United States v. Cory Sanford

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2691
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORY SANFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 16-cr-20082 — Colin S. Bruce, Judge.
____________________
SUBMITTED SEPTEMBER 27, 2021 * — DECIDED MAY 26, 2022
____________________
Before ROVNER, HAMILTON, and KIRSCH, Circuit Judges.
ROVNER, Circuit Judge. Cory Sanford was charged with
possession of heroin with intent to distribute in violation of
21 U.S.C. § 841(a)(1) & (b)(1)(C), possession of a firearm in fur-
therance of a drug-trafficking crime in violation of 18 U.S.C.
*On September 17, 2021, we granted the parties’ joint motion to waive
oral argument. Thus, the appeal is submitted on the briefs and record.
FED. R. APP. P. 34(f).
2 No. 20-2691
§ 924(c)(1)(A)(i), and possession of a firearm as a felon in vio-
lation of 18 U.S.C. § 922(g)(1). The government obtained evi-
dence against Sanford pursuant to a search warrant, and San-
ford sought to challenge that search. Toward that end, San-
ford filed a motion for a hearing under Franks v. Delaware, 438
U.S. 154 (1978) (a “Franks hearing”), as to the veracity of the
information provided in support of the search warrant. The
district court conducted a pre-Franks hearing, and then de-
nied the request for a Franks hearing and upheld the search.
Sanford subsequently pled guilty to possession of heroin with
intent to distribute and possession of a firearm in pursuance
of a drug-trafficking crime, reserving his right to challenge the
denial of his Franks motion on appeal. The only issue in this
appeal is whether the district court erred in denying the re-
quest for a Franks hearing.
In seeking a no-knock search warrant in this case, Officer
Benjamin Stringer and a confidential informant appeared be-
fore the state court judge on September 27, 2016. Stringer did
not file an affidavit in support of the request for a search war-
rant. Instead, both Stringer and the confidential informant tes-
tified before the judge. Stringer testified that he observed a car
driven by the informant exit the driveway of 608 N. Logan
Avenue in Danville earlier that day, and that a subsequent
search of that vehicle revealed several syringes and a small
amount of crystal methamphetamine. The informant told him
that she had acquired the drugs at the house at 608 N. Logan,
and she described the home including the detail that a refrig-
erator was on the front porch of that home. They then drove
by the house and Stringer confirmed that the house matched
her description.
No. 20-2691 3
The confidential informant testified as well, and related
that she had been inside the home at 608 N. Logan Avenue on
a daily basis for the past week, and that Cory Sanford lived at
that house along with his girlfriend. She further testified that
she was at the house twice the night prior to the warrant hear-
ing, and that on both occasions she traded items such as alco-
hol, cigarettes, and even a doorbell and alarm kit, for heroin.
She testified that she saw Sanford holding a gun when she
was there that night, and he told her that someone had robbed
him a couple of weeks earlier and, pointing the gun at the
front door, he stated “Bam, that’s what’s gonna happen to
someone next time they try to rob my house.”
She also stated that the methamphetamine found in her
vehicle had been purchased from a third party while at San-
ford’s house, and that on another occasion she saw a baggie
of heroin on the table at the house, and observed Sanford pick
it up and place it into his pocket. Finally, she testified that she
had injected heroin the night before the hearing.
The judge had an opportunity to question both Stringer
and the informant at that hearing, and based on that testi-
mony issued a no-knock warrant to search Sanford’s house
for controlled substances, drug paraphernalia, guns, evidence
of ownership, and other related evidence. The officers exe-
cuted the warrant the same day, and discovered 26.1 grams of
heroin, a handgun, ammunition, digital scales, and $1,745 in
cash.
In the district court, Sanford challenged that search, seek-
ing a Franks hearing to determine the validity of the search
warrant. As support for that challenge, Sanford presented a
Declaration from Ashley Hinkle, identifying herself as the
confidential informant who testified in the warrant hearing.
