United States v. Hoffmamn, Justin ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1874
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN L. HOFFMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06-CR-0085—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED NOVEMBER 28, 2007—DECIDED MARCH 17, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,
Circuit Judges.
FLAUM, Circuit Judge. The work of two first-time infor-
mants eventually led to Justin Hoffman’s arrest and
subsequent search of his home. As the informants had
indicated, Hoffman dealt drugs, and a jury ultimately
found him guilty of various drug and gun-related offenses.
Before his trial began, Hoffman attempted to suppress
the incriminating evidence found in his home on the
grounds that the affidavit supporting the search war-
rant contained false statements that were made with a
2 No. 07-1874
reckless disregard for the truth. The district court denied
his motion, and we affirm.
I. Background
Sergeant Juan Lora of the South Bend Police Depart-
ment met with Stephanie Schulman and Patrick Reppert
(who were dating at the time) in late June 2006. The
purpose of their meeting was to discuss whether they
would serve as confidential informants in an ongoing
drug investigation. Neither of them had ever served as
confidential informants for the South Bend Police Depart-
ment. They agreed to cooperate, and identified four
individuals from whom they could order, purchase,
and/or sell narcotics. With respect to each of these indi-
viduals, Schulman and Reppert identified various gen-
eral characteristics, including age, race, work, and resi-
dence. One such individual was Justin Hoffman. The police
department was not investigating him at the time. The
informants provided Hoffman’s physical description,
workplace, vehicles, residence, and the areas of his apart-
ment where he kept cocaine. The last bit of intelligence
was known to Reppert because he claims to have pur-
chased cocaine from Hoffman at his apartment approxi-
mately every two weeks for some time, and observed
a kilogram of cocaine in Hoffman’s apartment within
the previous two weeks.
Lora began verifying the information that Reppert and
Schulman provided. He did so in three ways. First, he
reviewed police intelligence files which confirmed that
narcotics-related complaints had been made against
some of the identified individuals. Second, the informa-
tion in these files confirmed the physical descriptions,
No. 07-1874 3
places and positions of employment, and types of nar-
cotics sold with respect to these individuals. Third, Lora
spoke with other officers regarding some of the individ-
uals that Reppert and Schulman had identified, and
they corroborated that, based on their own investiga-
tions, the physical descriptions that were provided were
correct.
After this verification process, Lora proceeded to focus
his investigation on Hoffman, since he was suspected
of being the largest dealer. Lora went to Hoffman’s work-
place and photographed his vehicle. Both the place of
employment and the vehicle (a silver Lexus) were as the
informants had described. He also researched Hoffman’s
driving history and discovered that he was a habitual
traffic violator and that his license was permanently
suspended. Lora then contacted Hoffman’s probation
officer, verified his address, and learned that he had
recently tested positive for narcotics use.
Lora then decided to use the informants to purchase
cocaine from Hoffman. First, on June 27, 2006, outside
the presence of police officers, Reppert contacted Hoff-
man and ordered a quantity of cocaine to be delivered the
next day. Schulman then contacted him later that day to
pin down the details of the deal. The next day, the infor-
mants met Lora and other officers at 6:00 AM near
Hoffman’s residence. They conducted a recorded tele-
phone call at 7:30 AM. During the course of the conver-
sation, Hoffman confirmed that Schulman needed “the
11, 11 plus 2” and “a whole 14.”1 He stated that the item
1
These numbers presumably refer to grams of cocaine. “A
whole 14” would be 14 grams, or a half ounce.
4 No. 07-1874
would be “split up and ready to go for [her],” and that he
was “gonna get started on that then.” Hoffman indicated
that he would leave his home at approximately 8:10 AM.
Schulman then placed another call to Hoffman wherein
he agreed to leave in approximately 10 minutes to drive
to meet her at a particular location.
Ten minutes later, officers observed Hoffman leaving
his apartment and entering his silver Lexus. They fol-
lowed him and then executed a traffic stop because he
failed to signal a turn. He was ordered out of the car and
a dog sniff eventually led to police finding two plastic
baggies of cocaine under the front seat. Hoffman was
subsequently arrested. Once in jail, Hoffman made a
failed attempt to arrange for his father to remove incrimi-
nating items from his apartment.
Lora then obtained a search warrant for Hoffman’s
residence. In his affidavit supporting the request for a
search warrant, Lora represented that he was working
with “reliable” confidential informants. He explained
what information they had given him, and how he
went about verifying some of their assertions. Also, he
described the nature of the recorded phone calls, em-
phasizing that the informants were able to order cocaine
from Hoffman as they had claimed. He then delineated
the events leading up to the arrest, including following
Hoffman in his car, pulling him over, and the dog sniff.
Lora then concluded the affidavit by listing what items
he believed, based on the information presented, he
would find in Hoffman’s residence. As a result of the
search, officers discovered cocaine, marijuana, rolling
papers, a stolen handgun, ammunition, evidence of
domain, a surveillance system, a digital scale, and $1,200.
No. 07-1874 5
Hoffman was indicted in July 12, 2006. The grand jury
charged him with two counts of possessing cocaine with
intent to distribute under 21 U.S.C. § 841(a)(1), one
count each of being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1), being a drug user in posses-
sion of a firearm under 18 U.S.C. § 922(g)(3), knowingly
possessing a stolen firearm under 18 U.S.C. § 922(j),
and possessing a firearm in furtherance of a drug traffick-
ing crime under 18 U.S.C. § 924(c). Hoffman entered a
guilty plea on two counts but then withdrew his plea.
On December 4, 2006, he moved for a hearing under
Franks v. Delaware, 438 U.S. 154 (1978), to suppress the
evidence recovered from the execution of the search
warrant. The district court denied this motion, and his
trial began on January 29, 2006. The district court dis-
missed the count related to knowingly possessing a
stolen firearm, and the jury subsequently found him
guilty on four of the five remaining counts.2 On April 11,
2007, Hoffman was sentenced to 63 months’ imprisonment3
and five years of supervised release.
