5 F.3d 1154 (8th Cir. 1993), 92-3904, United States v. Hyten

Docket Nº:92-3904.
Citation:5 F.3d 1154
Party Name:UNITED STATES of America, Appellee, v. Roy Gene HYTEN, Appellant.
Case Date:September 29, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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5 F.3d 1154 (8th Cir. 1993)

UNITED STATES of America, Appellee,

v.

Roy Gene HYTEN, Appellant.

No. 92-3904.

United States Court of Appeals, Eighth Circuit

September 29, 1993

Submitted May 11, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 7, 1993.

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Deborah Ellis, St. Paul, MN, argued, for appellant.

B. Todd Jones, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Roy Gene Hyten appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). 1 Hyten contends that the district court 2 erred by refusing to suppress evidence gathered pursuant to a defective warrant. We affirm.

I. BACKGROUND

Hyten's wife was the object of an extensive undercover narcotics investigation spanning nearly two months. The investigation centered on two addresses, one of which was Mrs. Hyten's home. Deputy Clapp of Hennepin County participated extensively in the investigation, engaging in surveillance and making controlled drug buys from Mrs. Hyten. In mid-January 1992, Deputy Clapp drafted an affidavit in preparation for obtaining warrants to search the two addresses. The affidavit related the information he had personally gathered during the investigation. Deputy Wold of Anoka County participated as a surveillance officer at one of the controlled buys, and was designated in the application for warrant as one of the officers who would execute the warrant. Deputy Clapp, Deputy Wold, and several other deputies went to Anoka County to procure the warrants. 3 Deputy Wold read Deputy Clapp's affidavit and discussed the investigation with Deputy Clapp. At the court house, Deputy Wold appeared before the judge with the affidavit and requested the warrants, while Deputy Clapp waited in the hall. 4 The judge noticed that Deputy Clapp, not Deputy Wold, was the named affiant and questioned Deputy Wold about the discrepancy. Deputy Wold pointed out that he was the executing officer. After examining the affidavit for approximately ten minutes, the judge directed Deputy Wold to take an oath and to sign the affidavit. The judge then issued the warrant, and the firearm underlying Hyten's conviction was found in the ensuing search.

II. DISCUSSION

Hyten bases his argument that the district court erred in denying his motion to suppress on two grounds. First, he asserts

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that the warrant was constitutionally defective on its face because the officer who took the oath affirming the...

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