4 No. 20-2691
Specifically, Sanford relied upon the statements in Hinkle’s
Declaration that: officers told her that if she did not cooperate
they would take her one-year-old daughter away from her;
Stringer told her that she would not be charged with any new
offenses and that an outstanding warrant for failure to appear
in a misdemeanor case would be “taken care of;” she was told
to inform the judge at the hearing that she had not been prom-
ised anything for testifying; and about three weeks after the
hearing she was nevertheless arrested on the outstanding
warrant. Sanford argued that Hinkle’s lengthy criminal rec-
ord and the existence of the active warrant, and Stringer’s as-
surance that no criminal charges would be filed and the war-
rant would be taken care of, were not revealed to the issuing
judge, and the omission of that information relevant to Hin-
kle’s credibility would have altered the probable cause deter-
mination. Sanford sought a Franks hearing to assess the truth-
fulness of the information provided to the court in support of
the request for a search warrant and the impact of any omis-
sions on the probable cause determination.
“’A defendant is entitled to a Franks hearing—an eviden-
tiary hearing regarding the veracity of information included
in a search warrant application—if he can make a substantial
preliminary showing that: (1) the warrant affidavit contained
false statements, (2) these false statements were made inten-
tionally or with reckless disregard for the truth, and (3) the
false statements were material to the finding of probable
cause.’” United States v. Hancock, 844 F.3d 702, 708 (7th Cir.
2016), quoting United States v. Mullins, 803 F.3d 858, 861–62
(7th Cir. 2015); United States v. Williams, 718 F.3d 644, 647 (7th
Cir. 2013). That showing is not limited to false statements, but
applies to material omissions as well. Hancock, 844 F.3d at 708;
Mullins, 803 F.3d at 862. A hearing is not mandated absent
No. 20-2691 5
“allegations of deliberate falsehood or reckless disregard for
the truth, and those allegations must be accompanied by an
offer of proof.” Franks, 438 U.S. at 171.
Sanford argued that Stringer and Hinkle intentionally
misrepresented key facts and omitted other material facts that
would have affected the issuance of the search warrant. The
government opposed a Franks hearing arguing that because
Stringer and Hinkle testified in person at the warrant hearing,
the issuing judge had the opportunity to explore any such is-
sues. The government informed the court that FBI agents had
discussed Hinkle’s Declaration with her and that she told
them she did not prepare the Declaration and that much of it
was false or twisted the actual circumstances to something es-
sentially untrue.
When a defendant seeks a Franks hearing it can be difficult
to delineate between sufficient and insufficient showings.
United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013).
In McMurtrey, we recognized that district courts sometimes
resort to “pre-Franks“ hearings to enable defendants to sup-
plement or elaborate on their original submissions. Id. The fo-
cus of such a pre-Franks hearing is to determine whether the
preliminary showing could be met. Id. We held in McMurtrey
that “[s]uch hearings are well within a district court’s discre-
tion to aid it in making a sound decision on whether to hold
a full Franks hearing.” Id. In McMurtrey, we noted that pre-
Franks hearings may be problematic if the government is al-
lowed to present new evidence but the defense is not afforded
a full opportunity for cross-examination. Id. Here, however,
the district court explicitly recognized that concern, and noted
that a full opportunity was given to cross-examine Stringer,
and further stated that even if the hearing was considered a
6 No. 20-2691
full Franks hearing the result would be the same. Dist Ct. Or-
der at 11–12 n.1. However characterized, Sanford does not
challenge the hearing conducted in this case.
Because the arguments for and against the Franks hearing
were both premised on the statements from Hinkle in her
Declaration and whether Hinkle disowned those statements,
the court in the “pre-Franks” hearing assessed the credibility
of Hinkle and of the statements made by her in the Declara-
tion in order to determine whether Sanford presented the nec-
essary substantial preliminary showing. See McMurtrey, 704
F.3d at 509 (noting that “[it] is relatively difficult for a defend-
ant to make the ‘substantial preliminary showing’ required
under Franks. … [T]he claim of falsity should be substantiated
by the sworn statements of witnesses.”) At the hearing, Hin-
kle’s testimony veered from the statements in the Declaration
in some significant ways. For instance, with respect to the
claim that the officers threatened to take her daughter away,
Hinkle now testified that her daughter was in foster care and
she had a visit scheduled for the next day and was informed
she would miss that visit if she did not cooperate, but she was
never threatened that they would take her daughter away.
