1

The Honorable Michael J. Melloy, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-4149 

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa

Lynn F. Schmitz, *

*

Appellant. *

___________

Submitted: October 21, 1998

Filed: June 25, 1999

___________

Before McMILLIAN, JOHN R. GIBSON and HANSEN, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Lynn F. Schmitz appeals from a final judgment entered in the United States

District Court1

 for the Northern District of Iowa following his conditional plea of guilty

to one count of unlawful possession of ammunition by a felon, in violation of 18 U.S.C.

§ 922(g)(1). The district court sentenced Schmitz to ninety months imprisonment, three

years of supervised release, and a special assessment of $100.00. United States v.
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Schmitz, No. 2:96CR01011-001 (N.D. Iowa Nov. 20, 1997) (judgment). For reversal,

Schmitz argues that the district court erred in denying his motion to suppress evidence

because (1) the district court misapplied the legal standard set forth in Franks v.

Delaware, 438 U.S. 154 (1978), in upholding the lawfulness of a search warrant and

(2) the law enforcement officers who executed the search warrant exceeded the scope

of the warrant in violation of his constitutional rights. See id. (July 11, 1997)

(transcript of guilty plea hearing, including district court's oral order denying motion to

suppress and statement of reasons) (copy in Addendum to Brief for Appellee at 13).

For the reasons discussed below, we affirm. 

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.

Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal

was timely filed pursuant to Fed. R. Crim. P. 4(b).

Background

On July 10, 1999, Schmitz was charged in a two-count indictment with

possession of ammunition by a felon and forfeiture of the ammunition. On August 30,

1996, Schmitz moved to suppress evidence seized during the execution of a search

warrant, which was obtained by law enforcement officers after Schmitz had declined

a request for consent to search his home, was placed under arrest for aggravated

domestic assault, and was taken to jail. In his suppression motion, Schmitz asserted

that the affidavit supporting the search warrant application contained materially false

information, which the affiant gave either intentionally and knowingly or with reckless

disregard for the truth, thus requiring a hearing and suppression of evidence under

Franks v. Delaware. Schmitz further asserted, as an alternative argument, that the

officers used the warrant as a pretext for generalized rummaging through his home, thus

exceeding the scope of their authorization and violating his Fourth Amendment rights.

The government resisted Schmitz's motion to suppress, and the matter was referred to
2The Honorable John A. Jarvey, United States Magistrate Judge for the Northern

District of Iowa.

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a magistrate judge2 for a recommended disposition. The magistrate judge held an

evidentiary hearing. The affiant for the search warrant application, Deputy Sheriff

Elaine Palen, among other law enforcement officers, testified for the government.

Schmitz and his girlfriend, Micki Yeager, testified for the defense. The magistrate

judge thereafter issued a report and recommendation. United States v. Schmitz, No.

2:96CR01011-001 (N.D. Iowa Nov. 7, 1996) (hereinafter "Report &

Recommendation"). In his findings of fact, the magistrate judge reviewed the events

leading up to the controverted search of Schmitz's home and made the following

findings. See id. at 2-8. On May 10, 1996, an application for a warrant to search

Schmitz's residence was submitted to an Iowa state court judge. Id. at 2. The warrant

application contained Deputy Palen's affidavit, which stated:

On the morning of May 10, 1996, at approximately 7:15 a.m., this affiant

was traveling on Roosevelt away from Peru Road; that as I approached

1030 Roosevelt, I observed a large black newer pickup truck in the

driveway; that a young woman threw something at the pickup truck; that

the driver looked over his shoulder directly at the woman who was behind

the vehicle and drove at her; that she avoided him and threw something

at the vehicle again; that she went to the front of the vehicle; that he then

put the vehicle into a forward gear and drove at her again; that she was

either struck or slipped into an approximately five foot deep ditch; that

she came out of the ditch with mud on her clothes; that she was wearing

a white top, white pants and white socks with no shoes; that the affiant

not[ified] the Dubuque Police Department which responded; that they

found Lynn Schmitz and Micky Yeager who resided at that residence and

initially both denied any incident occurring; however, when the police

returned, Mr. Schmitz admitted that he had been involved in a verbal

argument with Ms. Yeager and had driven quickly backwards, but had not

struck her or tried to strike her; that approximately 20 feet of fresh skid

marks were evident in the driveway area; that Mr. Schmitz refused to give
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permission to police to search the residence for the clothes; that Ms.

Yeager was wearing different clothes when police arrived according to

what they told this affiant.

Id. at 2-3 (quoting affidavit of Elaine Palen) (copy of affidavit in Addendum to Brief

for Appellee at 1). Based upon Palen's affidavit, the state court judge issued a warrant

authorizing the police to search for "a dirty white top, dirty white pants, and dirty white

socks; these items should have mud on them." Id. at 2. 

