U.S. v. NEAL

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Docket Number

No. 07-1941.

Attorney(S)

Cindy Baker, argued, Berryville, AR, for appellant. Matthew Fleiming, AUSA, argued, Fort Smith, AR, for appellee.

Judges

Roger Leland Wollman

Acts

Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A
Crimes And Criminal Procedure — Firearms — Crimes — Unlawful Acts
Crimes And Criminal Procedure — Firearms — Crimes — Penalties

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Smart Summary

Factual and Procedural Background

Neal was investigated after controlled buys at his residence and observations of firearms in his bedroom. Officers later arrested him, obtained a federal search warrant, and discovered firearms, ammunition, money, and suspected methamphetamine. [1][2][3]

A federal grand jury indicted Neal for methamphetamine distribution and firearm offenses. He moved to suppress the evidence, alleging Fourth Amendment, Arkansas constitutional, and Franks v. Delaware violations. After conducting a Franks hearing, the district court denied the motion. Neal then entered a conditional guilty plea, reserving his right to appeal the suppression ruling. [4][5]

Legal Issues Presented

Whether the search-warrant affidavit contained intentionally or recklessly false information or material omissions requiring suppression under Franks v. Delaware. [6]
Whether information supporting the warrant was stale. [7]
Whether officers exceeded the warrant’s scope by opening film canisters found in Neal’s gun safe. [8]

Arguments of the Parties

Neal's Arguments

The affidavit contained false information and omitted information relevant to probable cause. [6]
The affidavit misleadingly stated or implied that officers had an arrest warrant, omitted circumstances surrounding his arrest, and inaccurately described the confidential informants’ observations. [9][10]
The affidavit falsely characterized the confidential informant as reliable. [11]
The information concerning firearms was stale. [7]
Officers exceeded the search warrant’s scope by opening film canisters. [8]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Franks v. Delaware	Suppression may follow materially false or recklessly included statements or omissions in a warrant affidavit.	The court held that Neal failed to satisfy the required showing. [4][6][12]
United States v. Robinson	Standards of review for suppression rulings.	The court reviewed factual findings for clear error and legal conclusions de novo. [13]
United States v. Ramos-Caraballo	When an appellate court may reject a district court’s suppression decision.	The court applied the substantial-evidence, legal-error, and firm-conviction standards. [13]
United States v. Snyder	False statements and material omissions may support a Franks violation; negligence is insufficient.	The court found no intentional or reckless conduct and treated the challenged omissions as immaterial. [6][10]
United States v. Jacobs	The Franks rationale applies to deliberate or reckless omissions.	The court considered whether omissions rendered the affidavit misleading. [6][10]
United States v. Reivich	Material omissions may invalidate a warrant affidavit.	The court concluded that Neal’s alleged omissions did not undermine probable cause. [6][10]
United States v. Schmitz	Reckless disregard requires serious doubts or obvious reasons to doubt the reported information; a lawful search reaches areas and containers where the object may be found.	The court found no reckless disregard and upheld opening the film canisters. [6][8]
United States v. Clapp	Definition of reckless disregard for truth.	The court used this standard in assessing the officers’ conduct. [6]
United States v. Davis	Officers may not evade Franks by selectively providing information to another officer.	The court considered information known to both the affiant and local officers. [6]
Illinois v. Andreas	Knowledge of cooperating law-enforcement officers is presumed shared.	The court examined both Vittitow’s actions and those of local officers. [6]
United States v. Jones	An officer providing information to an affiant is treated as a reliable informant.	Vittitow was entitled to rely on the local officers’ representation that an arrest warrant existed. [9]
United States v. Brown	Distinction between affidavit discrepancies and misrepresentations or omissions.	The court treated the informant discrepancy as immaterial. [10]
United States v. Williams	An informant’s information is reliable based on a history of reliability or independent corroboration.	The court found sufficient reliability through a controlled buy, firsthand observations, and police assessment. [11]
United States v. Warford	Detailed firsthand observations carry inherent indicia of reliability.	The informant’s firsthand firearm observations supported probable cause. [11]
United States v. Bell	In-person meetings and provision of personal information strengthen informant credibility.	Vittitow’s interviews with both informants supported their credibility. [11]
United States v. Kennedy	Firearm-possession information is generally not stale because firearms tend to be retained for long periods.	The court held that information from one month earlier remained sufficient. [7]

Court's Reasoning and Analysis

The court applied clear-error review to factual findings and de novo review to the legal determination whether the Fourth Amendment was violated. [13]

Under Franks, Neal had to prove by a preponderance of the evidence that an officer knowingly, intentionally, or recklessly included false information and that the affidavit would not establish probable cause without it. The same framework applies to material omissions. [6]

The affidavit incorrectly stated that local officers had an arrest warrant. But the evidence showed that the officers believed a valid warrant existed, probable cause to arrest was undisputed, and Vittitow was told by the investigating officers that a valid warrant existed. The court therefore found no intentional or reckless attempt to mislead the magistrate. [9]

The omitted arrest details and discrepancy concerning whether one or two informants observed firearms would not have eliminated probable cause and were, at most, immaterial discrepancies. [10]

Although the informants lacked prior case histories, one had completed a controlled buy and provided a firsthand firearm observation, and Vittitow personally assessed both informants. Their information was therefore sufficiently reliable to support probable cause. [11]

