U.S. v. Flagg
| Decision Date | 23 November 1990 |
| Docket Number | No. 90-1689,90-1689 |
| Parties | UNITED STATES of America, Appellee, v. Parnell Robert FLAGG, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Don Nickerson, Des Moines, Iowa, for appellant.
Lester A. Paff, Des Moines, Iowa, for appellee.
Before LAY, Chief Judge, FAGG, Circuit Judge, and LARSON, * Senior District Judge.
Parnell Robert Flagg was convicted of being a felon in possession of a firearm (18 U.S.C. Sec. 922(g)(1) (1989) and 18 U.S.C. Sec. 924(a)(2) (1989)), conspiring to distribute a controlled substance (21 U.S.C. Sec. 841(a)(1) (1989)), possessing with intent to deliver a controlled substance (21 U.S.C. Secs. 841(a), (b)(1)(A)(iii) (1989) and 18 U.S.C. Sec. 2 (1989)), and using a firearm in relation to drug trafficking (18 U.S.C. Sec. 924(c)(1) (1989)). He was sentenced to 300 months imprisonment. He appeals from the district court's 1 order denying his motion to suppress evidence that was seized from his apartment pursuant to a search warrant on the ground that the search warrant application contained deliberate or reckless omissions or misstatements. We affirm.
On November 14, 1989, Des Moines police obtained a search warrant authorizing them to search Flagg's apartment. They obtained the warrant after a confidential informant allegedly purchased narcotics from Flagg at his apartment. In executing the warrant, the officers used lawful force to enter the apartment. While inside the apartment, the officers observed in plain view plastic baggies that appeared to contain cocaine base, a dish that contained a white powder substance, a bag containing $301.00 in cash, and a pager. The officers then searched the apartment and discovered numerous weapons. Flagg and three other individuals were present at the time the apartment was searched.
Flagg was arrested and charged with conspiring to distribute cocaine base, possessing with intent to distribute cocaine base, possessing a firearm during a drug trafficking crime, and possessing a firearm as a convicted felon. He subsequently filed a motion to suppress the evidence seized from his home, alleging that the officers intentionally or recklessly failed to include in the search warrant application information indicating that the informant had a long history of drug addiction, moral turpitude and dishonesty and that the informant faced prosecution by state authorities at the time of the alleged drug purchases. Flagg also requested the court to conduct an in camera inspection of the police department file to determine whether the search warrant application was premised on intentional or reckless omissions. After the district court held a suppression hearing, it denied Flagg's motion to suppress and his request for an in camera inspection of the police department file.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court recognized that an affidavit supporting a search warrant is presumptively valid. The Court held that the Fourth Amendment requires an evidentiary hearing if the party challenging a search warrant makes an offer of proof that the affiant in the warrant affidavit deliberately or recklessly included false statements. Id. at 171, 98 S.Ct. at 2684. The Franks Court also stated that a hearing is required if the challenged statements in the affidavit are necessary to a finding of probable cause. Id. Based on Franks, this court held in United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986), that an individual may challenge a facially insufficient affidavit on the ground that it contains deliberate or reckless falsehoods or deliberate omissions. To prevail, however, the challenger must show "(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause." Id. at 961. Omissions of facts are not misrepresentations unless they cast doubt on the existence of probable cause. United States v. Parker, 836 F.2d 1080, 1083 (8th Cir.1987).
Flagg argues the district court should have granted his request for an in camera review of the pertinent police department file under Franks. He asserts that...
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