In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1022
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NDREW C. M C D UFFY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:09-cr-40040—Joe Billy McDade, Judge.
A RGUED A UGUST 4, 2010—D ECIDED A PRIL 7, 2011
Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Police executed a warrant to
search Andrew McDuffy’s home for marijuana and other
drugs. They found not marijuana but 11 grams of crack
cocaine. McDuffy pled guilty to possessing with intent
to distribute five grams or more of crack cocaine in viola-
tion of 21 U.S.C. § 841(a)(1). His conditional guilty plea
preserved his right to appeal the district court’s denial of
his request for a Franks hearing to contest allegedly mis-
2 No. 10-1022
leading statements in the affidavit supporting the search
warrant. See Franks v. Delaware, 438 U.S. 154 (1978). The
affidavit stated that the police had recently found dis-
carded marijuana in his trash, but it did not mention that
the amount found was one small flake of a leaf. McDuffy
argues that this quantity was insufficient to establish
probable cause to search his home for additional drugs.
The affidavit’s failure to mention quantity and the
issuing judge’s apparent failure to ask about quantity
do not seem to be the most sound practice, but we
believe that even if the tiny amount had been included,
the entire affidavit still would have provided probable
cause to support the search of McDuffy’s home. The
district court did not err in denying a Franks hearing, and
we affirm the court’s judgment.
I. The Facts and Procedural Background
In February 2009, Officer Eddie Connelly sought a
warrant to search for marijuana and other drugs in the
Rock Island home that McDuffy shared with his girl-
friend Kamarra Jackson. Officer Connelly’s supporting
affidavit drew upon his own investigation and a con-
fidential informant’s report. The informant, who had
been in touch with the police for two months, reported
having lived in McDuffy’s neighborhood for four years.
He correctly identified McDuffy’s home, which he
asserted was plagued by “non-stop” and “obvious” drug
traffic. He said he had seen McDuffy hide about two
ounces of crack cocaine in his back yard several months
earlier, although he did not specify how he was able to
No. 10-1022 3
recognize the drug as crack or estimate its weight. The
informant also said he had seen McDuffy hand over
a “large roll” of cash to two men on his lawn in early
February, and that the next day, seven different men
stopped by McDuffy’s home for five-minute visits.
After receiving the informant’s report, Officer Connelly
examined the contents of a sealed trash bag left in the
alley next to the home shared by Jackson and McDuffy.
In the bag he found mail addressed to Jackson, indicating
that the trash came from their home. In the trash he
also found a small flake of a leaf that field-tested posi-
tive for the active ingredient in marijuana, tetrahydro-
cannabinol.
A criminal background check rounded out the picture.
According to local police records, McDuffy had past
“involvements for” manufacture or delivery of marijuana,
as well as simple possession. According to state and
national records, McDuffy had garnered at least six
charges and five prior convictions for drug crimes.
The next day, Officer Connelly put all this information
in an affidavit for a search warrant, except that he did
not give any indication of the actual, tiny quantity of
marijuana he had found. He referred only to “an amount
of suspected Cannabis.” A state judge deemed the
affidavit sufficient for a search warrant. With that
warrant in hand, police searched McDuffy’s home two
days later and found not marijuana but the crack cocaine.
The local investigation led to this federal prosecution.
In the district court, McDuffy moved to suppress the
crack and, in the alternative, requested a Franks hearing on
4 No. 10-1022
the ground that Officer Connelly deliberately misled the
judge when he failed to quantify the tiny amount of
marijuana found in his trash. The court denied both
motions. The affidavit was sufficient to establish probable
cause, the court concluded, because of the combination
of the report from the informant, the marijuana found
in the trash, and McDuffy’s history of drug crimes. The
district court found that the omission of quantity was not
material because “any measurable amount” would be
sufficient to support a violation, citing United States v.
Biondich, 652 F.2d 743, 744-46 (8th Cir. 1981) (affirming
conviction for possession of 0.26 grams of cocaine), so that
even a tiny marijuana flake, together with the other
information in the affidavit, would support probable
cause to search McDuffy’s home. McDuffy pled guilty
and was sentenced to 120 months in prison.
II. Analysis
On appeal McDuffy argues that the district court
wrongly denied him a Franks hearing to challenge the
honesty of the affidavit supporting the search warrant. If
the state judge had understood just how little marijuana
was found, McDuffy contends, the judge would not
have found probable cause to allow a search of the
home for more.