II. Discussion
We have one issue before us: whether the district court
was correct in denying Hoffman’s motion for a Franks
2
Hoffman was acquitted on the count related to being a drug
user in possession of a firearm.
3
This sentence fell at the upper-end of the range recommended
by the United States Sentencing Guidelines. The district court
believed this was justified, in large part, because of Hoffman’s
attempt to obstruct justice by directing family members to
destroy evidence vital to his prosecution.
6 No. 07-1874
hearing. The Supreme Court held in Franks v. Delaware that
intentionally or recklessly submitting false statements in
an affidavit supporting a search warrant violates the
Fourth Amendment. In order to obtain such a hearing,
a defendant must make a substantial preliminary show-
ing that a “false statement knowingly and intentionally,
or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit, and the allegedly
false statement is necessary to the finding of probable
cause.” Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A
defendant may also challenge an affidavit by demonstrat-
ing that the affiant intentionally or recklessly omitted
material information. United States v. Harris, 464 F.3d 733,
738 (7th Cir. 2006).
We do not disturb a district court’s determination
regarding the denial of a Franks hearing unless it was
clearly erroneous. Id. at 737. Hoffman submits that the
affidavit was flawed in two respects. First, he takes
issue with Lora’s declaration that he “has been contacted
by and worked with reliable confidential informant[s] (CI)
in the past 48 hours whose information has been found to
be reliable and credible related to drug trafficking and
traffickers in St. Joseph County.” This statement is prob-
lematic in Hoffman’s view because Reppert and Schulman
had never before served as informants, and the basis of
their reliability is not explicitly discussed in the affidavit.
Second, Hoffman notes that the recorded telephone
conversation—which was mentioned in the affidavit as a
successful attempt to order cocaine—did not contain
any specific reference to narcotics, and so there was no
reason to believe that he was dealing drugs from his
residence.
Each of Hoffman’s arguments is unavailing. Lora’s
statements regarding the informants’ reliability were not
No. 07-1874 7
made with a reckless disregard for the truth because many
of their statements identifying other dealers in the area
were corroborated. To be sure, Lora looked up informa-
tion regarding other individuals they had named, verified
that their descriptions matched, and that drug-related
complaints had been made against them. He also went
to Hoffman’s workplace, photographed his vehicle, and
spoke with his probation officer. Most importantly,
Lora confirmed that Reppert and Schulman could pur-
chase cocaine from Hoffman, as evidenced through their
recorded conversations. It is clear that this was not an
instance of an officer taking a first-time informant at her
word. Moreover, while neither party to the recorded
conversation uttered the word “cocaine,” Hoffman did
state that he was going to have the item “split up and
ready to go,” and he made sure that Schulman still
wanted “the 11, 11 plus 2” and “a whole 14.” Adding these
integers leads us to conclude that Hoffman intended to
deliver 27 grams of cocaine, which is almost exactly the
quantity that was discovered in his vehicle. Thus the
contents of the telephone call, as it was represented in
the affidavit, only added to the informants’ credibility.
Even if we assume, arguendo, that the challenged state-
ments were made with reckless disregard for the truth,
and were therefore excised from the affidavit, probable
cause still existed given what remained in the affidavit.
This is because probable cause was not solely based on the
informants’ statement that Hoffman was trafficking
narcotics from his residence, but also on the arranged
meeting with the informant and the presence of large
quantities of narcotics found on him shortly after leaving
his home. In particular, the affidavit established that
officers recovered approximately 27 grams of cocaine
from Hoffman’s vehicle shortly after two phone con-
8 No. 07-1874
versation arranging for the delivery of that same quantity
of an “unidentified” item. In addition, officers saw
Hoffman leave his apartment at approximately the time he
said he would leave in his conversation with Schulman.
Finally, the informants—whether or not they were neo-
phytes4 or reliable—claimed that they had observed
cocaine in Hoffman’s apartment within the past 48 hours,
correctly identified his address and appearance, and
told officers that they could arrange for him to deliver
cocaine.
It is true that the presence of narcotics in a defendant’s
car does not, by itself, establish probable cause to search
his home, even if the car is registered to his address.
United States v. Dickerson, 975 F.2d 1245, 1249-50 (7th
Cir. 1992). However, participation in drug trafficking
activities can create probable cause to search a participant’s
residence, even without direct evidence that drug-related
activity is occurring there, because “[i]n the case of drug
dealers, evidence is likely to be found where the dealers
live.” United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.
1991) (quoting United States v. Angulo-Lopez, 791 F.2d
1394, 1399 (9th Cir. 1986)). Indeed, the traffic stop and
eventual discovery of nearly thirty grams of cocaine in
separate baggies would lead an issuing judge to reasonably
4
On some level, Hoffman seems to recoil at the notion that he
was convicted, in part, based on information provided by first-
time, as opposed to veteran, informants. But it is obvious that
every veteran informant was at some point participating in
their first case. What is important under such circumstances is
that officers make a conscientious effort to verify the informa-
tion that the informant provides, which is precisely what Lora
did here.
No. 07-1874 9
infer that Hoffman was involved in drug trafficking, and
that the activity occurred in his home. Since there was
no evidence that Hoffman was using another residence
for his drug business, and since he was found with an
amount of cocaine in his car that was almost identical to the
quantity that he stated he was preparing in his home
just minutes before, it was reasonable to find probable
cause to search his apartment even if the challenged
statements were eliminated.
III. Conclusion
For the foregoing reasons, we AFFIRM Hoffman’s con-
viction.
USCA-02-C-0072—3-17-08