Opinion
23-1505
05-31-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALONZO HAMPTON, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1
Argued April 23, 2024.
Appeal from the United States District Court for the Central District of Illinois. No. 20-30010-001 Sue E. Myerscough, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge, MICHAEL Y. SCUDDER, Circuit Judge, THOMAS L. KIRSCH II, Circuit Judge.
ORDER
A January 2020 search of two homes associated with Alonzo Hampton in Springfield, Illinois, resulted in the police finding narcotics, drug paraphernalia, and a semi-automatic handgun. Federal drug and firearm charges followed, with Hampton then challenging the two search warrants by moving for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), contending that the officer who sought the warrants omitted from his affidavits facts that undermined the existence of probable cause for the searches. The district court denied the motion. Hampton later pleaded guilty, reserving his right to appeal that ruling. Because the facts omitted from the affidavits were not material to probable cause, the district court committed no error in denying a Franks hearing. So we affirm.
I
The Springfield police used three controlled purchases of heroin from Hampton to build their case against him. All three purchases entailed the use of an informant and followed a common pattern.
The first controlled buy occurred on January 6. Before the transaction, Officer Benjamin McGill searched the informant for contraband or money and equipped him with a covert video recorder and $80. The informant drove to a house on North 3rd Street. Hampton emerged from the house and entered the informant's car, and the pair drove to a second residence where two women were present. The informant then met up with the police, underwent a pat down, and gave Officer McGill 0.57 grams of heroin that the informant said he had just bought from Hampton for $80 in the car outside North 3rd Street.
A second transaction followed on January 10. This time around the informant met Hampton inside a home on North Peoria Road in Springfield and, in exchange for $80, returned to Officer McGill with 0.26 grams of heroin.
The final purchase occurred on January 21 and followed the same protocol. This time officers surveilling the houses observed Hampton and a driver travel back and forth between and enter the houses on both North Peoria Road and North 3rd Street, only then for the informant to enter the Peoria house with $80 and return with 0.52 grams of heroin.
Officer McGill used these three controlled buys to seek warrants from the local state court to search both the North Peoria Road and North 3rd Street houses. The affidavits described each controlled buy in detail. The state court judge issued both warrants, and the searches took place the following day, January 23, 2020. The searches uncovered heroin, drug-dealing supplies, and a firearm and led to a federal grand jury indicting Hampton for possessing both heroin with an intent to distribute (21 U.S.C. § 841(a)(1), (b)(1)(C)) and a firearm as a convicted felon (18 U.S.C. § 922(g)(1)).
In moving for a Franks hearing and to suppress the evidence from the searches, Hampton argued that Officer McGill omitted material information from both warrant affidavits. First, he contended, the affidavits made no mention that other people were present for the transactions on January 6 and 21, creating the possibility that the informant could have bought the heroin from someone other than Hampton. Second, because of the unexplained disparity in the smaller quantity of heroin purchased at the second transaction (0.26 grams compared with 0.57 and 0.52 grams in the first and third buys), Hampton argued that the informant likely pocketed one half of the heroin bought in the second sale, thereby rendering the informant's account of that supposed transaction not believable.
The district court did not see the omissions as material and therefore denied Hampton's motion to suppress and request for a Franks hearing. As for Hampton's first contention, Officer McGill did in fact disclose that another person-Hampton's driver- was present in the Peoria residence for the January 21 transaction. Hampton's second argument fared no better, as the district court likewise found that Officer McGill expressly disclosed the different quantities of heroin that the informant bought in the three transactions. Finally, even if the informant had obtained drugs from someone other than Hampton on January 6 (the day when two women were present), the information about the other two transactions sufficed to establish probable cause to support the search warrants.
Hampton reacted to these rulings by pleading guilty to the heroin and firearms charges, for which he received a sentence of 84 months' imprisonment. In pleading guilty, Hampton reserved his right to challenge the district court's Franks ruling on appeal.
II
To obtain a Franks hearing, Hampton had to make a "substantial preliminary showing" that, with intent or reckless disregard for the truth, Officer McGill misleadingly omitted material facts from his affidavits. See Franks, 438 U.S. at 155-56 (1978); United States v. Roland, 60 F.4th 1061, 1064 (7th Cir. 2023) (applying Franks to material omissions). Only if Hampton has made that preliminary showing must the district court hold a hearing to determine if the warrant is invalid and the court should suppress the evidence obtained from its execution. See United States v. Woodfork, 999 F.3d 511, 516 (7th Cir. 2021).
The district court got its ruling exactly right, as the asserted omissions from the affidavits were not material to the existence of probable cause to search each house. In the affidavits, Officer McGill stated that each transaction occurred pursuant to tight police oversight and control: the police searched the informant's person before and after each transaction, supplied the cash, recorded the purchases on video, and documented everything in detail, including the exact locations of the purchases. Officer McGill also included the informant's statements that he bought the heroin from Hampton each time.
Hampton sees the proper analysis differently, emphasizing that the unexplained discrepancy in the quantity of heroin the informant returned from the second sale is material. On this score, Hampton invokes the Fourth Circuit's decision in United States v. Lull, 824 F.3d 109, 116-17 (2016). In Lull, a source's purchase yielded fewer drugs than expected, and the Fourth Circuit deemed the source too unreliable. Id. at 116-18. Hampton concludes that, because the informant brought back a lower quantity of heroin in the second sale, he may have pocketed the extra drugs and is thus unreliable. But in Lull the police knew that the source lied to them: when the source returned with an unexpectedly small drug quantity, the police caught him hiding unspent money in his underwear. See id. at 112. Yet they omitted this fact from their search warrant application. See id. at 113. Here, by contrast, the post-sale searches of the informant yielded nothing to suggest that he hid either money or drugs, let alone lied about it. And, to be thorough, Officer McGill included in his affidavit the fact about the drugquantity disparity. Lull's rationale for distrusting the informant is thus not present here.
Hampton also contends that by omitting from the affidavits the presence of others at the first and third transactions, Officer McGill overstated the informant's credibility. But the presence of others during these transactions does not in itself suggest that the informant lied to Officer McGill in saying that it was Hampton who sold him the heroin from the two homes. In any case, as the district court observed, Officer McGill stated in his affidavits that a driver entered the Peoria house with Hampton for one of these two sales. This inclusion enabled the state judge to recognize the possibility that someone other than Hampton had sold the drugs to the informant at the homes. In short, Officer McGill excluded nothing material from his affidavits.
One final point warrants underscoring. Even if we assume that the warrant affidavits contained material omissions, Hampton's contentions would still fail because he comes nowhere close to showing, as he must under Franks, that Officer McGill intentionally or recklessly excluded information from his affidavits. See 438 U.S. at 15556. Hampton does no more than speculate that the omissions must have been intentional. Our case law is clear that conclusory allegations do not suffice, however. Woodfork, 999 F.3d at 518.
AFFIRMED.