To obtain a Franks hearing based on the omission of
marijuana quantity, McDuffy had to make a substantial
preliminary showing that the omission was reckless or
intentional, and that curing it would defeat probable
cause; an omitted detail is “material” only if its inclusion
No. 10-1022 5
would upset a finding of probable cause. Franks, 438
U.S. at 155-56; Whitlock v. Brown, 596 F.3d 406, 410-11
(7th Cir. 2010); United States v. Robinson, 546 F.3d 884,
888 (7th Cir. 2008); United States v. Harris, 464 F.3d 733, 738
(7th Cir. 2006). The probable cause inquiry is objective
and rooted in common sense, requiring only a substantial
likelihood, not a certainty, that a search will uncover
evidence of criminal conduct. Illinois v. Gates, 462 U.S.
213, 244 n.13 (1983); United States v. Aljabari, 626 F.3d 940,
944 (7th Cir. 2010); United States v. Dismuke, 593 F.3d
582, 586 (7th Cir. 2010).
McDuffy’s argument fails on the materiality prong of
the Franks test, even if we assume for purposes of argu-
ment that Officer Connelly’s omission of the amount of
marijuana he found in the trash was a deliberate
choice. Even a very small quantity of marijuana in the
trash provided sufficient reinforcement of the other
information in the affidavit indicating a reasonable likeli-
hood that McDuffy was dealing drugs from his home.
Each individual detail in the affidavit would not have
been sufficient by itself to support a finding of probable
cause, but the details were mutually reinforcing. The
whole was greater than the sum of the individual de-
tails. See United States v. Olson, 408 F.3d 366, 372 (7th
Cir. 2005) (affirming denial of motion to suppress; indi-
vidual details were not sufficient for probable cause but
together supported issuance of search warrant); see also
Aljabari, 626 F.3d at 944 (relying on totality of circum-
stances to support search warrant).
The currency handoff on McDuffy’s lawn, followed the
next day by the arrival of seven men who each stayed
6 No. 10-1022
for five minutes or less, was suspicious in and of itself,
and even more so in light of the marijuana the police
found in his trash. The transactions observed by the
informant increased the likelihood that McDuffy was
directly involved with any drugs found in his trash, and
that he was handling larger quantities. McDuffy’s many
prior drug convictions cast doubt on any innocent ex-
planations for the marijuana flake, the currency handoff,
and the stream of visitors to his home. See United States
v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (interpreting
evidence from suspect’s trash in light of prior conviction).
Thus, even if the affidavit had been revised to clarify
that only one flake of marijuana was found in the trash,
the affidavit would still have reflected a “substantial
chance” that police could find drugs in McDuffy’s home.
Gates, 462 U.S. at 244 n.13; see also Aljabari, 626 F.3d at
944; United States v. Sidwell, 440 F.3d 865, 869 (7th Cir.
2006). Because curing the omission of the amount would
not defeat probable cause, the omission was not material.
The district court did not clearly err in denying a
Franks hearing. See Robinson, 546 F.3d at 887-88 (applying
“clear error” standard to review of decision to deny
Franks hearing and finding no error where omitted infor-
mation would not have undermined probable cause).
McDuffy offers three arguments to oppose this con-
clusion, but none is persuasive. First, he uses the con-
fidential informant’s conclusory statements about drug
activity to question his reliability. But the report of the
currency handoff followed by the visitors to McDuffy’s
home was firsthand and precise, and thus more reliable.
No. 10-1022 7
See United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002).
The report gained some additional reliability from
the informant’s decision to come forward with informa-
tion about a neighbor and thus expose himself to pros-
ecution for making false statements to police. See
Dismuke, 593 F.3d at 588.
Second, McDuffy points out that his prior convictions
should not be dispositive in establishing probable cause.
See Olson, 408 F.3d at 372; United States v. Peck, 317 F.3d
754, 757 (7th Cir. 2003). That may be true, but McDuffy’s
prior convictions were still relevant and entitled to
some weight, Olson, 408 F.3d at 372, and using them to
interpret other details in the affidavit does not make
them dispositive.
Third, McDuffy stresses that the drug quantity found
in his trash was very small. Yet even a tiny bit of
discarded drugs increases the likelihood that police will
find more in the home. United States v. Billian, 600 F.3d
791, 794 (7th Cir. 2010) (noting that small quantities of
marijuana in trash indicated that there was marijuana
in house, not that the small quantities were all that de-
fendant had possessed); United States v. Colonna, 360
F.3d 1169, 1175 (10th Cir. 2004) (affirming denial of
motion to suppress where warrant was based in part on
discovery of two burnt ends of marijuana cigarettes in
trash); see also People v. Balsley, 769 N.E.2d 153, 155, 157
(Ill. App. 2002) (reversing grant of motion to suppress;
tiny quantities of marijuana in trash supported probable
cause, in conjunction with other facts). In any event,
none of the items from the affidavit should be viewed
in isolation. See Olson, 408 F.3d at 372.
8 No. 10-1022
Because an accurate description of the drug quantity
would not have defeated probable cause, we need not
decide whether the omission was reckless or intentional.
The judgment of conviction is A FFIRMED.
4-7-11