U.S. v. Butler
| Decision Date | 09 February 2010 |
| Docket Number | No. 09-1137.,09-1137. |
| Citation | 594 F.3d 955 |
| Parties | UNITED STATES of America, Appellee, v. Byron Darren BUTLER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before, COLLOTON, BENTON, Circuit Judges, and PIERSOL1, District Judge.
After being indicted for being a Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. § 922(g)(1), Defendant Byron Darren Butler moved to suppress all evidence obtained through a search and seizure conducted on September 12, 2007, by the Mid-Iowa Drug Task Force at a residence in which Defendant resided with a woman. The .40 caliber handgun which is the subject of the felon in possession of a firearm charge was discovered during this search. The motion to suppress was denied and Defendant proceeded to a jury trial in which he was convicted of the felon in possession of a firearm charge. Defendant was sentenced to a term of imprisonment of 63 months.
On appeal Defendant challenges the district court's denial of his motion to suppress and the denial of his motion in limine to exclude evidence at trial. Defendant also challenges the sufficiency of the evidence to support his conviction and whether the district court was justified in sentencing him to 63 months of imprisonment. We affirm the district court2 on all issues.
In September of 2007 there had been an ongoing investigation of Defendant by the Mid-Iowa Drug Task Force. On September 12, 2007, Officer David Powell from the Marshalltown, Iowa Police Department submitted an application for search warrant to search a house located at 107 South 5th Avenue which was possessed by Rachel Woodruff. The application asserted good reason and probable cause to believe that controlled substances, drug paraphernalia, drug related cash and documents, as well as firearms found in violation of Iowa law would be found at the home. The application specified Defendant, as well as any other person present and connected to drug activity at the house, as a person to be searched. In one paragraph in the two pages of specific information supporting the September 2007 application for the search warrant, mention is made of a 2004 search and seizure which resulted in Defendant being arrested for possession with intent to deliver marijuana. Although the search and seizure was ultimately suppressed and Defendant was never convicted for any offense related to the 2004 search and seizure, the September 2007 application does not advise of the same.
The September 2007 application states that on September 4, 2007, the Mid-Iowa Drug Task Force conducted a controlled buy using a confidential informant who went to the home of a Kenny Weston to buy crack cocaine. The application reports that the confidential informant advised the task force that Weston would probably leave on his bicycle to get the drugs from Defendant at an unknown location. Investigating officers then observed the confidential informant going into Weston's residence and leaving. The application reports that a short time later Weston was observed leaving on his bicycle and was followed to 107 South 5th Avenue where officers conducting surveillance "saw a subject consistent in appearance with [Defendant]." The application further states that Weston was then observed riding his bicycle back to his home. Although Weston left on a bicycle and was pulling a lawn mower behind him, the application makes no reference to the lawn mower. The application advises that Detective Powell met with the confidential informant who reported that Weston had sold crack cocaine to her.
A search warrant for the residence at 107 South 5th Avenue in Marshalltown, Iowa, was issued by a Magistrate of the Iowa District Court on September 12, 2007. Law enforcement officers on that date also executed a search warrant on an apartment linked to Defendant. No person, and only a small amount of furniture and personal items were found at this apartment. The officers also found in this apartment an energy bill in Defendant's name, approximately $90 under a mattress, what appeared to be residue of crack cocaine, and sandwich bags consistent with drug packaging.
While the search was conducted at the apartment, the search warrant in issue in this case was executed on the residence at 107 South 5th Avenue, a house owned by Defendant's girlfriend, Rachel Woodruff. Defendant and Rachel Woodruff were both in the home at the time the officers entered the house. At this residence a large quantity of marijuana, some scales and drug packaging were seized. Some of the marijuana was being dried in the bathtub and Rachel Woodruff was attempting to flush some of it down the toilet. Bags of marijuana were also found in the upstairs bathroom closet, and another was found under the bed in the master bedroom.
A search of the bed in the master bedroom led to the discovery of a .40 caliber handgun between the mattress and the box spring on the south side of the bed and bedroom. The gun was loaded and the magazine had to be removed from the gun. One of the detectives on the task force testified at trial that in his experience and training he has found that persons involved in illegal drug trafficking often keep guns to keep from being robbed and to protect themselves. The officers also seized from the house a video monitor attached by a cable to a video camera. The detective also testified that such video monitors were commonly found where drugs are being sold.
