U.S. v. House

• Decision Date: 24 September 1979
• Docket Number: No. 79-1001,79-1001
• Citation: 604 F.2d 1135
• Parties: UNITED STATES of America, Appellee, v. Robert Lee HOUSE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1135

604 F.2d 1135

UNITED STATES of America, Appellee, v. Robert Lee HOUSE, Appellant.

No. 79-1001.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1979.

Decided Aug. 31, 1979.

Rehearing and Rehearing En Banc Denied Sept. 24, 1979.

Rehearing and Rehearing En Banc Denied Sept 24, 1979.

Randall Tigue, Minneapolis, Minn., for appellant.

Ann Montgomery, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., and Louis Zupancic, Legal Intern, Minneapolis, Minn., on the brief.

Before GIBSON, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Robert Lee House appeals from a judgment entered in the district court ¹ upon a jury verdict finding him guilty of two counts of possession of controlled substances, methamphetamine and cocaine, and two counts of possession with intent to distribute. 21 U.S.C. §§ 841(a)(1), 844. Appellant was sentenced to a total of four years imprisonment, plus a special parole term of three years, and a fine of $3,000. For reversal appellant argues that the trial court erred (1) in refusing to require disclosure by the government of the identity of an informant and (2) in failing to suppress items seized during the execution of two search warrants. For the reasons discussed below, we affirm the judgment of the district court.

Appellant was indicted ² on August 14, 1978, and charged with four violations of federal narcotics laws: Count I, possession with intent to distribute methamphetamine; Count II, possession with intent to distribute cocaine; Count III, possession of cocaine; and Count IV, possession of methamphetamine. The indictment was based upon evidence seized during the execution of two search warrants issued by state court judges. The lawfulness of the search warrants is the basis of this appeal; appellant has not challenged the sufficiency of the evidence. The first warrant authorized a search of appellant's apartment ³ in Minneapolis on July 28, 1978; the second authorized the search of a green 1970 Cadillac, Minnesota license plate ADB-260, allegedly owned by appellant, on July 29, 1978.

Both search warrants were issued on the basis of applications and affidavits by Minneapolis police officer Ronald A. Johnson. In both applications Officer Johnson relied upon information supplied by an informant. The information in the affidavits for both warrants is substantially the same. Officer Johnson stated that he had received certain information from a reliable informant, "who has proven to be reliable over the past five years by providing . . . information leading to at least five different felony arrests and convictions," and who "within the past seventy-two hours had been in appellant's apartment and) observed a large quantity of cocaine and amphetimin (sic) in the possession of Robert House who is offering the drugs for sale." The informant had also seen a gram scale in appellant's bedroom. The second affidavit differed in that the informant further stated that House was living with a woman he did not trust and for that reason "would probably take his bag of drugs with him, when he leaves his residence . . .." The second affidavit also included information about items seized during the execution of the search warrant for the apartment, including various drugs, gram scales, and a photograph of a 1970 Cadillac allegedly owned by appellant; information from the informant that appellant owned four cars, including a 1970 Cadillac; that drugs, money and car keys had been seized from appellant; and police observation of the cars.

The execution of the search warrant for the apartment was productive but uneventful. Officer Johnson knocked on the apartment door, was admitted by Ms. Bennett, advised Ms. Bennett of the issuance of the search warrant and showed it to her, and then began a systematic search of the apartment. The search disclosed a Samsonite overnight bag containing drugs and drug paraphernalia, a black leather jacket also containing drugs, a gram scale, a gun and a "cutting" mirror (Counts I and II). Appellant arrived at the apartment less than an hour after the search began, was placed under arrest and read the "Miranda" warnings, and was searched. The police found $3,108 in appellant's wallet, car keys and a small bottle of cocaine concealed in appellant's sock (Count III). The police then sought the second search warrant for the 1970 green Cadillac allegedly owned by appellant. The search of the 1970 Cadillac revealed ownership papers in the name of Robert House in the glove compartment and several grams of methamphetamine in a tape cassette case (Count IV). The third occupant of the apartment, Michael Fritz, ⁴ also arrived at the apartment after the search was in progress; Fritz was placed under arrest and searched. Police officers seized two marijuana cigarettes and approximately $350 from Fritz.