The magistrate judge found, with respect to these early morning events of

May 10, 1996, that "Elaine Palen . . . observed the truck precipitously stop and back

up in Ms. Yeager's direction in [what] [Palen] believed to be a threatening manner,"

that "Deputy Palen again observed the truck driven in a threatening manner in

[Yeager's] direction," that "Ms. Yeager went into the ditch and ultimately ran back to

the house," and that "Deputy Palen observed that plaintiff's white clothes were soiled

as a result." Id. at 3-4. In addition, the magistrate judge found that Palen's 911 call

to the police was placed only moments before another person anonymously called the

police to report that "Lenny Schmitz" had attempted to run over his girlfriend on

Roosevelt Road. Palen reported that the events occurred at approximately 7:15 a.m.,

and the anonymous caller indicated that the events occurred at approximately 7:17 a.m.

Id. at 6. 

Although the magistrate judge found that Palen's testimony was "obviously

inaccurate" with regard to some specific details, he nevertheless concluded:

The court's criticism of Deputy Palen 's testimony regarding some

of the details of this incident does not undermine its confidence that

Deputy Palen believed that she observed an assault in progress. She was

not on duty, she had her young son in the car and this could explain some

of her failure to recall details. She did not know Lynn Schmitz prior to

this event and the defendant has suggested no motive for the alleged
3The magistrate judge also found, citing certain consistent facts and presumably

based in part on an assessment of witness credibility, that, although Yeager was

wearing a black shirt at the time the officers arrived to execute the warrant, she had

been wearing a white shirt at the time Palen observed her on Roosevelt Road earlier

that morning. Report & Recommendation at 7. 

4According to the government, the muddy socks were not discovered until the

execution of the second search warrant, which was issued after the officers discovered

the marijuana. Brief for Appellee at 17. 

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fabrication of her claim. The court does not believe it was fabricated and

believes that the tape recorded call to the dispatcher from the anonymous

caller provides strong, corroborative support for Ms. Palen's observations.

Id. at 6-7. 

The magistrate judge further found that, shortly after obtaining the search

warrant, the police went to Schmitz's home, where they found Yeager, dressed in white

pants and a black shirt.3 At the officer's request, she turned over the white pants. Id.

at 7. After a period of searching, they found a pair of muddy white socks on the floor

behind the door leading from the house to the garage. Id. The officers never found a

muddied white shirt. Id. In the course of searching for the white shirt and socks, the

police discovered marijuana in the pocket of a jacket inside a closet. Id. at 8. Based

on that discovery, they obtained a second search warrant, the execution of which led

to the discovery of a gun and ammunition. Id.4

In his conclusions of law, the magistrate judge determined that the search

warrant was valid notwithstanding Schmitz's claim that it was issued in violation of

Franks v. Delaware. Id. at 10. The magistrate judge also concluded that the officers'

initial search did not exceed the scope of the first warrant. Id. at 10-11. The magistrate

judge recommended that Schmitz's motion to suppress be denied, and the district court
5Schmitz's arguments on appeal specifically and directly challenge the magistrate

judge's Report & Recommendation, not the district court's separate statement of

reasons for denying the motion to suppress. See United States v. Schmitz, No.

2:96CR01011-001 (N.D. Iowa July 11, 1997) (transcript of guilty plea hearing,

including district court's oral order denying motion to suppress and statement of

reasons) (copy in Addendum to Brief for Appellee at 13). Although the district court

did provide its own statement of reasons, those reasons closely followed the magistrate

judge's analysis and was prefaced by the statement that the district court was "deny[ing]

the motion to suppress essentially for the reasons set forth in [the magistrate judge's]

order." Id., transcript at 3, lines 10-16 (Addendum to Brief for Appellee at 15). 

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adopted that recommendation. (Hereinafter the magistrate judge's factual findings and

legal conclusions are attributed to the district court.5) Schmitz thereafter entered a

conditional plea of guilty to count one of the indictment, for being a felon in possession

of ammunition, while reserving the right to withdraw his plea if he were to succeed in

appealing the denial of his motion to suppress. Following his sentencing, Schmitz

timely appealed.

