November 13, 2015
from the United States District Court for the Western
District of Wisconsin. No. 3:13-cr-00128-bbc-1-Barbara B.
Posner, Ripple, and Sykes, Circuit Judges.
Ripple, Circuit Judge.
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.
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.
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.
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.
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." 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.
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.
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" 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. Peabody had seen Mr. Hancock use the
weapons to "shoot at lights and shadows on the
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.
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]." 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. Mr. Hancock later accused
her "of being a snitch and informant for the
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,
"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. Lowrie believed that Mr. Hancock took
from Lowrie prescription medications, jewelry, her wallet,
and other items, including pictures of her daughter.
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
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.
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
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.
magistrate judge therefore recommended denying the request
for a Franks ...