Reasonable, Not Merely Possible: Seventh Circuit Clarifies the Franks “Substantial Preliminary Showing” and Affirms Informant‑Based Probable Cause

Introduction

In this consolidated appeal from the Central District of Illinois, the Seventh Circuit affirmed the denial of multiple pretrial motions and upheld a jury conviction arising from a warrant-backed search of an apartment that yielded more than 629 grams of cocaine, two loaded “ghost guns,” and paraphernalia associated with drug distribution. The appellants, Deandre Maxwell (who pleaded guilty) and Tyrone Fulwiley (convicted by a jury), challenged:

the denial of their motion to suppress (arguing lack of probable cause),
the denial of a Franks hearing (challenging the veracity and completeness of the warrant affidavit),
the denial of their motion to disclose the confidential informant’s identity, and
(as to Fulwiley) the sufficiency of the evidence on three counts: possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1) & (b)(1)(B)), possession of a firearm in furtherance of a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)), and felon-in-possession (18 U.S.C. § 922(g)(1)).

Writing for a unanimous panel, Judge Kirsch affirmed across the board. Most notably, the court clarified the defendant’s burden at the threshold stage under Franks v. Delaware: a defendant must present evidence that makes the inference of deliberate or reckless falsity or omission reasonable, not merely possible; courts need not reflexively draw every inference in the defendant’s favor. The court also held that a neighbor-informant’s detailed observations, buttressed by multi-source corroboration and the informant’s personal appearance before the issuing judge, supplied probable cause; that disclosure of the informant’s identity was unnecessary where she was a mere tipster; and that DNA evidence on the grips of two guns, combined with the drug-trafficking context, supported the firearms convictions, including the “in furtherance” nexus for § 924(c).

Summary of the Opinion

Probable Cause and Suppression: The affidavit provided a substantial basis to find probable cause under the totality of circumstances. The court emphasized the informant’s detail, first-hand observations, corroboration from multiple sources (including property manager complaints, a Crime Stoppers tip, a Rantoul narcotics tip, social media linking aliases to the defendants, and prior cocaine-conspiracy convictions), and—importantly—the informant’s in-person appearance before the issuing judge.
Franks Hearing: The defendants failed to make the “substantial preliminary showing” required. The panel clarified that defendants must present evidence supporting a reasonable—not merely speculative— inference of deliberate or reckless falsity or omission material to probable cause. The district court’s stray oral reference to a preponderance standard at the outset of the pre‑Franks hearing did not taint its written decision applying the correct threshold.
Informant Identity: The informant (“Kirk”) was a mere tipster whose identity was not essential to a fair determination or relevant to a trial defense; the district court did not abuse its discretion in denying disclosure or in policing attempts at the pre‑Franks hearing to reveal her identity indirectly.
Sufficiency of the Evidence (as to Fulwiley): The evidence supported constructive possession of drugs found in the master suite associated with Fulwiley; constructive possession of both ghost guns based on his DNA on their grips and the trafficking context; and the § 924(c) “in furtherance” nexus given loaded, accessible firearms in a drug distribution setting.

Analysis

Precedents Cited and How They Informed the Decision

Probable Cause and Informant Reliability

Illinois v. Gates: Reaffirmed the totality-of-the-circumstances approach, emphasizing a commonsense assessment of “all the various indicia of reliability (and unreliability)” in an informant’s tip.
United States v. Glover; United States v. Johnson; United States v. Schenck: Framed probable cause as a low threshold—“a reasonable likelihood evidence of wrongdoing will be found”—and identified credibility factors: detail, firsthand observation, corroboration, temporal proximity, and whether the informant appeared before the magistrate.
Distinguishing cases where PC failed due to thin informant showings:
- United States v. Bell (585 F.3d 1045): No reliability information and minimal corroboration.
- United States v. Koerth: Conclusory assertions without factual foundation; a bare claim of reliability is insufficient.
- United States v. Peck: Minimal detail from a supposed girlfriend informant, coupled with trivial corroboration.

Here, by contrast, the neighbor-informant offered specific firsthand observations (frequent short visits, hand‑to‑hand exchanges, marijuana odor, a handgun in a waistband), accurately described the occupants, linked them via social media aliases to booking photos, and personally appeared before the issuing judge. The police corroborated the account with tips from others (Crime Stoppers, Rantoul PD), building‑resident complaints via the property manager, and prior federal cocaine-conspiracy convictions involving both defendants. The court expressly rejected the notion that a controlled buy or identical corroboration steps used in other cases are invariably necessary.

