U.S. v. Allen

Decision Date31 July 2002
Docket NumberNo. 01-3951.,01-3951.
PartiesUNITED STATES of America, Appellee, v. Richard Allen ALLEN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

James Whalen, Federal Public Defender, argued, Des Moines, IA, for appellant.

Debra L. Scorpiniti, Asst. U.S. Atty., argued, Des Moines, IA, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Richard Allen Allen appeals from his conviction on seven counts of various crimes stemming from a conspiracy to manufacture methamphetamine. He contends that the district court1 erred in not suppressing evidence seized in a search of his home, garage, and car; that the district court improperly admitted as evidence receipts found in his home; and that the evidence was insufficient to support his conviction for creating a substantial risk of harm to human life while manufacturing methamphetamine. We affirm.

I.

At approximately 3 a.m. on November 3, 2000, a Southeast Iowa Drug Task Force officer and a Wapello County Deputy Sheriff pulled over a car driven by Robert Craycraft. Craycraft consented to a search of the vehicle, and the officers found evidence that would indicate Craycraft was involved in manufacturing methamphetamine. The officers told Craycraft that cooperating with them would probably help his situation, whereupon Craycraft told them about Allen. He said that he and Allen had driven to Oskaloosa, Iowa, the night before to purchase ephedrine/pseudoephedrine pills to use in making methamphetamine and that they had driven around the countryside looking for anhydrous ammonia to steal. He also said that Allen had approximately thirty lithium batteries and twenty soda cylinders in his possession or at his residence. Craycraft described Allen's house, told them the address, what cars were parked there, who owned the black van parked at the house, and that Allen was a felon. He also told the officers that Allen had said that he "isn't going down without taking someone with him" and that Allen carried a clip-fed pistol in his pants.

Later that day, Drug Task Force members obtained a "no-knock" search warrant for Allen's Ottumwa, Iowa, residence and outbuildings from an Iowa state magistrate. The affidavit supporting the warrant was based primarily on the information given by Craycraft, but it also included that the officers had verified some of the information, including the address and the owner of the black van. Members of the Drug Task Force executed the warrant and arrested Allen. They seized various items used in the lithium-ammonia reduction method of manufacturing methamphetamine, including plastic hoses and funnels, salt, carbon dioxide soda canisters, bottles of pseudoephedrine pills, a gram scale, a coffee grinder, coffee filters, starter fluid and punctured starter fluid cans, and lithium batteries. Several of these items contained methamphetamine, traces of methamphetamine, or other substances indicative of various stages of the methamphetamine manufacturing process.

The district court denied Allen's pretrial motion to suppress the evidence found in the search of his residence. At trial, the government introduced, over Allen's objection, Wal-Mart receipts along with the testimony of a law enforcement officer who testified that the bar codes on the receipts matched the bar codes for batteries the officer purchased at Wal-Mart. The jury convicted on seven counts of the eight-count indictment, and the district court imposed a 235-month sentence. Allen now appeals from the denial of his motion to suppress, the admission of the receipts, and his conviction for one count of creating a substantial risk of harm to human life while manufacturing methamphetamine.

II.

In reviewing a denial of a motion to suppress, we "examine the factual findings underlying the district court's denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated." United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000) (citation omitted). Probable cause for the issuance of a warrant exists if there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). On appeal, we will uphold a judicial determination of probable cause if we believe that there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. Id. at 236, 103 S.Ct. 2317.

Allen contends that the search warrant affidavit did not contain information sufficient to support a finding of probable cause. He argues that the information Craycraft provided did not connect his home to methamphetamine manufacturing. He also argues that because Craycraft had no history of reliability as an informant, the issuing magistrate should not have relied on the information he provided.

In determining whether probable cause exists, we do not evaluate each piece of information independently; rather, we consider all of the facts for their cumulative meaning. United States v. Morales, 923 F.2d 621, 623-24 (8th Cir.1991). Taken together, we believe the information contained in the search warrant affidavit created a fair probability that law enforcement officers would discover further evidence of illegal drug activity at Allen's residence. The facts that Allen had twenty soda cylinders and thirty lithium batteries in his possession and that he had spent the night with Craycraft buying ephedrine/pseudoephedrine pills and looking for anhydrous ammonia establish probable cause to believe that Allen had methamphetamine manufacturing equipment and ingredients at his residence. The fact that possessing the soda cylinders and batteries is legal does not require reversal because innocent behavior can provide the basis for establishing the existence of probable cause. United States v. Nation, 243 F.3d 467, 470 (8th Cir.2001) (citing Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317). As to Craycraft's credibility, even though he had no record as an informant, the information he provided was sufficiently credible both because his statements were against his penal interest and because the police were able to corroborate some of the information he provided. See United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir.2001) (corroboration of minor, innocent details can support probable cause; informant made statements against penal interest after being caught with drugs by police); United States v. Reivich, 793 F.2d 957, 959-60 (8th Cir.1986) (same); cf. United States v. Gibson, 928 F.2d 250, 253 (8th Cir.1991) (no probable cause where police only corroborated innocent details provided by anonymous caller). Thus, the search warrant affidavit provided information sufficient to support a finding of probable cause.

III.

A facially sufficient affidavit, however, may be challenged on the ground that it includes deliberate or reckless falsehood. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Allen contends that the affidavit violated Franks because it omitted that Craycraft had a felony criminal record, that the officers had promised Craycraft leniency in return for his assistance, and that Craycraft was under the influence of methamphetamine at the time he provided the information. To prevail on a Franks claim based on omissions of fact, Allen must prove first that facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading, and, second, that the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.2001).

Allen first contends that the affiant misled the issuing magistrate by failing to include Craycraft's criminal history in the search warrant affidavit. Craycraft had three prior felony convictions, two for second degree burglary and one for delivery of a controlled substance. The affiant testified at the suppression hearing that he knew Craycraft had a criminal history, although he did not know its exact nature. Thus, the record does not clearly show that the omissions were either intentionally or recklessly misleading. Even assuming they were, however, Allen cannot satisfy the second step of the Franks test, because, as the district court stated, Craycraft's criminal history "does not add much" to the affidavit. The affidavit informed the magistrate that Craycraft had admitted to using methamphetamine and purchasing ingredients for manufacturing methamphetamine and was in possession of equipment that could be used for manufacturing...

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