On the north side of the master bedroom at 107 South 5th Avenue was a closet with purses and other women's items. On the south side of the master bedroom were baseball caps and other men's clothing. In addition, Defendant's wallet was found on the south side of the bed. Other items found on the south side of the master bedroom were videotapes of Defendant and Rachel Woodruff as well as Defendant and a woman other than Rachel Woodruff in intimate situations. One of the Government's witnesses, Candace Klaas, testified that she had been a friend of Defendant and had received drugs from him. Klaas testified that although she had had sex with Defendant at his apartment she did not believe he lived at the apartment, and that Defendant had told her he lived with his girlfriend.
Defendant relies upon Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), in contending that the district court erred in denying his motion to suppress. The Supreme Court in Franks v. Delaware held that where a defendant makes a substantial preliminary showing that a false statement was knowingly and intentionally, or with the reckless disregard for the truth, included by an affiant in a search warrant affidavit, and if the allegedly false statement is necessary to a finding of probable cause, the Fourth Amendment requires that a hearing be held at defendant's request. The Supreme Court in Franks v. Delaware further held that if, after such an evidentiary hearing, the defendant establishes by a preponderance of evidence that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the search warrant affidavit, and, with the affidavit's false material set to one side, the remaining content of the affidavit is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 438 U.S. at 155-156, 98 S.Ct. 2674. The holding of Franks v. Delaware also applies to material that has been deliberately or recklessly omitted from a search-warrant affidavit. See United States. v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993). In the case at hand, the district court followed its practice of conducting a Franks evidentiary hearing and then determining after a record was made whether a Franks evidentiary hearing was warranted. The Government called and the Defense cross examined Officer Powell and another member of the task force and Defendant was given the opportunity to call witnesses at the hearing.
Defendant first contends that a Franks violation occurred because the supporting affidavit for the search warrant stated that Weston left on his bicycle to go to the house at 107 South 5th Avenue, but that the affidavit failed to state that Weston was pulling a lawnmower behind the bicycle. Defendant maintains that the delivery of a lawnmower is relevant in that the delivery of the lawnmower was a legitimate reason for Weston to travel to the house where Defendant was staying. Defendant next contends Patrol Office Powell recklessly stated that the controlled buy occurred on September 4, 2007, when the law enforcement reports state that the controlled buy occurred on either September 5 or 6, 2007. Defendant also complains about references in the affidavit to the 2004 investigation in which evidence was suppressed.
In reviewing a denial of a motion to suppress, we review the district court's factual determinations for clear error and its legal conclusions de novo. United States v. Clarke, 564 F.3d 949, 958 (8th Cir.2009). A showing of negligence or innocent mistake is not enough to establish a Franks violation. The test for determining whether an affiant's statements were made with reckless disregard for the truth is whether, after viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported. United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir.1995). A showing of deliberate or reckless falsehood is "not lightly met." United States v. Wajda, 810 F.2d 754, 759 (8th Cir.1987).
Officer Powell...
To continue reading
Request your trial
-
United States v. Vizcarra-Millan
... ... litany is prescribed in every case or that advice about any particular disadvantage of self-representation is essential; such a reading would put us at odds with the Supreme Court."). The key is that the accused must make the final choice, but only once he understands his alternatives ... ...
-
U.S. v. Vanover
...and reverse “only if no reasonable jury could have found [the Vanovers] guilty beyond a reasonable doubt.” United States v. Butler, 594 F.3d 955, 964 (8th Cir.2010). “[O]ur role is not to reweigh the evidence or to test the credibility of the witnesses,” because “ ‘[q]uestions of credibilit......
-
Alencastro-Mejia v. United States
...requires that a hearing be held at the defendant's request." Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Butler, 594 F.3d 955, 960 (8th Cir. 2010). The record indicates that there were no warrants issued in Alencastro-Mejia's case because he was arrested during the com......
-
Cole v. U.S.A
...corroborated by other evidence, or if the confidential informant has a history of providing reliable information. United States v. Butler, 594 F.3d 955, 962 (8th Cir. 2010). The Application For Search Warrant ("Application"), See Resistance, Ex.1, at 4, indicates that "Confidential Source #......