Franks Threshold and Pre‑Franks Procedure

Franks v. Delaware: A hearing requires a substantial preliminary showing of a deliberate or reckless falsehood or material omission that would alter the probable cause determination.
United States v. McMurtrey: Endorsed pre‑Franks hearings to help courts assess whether the Franks threshold is met.
United States v. Glover; United States v. Pace; United States v. Dessart; United States v. Sanford: Clarified that mere speculation, innocent mistakes, or nonprobative disputations do not suffice; defendants need not disprove every innocent explanation but must present evidence that makes the inference of a Franks violation reasonably supportable.
United States v. Clark and Glover (again): Franks hearings are warranted where known, highly relevant credibility defects (e.g., criminal records, payment expectations) are omitted and corroboration is minimal.

Applying these principles, the court held the defense did not meet the threshold. The defense investigator’s suggestion that a downstairs resident (B.F.) might be the informant, and lacked a line of sight, was speculative; the affidavit did not state the informant’s vantage point, the investigator did not interview all residents, and the property manager reported multiple complaints. Even assuming arguendo such facts had been included, the affidavit’s other corroboration would still have supported probable cause.

Confidential Informant Identity (Roviaro-Harris Balancing)

Roviaro v. United States; United States v. Harris; United States v. McDowell: The government’s privilege to withhold CI identities yields if disclosure is relevant and helpful to the defense or essential to a fair determination. The informant’s role matters: disclosure is rarely required for “mere tipsters,” but may be needed for “transactional witnesses.”

Because Kirk was a mere tipster whose information was used to establish probable cause (not to prove the charged offenses), and because the defense asserted disclosure primarily to attack the warrant, the panel found no abuse of discretion in denying disclosure. The court also endorsed the trial judge’s management of the pre‑Franks hearing to prevent backdoor identification after denying disclosure.

Sufficiency of the Evidence: Constructive Possession and § 924(c)

Standards: United States v. Peterson; United States v. Garcia; United States v. Johnson (2017) — extremely deferential review, reversal only if no rational juror could convict.
Constructive possession of drugs: United States v. Griffin — requires knowledge plus the power and intent to control; in shared premises, the government must connect the defendant to the contraband itself, not merely to the residence.
Constructive possession of firearms: United States v. White — proximity plus additional incriminating factors can suffice; substantial connection can be shown by forensic or contextual evidence. United States v. Price; United States v. Thornton; United States v. Kitchen — fingerprints/DNA, statements, and residence associations can establish constructive possession even if the gun is not on the person or found in the defendant’s exclusive area.
§ 924(c) “in furtherance” nexus: United States v. Castillo; United States v. Seymour — multi-factor assessment including accessibility, type of weapon, loaded status, illegality of possession, proximity to drugs or proceeds, and circumstances. The court approvingly cited United States v. Gaston (D.C. Cir.) on “strategically located” firearms supporting the nexus.

The panel held that the totality—Fulwiley’s residence in the apartment, his personal effects in the master suite where drugs were found (including cocaine in the suite and master bathroom), his DNA on both ghost guns, the guns’ loaded status and placement (one hidden for quick access in the living room), and the apartment’s distribution quantities and paraphernalia—amply supported constructive possession and the § 924(c) nexus.

Legal Reasoning

1) Probable Cause for the Search

The court applied Gates’s totality test with “great deference” to the issuing judge and found a substantial basis for probable cause. It emphasized:

Informant detail and firsthand observation: frequency and nature of short visits, hand-to-hand exchanges, marijuana odor, and a handgun sighting.
Personal appearance before the issuing judge by both the affiant and the informant, allowing the magistrate to assess credibility directly.
Corroboration from multiple sources: Crime Stoppers tip; complaints to the property manager from multiple residents; the Rantoul detective’s tip linking aliases “Sox/Socks” and “Benjamin Franklin” to drug dealing; social media profiles that matched the occupants; and the defendants’ prior federal cocaine-conspiracy convictions.

The defense’s call for additional corroboration (e.g., a controlled buy) was rejected as non-essential given the already robust corroboration and the informant’s in-person appearance. Distinguishing Bell, Koerth, and Peck, the court underscored that the affidavit here presented both a developed basis for the informant’s reliability and multi-source corroboration.

2) Franks: What “Substantial Preliminary Showing” Requires

The panel clarified that courts need not automatically draw all inferences in the defendant’s favor at the threshold. Rather, the defense must present evidence that makes the inference of a deliberate or reckless falsehood or material omission reasonable, not merely conceivable. The district court’s isolated misstatement of a preponderance standard at the start of the pre‑Franks hearing did not control; its written order applied the correct rule. On substance, the defense’s theory that the informant was a downstairs neighbor lacking a line of sight was conjectural, did not contradict anything in the affidavit (which lacked a vantage specification), and, even if true, would not negate probable cause due to extensive corroboration.