Because Neal failed to prove intentional, knowing, or reckless falsity, the court did not need to decide whether probable cause would have existed without the false information. [12]

The firearm information was not stale because officers had observed firearms one month before the warrant request, and the affidavit described repeated observations. [7]

The officers also stayed within the warrant’s scope when they opened film canisters in the gun safe because the canisters could have contained ammunition, money, receipts, or related items identified in the warrant. After discovering suspected methamphetamine, they halted the search and obtained a narcotics warrant. [8]

Holding and Implications

AFFIRMED. The court affirmed the denial of Neal’s motion to suppress and the resulting judgment. [12][14]

The direct effect was that the challenged search evidence remained admissible and Neal’s conviction was affirmed. The opinion identifies no broader consequence beyond resolving Neal’s suppression appeal and set no new precedent beyond applying existing authorities. [14]

Show full summary ...

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

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's 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.

The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.

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 judge 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 Honorable Beverly Stites Jones, United States Magistrate Judge for the Western District of Arkansas.

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 warrant existed for Neal's arrest. See United States v. Jones, 471 F.3d 868, 874 (8th Cir. 2006) (when an affiant receives information from another detective, the other detective is considered a reliable informant). Thus* there is no evidence that any of the officers were intentionally trying to mislead the magistrate judge or that they were acting with reckless disregard for the truth.

Neal further asserts that the affidavit omitted material information that would have affected the magistrate judge's determination of whether probable cause existed. As indicated above, omitting material information from an affidavit can form the basis of a Franks violation. Snyder, 511 F.3d at 816; Reivich, 793 F.2d at 960. Neal points to the fact that the affidavit did not indicate that Neal's arrest on May 25 took place in his residence, late at night, and after a forced entry. Whatever the circumstances surrounding Neal's arrest, the inclusion of these details in the affidavit would not have eliminated the existence of probable cause. So also with respect to Neal's argument that the affidavit was misleading because it discussed only one confidential informant who allegedly made all the observations of firearms, in Neal's bedroom, when in actuality there were two informants who were in Neal's bedroom at different times, for we consider this to be at most an immaterial discrepancy. See United States v. Brown, 461 F.3d 1062, 1073 (8th Cir. 2006) (noting a difference between discrepancies in the affidavit and misrepresentations or omissions). Thus, we conclude that any omissions from or minor discrepancies within the affidavit do not amount to a Franks violation.

Neal also argues that the affidavit falsely stated that the confidential informant who claimed to have observed firearms in Neal's residence was a proven, reliable informant. Information from a confidential informant is reliable if the informant has a history of supplying reliable information or if the information provided by the informant is independently corroborated. United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). Certain of the law enforcement officers acknowledged that the confidential informants in question had not assisted the government in any prior cases and therefore did not have a track record of supplying reliable information. Nevertheless, the confidential informant mentioned in the affidavit had successfully completed one controlled buy from Neal and she reported her first-hand observation of firearms in Neal's residence. See United States v. Warford, 439 F.3d 836, 842 (8th Cir. 2006) ("[T]here is an inherent indicia of reliability in the richness and detail of a first hand observation." (alteration in original) (internal quotation omitted)). Additionally, Vittitow was able to assess the credibility of both confidential informants when he interviewed them in person. See United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007) (informant's reliability and credibility is strengthened if the informant meets with the officer in person and is willing to provide his or her own personal information). Thus, we are satisfied that the information provided by the informants was sufficiently reliable to support a finding of probable cause for the search.

Because Neal has failed to prove by a preponderance of the evidence that false information was included in the affidavit intentionally, knowingly, or with reckless disregard for the truth, we need not reach the issue of whether the affidavit established probable cause without the false information.

Neal further asserts that the information contained in the affidavit was stale. Information that someone is suspected of possessing firearms illegally is not stale, even several months later, because individuals who possess firearms tend to keep them for long periods of time. United States v. Kennedy, 427 F.3d 1136, 1142 n. 5 (8th Cir. 2005). The affidavit stated that a confidential informant observed firearms in Neal's residence on several occasions and that officers observed firearms in Neal's residence on May 25, 2005, only one month prior to the request for a search warrant. This information created a reasonable probability that there were firearms in Neal's residence when the warrant was issued. Thus, the information was not stale.

Neal's final argument is that the officers who conducted the search on June 29, 2005, exceeded the scope of the search warrant because they looked inside film canisters that contained methamphetamine. "A lawful search extends to all areas and containers in which the object of the search may be found." Schmitz, 181 F.3d at 988 (internal quotation omitted). The search warrant for Neal's residence authorized officers to search for firearms, ammunition, items pertaining to firearms or ammunition, receipts reflecting the sale or purchase of firearms or ammunition, and related items. Because the film canisters were located in the gun safe along with firearms, ammunition, and money, and because the canisters may have contained ammunition, money, receipts, or related items, it was not unreasonable for the officers to open them. Upon opening the canisters and inadvertently discovering what immediately appeared to be methamphetamine, the officers halted the search and waited for state law enforcement officers to obtain a search warrant for narcotics. Thus, the officers did not exceed the scope of the search warrant.

The judgment is affirmed.