U.S. v. Edmiston

• Decision Date: 30 January 1995
• Docket Number: No. 94-3294,94-3294
• Citation: 46 F.3d 786
• Parties: UNITED STATES of America, Appellee, v. James D. EDMISTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 786

46 F.3d 786

UNITED STATES of America, Appellee, v. James D. EDMISTON, Appellant.

No. 94-3294.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1995.

Decided Jan. 30, 1995.

Paul Herschel Rosenberg, Des Moines, IA, argued, for appellant.

Edwin F. Kelly, Asst. U.S. Atty., argued (Stephen Patrick O'Meara, Asst. U.S. Atty., on the brief), for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

James D. Edmiston entered a conditional plea of guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) (1988), preserving his right to challenge the order of the District Court ¹ denying his motion to suppress evidence. Edmiston timely appeals his conviction, and we affirm.

This case begins with what we suspect, and hope, is a rare event in Iowa: the aerial bombing of a small business. On the morning of Sunday, February 14, 1993, an airplane flew over the C & C Motorcycle Shop near Russell, Iowa. An explosive device dropped from the plane detonated on the showroom floor, causing substantial damage. Witnesses described the plane as a light-colored single-engine aircraft with dark stripes, wings attached high on the fuselage, and tricycle-style landing gear. Two witnesses identified photographs of a Cessna 172 as the airplane they saw flying over the motorcycle shop. Additionally, a witness stated that a similar plane made a low pass near the store on a prior Sunday, either January 24 or 31, 1993.

The aerial bombers apparently talked about their exploits with others. Within a week of the bombing, the story was circulating at area bars. Chris Van Vleet, a special agent of the Bureau of Alcohol, Tobacco, and Firearms, made contact with a confidential informant who stated that the person responsible for the bombing was named Kirk, a carpet layer at Roberts & Williams Carpet Country in Des Moines who lived in Perry or Dawson, Iowa. The informant also reported that a friend of Kirk's flew the plane and that the motive for the bombing was a bad business experience Kirk had had at the motorcycle shop. Special Agent Van Vleet, through independent investigation, found an individual named Kirk Thielen residing in Perry and working as a carpet layer at Roberts & Williams. Van Vleet also contacted Robert Chip, the owner of the motorcycle shop, and verified that he had done business with Thielen and that the two had a business disagreement in January 1993.

A second confidential informant reported that he had heard from Kurt Whiton, a patron of a Perry bar frequented by Thielen, that Thielen was responsible for the bombing and that Edmiston was the pilot of the airplane. The informant also stated that Thielen and Edmiston lived in Perry and that Thielen was employed as a carpet layer.

Through further investigation, Van Vleet verified that Edmiston was a licensed pilot residing in Perry at the time of the bombing. He also obtained evidence showing that, during the relevant time of day on both January 24 and February 14, 1993, Edmiston had rented a Cessna 172, which had the same characteristics described by witnesses to the bombing, from Hap's Air Service in Ames, Iowa. Hap's Air Service also confirmed that the plane had pilot and passenger windows from which items (such as a bomb) could be dropped. Van Vleet contacted an inspector with the Federal Aviation Administration, Larry L. Arenholz, who stated that the time necessary for a flight from Ames to Russell and back was consistent with Edmiston's rental time shown on the January 24 and February 14 records from Hap's Air Service. Arenholz advised Van Vleet that pilots are required to maintain certain records for the FAA and that these records are ordinarily kept by pilots in their log book. Because such records must be produced to the FAA on demand, pilots generally keep them in a safe but accessible place. Van Vleet further learned that Edmiston had moved to Phoenix, Arizona.

Believing it likely that Edmiston would keep his log book at his residence, Van Vleet applied to the United States District Court for the District of Arizona for a warrant to search Edmiston's apartment in Phoenix. Relying on Van Vleet's affidavit, which recited all of the information described above, a magistrate judge ² issued the warrant on October 6, 1993. Van Vleet executed the warrant on the same day and recovered, among other things, a pistol. Edmiston, having been convicted of a felony within the meaning of 18 U.S.C. Sec. 922(g)(1) (1988) prior to the discovery of the pistol, was indicted as a felon in possession of a firearm. ³ Edmiston moved to suppress the evidence obtained during the search of his apartment on the ground that the search warrant was not supported by probable cause. The District Court denied the motion, and Edmiston entered his conditional plea of guilty. He has been sentenced to thirty-three months in prison to be followed by a two-year term of supervised release.

We review for clear error a district court's decision not to suppress evidence obtained during the execution of a search warrant. United States v. Barr, 32 F.3d 1320, 1322 (8th Cir.1994). We will not disturb that decision unless it is "unsupported by the evidence, based on an erroneous view of the applicable law or we are left with a firm conviction that a mistake has been made." Id. (internal quotation marks omitted). Reviewing courts must give substantial deference to the original determination of probable cause made by the judge who issued the warrant, and that determination will not be set aside unless the issuing judge lacked a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also United States v....