3) Informant Identity: Tipster Versus Transactional Witness

Applying Roviaro and Harris, the court weighed the public interest in encouraging informants to report crime under assurances of anonymity against the defendants’ need. Because the informant was a tipster used to establish probable cause, and because the defense sought disclosure to collaterally attack the warrant rather than to mount a trial defense, the balance favored nondisclosure. The district court’s enforcement of that ruling during the pre‑Franks hearing was well within its discretion.

4) Sufficiency of the Evidence as to Fulwiley

Drugs (21 U.S.C. § 841): In a shared residence, the government established a “substantial connection” between Fulwiley and cocaine in the master suite associated with his personal effects, along with distribution quantities and paraphernalia throughout the unit. A rational juror could infer constructive possession.
Firearms (§§ 922(g), 924(c)): DNA on the grips of both ghost guns in a two-occupant apartment, combined with evidence of drug trafficking, supported constructive possession. The jury was not obliged to accept alternative innocent mechanisms for DNA transfer.
“In furtherance” (§ 924(c)): The guns were loaded, accessible (one under a living‑room ottoman cushion), illegal to possess for both occupants (felon status), and co-located with distribution quantities of cocaine, cash, scales, and cutting agents. Those facts established a specific nexus to the trafficking enterprise.

Impact

Franks motions: The opinion meaningfully clarifies the Seventh Circuit’s threshold. Defendants must marshal evidence that makes a Franks violation a reasonable inference; speculation will not do. District courts may consider plausibility and are not required to draw every inference in the defense’s favor at the preliminary stage.
Warrants based on neighbor-informants: Detailed, firsthand neighbor observations, coupled with multi-source corroboration and the informant’s personal appearance before the magistrate, will frequently sustain probable cause without more invasive corroboration such as controlled buys.
Informant anonymity: The decision strengthens the “mere tipster” protection where the informant played no role in the charged conduct and disclosure is sought only to suppress evidence. It also confirms trial judges’ authority to enforce nondisclosure rulings during pre‑Franks proceedings.
Use of social media and alias corroboration: Police corroboration through social media photos and biographical matching to law-enforcement records is validated as part of a totality analysis.
Constructive possession and DNA evidence: The case underscores that DNA on a firearm, considered with the context (limited occupants, trafficking paraphernalia), can support constructive possession even if the gun is not found on the defendant or in his exclusive space.
§ 924(c) “in furtherance” nexus: The Seventh Circuit reaffirmed that loaded, accessible guns situated in a distribution setting (especially untraceable “ghost guns”) are paradigmatic evidence of possession in furtherance.

Complex Concepts Simplified

Probable cause: Not proof beyond a reasonable doubt. It means there is a fair probability that evidence of a crime will be found in the place to be searched.
Informant credibility: Courts look at detail, firsthand knowledge, corroboration, timeliness, and whether the informant personally swore to facts before the judge.
Franks hearing: A mini-trial on whether the warrant affidavit contained deliberate or reckless falsehoods or omissions that mattered to probable cause. You must first make a substantial preliminary showing to get the hearing.
Mere tipster vs. transactional witness: A tipster provides information that leads to a warrant. A transactional witness participated in or saw the crime. Disclosure is far more likely required for the latter to ensure a fair defense.
Constructive possession: You can “possess” contraband without holding it if you know about it and have the power and intent to control it. In shared spaces, the government must link you to the contraband itself, not just to the address.
§ 924(c) “in furtherance”: The gun must advance or help the drug crime—e.g., being loaded and positioned for protection during deals, near drugs or proceeds, and illegal to possess.
Ghost guns: Firearms without serial numbers that are untraceable. Their use in drug trafficking supports the inference of a protective or evasive purpose.

Conclusion

United States v. Maxwell and Fulwiley is a comprehensive reaffirmation—and a clarification—of several core criminal procedure doctrines in the Seventh Circuit.

On warrants, it confirms that an informant’s detailed, firsthand neighbor account, suitably corroborated and presented in person to the magistrate, easily clears probable cause.
On Franks, it clarifies that the “substantial preliminary showing” requires evidence supporting a reasonable inference of a material, deliberate or reckless falsity or omission; speculation does not suffice, and courts may assess plausibility without drawing every inference for the defense.
On informant identity, it reinforces the protection of tipster anonymity where disclosure is sought only to attack a warrant and is not needed for trial defense.
On proof at trial, it demonstrates that DNA on firearms, residence linkages, and the trafficking context together can support constructive possession and the § 924(c) nexus.

Taken together, the opinion offers clear guidance to investigators (build layered corroboration and, where feasible, present informants to magistrates), to prosecutors (shore up affidavits with specific, firsthand detail and multi-source corroboration), and to defense counsel (Franks proffers must be anchored in concrete, material evidence). The court’s articulation of a “reasonable, not merely possible” threshold for Franks motions is the decision’s most significant doctrinal contribution and will shape suppression litigation in the Seventh Circuit going forward.