U.S. v. Jacobs
| Decision Date | 01 March 1993 |
| Docket Number | No. 92-2170,92-2170 |
| Citation | 986 F.2d 1231 |
| Parties | UNITED STATES of America, Appellee, v. Ronald Foster JACOBS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Clemens A. Erdahl, Iowa City, Iowa (argued), for appellant.
Clifford D. Wendel, Asst. U.S. Atty., Des Moines, Iowa, argued (Gene W. Shepard, U.S. Atty., and Ronald M. Kayser, Narcotics Prosecution Div., on the brief), for appellee.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
The defendant appeals from his conviction under 21 U.S.C. § 841(a)(1) for possession with intent to distribute cocaine. The basis for this conviction was laid when Iowa City Police Officer Michael Brotherton received a tip from a Phoenix, Arizona, police officer that a Federal Express package addressed to the defendant appeared to be suspicious. After obtaining a search warrant, a team of officers from the Johnson County Multi-jurisdictional Task Force (an Iowa drug-interdiction unit) opened the package at the Federal Express office in Iowa City. After finding that the package contained drugs, the officers resealed the package and delivered it to the defendant at his residence. Shortly thereafter, the officers executed a second search warrant at the residence and took the defendant into custody.
The defendant was charged with possession with intent to distribute cocaine, as well as several firearms offenses. At a pre-trial suppression hearing, and again during trial, the defendant attempted to exclude the evidence found in the Federal Express package and in his residence on the ground that it was the fruit of an illegal search. The District Court overruled the defendant's objection, and a jury found him guilty of the drug offense.
On appeal, the defendant raises several arguments challenging the search of the Federal Express package. Initially, he asserts that a canine sniff conducted at the Federal Express office violated his Fourth Amendment rights because the police did not have a reasonable, articulable suspicion that the package contained drugs. In addition, the defendant, relying upon Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claims that Officer Brotherton included a deliberate falsehood and deliberately omitted relevant information in his warrant application. Finally, the defendant argues that his Fourth Amendment rights were violated when the police failed to inform the magistrate judge that a second canine sniff had yielded negative results.
The focus of this appeal arises out of events occurring on November 20 and 21, 1991. On the evening of November 20, 1991, Officer Brotherton and another police officer received a tip from Officer Billingsley in Phoenix, Arizona. He told the officers that a package being shipped to the defendant via Federal Express was suspicious. Specifically, Billingsley told Brotherton that the well-wrapped, three-pound package was delivered to the Federal Express office just before the company shipped its packages, by a person (other than the sender) who did not know the local zip code. In addition, the cost of mailing was paid in cash. On the basis of this information, as well as Brotherton's allegation that the defendant was involved in the distribution of drugs, the Iowa City police decided to examine the package, and if it was indeed suspicious, to obtain a search warrant and open it.
On the morning of November 21, 1991, the Task Force split into two groups. Officer Brotherton took a warrant application and went to a magistrate judge's office. The remainder of the group proceeded to the Iowa City Federal Express office to intercept the package and conduct a canine sniff. Officer Brotherton maintained contact with this group via a cellular telephone.
At the Federal Express office, six to eight packages, including the package addressed to the defendant, were isolated in a room. The police then brought in a drug dog, "Turbo," to conduct a canine sniff. "Turbo" examined all of the packages and showed an interest in the defendant's package by pushing it around with his nose and scratching it twice. This action did not amount to an official "alert," however, so the dog's handler was not sure that the package contained drugs. Officer Henderson, a Task Force member at the Federal Express office, called Brotherton in the magistrate judge's chambers to relay this information. He told Brotherton that "the dog had showed an interest in the package, but had not given a full alert to the package." Suppression Hearing Tr. 39. Brotherton then typed on the warrant application that Appellant's Add. 3.
After Henderson's call, the police requested that a second dog examine the package. This dog failed to alert or show an interest in the defendant's package. In a second phone call to Brotherton, Officer Henderson learned that the warrant had already been issued. Henderson informed Brotherton that a second dog had arrived, and that the team was going to wait for this dog to conduct a sniff before executing the warrant. Neither the magistrate judge or, apparently, Officer Brotherton was informed of the results of the second sniff.
After receiving the search warrant, the Task Force, despite the results of the second sniff, decided to open the package. Upon opening the package, the police discovered cocaine. They then rewrapped the package and delivered it to the defendant's residence. Approximately fifteen minutes after this delivery, the police executed a second search warrant at the defendant's residence. There, the police found the Federal Express package, additional quantities of drugs, several guns, drug paraphernalia, and a large sum of money.
The defendant's primary argument on appeal is that the police violated the Supreme Court's holding in Franks v. Delaware, supra, by their actions in obtaining the search warrant. 1 The defendant's attack under Franks is two-fold: (1) that by including and emphasizing the word "interest" in the warrant application, the police told a deliberate falsehood; and (2) that by failing to include Henderson's statement that "Turbo" had not alerted to the package, Brotherton deliberately omitted vital information necessary to the magistrate judge's determination of probable cause. In addition, the defendant also asserts that the officers' failure to notify Brotherton and the magistrate judge of the results of the second canine sniff rendered the search warrant affidavit misleading in violation of Franks.
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, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false materials set to one side, the affidavit's remaining content 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. 154, 155-56, 98 S.Ct. 2674, 2676 (1978). We have applied this rationale to cover material that has been deliberately or recklessly omitted from a search-warrant affidavit. See United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986). In Reivich this Court held that the defendant "had to 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 (citations omitted).
As support for his argument that the police included a...
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...wanted to know for the purpose of determining the existence or absence of probable cause. Wilson, 212 F.3d at 788; United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993). An assertion is made with reckless disregard for the truth where, in light of all of the relevant evidence, the aff......
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