United States v. Johnny Neal ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1941
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Johnny William Neal, *
*
Appellant. *
___________
Submitted: January 15, 2008
Filed: June 16, 2008
___________
Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,1 District Judge.
___________
WOLLMAN, Circuit Judge.
Johnny William Neal entered a conditional guilty plea to one count of
possession with intent to distribute more than five grams of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). In his plea, Neal reserved the
right to appeal the district court’s2 denial of his motion to suppress. Because Neal has
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa, sitting by designation.
2
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
not made a sufficient showing under Franks v. Delaware, 438 U.S. 154 (1978), we
affirm.
I. Background
On May 2, 2005, two confidential informants went to Neal’s residence for the
purpose of conducting a controlled buy of marijuana from Neal. One of the
informants followed Neal into his bedroom and purchased marijuana. The informant
later testified that while in Neal’s bedroom she observed stacks of firearms and a gun
safe. A second controlled buy was arranged on May 25, 2005, in an attempt to
purchase methamphetamine from Neal. This time, the other confidential informant
went into Neal’s bedroom to make the purchase. No purchase was made, however,
because law enforcement officers listening to the informant’s body wire believed that
she was in distress and proceeded to Neal’s residence, where they waited outside
while both informants left the residence. Later that evening, law enforcement officers
faxed to a state judge an affidavit in support of a warrant to arrest Neal for distribution
of marijuana. The judge signed the affidavit and faxed it back, but did not issue an
arrest warrant. Sometime after 10:00 p.m., the officers arrived at Neal’s residence,
made a forced entry, and arrested Neal in the living room. One of the arresting officers
testified that after Neal was arrested, the officer looked into the adjacent bedroom and
believed that he observed a rifle therein.
Thereafter, local law enforcement contacted Wade Vittitow, a Special Agent
with the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms,
and Explosives, to initiate an investigation of Neal’s possible possession of firearms
in violation of 18 U.S.C. § 922(g)(9). On June 28, 2005, Vittitow submitted to a
magistrate judge3 an affidavit in support of a search warrant for firearms, ammunition,
3
The Honorable Beverly Stites Jones, United States Magistrate Judge for the
Western District of Arkansas.
-2-
and related items in Neal’s residence. The information in the affidavit that related to
firearms was the observation by two officers of “numerous rifles” in the master
bedroom when Neal was arrested on May 25, 2005, and the confidential informant’s
observation of firearms in Neal’s residence.
The search warrant was issued on June 28, 2005, and was executed the
following day. The search uncovered numerous firearms, cans of ammunition, and
money located in Neal’s bedroom and gun safe. Law enforcement also discovered
within the gun safe film canisters that contained a substance suspected to be
methamphetamine. The search was put on hold until local law enforcement officers
were able to obtain a search warrant for narcotics.
A federal grand jury indicted Neal on charges of possession with intent to
distribute more than five grams of methamphetamine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B)(viii), and possession of a firearm that was transported in
interstate commerce and from which the serial number had been removed in violation
of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Neal filed a motion to suppress all evidence
obtained during the June 29, 2005, search, contending that the search was
unreasonable under the Fourth Amendment of the United States Constitution and
article 2, section 15 of the Arkansas Constitution. Neal also asserted that the search
violated Franks v. Delaware, 438 U.S. 154 (1978), because the officers intentionally,
knowingly, or with reckless disregard for the truth, omitted material information and
included false statements in the affidavit in support of the search warrant. Although
the district court questioned whether Neal’s motion was sufficient to raise Franks
issues, it granted a hearing on those issues, following which, the district court denied
the motion to suppress.
-3-
II. Analysis
“On appeal from a denial of a motion to suppress, we review for clear error the
factual findings of the district court and we review de novo the legal determination
that the Fourth Amendment was not violated.” United States v. Robinson, 455 F.3d
832, 834 (8th Cir. 2006). We affirm unless “the decision is unsupported by
substantial evidence, is based on an erroneous view of the applicable law, or in light
of the entire record, we are left with a firm and definite conviction that a mistake has
been made.” United States v. Ramos-Caraballo, 375 F.3d 797, 800 (8th Cir. 2004)
(internal quotation omitted).