She further clarified that only Stringer, not the prosecutor,
told her to say that she had not been promised anything, and
she had been guaranteed only that she would not be arrested
that night; she further acknowledged that Stringer had told
her only that he would see what he could do about the war-
rant but could not make any promises. Finally, Hinkle testi-
fied to prior convictions for: possession of a controlled sub-
stance, residential entry and resisting; possession of a syringe
and false informing; and two convictions for theft. The district
court also heard testimony from Stringer that was largely con-
sistent with that testimony from Hinkle.
No. 20-2691 7
Following that testimony, the district court made some
factual findings. The court found that Hinkle’s statement in
the Declaration that she was told her daughter would be
taken away if she failed to cooperate was “patently untrue.”
The court also found that it was clear that Hinkle hoped that
she would not be arrested for the drug purchases or on the
outstanding warrant if she cooperated, but that no promises
were actually made to her. We afford special deference to a
district court’s credibility determination, and review findings
of fact only for clear error, and there is no basis for finding
error here. United States v. Clark, 668 F.3d 934, 940 (7th Cir.
2012); United States v. Glover, 755 F.3d 811, 815 (7th Cir. 2014).
The district court then concluded that a full Franks hearing
was not warranted because Sanford had not made a substan-
tial showing that the testimony in support of the warrant con-
tained false statements or omissions, made intentionally, that
were material to the finding of probable cause.
On appeal, Sanford argues that a Franks hearing was nec-
essary because Stringer failed to inform the state court judge
about Hinkle’s criminal history or her pending charges. San-
ford contends that Hinkle claimed that Stringer told her that
if she cooperated then she would not be arrested for the drugs
recovered in the stop or for the outstanding warrant. Accord-
ing to Sanford, that information and Hinkle’s criminal history
would have altered the probable cause determination for the
search warrant.
The district court’s findings following the pre-Franks hear-
ing torpedo any argument based on the failure to reveal
promises made to Hinkle that she would not be arrested for
the drugs or for the outstanding warrant. The district court
found that no such promises were made to Hinkle, and
8 No. 20-2691
therefore any claim based on that allegation is meritless. The
only argument in favor of a Franks hearing that survives is the
claim that Stringer failed to inform the state court judge of
Hinkle’s criminal history, including the outstanding warrant
for the failure to appear in a misdemeanor case.
In order to obtain a Franks hearing on that basis, Sanford
had to make a substantial preliminary showing that the omis-
sion was material to the probable cause determination and
that the information was omitted deliberately or with reckless
disregard for the truth. Glover, 755 F.3d at 820. We addressed
an analogous situation in United States v. Woodfork, 999 F.3d
511 (7th Cir. 2021). In that case, the defendant similarly sought
a Franks hearing based on the omission of the confidential
sources’ criminal histories and other details about their cred-
ibility. We held that the omission of the confidential sources’
criminal history in that case was not material to the finding of
probable cause. Id. at 516–17. First, we noted that the probable
cause determination in that case did not rest solely on the un-
verified tip from the confidential informant, but included con-
trolled-buy transactions of which the testifying officer had di-
rect knowledge, which made the informant’s reliability and
credibility less relevant to the probable cause determination.
Id. at 517. Secondly, we emphasized that the officer testified
in person before the judge, and therefore, unlike the consid-
eration of a written affidavit, the judge had the opportunity
to ask the officer questions regarding the confidential sources’
backgrounds and criminal histories. Id. We expressed confi-
dence that “warrant-issuing judges are aware that the indi-
viduals upon whom law enforcement relies to make drug
purchases through controlled buys are likely to have criminal
histories,” and that “it is not a stretch to assume that the judge
here knew that a confidential source buying methamphet-
No. 20-2691 9
amine likely had some criminal history.” Id. We concluded
that if the issuing judge believed that the confidential sources’
criminal history or motivations were relevant to the probable
cause determination, the judge could have asked the officer
questions as to those matters. Id. Accordingly, Woodfork
makes clear that the confidential informant’s criminal history
is not always material to the probable cause determination.
