U.S. v. Neal

• Decision Date: 16 June 2008
• Docket Number: No. 07-1941.,07-1941.
• Citation: 528 F.3d 1069
• Parties: UNITED STATES of America, Appellee, v. Johnny William NEAL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

528 F.3d 1069

UNITED STATES of America, Appellee, v. Johnny William NEAL, Appellant.

No. 07-1941.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2008.

Filed: June 16, 2008.

Cindy Baker, argued, Berryville, AR, for appellant.

Matthew Fleiming, AUSA, argued, Fort Smith, AR, for appellee.

Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,¹ District Judge.

WOLLMAN, Circuit Judge.

Johnny William Neal entered a conditional guilty plea to one count of possession with intent to distribute more than five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). In his plea, Neal reserved the right to appeal the district court's² denial of his motion to suppress. Because Neal has not made a sufficient showing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), we affirm.

I. Background

On May 2, 2005, two confidential informants went to Neal's residence for the purpose of conducting a controlled buy of marijuana from Neal. One of the informants followed Neal into his bedroom and purchased marijuana. The informant later testified that while in Neal's bedroom she observed stacks of firearms and a gun safe. A second controlled buy was arranged on May 25, 2005, in an attempt to purchase methamphetamine from Neal. This time, the other confidential informant went into Neal's bedroom to make the purchase. No purchase was made, however, because law enforcement officers listening to the informant's body wire believed that she was in distress and proceeded to Neal's residence, where they waited outside while both informants left the residence. Later that evening, law enforcement officers faxed to a state judge an affidavit in support of a warrant to arrest Neal for distribution of marijuana. The judge signed the affidavit and faxed it back, but did not issue an arrest warrant. Sometime after 10:00 p.m., the officers arrived at Neal's residence, made a forced entry, and arrested Neal in the living room. One of the arresting officers testified that after Neal was arrested, the officer looked into the adjacent bedroom and believed that he observed a rifle therein.

Thereafter, local law enforcement contacted Wade Vittitow, a Special Agent with the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives, to initiate an investigation of Neal's possible possession of firearms in violation of 18 U.S.C. § 922(g)(9). On June 28, 2005, Vittitow submitted to a magistrate judge³ an affidavit in support of a search warrant for firearms, ammunition, and related items in Neal's residence. The information in the affidavit that related to firearms was the observation by two officers of "numerous rifles" in the master bedroom when Neal was arrested on May 25, 2005, and the confidential informant's observation of firearms in Neal's residence.

The search warrant was issued on June 28, 2005, and was executed the following day. The search uncovered numerous firearms, cans of ammunition, and money located in Neal's bedroom and gun safe. Law enforcement also discovered within the gun safe film canisters that contained a substance suspected to be methamphetamine. The search was put on hold until local law enforcement officers were able to obtain a search warrant for narcotics.

A federal grand jury indicted Neal on charges of possession with intent to distribute more than five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and possession of a firearm that was transported in interstate commerce and from which the serial number had been removed in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Neal filed a motion to suppress all evidence obtained during the June 29, 2005, search, contending that the search was unreasonable under the Fourth Amendment of the United States Constitution and article 2, section 15 of the Arkansas Constitution. Neal also asserted that the search violated Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because the officers intentionally, knowingly, or with reckless disregard for the truth, omitted material information and included false statements in the affidavit in support of the search warrant. Although the district court questioned whether Neal's motion was sufficient to raise Franks issues, it granted a hearing on those issues, following which, the district court denied the motion to suppress.

II. Analysis

"On appeal from a denial of a motion to suppress, we review for clear error the factual findings of the district court and we review de novo the legal determination that the Fourth Amendment was not violated." United States v. Robinson, 455 F.3d 832, 834 (8th Cir.2006). We affirm unless "the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." United States v. Ramos-Caraballo, 375 F.3d 797, 800 (8th Cir.2004) (internal quotation omitted).

Neal argues that his motion to suppress should have been granted because the affidavit submitted in support of the search warrant contained false information and omitted information pertinent to a probable cause determination. In Franks, the Supreme Court held that a search warrant must be voided and the fruits of the search suppressed if a defendant proves by a preponderance of the evidence that (1) a law enforcement officer knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit, and (2) without the false statement, the affidavit would not have established probable cause. 438 U.S. at 155-56, 98 S.Ct. 2674; United States v. Snyder, 511 F.3d 813, 816 (8th Cir.2008). This rationale also applies to information that the affiant deliberately or with reckless disregard for the truth omits from the affidavit such that the affidavit is misleading and insufficient to establish probable cause had the omitted information been included. United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993) (citing United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986)). To show reckless disregard for the truth, we do not look simply at whether a statement included in the affidavit was true; rather, we ask whether, when looking at all the evidence available to the officer, the officer "must have entertained serious doubts as to the truth of his [or her] statements or had obvious reasons to doubt the accuracy of the information he [or she] reported." United States v. Schmitz, 181 F.3d 981, 986-87 (8th Cir.1999) (alterations in original) (quoting United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir.1995)). An affidavit submitted in support of a warrant carries a presumption of validity. Franks, 438 U.S. at 171, 98 S.Ct. 2674. A showing of negligence or innocent mistake is not enough to establish a Franks violation. Id.; Snyder, 511 F.3d at 816. Nevertheless, an officer may not circumvent the Franks doctrine by providing only selective information to another officer who is unaware of the full information and therefore includes false information or omits material information from an affidavit in support of a warrant. See United States v. Davis, 471 F.3d 938, 947 n. 6 (8th Cir.2006) (citing Franks, 438 U.S. at 164 n. 6, 98 S.Ct. 2674); Jacobs, 986 F.2d at 1235; see also Illinois v. Andreas, 463 U.S. 765, 772 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) ("where law enforcement authorities are cooperating in an investigation, as here, the knowledge of one is presumed shared by all"). Thus, we must look at the actions of Vittitow, as the affiant, as well as the actions of the local law enforcement officers who provided information for Vittitow to include in the affidavit.

Vittitow's affidavit stated that local law enforcement officers had an arrest warrant for Neal when they entered Neal's residence on May 25 and observed firearms in his bedroom. It is now undisputed, however, that no arrest warrant was ever issued, a fact that was not made known to Vittitow until after the federal search warrant was executed. Accordingly, although the affidavit unquestionably included false information, there is no evidence that the officers involved in the investigation acted intentionally, deliberately, or with reckless disregard for the truth when they caused the false statement to be included in the affidavit. It is undisputed that there was probable cause to arrest Neal. Additionally, one of the arresting officers testified that the signed affidavit was in his possession during the May 25 arrest and that he believed a valid arrest warrant existed. Before submitting the affidavit, Vittitow spoke with the two local law enforcement officers who were investigating Neal and was informed that a valid arrest...