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United States v. Hancock

United States Court of Appeals, Seventh Circuit

December 28, 2016

United States of America, Plaintiff-Appellee,
v.
Michael Allan Hancock, Defendant-Appellant.

          Argued November 13, 2015

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13-cr-00128-bbc-1-Barbara B. Crabb, Judge.

          Before Posner, Ripple, and Sykes, Circuit Judges.

          Ripple, Circuit Judge.

         Michael Allan Hancock was indicted on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and on one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Before trial, Mr. Hancock challenged the search warrant that had led to his arrest by requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). In sup- port of that motion, he maintained that critical evidence bearing on a confidential informant's credibility had been omitted from the probable cause affidavit. Following the magistrate judge's recommendation, the district court denied the motion.

         Mr. Hancock also moved in limine to preclude the use of prior convictions as the basis for the § 922(g)(1) count. He maintained that the release document issued to him by the Colorado Department of Corrections lulled him into believing that all of his rights, including the right to possess a weapon, had been restored. The district court, assessing the release document within its four corners, held that the document did not communicate any restoration of rights to Mr. Hancock. A jury later convicted Mr. Hancock on both counts of the indictment. The court imposed concurrent sentences of 120 months on each count.[1]

         Mr. Hancock now challenges both of these rulings. We conclude that, viewed in its totality, the probable cause affidavit amply supports the issued search warrant. We also agree with the district court that, on its face, the release document does not speak to the restoration of rights. We therefore affirm Mr. Hancock's convictions.

         I

         BACKGROUND

         A.

         On August 14, 2013, law enforcement officers executed a no-knock search warrant on the property of Arthur Erickson. This property included a residence, out buildings, and surrounding land. Mr. Hancock served as a caretaker of this property during the winter months. When Erickson was away, he lived in the residence; when Erickson was at home, Mr. Hancock stayed in a recreational vehicle parked on the property.

         The search warrant, issued earlier the same day, was supported by the probable cause affidavit of Chris Drost, an investigator with the St. Croix Sheriff's Office with fifteen years' experience. In that affidavit, Investigator Drost recounted that he had interviewed Mr. Hancock (also known as "Munchy") in June 2013, while Mr. Hancock was detained at the St. Croix County Jail. During that interview, Mr. Hancock referred to himself as a "one percenter, " which Investigator Drost understood to mean that Mr. Hancock was affiliated with the "Out- law Motorcycle Gang."[2] Mr. Hancock further informed Investigator Drost that he previously had been charged with a variety of crimes. Mr. Hancock also acknowledged that, on the day he had been brought to jail, he was with his girlfriend, who was identified (using police records) as Sarah Jo Davis.

         The affidavit also contained information provided to Investigator Drost by a confidential informant, Jeremy Ray Pea-body. In June 2013, Peabody began giving information about drug activity and stolen goods on the Erickson property to Investigator Drost. Peabody previously had provided information to the St. Croix County Sheriff's Office for fifteen years, and this information had led to several felony arrests and convictions. He reported to Investigator Drost that, approximately ten months earlier, Robert Graves had introduced Mr. Hancock to him and that Graves had identified Mr. Hancock as his supplier. Peabody continued that, at their first meeting, he had used methamphetamine with Mr. Hancock and had befriended him in the hope that he would be able to purchase drugs directly from Mr. Hancock and cut out the middleman. After two buys with Graves, Peabody was able to purchase drugs directly from Mr. Hancock.

         Peabody subsequently made more than twenty visits to the Erickson property to purchase methamphetamine from Mr. Hancock. He was, consequently, able to provide detailed information about Mr. Hancock, his business, and the property. Peabody explained that Mr. Hancock and Davis lived in an RV on the property and that Mr. Hancock had access to all of the buildings on the property, including a "large pole shed"[3] from which he sold drugs. Peabody further reported that he had witnessed approximately forty to sixty drug sales to other individuals on the property, that Mr. Hancock had accepted stolen property as well as cash from his customers, and that Mr. Hancock had informed him that the property was stolen. Peabody had seen the stolen items (including a car, ATVs, and chainsaws) on the Erickson property. He also warned Investigator Drost that he considered Mr. Hancock to be dangerous, in part because of Mr. Hancock's affiliation with the Outlaw Motorcycle Gang. Peabody "advised ... that within the last several months he ha[d] seen a handgun in Mundry's living quarters located in the RV" and that Mr. Hancock had access to the handguns inside the Erickson residence.[4] Peabody had seen Mr. Hancock use the weapons to "shoot[] at lights and shadows on the property."[5]

