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.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before EASTERBROOK, Chief Judge, andFLAUMand WOOD, Circuit Judges.
The work of two first-time informants 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 warrant contained false statements that were made with a reckless disregard for the truth. The district court denied his motion, and we affirm.
Sergeant Juan Lora of the South Bend Police Department 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 Department. They agreed to cooperate, and identified four individuals from whom they could order, purchase, and/or sell narcotics. With respect to each of these individuals, Schulman and Reppert identified various general characteristics, including age, race, work, and residence. 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 apartment where he kept cocaine. The last bit of intelligence was known to Reppert because he claims to have purchased cocaine from Hoffman at his apartment approximately 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 information in these files confirmed the physical descriptions, places and positions of employment, and types of narcotics sold with respect to these individuals. Third, Lora spoke with other officers regarding some of the individuals that Reppert and Schulman had identified, and they corroborated that, based on their own investigations, 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 Hoffman 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 informants met Lora and other officers at 6:00 AM near
Hoffman's residence. They conducted a recorded telephone call at 7:30 AM. During the course of the conversation, Hoffman confirmed that Schulman needed "the 11, 11 plus 2" and "a whole 14."*fn1 He stated that the item 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 followed 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 incriminating 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, emphasizing 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.
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 possession 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 trafficking 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 dismissed the count related to knowingly ...