Sixth Circuit, United States v. Cook: what a court may weigh before granting a Franks hearing

What happened

On November 6, 2026, the U.S. Court of Appeals for the Sixth Circuit decided United States v. Cook, No. 25-3657, in a published opinion. The panel affirmed the conviction and 248-month sentence of Gerald M. Cook, Jr., who had pleaded guilty in the Northern District of Ohio to gun and drug charges after the district court refused him a Franks hearing to challenge the affidavit behind a search warrant for his home. Judge Thapar wrote the opinion of the court, joined by Judge Hermandorfer. Judge Karen Nelson Moore wrote a separate opinion concurring in part and concurring in the judgment.

What the opinion says

Under Franks v. Delaware (1978), a defendant may obtain an evidentiary hearing on a warrant affidavit by making a "substantial preliminary showing" that it contains a knowing, intentional or reckless falsehood, and that without the falsehood the affidavit could not establish probable cause. Cook argued that officers falsely swore that an officer watched him use his back door before and after two controlled drug buys, and falsely swore that the informant identified him from a photo as "JR."

The majority held that Cook "failed to make a substantial preliminary showing that the affidavit contained either asserted falsehood." It found that his photographs did not suggest falsity, and it relied in part on police reports showing that "an officer was, in fact, positioned on the golf course behind Cook's home during one of the controlled buys."

The court then addressed Cook's argument that the government may not point to material outside the affidavit at this stage. The opinion states: "So Cook's real argument is that defendants can point to materials outside the affidavit but the government can't. That's incorrect." It reasoned that the threshold showing is not an assessment of probable cause but "whether a defendant has made a substantial preliminary showing of an intentional or reckless falsehood," and concluded that "judges should have the whole picture before them in order to see whether an evidentiary hearing is appropriate." The majority distinguished the Seventh Circuit's decision in United States v. McMurtrey (2013) on the ground that the evidence here "wasn't new, nor was it live testimony without cross-examination," but police reports filed years earlier.

The court declined to decide Cook's ineffective-assistance-of-counsel claim on direct appeal because the record did not show why his earlier lawyers did not bring the motion. It also held that his below-Guidelines sentence was neither procedurally nor substantively unreasonable, upholding the denial of an acceptance-of-responsibility reduction.

The other side

Judge Moore joined the parts of the opinion on the ineffective-assistance claim and the sentence, but would not have reached the falsity question. She wrote that under Franks, where "there remains sufficient content in the warrant affidavit to support a finding of probable cause" after the challenged statements are removed, "it is unnecessary to resolve whether the appellant made a substantial preliminary show as to falsity."

Setting aside the challenged statements, she listed what the affidavit still contained, including the informant's description of "JR," his car and his home, officers' identification of Cook and his record, and two monitored controlled purchases in the driveway. She concluded: "Under our precedents, this is sufficient to establish probable cause," so "it is also unnecessary to consider whether the district court erred by relying on the proffered police reports."

Where it sits in the record

Franks v. Delaware, 438 U.S. 154 (1978), held that when a defendant makes the required preliminary showing and the challenged statement "is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." The Sixth Circuit's opinion addresses what evidence a district court may consider when deciding whether that threshold is met. The opinion and the concurrence each cite United States v. Jones, 159 F.3d 969 (6th Cir. 1998), on probable cause based on controlled purchases at a residence.