Appellant first argues that the trial court erred in refusing to require disclosure by the government of the identity of the informant. Appellant argues that disclosure of the identity of the informant should have been required because a genuine question of fact had been raised: whether Officer Johnson intentionally or recklessly misrepresented the informant's existence or knowledge in the affidavits for the search warrants. As the basis for appellant's challenge of the affidavits, See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), appellant stresses that every person who was present in the apartment within seventy-two hours of July 28, 1978, signed an affidavit under oath denying having provided Officer Johnson with any information. Thus, appellant argues, this intentional or reckless misrepresentation of the existence of an informant justifies the suppression of any evidence seized under the authority of the search warrant.

We note initially that the Supreme Court in Franks v. Delaware reserved the question whether a reviewing court must ever require the disclosure of the identity of an informant once a substantial preliminary showing of falsity has been made. 438 U.S. at 170, 98 S.Ct. 2674; But see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971), On remand, 477 F.2d 31 (per curiam), Cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn.1972); State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976) (en banc). The Supreme Court in Franks v. Delaware permitted defendants to challenge the veracity of the warrant affidavit, in effect, to "go behind" the affidavit, and held that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the defendant's request.

438 U.S. at 155, 98 S.Ct. at 2676-2677. The search warrant is invalid and the fruits of the search excluded only if the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence and, with the affidavit's false material set to one side, the affidavit's remaining material is insufficient to establish probable cause. ⁵ Id. at 156, 98 S.Ct. 2674; Cf. United States v. Hole, 564 F.2d 298, 301 (9th Cir. 1977) (intentional government misrepresentation in warrant affidavit will invalidate warrant whether material or not; reckless misrepresentation, if immaterial, will not); United States v. Lee, 540 F.2d 1205, 1208-09 (4th Cir.), Cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976) (discussion of relative merits of positions adopted by various circuits); United States v. Rosenbarger, 536 F.2d 715, 720 (6th Cir. 1976), Cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Belculfine, 508 F.2d 58, 61-62 (1st Cir. 1974) (dicta); United States v. Marihart, 492 F.2d 897, 899-900 (8th Cir.), Cert. denied, 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974); United States v. Carmichael, 489 F.2d 983, 987-90 (7th Cir. 1973) (en banc) (leading case); United States v. Baynes, 400 F.Supp. 285, 296-97 & n.20 (E.D.Pa.1975); But cf. United States v. Thomas, 489 F.2d 664, 669 (5th Cir. 1973), Cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975) (material misrepresentation will invalidate warrant); United States v. Harwood, 470 F.2d 322, 325 (10th Cir. 1972); See also Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971).

Assuming for the purpose of discussion that appellant made a substantial preliminary showing of intentional falsity or reckless disregard for the truth which was necessary to the finding of probable cause by offering the affidavits of the visitors to the apartment, we conclude that appellant failed to establish his allegation of perjury or reckless disregard by a preponderance of the evidence. At the hearing before the magistrate judge ⁶ on the motions for disclosure and suppression of evidence, appellant offered the seventeen affidavits. The government produced the affiant, Officer Johnson, who testified about his conversation with the informant, applying for the search warrants and the execution of the warrants, and Minneapolis police officer Ralph Hitchens, who testified that he had seen and overheard Officer Johnson talking with the informant about the House information after the execution of the search warrants. The magistrate interpreted appellant to be challenging primarily the existence of the informant rather than his identity per se. The magistrate denied the motion for disclosure and the motion to suppress in part. ⁷ The trial court affirmed the magistrate's order in all respects. United States v. House, Crim. No. 4-78-83 (D.Minn....