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Seventh Circuit Announces Procedures for Addressing ‘Facially Questionable Warrant’ Due to ‘Material Handwritten Alterations’ Unsigned or Initialed by Issuing Judge

by Richard Resch

In a case involving an issue of first impression, the U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana erred by denying Russell Taylor’s motion to suppress and request for an evidentiary hearing to determine the facts and circumstances surrounding “material handwritten alterations” to a search warrant for his residence that were unsigned or initialed by the issuing judge.


In 2014, Indiana police began investigating Taylor in connection with sex crimes involving child pornography and bestiality. The principal source of evidence against him was a woman (“Doe”) with whom he and his wife Angela had an intimate relationship. During key periods of time for purposes of this case, Doe also had intimate relationships with an active and a retired member of law enforcement who played an active role in the investigation.

The investigation began in September 2014 when Taylor was texting with Doe while Indiana State Police Master Trooper Patrick Etter was with her at the time. Taylor sent a text containing an image of a woman engaged in a sex act with a dog, which would later be used to help obtain a search warrant. Although the woman’s face was obscured, Taylor indicated that it was Angela. During the texting session, Taylor texted that (1) he could send images of “young girls and (2) he has visited Thailand. Notably, at some point after this text exchange and prior to applying for a search warrant, Doe and Etter became romantically involved.

Two days later, Etter contacted Kevin Getz, who was a detective with the State Police Internet Crimes Against Children Unit. Getz subsequently interviewed Doe at her home while a forensic data extraction was performed on her phone, which would later reveal several text exchanges in which both Taylor and Angela expressed interest in having sex with animals. Doe stated that Taylor expressed an interest on “five or six occasions” for Angela to visit with the horses Doe boarded on her property and do something sexual with one of them. During the interview, she stated that retired police detective Ron Santa, with whom she was intimately involved, cautioned her to stay away from Taylor because he was involved in a drug investigation. Santa was present at Doe’s home at the time of the interview and advised Getz that he met Taylor once but did not “know much about” him.

Getz pressed Doe about Taylor’s claim of traveling to Thailand, but she stated that she doubted he had ever been there. He also repeatedly asked her whether Taylor ever expressed “any interest in having sex with children.” She stated that he had not and opined that he and his wife were “just swingers.”

After several months of monitoring Taylor’s residence and other investigatory tasks, Getz drafted a search warrant application in which he referred to Doe as “a female friend” who had “approached” Etter because she was concerned about text messages she had received from Taylor. Getz indicated in the warrant affidavit that probable cause existed to search the Taylors’ residence for evidence of bestiality and possession of child pornography. However, the typed search warrant itself referred only to “evidence of possession and/or dissemination of child pornography.”

It also contained four handwritten alterations, but there was no indication in the record about when they were made or under what circumstances. One alteration added “cell phones” to the list of items to be seized. The other three alterations modified the scope of the requested search to include evidence of “bestiality.” Three of the alterations were initialed by “KLG,” presumably Getz. The alteration adding “bestiality” was not initialed at all, and importantly, none of the alterations were dated or signed or initialed by a judge.

Getz swore to the truthfulness and completeness of the warrant application, and the judge approved and issued the warrant. The subsequent search of Taylor’s home uncovered evidence of possession and production of child pornography, but there was no evidence of bestiality. Taylor was placed under arrest.

Procedural History

Taylor was charged in the District Court with 12 child pornography-related offenses. On December 10, 2015, he pleaded guilty to all counts and was sentenced to 324 months in prison. In 2016, he filed a motion under 28 U.S.C. § 2255, challenging his convictions based upon defense counsel’s failure to challenge the search warrant. In February 2020, the District Court granted relief and vacated his guilty plea and sentence.

In May 2020, he was charged in a new 34-count indictment relating to sex crimes involving children. Taylor filed a motion to suppress evidence recovered in connection with Getz’s search warrant and requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), regarding his claims that Getz obtained the initial search warrant by knowingly, or with reckless disregard for the truth, including false information and omitting material information in the warrant affidavit. Taylor also argued that Getz had altered the search warrant to include evidence of bestiality after it had already been issued.

The District Court denied his motion to suppress and request for a Franks hearing. He entered into a conditional plea agreement, pleading guilty to 30 charges while reserving his right to appeal the denial of his motion to suppress. Once more, he was sentenced to 324 months in prison.

Taylor timely appealed, challenging the denial of his motion to suppress and request for a Franks hearing. He also argued that Getz’s affidavit did not support probable cause to search for evidence of child pornography or bestiality. Finally, he argued that the District Court erred by not holding a hearing on the handwritten alterations to the warrant.


