In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1874

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUSTIN L. HOFFMAN,

Defendant-Appellant.

____________

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.

____________

ARGUED NOVEMBER 28, 2007—DECIDED MARCH 17, 2008

____________

Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,

Circuit Judges.

FLAUM, Circuit Judge. 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
2 No. 07-1874

reckless disregard for the truth. The district court denied

his motion, and we affirm.

I. Background

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,
No. 07-1874 3

1 These numbers presumably refer to grams of cocaine. “A

whole 14” would be 14 grams, or a half ounce.

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 workplace 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.”1

 He stated that the item
4 No. 07-1874

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.
No. 07-1874 5

2 Hoffman was acquitted on the count related to being a drug

user in possession of a firearm.

3 This sentence fell at the upper-end of the range recommended

by the United States Sentencing Guidelines. The district court

believed this was justified, in large part, because of Hoffman’s

attempt to obstruct justice by directing family members to

destroy evidence vital to his prosecution.

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 possessing a

stolen firearm, and the jury subsequently found him

guilty on four of the five remaining counts.2

 On April 11,

2007, Hoffman was sentenced to 63 months’ imprisonment3

and five years of supervised release.

II. Discussion

We have one issue before us: whether the district court

was correct in denying Hoffman’s motion for a Franks
6 No. 07-1874

hearing. The Supreme Court held in Franks v. Delaware that

intentionally or recklessly submitting false statements in

an affidavit supporting a search warrant violates the

Fourth Amendment. In order to obtain such a hearing,

a defendant must make a substantial preliminary showing that a “false statement knowingly and intentionally,

or with reckless disregard for the truth, was included

by the affiant in the warrant affidavit, and the allegedly

false statement is necessary to the finding of probable

cause.” Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A

defendant may also challenge an affidavit by demonstrating that the affiant intentionally or recklessly omitted

material information. United States v. Harris, 464 F.3d 733,

738 (7th Cir. 2006).

We do not disturb a district court’s determination

regarding the denial of a Franks hearing unless it was

clearly erroneous. Id. at 737. Hoffman submits that the

affidavit was flawed in two respects. First, he takes

issue with Lora’s declaration that he “has been contacted

by and worked with reliable confidential informant[s] (CI)

in the past 48 hours whose information has been found to

be reliable and credible related to drug trafficking and

traffickers in St. Joseph County.” This statement is problematic in Hoffman’s view because Reppert and Schulman

had never before served as informants, and the basis of

their reliability is not explicitly discussed in the affidavit.

Second, Hoffman notes that the recorded telephone

conversation—which was mentioned in the affidavit as a

successful attempt to order cocaine—did not contain

any specific reference to narcotics, and so there was no

reason to believe that he was dealing drugs from his

residence.

Each of Hoffman’s arguments is unavailing. Lora’s

statements regarding the informants’ reliability were not
No. 07-1874 7

made with a reckless disregard for the truth because many

of their statements identifying other dealers in the area

were corroborated. To be sure, Lora looked up information regarding other individuals they had named, verified

that their descriptions matched, and that drug-related

complaints had been made against them. He also went

to Hoffman’s workplace, photographed his vehicle, and

spoke with his probation officer. Most importantly,

Lora confirmed that Reppert and Schulman could purchase cocaine from Hoffman, as evidenced through their

recorded conversations. It is clear that this was not an

instance of an officer taking a first-time informant at her

word. Moreover, while neither party to the recorded

conversation uttered the word “cocaine,” Hoffman did

state that he was going to have the item “split up and

ready to go,” and he made sure that Schulman still

wanted “the 11, 11 plus 2” and “a whole 14.” Adding these

integers leads us to conclude that Hoffman intended to

deliver 27 grams of cocaine, which is almost exactly the

quantity that was discovered in his vehicle. Thus the

contents of the telephone call, as it was represented in

the affidavit, only added to the informants’ credibility.

Even if we assume, arguendo, that the challenged statements were made with reckless disregard for the truth,

and were therefore excised from the affidavit, probable

cause still existed given what remained in the affidavit.

This is because probable cause was not solely based on the

informants’ statement that Hoffman was trafficking

narcotics from his residence, but also on the arranged

meeting with the informant and the presence of large

quantities of narcotics found on him shortly after leaving

his home. In particular, the affidavit established that

officers recovered approximately 27 grams of cocaine

from Hoffman’s vehicle shortly after two phone con-
8 No. 07-1874

4 On some level, Hoffman seems to recoil at the notion that he

was convicted, in part, based on information provided by firsttime, as opposed to veteran, informants. But it is obvious that

every veteran informant was at some point participating in

their first case. What is important under such circumstances is

that officers make a conscientious effort to verify the information that the informant provides, which is precisely what Lora

did here.

versation arranging for the delivery of that same quantity

of an “unidentified” item. In addition, officers saw

Hoffman leave his apartment at approximately the time he

said he would leave in his conversation with Schulman.

Finally, the informants—whether or not they were neophytes4

 or reliable—claimed that they had observed

cocaine in Hoffman’s apartment within the past 48 hours,

correctly identified his address and appearance, and

told officers that they could arrange for him to deliver

cocaine.

It is true that the presence of narcotics in a defendant’s

car does not, by itself, establish probable cause to search

his home, even if the car is registered to his address.

United States v. Dickerson, 975 F.2d 1245, 1249-50 (7th

Cir. 1992). However, participation in drug trafficking

activities can create probable cause to search a participant’s

residence, even without direct evidence that drug-related

activity is occurring there, because “[i]n the case of drug

dealers, evidence is likely to be found where the dealers

live.” United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.

1991) (quoting United States v. Angulo-Lopez, 791 F.2d

1394, 1399 (9th Cir. 1986)). Indeed, the traffic stop and

eventual discovery of nearly thirty grams of cocaine in

separate baggies would lead an issuing judge to reasonably
No. 07-1874 9

infer that Hoffman was involved in drug trafficking, and

that the activity occurred in his home. Since there was

no evidence that Hoffman was using another residence

for his drug business, and since he was found with an

amount of cocaine in his car that was almost identical to the

quantity that he stated he was preparing in his home

just minutes before, it was reasonable to find probable

cause to search his apartment even if the challenged

statements were eliminated.

III. Conclusion

For the foregoing reasons, we AFFIRM Hoffman’s conviction.

USCA-02-C-0072—3-17-08