U.S. v. Mims

Decision Date03 March 1987
Docket Number85-2222 and 85-2240,85-2215,85-2216,Nos. 85-2214,s. 85-2214
Citation812 F.2d 1068
PartiesUNITED STATES of America, Appellee, v. Elmer MIMS, Appellant. UNITED STATES of America, Appellee, v. Franklin Michael EINFELDT, Appellant. UNITED STATES of America, Appellee, v. LE MINH THANH, Appellant. UNITED STATES of America, Appellee, v. Roger W. TECHAU, Appellant. UNITED STATES of America, Appellee, v. Burdell DOOLIN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph C. Johnston, Iowa City, Iowa, for appellant Techau.

Mark H. Retting, Cedar Rapids, Iowa, for appellant Le.

Larry Fugate, Iowa City, Iowa, for appellant Einfeldt.

Robert L. Teig, U.S. Atty., Cedar Rapids, Iowa, for appellee.

Before HEANEY and ROSS, Circuit Judges, and DUMBAULD, * Senior District Judge.

ROSS, Circuit Judge.

Five defendants appeal their convictions of various offenses stemming from charges related to a heroin trafficking ring in Cedar Rapids, Iowa. The defendants were found guilty on the following counts: Techau, Le, Mims and Doolin--one count of conspiracy to import and distribute heroin in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A); Techau, Doolin and Mims--one count of possession of heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. Sec. 2; Techau--one count of possession of heroin in violation of 21 U.S.C. Sec. 844(a) and 18 U.S.C. Sec. 2; Le and Mims--one count of knowingly and intentionally using a communication facility to facilitate a conspiracy to import and distribute heroin in violation of 21 U.S.C. Secs. 843(b) and (c) and 18 U.S.C. Sec. 2; and Einfeldt--four counts of knowingly and intentionally using a communication facility to facilitate the attempt to possess heroin with intent to distribute, in violation of 21 U.S.C. Secs. 843(b) and (c) and 18 U.S.C. Sec. 2.

The defendants raise several issues on appeal, the primary issues being: whether the district court 1 erred in denying Techau's motion to suppress evidence on the ground that the warrant for his arrest was without probable cause, and whether the district court erred in denying him a hearing on his motion to suppress; whether there was sufficient evidence to convict Le and whether the district court erred in denying his motion for severance; and whether there was sufficient evidence to convict Einfeldt. We reverse in part with regard to Einfeldt, and we affirm as to all others. 2

Background

In June 1984, the Organized Crime Drug Task Force began an investigation seeking the source of large amounts of heroin which had been entering eastern Iowa. Information gathered from court-authorized wiretaps of Thomas Sage, 3 the alleged ringleader of the conspiracy, and defendants Le and Mims led to the indictments and arrests of Sage, Le, Techau, Einfeldt, Mims and Doolin, among others. Other facts as are relevant to the individual defendants' claims will be set forth as necessary.

I. Roger Techau

A. Arrest Warrant. In the course of the Task Force investigation, an arrest warrant was issued for defendant Techau. For reversal, Techau contends that the warrant for his arrest was issued without probable cause and that the district court erred in failing to suppress all the evidence derived therefrom, including the evidence derived from a subsequent search warrant.

The affidavit on which the arrest warrant was based was provided by F.B.I. Special Agent James Farrell Whalen and stated that in January 1985 Karl Harper Heppe was arrested in California and was interviewed concerning his involvement with heroin trafficking in Cedar Rapids, Iowa; Heppe identified his principal source of heroin as Thomas Sage, from whom Heppe had purchased heroin from May 1983 through August 1984; on March 9, 1985 Heppe went to Sage's residence wearing a body recorder provided by the F.B.I./D.E.A. and in the ensuing conversation Sage named several people, including Roger Techau, as being involved with Sage in the distribution of heroin; in the March 9 conversation, Sage also discussed his heroin contacts in Nepal; on March 26, 1985 Heppe again went to Sage's house wearing a body recorder, at which time Sage discussed his past heroin transactions involving several people, including Roger Techau; and on May 1, 1985 another task force officer, Sergeant Harry Beltzer, had a conversation with an individual named James David Gores in Red Wing, Minnesota, in which Gores stated that Sage and Sage's wife were involved in drug trafficking between Nepal and the United States.

Techau contends that the affidavit was insufficient to establish probable cause. Specifically, Techau contends that there were no facts set forth which the agents obtained through independent investigation of Techau, and that Sage's statements were unreliable as they were not against his penal interest.

The task of a magistrate in determining whether probable cause exists for issuing a warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability" that the defendant has committed a crime. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). In reviewing the magistrate's decision, this court simply must "ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Great deference is afforded the magistrate's determination of probable cause. United States v. Arenal, 768 F.2d 263, 266 (8th Cir.1985).