Neal argues that his motion to suppress should have been granted because the
affidavit submitted in support of the search warrant contained false information and
omitted information pertinent to a probable cause determination. In Franks, the
Supreme Court held that a search warrant must be voided and the fruits of the search
suppressed if a defendant proves by a preponderance of the evidence that (1) a law
enforcement officer knowingly and intentionally, or with reckless disregard for the
truth, included a false statement in the warrant affidavit, and (2) without the false
statement, the affidavit would not have established probable cause. 438 U.S. at 155-
56; United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008). This rationale also
applies to information that the affiant deliberately or with reckless disregard for the
truth omits from the affidavit such that the affidavit is misleading and insufficient to
establish probable cause had the omitted information been included. United States v.
Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993) (citing United States v. Reivich, 793 F.2d
957, 960 (8th Cir. 1986)). To show reckless disregard for the truth, we do not look
simply at whether a statement included in the affidavit was true; rather, we ask
whether, when looking at all the evidence available to the officer, the officer “must
have entertained serious doubts as to the truth of his [or her] statements or had
obvious reasons to doubt the accuracy of the information he [or she] reported.”
United States v. Schmitz, 181 F.3d 981, 986-87 (8th Cir. 1999) (alterations in original)
-4-
(quoting United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir. 1995)). An affidavit
submitted in support of a warrant carries a presumption of validity. Franks, 438 U.S.
at 171. A showing of negligence or innocent mistake is not enough to establish a
Franks violation. Id.; Snyder, 511 F.3d at 816. Nevertheless, an officer may not
circumvent the Franks doctrine by providing only selective information to another
officer who is unaware of the full information and therefore includes false information
or omits material information from an affidavit in support of a warrant. See United
States v. Davis, 471 F.3d 938, 947 n.6 (8th Cir. 2006) (citing Franks, 438 U.S. at 164
n.6); Jacobs, 986 F.2d at 1235; see also Illinois v. Andreas, 463 U.S. 765, 772 n.5
(1983) (“where law enforcement authorities are cooperating in an investigation, as
here, the knowledge of one is presumed shared by all”). Thus, we must look at the
actions of Vittitow, as the affiant, as well as the actions of the local law enforcement
officers who provided information for Vittitow to include in the affidavit.
Vittitow’s affidavit stated that local law enforcement officers had an arrest
warrant for Neal when they entered Neal’s residence on May 25 and observed
firearms in his bedroom. It is now undisputed, however, that no arrest warrant was
ever issued, a fact that was not made known to Vittitow until after the federal search
warrant was executed. Accordingly, although the affidavit unquestionably included
false information, there is no evidence that the officers involved in the investigation
acted intentionally, deliberately, or with reckless disregard for the truth when they
caused the false statement to be included in the affidavit. It is undisputed that there
was probable cause to arrest Neal. Additionally, one of the arresting officers testified
that the signed affidavit was in his possession during the May 25 arrest and that he
believed a valid arrest warrant existed. Before submitting the affidavit, Vittitow spoke
with the two local law enforcement officers who were investigating Neal and was
informed that a valid arrest warrant existed for Neal’s arrest. See United States v.
Jones, 471 F.3d 868, 874 (8th Cir. 2006) (when an affiant receives information from
another detective, the other detective is considered a reliable informant). Thus, there
-5-
is no evidence that any of the officers were intentionally trying to mislead the
magistrate judge or that they were acting with reckless disregard for the truth.
Neal further asserts that the affidavit omitted material information that would
have affected the magistrate judge’s determination of whether probable cause existed.