The Court began by stating the central question posed by this case is whether there was a valid search warrant for the search of Taylor’s home. Under the Fourth Amendment’s warrant requirement, law enforcement must obtain a warrant from “a neutral and disinterested magistrate before embarking upon a search.” Franks. It is the magistrate’s duty to independently determine whether probable cause exists because it is the magistrate alone who must filter out requested searches that are not based on probable cause. Coolidge v. New Hampshire, 403 U.S. 443 (1971). If it were otherwise, law enforcement discretion would serve as the only safeguard against Fourth Amendment violations, and the “protections of the Fourth Amendment would evaporate.” Beck v. Ohio, 379 U.S. 89 (1964). Consequently, it is the duty of a neutral magistrate to determine whether probable cause exists, according to the Court.

However, while a neutral magistrate is necessary, that alone is not sufficient for a valid search warrant, the Court explained. The validity of a magistrate’s warrant application decision depends on the facts submitted by law enforcement to be both truthful and complete. Franks (truthful); United States v. McMurtrey, 704 F.3d 502 (7th Cir. 2013) (complete). Truthfulness does not require that “every fact recited in the warrant affidavit is necessarily correct,” but it does demand that the information present in the affidavit be “believed or appropriately accepted by the affiant as true.” Franks. Similarly, completeness does not require “every detail of an investigation” to be included in the affidavit, but law enforcement may not “deliberately omit information the magistrate needs to assess fairly the issue of probable cause.” McMurtrey.

The general rule is that the affidavit in support of a search warrant is presumed valid. Franks. However, if the police obtain the search warrant by “deliberately or recklessly presenting false, material information to the issuing judge,” the warrant is invalid. Id. Additionally, a warrant is invalid if the police make “a material omission” that is “designed to mislead or was made in reckless disregard of whether it would mislead” the issuing judge. Id.

The Court noted that overcoming the presumption of validity is not an easy task, explaining that the “defendant must identify specific portions of the warrant affidavit as intentional or reckless misrepresentations, and the claim of falsity should be substantiated by the sworn statements of witnesses.” Id. In addition to that showing, the defendant must also establish that there would be no probable cause if the false statement were omitted or the misleading omissions were included. Id.  

The Court explained that under Franks, a defendant is entitled to an evidentiary hearing on the truthfulness and completeness of the affidavit in support of the search warrant if he successfully makes a substantial preliminary showing that police “knowingly and intentionally, or with reckless disregard for the truth, made either a false material statement or a material and deceptive omission in the underlying warrant affidavit.” At the ensuing Franks hearing, the defendant must prove that the deficiencies in the affidavit were the result of reckless or deliberate conduct, not human error. United States v. Williams, 718 F.3d 644 (7th Cir. 2013). The focus of this inquiry is on the affiant’s state of mind. Id.

The Court stated that it reviews a District Court’s denial of a request for a Franks hearing for clear error. United States v. Schultz, 586 F.3d 526 (7th Cir. 2009). It defers to the District Court’s findings of fact but reviews legal determinations de novo. United States v. Harris, 464 F.3d 733 (7th Cir. 2006).

Probable Cause – Child Pornography

Turning to the present case, the Court first addressed the issue of whether there was probable cause to search for evidence of either child pornography or bestiality. It concluded that there was probable cause for the latter but not the former.

Regarding the issue of child pornography, the Court engaged in an exhaustive examination of the many relevant facts present in the case pertaining to the various law enforcement officers’ truthfulness and completeness (or lack thereof) with respect to the contents of the warrant affidavit, e.g., Getz’s failure to disclose Doe’s intimate relationship with Etter or Santa. Ultimately, the Court determined that the supporting evidence related to child pornography in the affidavit simply consisted of (1) Taylor’s vague suggestion that he send images of “young girls” to Doe, (2) his reference to Thailand, and (3) Getz’s assertion regarding his training and experience with child pornography and bestiality.

The Court characterized the foregoing evidence as an “exceedingly thin basis on which to find probable cause and then launch something as intrusive as a thorough search of a home for evidence of child pornography.” It reasoned that “young” is a relative and subjective term and that simply having visited Thailand does not mean it was for the purpose of exploiting children, and thus, neither reasonably supports “an inference of criminality.” The Court stated it has frequently determined that probable cause is “lacking on more substantial facts” than those present in this case. See, e.g., United States v. Bell, 585 F.3d 1045 (7th Cir. 2009); United States v. Peck, 317 F.3d 754 (7th Cir. 2003); United States v. Koerth, 312 F.3d 862 (7th Cir. 2002). Moreover, the Court explained that once it adjusts “for the false statements and omissions” of the officers involved, there is essentially no “substantial basis” for a determination of probable cause with respect to child pornography. Thus, the Court ruled that the affidavit did not support probable cause to search for evidence of child pornography.