We determine that the magistrate had a substantial basis for finding probable cause. The affidavit stated that on more than one occasion, Sage, a known heroin trafficker, named Techau as an individual with whom Sage had engaged in drug trafficking. The reliability of Sage's statements is established by the fact that the basis for Sage's knowledge was his own first-hand involvement in the drug trafficking ring. Further reliability is provided by Sage's statements being against his penal interest. See United States v. Hunley, 567 F.2d 822, 825 (8th Cir.1977); United States v. Gavic, 520 F.2d 1346, 1351 (8th Cir.1975). We reject Techau's contention that a statement must be made to a police officer to be against one's penal interest. See Gavic, supra, 520 F.2d at 1350-51 (statement made to informant held to be against penal interest).

Also, Sage's statements regarding his involvement with others in drug trafficking are corroborated on the face of the affidavit by Heppe's statements that he had previously had several heroin transactions with Sage, and James Gores' statements that Sage was involved in heroin trafficking between the United States and Nepal. Thus, although the agents had not obtained corroboration of details regarding Techau in particular, they had corroborated Sage's statements involving himself in drug trafficking. "The theory connecting reliability and corroboration is that an informant [in this case Sage] who is correct about some things more likely will be correct about critical unverified facts * * *." United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986) (citing Spinelli v. United States, 393 U.S. 410, 427, 89 S.Ct. 584, 594, 21 L.Ed.2d 637 (1969) (White, J. concurring)). Therefore, we determine that the facts set forth in the affidavit provided the magistrate with a substantial basis for determining that probable cause existed to arrest Techau.

However, even if the affidavit was not sufficient to establish probable cause, we find that the evidence obtained from the search incident to Techau's arrest was still admissible because the officers executing the warrant were objectively reasonable in relying on it. See United States v. Leon, 468 U.S. 897, 919-23, 104 S.Ct. 3405, 3419-21, 82 L.Ed.2d 677 (1984); United States v. Sager, 743 F.2d 1261, 1262 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). In Leon, the Supreme Court held that the exclusionary rule does not bar the admission of evidence obtained by an officer acting with objective reasonable reliance on a warrant issued by a neutral and detached magistrate, even if the warrant is later held to be invalid. 468 U.S. at 919-23, 104 S.Ct. at 3419-21. The Leon Court went on to list certain exceptional situations where this rule would not apply: 1) where the issuing magistrate was misled by information in the affidavit that the affiant knew or should have known was false; 2) where the magistrate wholly abandoned his judicial role and served merely as a rubber stamp for police; 3) where the affidavit so lacked probable cause as to render official belief in its validity unreasonable; and 4) where the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Id. at 923, 104 S.Ct. at 3421.

We find no such exceptional circumstances to exist in this case. Techau does not allege that Agent Whalen made deliberate falsehoods or acted with reckless disregard for the truth in preparing the affidavit. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). Nor is there any evidence that the magistrate abandoned his judicial role in issuing the warrant. It cannot be argued that the affidavit so lacked probable cause so as to render official belief in its validity unreasonable, as both the magistrate and district court found that the affidavit established probable cause. See United States v. Strand, 761 F.2d 449, 458 (8th Cir.1985) (Bowman, J., dissenting in part). Finally, there is nothing to indicate that the warrant was so facially deficient that the executing officers were unreasonable in relying on it. Therefore, we determine that the district court properly admitted the...

To continue reading

Request your trial
113 cases
  • U.S.A. v. Escobar-De Jesus
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 5 Octubre 1999
    ...States v. McGhee, 854 F.2d 905, 908 (6th Cir. 1988)); United States v. Johnstone, 856 F.2d 539, 543 (3d Cir. 1988); United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. Russo, 796 F.2d 1443, 1463-64 (11th Cir. 1986); United States v. Rey, 641 F.2d 222, 224 n.6 (5th C......
  • U.S. v. Quiroz
    • United States
    • U.S. District Court — District of Minnesota
    • 21 Junio 1999
    ...States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974)); United States v. Mims, 812 F.2d 1068, 1074 (8th Cir.1987). These requirements were made specific in the Order of this Court dated March 8, 1999 [Docket No. Defendant's moving pa......
  • U.S. v. Leisure
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 Abril 1988
    ...(1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); see also United States v. Mims, 812 F.2d 1068, 1072 (8th Cir.1987) (Mims ). We are to afford deference to the magistrate's determination of probable cause, Mims, 812 F.2d at 266, and we will......
  • US v. Jimenez
    • United States
    • U.S. District Court — Southern District of New York
    • 5 Mayo 1993
    ...belief regarding where defendants would place marihuana plants rejected as going to weight and not recklessness); United States v. Mims, 812 F.2d 1068, 1074 (8th Cir.1987) (allegations that an agent misrepresented the true nature of recorded conversations does not rise to the level of "deli......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT