its progeny, without further analysis. /5/ The Ninth Circuit's one-sentence rationale in Ritter is inadequate in several respects. First, it errs in analogizing the Franks issue to a district court's ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a ruling on a motion for summary judgment. Unlike in those settings, there is a presumption here that the affidavit supporting the search warrant is valid, and the defendant must make a substantial preliminary showing to warrant a hearing. Second, Ritter fails to take account of a number of countervailing considerations, including the imprecision of the "substantial preliminary showing" standard; the fact-intensive nature of the district court's inquiry; and the likelihood that de novo appellate review would not establish useful precedents of general application to guide the lower courts. The relevance of the latter factors has now been underscored by Pierce v. Underwood and Cooter & Gell v. Hartmarx Corp., both of which were decided since Ritter. /6/ By contrast, the Seventh Circuit's decision, which is the first to consider the standard of review at any length, does take these factors into account. We therefore believe the question might benefit from further consideration in the lower courts, in light of Pierce v. Underwood and Cooter & Gell v. Hartmarx Corp. We note as well that the Court in Franks appeared to contemplate that there would be some variation in the manner in which proffers are reviewed. 438 U.S. at 172. Although the Court's observation was made with respect to procedures used in the state courts, we believe it supports the conclusion that some variation may be tolerated as well in the federal appellate courts. c. Applying the deferential standard of review, the court of appeals correctly sustained the district court's determination that petitioner had not made the showing necessary under Franks to require an evidentiary hearing. As both courts below noted, the similarity between the affidavit relating to petitioner's apartment and the other affidavits executed by Chicago police officers may have reflected a standard approach to gambling investigations and the incorporation of a format and facts previously upheld as supporting the issuance of a warrant. The court of appeals also agreed with the district court that there were sufficient differences among the affidavits to dispel any fear of fabrication, and there is no reason for this Court to disturb that determination. Pet. App. A11, B1403. Petitioner's conclusory assertion that he did not take any bets over the telephone number in question likewise is not sufficient to warrant a hearing. Pet. App. A11, B1403; compare United States v. Southard, 700 F.2d 1, 10 & n.6 (1st Cir. 1983), cert. denied, 464 U.S. 823 (1983). /7/ 2. Petitioner also contends (Pet. 11-16) that the district court should have suppressed evidence seized during the January 8, 1987, search of his office. In his view, the Fourth Amendment requires a per se rule barring the government from submitting a search warrant application to a second magistrate after the first magistrate has denied the application. The court of appeals properly rejected this contention, noting that application of petitioner's proposed rule in this case would require the suppression of evidence seized during the execution of a search warrant that was issued by a neutral and detached magistrate upon a proper finding of probable cause. Pet. App. 15-18; see Johnson v. United States, 333 U.S. 10, 13-14 (1948). /8/ Nothing in the text or purposes of the Fourth Amendment requires that extreme result, and the decision below rejecting petitioner's claim does not conflict with any decision of this Court or another court of appeals. Petitioner argues (Pet. 15) that adoption of a rule forbidding the presentation of a warrant application to a second judicial officer is necessary to deter the government from "forum shopping." After considering the steps taken by the government to obtain the warrant to search petitioner's office, however, the district court found that the "facts reveal no indicia of bad faith on the part of the government" and that the government's actions were not "tantamount to forum shopping." Pet. App. B1404-B1405. Thus, even if successive resubmissions of a rejected warrant application to a series of magistrates could in some circumstances constitute a violation of the Fourth Amendment, there was no such series of resubmissions in this case. Rather, after the first magistrate found no probable cause, the government submitted the application to the chief magistrate in the district, obtaining, in effect, a kind of informal review of the first magistrate's decision. The government fully apprised both magistrates of the course it was taking. As the district court found, the first magistrate had no objection to submission of the application to a second magistrate and had expressed the view that such a submission was not precluded by his refusal to issue a warrant. Pet. App. B1402. It would be especially inappropriate to suppress evidence obtained pursuant to a warrant issued following a second submission in these circumstances. Petitioner's reliance on the doctrine of collateral estoppel is also misplaced. That doctrine precludes the relitigation of issues of fact that have been "determined by a valid and final judgment." Ashe v. Swenson, 397 U.S. 436, 443 (1970); see Sailor v. Scully, 836 F.2d 118, 124 (2d Cir. 1987). The magistrate's probable cause determination on an application for a search warrant is not a final, appealable judgment that could estop the government from submitting the same application to a second magistrate. See 2 W. LaFave, Search and Seizure Section 4.2(e), at 164-165 & n.71 (2d ed. 1987); see Restatement (Second) of Judgments Section 28(1) (relitigation of issue not precluded where the party against whom preclusion is sought could not have obtained review of the judgment in the initial action). /9/ Finally, giving collateral estoppel effect to the magistrate's denial of a search warrant application would contravene the principle of mutuality of estoppel, since the defendant would of course be free to challenge a magistrate's determination that probable cause did exist by filing a motion to suppress the evidence seized. This Court has refused to extend the doctrine of nonmutual collateral estoppel to criminal cases, concluding that such cases involve "competing policy concerns that outweigh the economy concerns that undergird the estoppel doctrine." Standefer v. United States, 447 U.S. 10, 22-25 (1980). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General NINA GOODMAN Attorney JULY 1990 /1/ In Franks, the Court held that "where 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 155-156. /2/ Petitioner also submitted transcripts of several court proceedings in which warrants based on several of the affidavits were subsequently held to be impermissibly vague. The district court concluded that these transcripts did not support petitioner's request for a full Franks hearing, because "(t)he contention (that) a search warrant is void for vagueness is completely distinct from the assertion (that) a search warrant is premised on fabricated facts." Pet. App. B1403. The court of appeals agreed with this assessment, id. at A11, and petitioner apparently does not press that point here. /3/ The government conceded on appeal that the district court had erred in imposing cumulative sentences for petitioner's conspiracy and continuing criminal enterprise convictions. The court of appeals therefore vacated petitioner's sentence and remanded for resentencing. Pet. App. A28-A33. /4/ United States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 109 S. Ct. 3194 (1989); United States v. Mastroianni, 749 F.2d 900, 909 (1st Cir. 1984); United States v. Southard, 700 F.2d 1, 10 (1st Cir.), cert. denied, 464 U.S. 823 (1983). /5/ See, e.g., United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988); United States v. Dozier, 844 F.2d 701, 704 (9th Cir. 1987); United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986); United States v. Kovac, 795 F.2d 1509, 1512 (9th Cir. 1986); United States v. Wolferdinger, 782 F.2d 1473, 1477 (9th Cir. 1986); United States v. Stanert, 762 F.2d 775, as modified, 769 F.2d 1410 (9th Cir. 1985). /6/ Petitioner also contends (Pet. 6) that the Tenth Circuit has held that the de novo standard should be applied in reviewing the denial of a Franks hearing. The one Tenth Circuit decision cited by petitioner does not, however, resolve this issue as a general matter. See United States v. Page, 808 F.2d 723, 729 (10th Cir. 1987). It concerns appellate review of a district court's determination of the materiality of a misrepresentation in an affidavit supporting a wiretap authorization. We doubt whether it is appropriate to separate out materiality from the other questions that must be decided in disposing of a request for a Franks hearing. A unitary standard of review, under a single deferential standard, is more suitable. Compare Cooter & Gell v. Hartmarx Corp., 110 S. Ct. at 2460-2461. But if different standards of review are to be applied to different aspects of the determination, we note that the materiality of a false statement has been treated in other contexts as a question of law for the court to decide. See Kungys v. United States, 108 S. Ct. 1537, 1547 (1988); Sinclair v. United States, 279 U.S. 263, 298-299 (1929). /7/ Contrary to petitioner's apparent suggestion (Pet. 8), the Illinois Supreme Court did not hold in People v. Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269 (1987), that a defendant's affidavit denying averments in the search warrant affidavit would invariably require a hearing. To the contrary, the Illinois Supreme Court expressly declined to lay down any such inflexible rule, requiring instead a case-by-case weighing under a deferential standard of review. 116 Ill. 2d at 152-153, 506 N.E.2d at 1277. Petitioner's reliance (Pet. 10) on United States v. Davis, 714 F.2d 896, 897-898 (9th Cir. 1983), is also misplaced. There, the officer had copied verbatim another affidavit that had been prepared by another officer for a related search. As a result, the affidavit on its face stated that the affiant had personal knowledge of certain facts that actually were within the personal knowledge of the officer who had prepared the prior affidavit. The court in Davis held that this problem could have been avoided if the second affidavit had simply stated that it drew on information furnished by the other officer. The Ninth Circuit in Davis did not suggest that an inference of fabrication arises simply because an affidavit is patterned in form after prior affidavits. /8/ Both the district court and the court of appeals concluded that the affidavit submitted in support of the application for a warrant to search petitioner's office was sufficient to establish probable cause for the search, Pet. App. A18-A20, B1405, and petitioner does not challenge that determination here. /9/ As the district court in this case pointed out, Pet. App. B1404, the decision in United States v. Davis, 346 F. Supp. 435 (S.D. Ill. 1972), on which petitioner relies (Pet. 12-13), was based on the incorrect premise that a magistrate's refusal to issue a search warrant is a "final and binding" decision. Id. at 442.