Probable Cause – Bestiality

The Court then addressed the issue of bestiality. It noted that there was actually a more substantial factual basis to search for evidence of this crime, which included: (1) text messages from Taylor and Angela to Doe confirming their interest in bestiality, (2) Doe boarded four horses on her property, (3) Taylor repeatedly asked Doe if Angela could engage in sexual activity with a horse, (4) Taylor texted a picture of a “dog licking the nude genitalia of a woman” to Doe, who indicated that she had reason to believe the woman in the picture was Angela, and (5) Taylor’s text message stating that the woman in the picture was Angela. The Court concluded that based on the foregoing evidence, there was probable cause for a warrant to search for evidence of bestiality.

However, the problem is there is no evidence in the record for the Court to determine whether the issuing judge approved the handwritten alterations to the warrant prior to it being executed. Thus, a Franks hearing is required to determine what occurred and whether the search warrant was valid, the Court concluded.

The Search Warrant

The Court began this portion of its opinion by noting that this is an issue of first impression because it has “never before encountered a search warrant that had handwritten alterations that were not at least initialed by a judge.” It observed that neither it nor the parties have identified any case in which a court upheld such a search warrant.

The Court reiterated the importance of the Fourth Amendment’s particularity requirement that protects against “the government’s indiscriminate rummaging through” people’s property. United States v. Jones, 54 F.3d 1285 (7th Cir. 1995); Cooledge. The requirement restricts court-authorized searches “to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79 (1987). That is, it “ensures that the scope of a search will be confined to evidence to a specific crime that is supported by probable cause.” United States v. Vitek Supply Corp., 144 F.3d 476 (7th Cir. 1998).

The Court explained the unusual situation presented by this case as follows: “Here, we have a typed warrant – signed by the issuing judge and file-stamped by the issuing court – that authorized the search for and seizure of evidence relating to the specific crimes of ‘possession and/or distribution of child pornography.’ The warrant satisfied the particularity requirement for searching for evidence of child pornography, but that basis for the warrant was not supported by probable cause. As for evidence of bestiality, the warrant was supported by probable cause but did not satisfy the particularity requirement. Instead, we have only handwritten additions to the warrant, made by law enforcement, that purport to authorize a search for evidence of ‘bestiality.’ This is a problem.”

The Court stated that handwritten alterations are not per se fatal to the validity of a warrant. There are instances where courts have upheld them. See, e.g., United States v. Waker, 534 F.3d 168 (2d Cir. 2008); United States v. Hill, 500 F.2d 315 (5th Cir. 1974); United States v. Mendez-Sanchez, 563 F.3d 935 (9th Cir. 2009). Furthermore, there are instances of courts upholding the validity of a warrant where the physical alterations are not made by the issuing judge as long as the judge approves of them prior to the warrant being executed. See, e.g., United States v. Payne, 341 F.3d 393 (5th Cir. 2003). According to the Court, the most lenient case on this issue is United States v. Arenal, 768 F.2d 263 (8th Cir. 1985), in which the Eighth Circuit upheld search warrants where the issuing judge approved alterations prior to them being executed but initialed the handwritten alterations only after execution.

There are cases in which courts were faced with unexplained alterations to warrants, and they addressed the issue by holding hearings to examine the circumstances. See, e.g., United States v. Blake, 2006 U.S. Dist. LEXIS 94874 (S.D. Ga. Sept. 7, 2006); Battle v. State, 597 S.E.2d 417 (Ga. App. 2004); Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994) (en banc).

After examining the foregoing case law, the Court determined that the resolution of Taylor’s appeal “is clear” and instructed that when a warrant contains “material handwritten alterations” not signed or initialed by the issuing judge, it is a “facially questionable warrant” that requires an “evidentiary hearing to determine whether the issuing judge had approved those changes, and if so, when and how.” The Court explained that the particularity requirement cannot be satisfied as long as questions remain about material alterations to the warrant.


Applying the newly announced standard to the present case, the Court held that an evidentiary hearing is necessary, explaining that “the constitutionality of this search can be based only on probable cause to search for evidence of bestiality.”

Accordingly, the Court vacated the judgment of the District Court and remanded for proceedings consistent with its opinion. See: United States v. Taylor, 63 F.4th 637 (7th Cir. 2023).


Writer’s note: Anyone with a particular interest in the potential invalidity of search warrants based on the lack of truthfulness or completeness contained in the warrant affidavit is encouraged to read the Court’s full opinion in which it painstakingly examines each of the many relevant facts on the issue and applies the governing rule of law to each of them.  

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