As indicated above, omitting material information from an affidavit can form the basis
of a Franks violation. Snyder, 511 F.3d at 816; Reivich, 793 F.2d at 960. Neal points
to the fact that the affidavit did not indicate that Neal’s arrest on May 25 took place
in his residence, late at night, and after a forced entry. Whatever the circumstances
surrounding Neal’s arrest, the inclusion of these details in the affidavit would not have
eliminated the existence of probable cause. So also with respect to Neal’s argument
that the affidavit was misleading because it discussed only one confidential informant
who allegedly made all the observations of firearms in Neal’s bedroom, when in
actuality there were two informants who were in Neal’s bedroom at different times,
for we consider this to be at most an immaterial discrepancy. See United States v.
Brown, 461 F.3d 1062, 1073 (8th Cir. 2006) (noting a difference between
discrepancies in the affidavit and misrepresentations or omissions). Thus, we
conclude that any omissions from or minor discrepancies within the affidavit do not
amount to a Franks violation.
Neal also argues that the affidavit falsely stated that the confidential informant
who claimed to have observed firearms in Neal’s residence was a proven, reliable
informant. Information from a confidential informant is reliable if the informant has
a history of supplying reliable information or if the information provided by the
informant is independently corroborated. United States v. Williams, 10 F.3d 590, 593
(8th Cir. 1993). Certain of the law enforcement officers acknowledged that the
confidential informants in question had not assisted the government in any prior cases
and therefore did not have a track record of supplying reliable information.
Nevertheless, the confidential informant mentioned in the affidavit had successfully
completed one controlled buy from Neal and she reported her first-hand observation
-6-
of firearms in Neal’s residence. See United States v. Warford, 439 F.3d 836, 842 (8th
Cir. 2006) (“[T]here is an inherent indicia of reliability in the richness and detail of
a first hand observation.” (alteration in original) (internal quotation omitted)).
Additionally, Vittitow was able to assess the credibility of both confidential
informants when he interviewed them in person. See United States v. Bell, 480 F.3d
860, 863 (8th Cir. 2007) (informant’s reliability and credibility is strengthened if the
informant meets with the officer in person and is willing to provide his or her own
personal information). Thus, we are satisfied that the information provided by the
informants was sufficiently reliable to support a finding of probable cause for the
search.
Because Neal has failed to prove by a preponderance of the evidence that false
information was included in the affidavit intentionally, knowingly, or with reckless
disregard for the truth, we need not reach the issue of whether the affidavit established
probable cause without the false information.
Neal further asserts that the information contained in the affidavit was stale.
Information that someone is suspected of possessing firearms illegally is not stale,
even several months later, because individuals who possess firearms tend to keep them
for long periods of time. United States v. Kennedy, 427 F.3d 1136, 1142 n.5 (8th Cir.
2005). The affidavit stated that a confidential informant observed firearms in Neal’s
residence on several occasions and that officers observed firearms in Neal’s residence
on May 25, 2005, only one month prior to the request for a search warrant. This
information created a reasonable probability that there were firearms in Neal’s
residence when the warrant was issued. Thus, the information was not stale.
Neal’s final argument is that the officers who conducted the search on June 29,
2005, exceeded the scope of the search warrant because they looked inside film
canisters that contained methamphetamine. “A lawful search extends to all areas and
containers in which the object of the search may be found.” Schmitz, 181 F.3d at 988
-7-
(internal quotation omitted). The search warrant for Neal’s residence authorized
officers to search for firearms, ammunition, items pertaining to firearms or
ammunition, receipts reflecting the sale or purchase of firearms or ammunition, and
related items. Because the film canisters were located in the gun safe along with
firearms, ammunition, and money, and because the canisters may have contained
ammunition, money, receipts, or related items, it was not unreasonable for the officers
to open them. Upon opening the canisters and inadvertently discovering what
immediately appeared to be methamphetamine, the officers halted the search and
waited for state law enforcement officers to obtain a search warrant for narcotics.
Thus, the officers did not exceed the scope of the search warrant.
The judgment is affirmed.
______________________________
-8-