That does not mean that the failure to reveal an inform-
ant’s criminal history is never material to the probable cause
determination. Indeed, we have recognized that the failure to
reveal an informant’s criminal history can be a factor necessi-
tating a Franks hearing. See Glover, 755 F.3d 811. In Glover, the
issuing judge based the probable cause determination on a
written affidavit from an officer, which omitted highly rele-
vant and damaging information about the informant’s credi-
bility including his criminal record while serving as an in-
formant, his prior use of aliases to deceive the police, and his
expectation of payment for his information. Id. at 817. The in-
formant’s tip had only minimal corroboration, there was no
evidence of any testimony by the informant, and the affidavit
“did not provide the magistrate with even a minimum of in-
formation on credibility that might have triggered further in-
quiry.” Id. at 818.
The materiality of the omission of criminal history, then,
depends on the significance of the history in light of the total-
ity of the circumstances, including considerations of other fac-
tors relevant to the credibility determination including “the
level of detail, the extent of firsthand observation, the degree
of corroboration, the time between the events reported and
the warrant application, and whether the informant appeared
or testified before the magistrate.” Id. at 816. In Glover, we held
10 No. 20-2691
that because vital credibility information was omitted from
the affidavit, “[t]he probable cause affidavit here left the mag-
istrate unable to fulfill his role as a neutral arbiter and there-
fore provided an insufficient basis for finding probable cause
to support the warrant.” Id. at 818.
In the circumstances presented here, the failure to affirm-
atively reveal Hinkle’s criminal history did not impact the
ability of the magistrate to fulfill that role and is insufficient
to require a Franks hearing. Although the probable cause de-
termination depended largely on the information from the
confidential informant, Hinkle, with only some verification of
details by the officer, and in that way lacks the corroboration
presented by the controlled buys in Woodfork, here the issuing
judge was presented with testimony from the confidential in-
formant, Hinkle, herself. Therefore the issuing judge did not
have to depend upon a written affidavit or even testimony
from an officer. The judge had the opportunity to question
Hinkle as to any issues of importance to the judge in making
the credibility determination and in deciding whether proba-
ble cause was established. Accordingly, the failure of Stringer
to discuss Hinkle’s criminal history did not prevent the state
court judge from accessing that information if it proved sig-
nificant to the judge.
Moreover, Hinkle’s own testimony apprised the state
court judge that Hinkle had engaged in past criminal conduct.
Hinkle acknowledged repeatedly purchasing illegal drugs in-
cluding methamphetamine and heroin, and unlawfully con-
suming such drugs. There is no doubt, therefore, that the state
court judge was aware that Hinkle was a person who had
committed criminal conduct in the past. And given that Hin-
kle provided that information only after she was found in
No. 20-2691 11
possession of methamphetamine, the issuing judge was also
aware that Hinkle had an incentive to testify for the govern-
ment because she had a potential pending criminal charge.
The state court certainly could have inquired further of Hin-
kle to determine whether she had prior convictions for that or
other criminal conduct if those facts were important to the
judge in the probable cause determination. As the district
court found, Hinkle had an extensive criminal history due to
her drug addiction and theft crimes, but her history did not
compare to the history of the informant in Glover, which in-
cluded crimes while working as an informant. In contrast to
Glover, any omitted criminal history information here was not
different in kind from the information already in front of the
judge making the probable cause determination. The issuing
judge had an opportunity to hear the information directly
from the confidential informant and to assess the demeanor
and ask any questions in determining credibility. Woodfork,
999 F.3d at 518–19; United States v. Sutton, 742 F.3d 770, 775
(7th Cir. 2014); United States v. Sims, 551 F.3d 640, 645 (7th Cir.
2008). As we recognized in Woodfork, warrant-issuing judges
are aware that confidential informants in drug purchases are
likely to have criminal histories, and Hinkle in fact admitted
to criminal conduct. The district court did not err in determin-
ing that a Franks hearing was not necessary based solely on
the failure to discuss the criminal history, which was unre-
markable in nature for a person involved in ongoing drug use,
in the testimony to the issuing judge in this case.
Accordingly, the decision of the district court is
AFFIRMED.