U.S. v. Schmitz

• Decision Date: 21 October 1998
• Docket Number: No. 97-4149,97-4149
• Citation: 181 F.3d 981
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. LYNN F. SCHMITZ, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 981

181 F.3d 981 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. LYNN F. SCHMITZ, APPELLANT.

No. 97-4149

U.S. Court of Appeals, Eighth Circuit

Submitted: October 21, 1998

Decided June 25, 1999

Appeal from the United States District Court for the Northern District of Iowa

Before McMILLIAN, John R. Gibson and Hansen, Circuit Judges.

McMILLIAN, Circuit Judge.

Lynn F. Schmitz appeals from a final judgment entered in the United States District Court¹ for the Northern District of Iowa following his conditional plea of guilty to one count of unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Schmitz to ninety months imprisonment, three years of supervised release, and a special assessment of $100.00. United States v. Schmitz, No. 2: 96CR01011-001 (N. D. Iowa Nov. 20, 1997) (judgment). For reversal, Schmitz argues that the district court erred in denying his motion to suppress evidence because (1) the district court misapplied the legal standard set forth in Franks v. Delaware, 438 U.S. 154 (1978), in upholding the lawfulness of a search warrant and (2) the law enforcement officers who executed the search warrant exceeded the scope of the warrant in violation of his constitutional rights. See id. (July 11, 1997) (transcript of guilty plea hearing, including district court's oral order denying motion to suppress and statement of reasons) (copy in Addendum to Brief for Appellee at 13). For the reasons discussed below, we affirm.

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R. Crim. P. 4(b).

Background

On July 10, 1999, Schmitz was charged in a two-count indictment with possession of ammunition by a felon and forfeiture of the ammunition. On August 30, 1996, Schmitz moved to suppress evidence seized during the execution of a search warrant, which was obtained by law enforcement officers after Schmitz had declined a request for consent to search his home, was placed under arrest for aggravated domestic assault, and was taken to jail. In his suppression motion, Schmitz asserted that the affidavit supporting the search warrant application contained materially false information, which the affiant gave either intentionally and knowingly or with reckless disregard for the truth, thus requiring a hearing and suppression of evidence under Franks v. Delaware. Schmitz further asserted, as an alternative argument, that the officers used the warrant as a pretext for generalized rummaging through his home, thus exceeding the scope of their authorization and violating his Fourth Amendment rights. The government resisted Schmitz's motion to suppress, and the matter was referred to a magistrate Judge for a recommended Disposition. The magistrate Judge² held an evidentiary hearing. The affiant for the search warrant application, Deputy Sheriff Elaine Palen, among other law enforcement officers, testified for the government. Schmitz and his girlfriend, Micki Yeager, testified for the defense. The magistrate Judge thereafter issued a report and recommendation. United States v. Schmitz, No. 2: 96CR01011-001 (N. D. Iowa Nov. 7, 1996) (hereinafter "Report & Recommendation"). In his findings of fact, the magistrate Judge reviewed the events leading up to the controverted search of Schmitz's home and made the following findings. See id. at 2-8. On May 10, 1996, an application for a warrant to search Schmitz's residence was submitted to an Iowa state court Judge. Id. at 2. The warrant application contained Deputy Palen's affidavit, which stated:

"On the morning of May 10, 1996, at approximately 7: 15 a. m., this affiant was traveling on Roosevelt away from Peru Road; that as I approached 1030 Roosevelt, I observed a large black newer pickup truck in the driveway; that a young woman threw something at the pickup truck; that the driver looked over his shoulder directly at the woman who was behind the vehicle and drove at her; that she avoided him and threw something at the vehicle again; that she went to the front of the vehicle; that he then put the vehicle into a forward gear and drove at her again; that she was either struck or slipped into an approximately five foot deep ditch; that she came out of the ditch with mud on her clothes; that she was wearing a white top, white pants and white socks with no shoes; that the affiant not[ified] the Dubuque Police Department which responded; that they found Lynn Schmitz and Micky Yeager who resided at that residence and initially both denied any incident occurring; however, when the police returned, Mr. Schmitz admitted that he had been involved in a verbal argument with Ms. Yeager and had driven quickly backwards, but had not struck her or tried to strike her; that approximately 20 feet of fresh skid marks were evident in the driveway area; that Mr. Schmitz refused to give permission to police to search the residence for the clothes; that Ms. Yeager was wearing different clothes when police arrived according to what they told this affiant."