         Peabody also provided Investigator Drost with cell phone numbers for Mr. Hancock and Davis. He said that Mr. Hancock used Davis's cell phone to conduct his drug activities. Based on this information, Investigator Drost had secured a search warrant for Davis's cell phone number on July 15, 2015. The search revealed numerous text messages with references to drug transactions during the week prior to the application for the warrant to search the Erickson property.

         The probable cause affidavit also included information provided by Rachelle Lowrie. Lowrie had met Mr. Hancock in June 2013 through Davis. Lowrie asked Davis how she could purchase methamphetamine from Mr. Hancock and was told that she "could go through Davis to purchase ... from Munchfy]."[6] Lowrie further explained that, on August 6, 2013, "she had been driven to [a] court appearance by Detective Funk of the Prescott Police Department" and that Mr. Hancock may have seen her.[7] Mr. Hancock later accused her "of being a snitch and informant for the police."[8]

         On August 11, 2013, Mr. Hancock and another man, identified as "Shawn, " came to Lowrie's residence. Mr. Hancock tied Lowrie to the sofa, sexually assaulted her, [9]and "extinguished lit cigarettes" on her. Mr. Hancock warned her against "snitchfing]" and threatened her and her daughter with further harm if she reported him to the police.[10] Lowrie believed that Mr. Hancock took from Lowrie prescription medications, jewelry, her wallet, and other items, including pictures of her daughter.

         Finally, the probable cause affidavit recounted that, after transporting Lowrie to the hospital, Investigator Drost spoke with the nurse who conducted Lowrie's physical examination. The nurse confirmed that Lowrie's injuries were consistent with what Lowrie had reported to Investigator Drost.

         On the basis of this affidavit, a search warrant for the Er-ickson property was issued. Upon execution of the search warrant, the officers found a short barreled shotgun, shotgun shells, some allegedly stolen property, a small amount of methamphetamine, and some drug paraphernalia.

         B.

         1.

         On October 10, 2013, a grand jury returned a two-count indictment charging Mr. Hancock with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Mr. Hancock moved to suppress the evidence obtained during the execution of the search warrant and requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), alleging that the affidavit lacked probable cause, contained material false statements concerning the alleged sexual assault, and omitted material information, namely evidence of Peabody's criminal record and the fact that he was in custody for assaulting a police officer at the time he provided the relevant information. The Government opposed the motion to suppress and the request for a Franks hearing.

         The magistrate judge recommended that the district court deny the motion to suppress and deny the request for a Franks hearing. In the report and recommendation, the magistrate judge identified four categories of evidence in the affidavit that supported the search warrant: (1) Investigator Drost's interview of Mr. Hancock; (2) Peabody's information to the police; (3) Davis's text messages related to drug dealing; and (4) the interview and medical examination of Lowrie. The magistrate judge concluded that Investigator Drost had been reckless in omitting Peabody's criminal convictions from the affidavit. He concluded nevertheless that, even if the evidence of Peabody's criminal history had been included in the probable cause affidavit, the warrant would have issued. Specifically, the magistrate judge noted that Peabody's account had been detailed and corroborated by other evidence. Moreover, probable cause to search the premises would have existed based on the information provided by Lowrie:

Lowrie's account, as corroborated in part by the [Sexual Assault Response Team] nurse's report to Investigator Drost... provides a separate and severable basis to search the premises for the articles that Lowrie claims Hancock took from her. Lowrie provided a vivid and detailed account of what happened along with a lengthy and detailed list of what Hancock stole from her and took with him. This court has no reason to doubt this account and it could stand alone as a basis to uphold this search warrant.[11]

         The magistrate judge therefore recommended denying the request for a Franks ...


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