Id. at 2-3 (quoting affidavit of Elaine Palen) (copy of affidavit in Addendum to Brief for Appellee at 1). Based upon Palen's affidavit, the state court Judge issued a warrant authorizing the police to search for "a dirty white top, dirty white pants, and dirty white socks; these items should have mud on them." Id. at 2.

The magistrate Judge found, with respect to these early morning events of May 10, 1996, that "Elaine Palen... observed the truck precipitously stop and back up in Ms. Yeager's direction in [what] [Palen] believed to be a threatening manner," that "Deputy Palen again observed the truck driven in a threatening manner in [Yeager's] direction," that "Ms. Yeager went into the ditch and ultimately ran back to the house," and that "Deputy Palen observed that plaintiff's white clothes were soiled as a result." Id. at 3-4. In addition, the magistrate Judge found that Palen's 911 call to the police was placed only moments before another person anonymously called the police to report that "Lenny Schmitz" had attempted to run over his girlfriend on Roosevelt Road. Palen reported that the events occurred at approximately 7: 15 a. m., and the anonymous caller indicated that the events occurred at approximately 7: 17 a. m. Id. at 6.

Although the magistrate Judge found that Palen's testimony was "obviously inaccurate" with regard to some specific details, he nevertheless concluded:

"The court's criticism of Deputy Palen's testimony regarding some of the details of this incident does not undermine its confidence that Deputy Palen believed that she observed an assault in progress. She was not on duty, she had her young son in the car and this could explain some of her failure to recall details. She did not know Lynn Schmitz prior to this event and the defendant has suggested no motive for the alleged fabrication of her claim. The court does not believe it was fabricated and believes that the tape recorded call to the dispatcher from the anonymous caller provides strong, corroborative support for Ms. Palen's observations."

Id. at 6-7.

The magistrate Judge further found that, shortly after obtaining the search warrant, the police went to Schmitz's home, where they found Yeager, dressed in white pants and a black shirt. ³At the officer's request, she turned over the white pants. Id. at 7. After a period of searching, they found a pair of muddy white socks on the floor behind the door leading from the house to the garage. Id. The officers never found a muddied white shirt. Id. In the course of searching for the white shirt and socks, the police discovered marijuana in the pocket of a jacket inside a closet. Id. at 8. Based on that discovery, they obtained a second search warrant, the execution of which led to the discovery of a gun and ammunition. Id. ⁴

In his Conclusions of law, the magistrate Judge determined that the search warrant was valid notwithstanding Schmitz's claim that it was issued in violation of Franks v. Delaware. Id. at 10. The magistrate Judge also concluded that the officers' initial search did not exceed the scope of the first warrant. Id. at 10-11. The magistrate Judge recommended that Schmitz's motion to suppress be denied, and the district court adopted that recommendation. (Hereinafter the magistrate Judge's factual findings and legal Conclusions are attributed to the district court.) Schmitz thereafter entered a conditional plea⁵ of guilty to count one of the indictment, for being a felon in possession of ammunition, while reserving the right to withdraw his plea if he were to succeed in appealing the denial of his motion to suppress. Following his sentencing, Schmitz timely appealed.

Discussion

In reviewing the district court's denial of Schmitz's motion to suppress, our role is "to ensure that the evidence as a whole provides a substantial basis for finding probable cause for the issuance of the warrant." United States v. Buchanan, 167 F.3d 1207, 1209 (8th Cir. 1999) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984) (per curiam); United States v. Day, 949 F.2d 973, 977 (8th Cir. 1991)). We review the district court's findings of fact for clear error and its Conclusions of law based upon those facts de novo. See United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999) (quoting United States v. Glenn, 152 F.3d 1047, 1048 (8th Cir. 1998)); United States v. Buchanan, 167 F.3d at 1209.

Franks v. Delaware

Schmitz first argues that the district court applied an incorrect legal standard for affording relief under Franks v. Delaware and, as a consequence, erroneously denied his motion to suppress. Specifically, Schmitz argues:

"The gravamen of Appellant's argument is that the district court utilized the wrong legal test in its analysis. The court below characterized "the central question in ...