Discussion

In reviewing the district court's denial of Schmitz's motion to suppress, our role

is "to ensure that the evidence as a whole provides a substantial basis for finding

probable cause for the issuance of the warrant." United States v. Buchanan, 167 F.3d

1207, 1209 (8th Cir. 1999) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)

(per curiam); United States v. Day, 949 F.2d 973, 977 (8th Cir. 1991)). We review the

district court's findings of fact for clear error and its conclusions of law based upon

those facts de novo. See United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999)

(quoting United States v. Glenn, 152 F.3d 1047, 1048 (8th Cir. 1998)); United States

v. Buchanan, 167 F.3d at 1209. 
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Franks v. Delaware

Schmitz first argues that the district court applied an incorrect legal standard for

affording relief under Franks v. Delaware and, as a consequence, erroneously denied

his motion to suppress. Specifically, Schmitz argues: 

The gravamen of Appellant's argument is that the district court utilized the

wrong legal test in its analysis. The court below characterized "the

central question in this case [as] whether Elaine Palen actually observed

the matters set forth in her affidavit, and appropriately concluded that a

domestic assault was taking place." 

Brief for Appellant at 6. Schmitz further argues that the magistrate judge should

instead have determined: 

(1) whether there were false statements in Deputy Palen's affidavit, and

if so (2) whether those statements were knowingly or intentionally made,

or made with a reckless disregard for the truth, and finally, if intentionally

or recklessly made, (3) whether after excising the false or incorrect

statements, the affidavit's remaining statements provided enough

information to establish probable cause nonetheless. 

Id. 

Schmitz's argument is conceptually flawed. To begin, Schmitz has misquoted

the language of the district court and has taken the district court's words out of context.

As a result, he has misunderstood and misrepresented the district court's rationale. The

district court's actual statement, in its full context, is as follows: 

Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the affidavit

must contain statements that are truthful. However:
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This does not mean "truthful" in the sense that every fact

recited in the warrant affidavit is necessarily correct. For

probable cause may be founded upon hearsay and upon

information received from informants, as well as upon

information within the affiant's own knowledge that some

times must be garnered hastily. But surely it is to be

"truthful" in the sense that the information put forth is

believed or appropriately accepted by the affiant as true.

Franks v. Delaware, supra, at 165.

Thus, the central factual question in this case is whether Elaine

Palen observed the matters set forth in her affidavit, and appropriately

concluded that a domestic assault was taking place.

If material information in the affidavit is known by the affiant to

be false or if she had no reasonable basis for believing it, then it is not

objectively reasonable for her to use to it obtain a warrant. Burk v.

Beene, 948 F.2d 489, 495 (8th Cir. 1991). However, Franks is limited to

cases of perjurious or recklessly false statements or omissions made by

a police officer in support of a warrant; the rule does not apply to

negligent misrepresentations or omissions. Kelly v. Curtis, 21 F.3d 1544,

1554 (11th Cir. 1994).

Report & Recommendation at 8-9 (emphasis added). 

We find no error in the district court's statement of the law, nor do we disagree

with the district court's clear meaning that, in determining whether statements in Palen's

affidavit were truthful in the sense of being "believed or appropriately accepted by

[Palen] as true," it is necessary to determine as factual matters, whether Palen actually

observed the events she reported in her affidavit and, if so, whether she "appropriately

concluded" that Schmitz had assaulted Yeager by driving his truck at her. If Palen

never saw what she reported in her affidavit, then her affidavit would have contained

false statements; as Schmitz himself contends, the Franks v. Delaware inquiry requires
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an initial determination of "whether there were false statements in Deputy Palen's

affidavit." Brief for Appellant at 6 (citing Franks v. Delaware, 438 U.S. at 165). If

Palen lacked a reasonable basis for her conclusion that an assault had occurred, then

her statement to that effect might have been an intentional lie or the result of reckless

disregard for the truth; again, the district court's reasoning is entirely consistent with

Schmitz's own argument that, under Franks v. Delaware, if statements in the affidavit

were false, then a determination must be made as to "whether those statements were

knowingly or intentionally made, or made with a reckless disregard for the truth." Id.

Schmitz further argues that the district court appears to have applied only a

subjective standard to determine whether Palen recklessly disregarded the truth in

stating that an assault had occurred. See id. at 8-9. We disagree. First, the district

court ruled out the possibility that the material statements in Palen's affidavit were not

objectively reasonable. See Report & Recommendation at 8 ("If material information

in the affidavit is known by the affiant to be false or if she had no reasonable basis for

believing it, then it is not objectively reasonable for her to use to it obtain a warrant.")

(citing Burk v. Beene, 948 F.2d at 495). Second, the district court explicitly noted that

the standard is not based upon the affiant's subjective beliefs. See id. at 9 ("To

determine whether statements are believed or appropriately accepted by the affiant as

true, the court does not look to the officer's subjective beliefs as to the reasonableness

of the affidavit."). But more importantly, the district court correctly recognized that,

in the context of a Franks v. Delaware inquiry, we have declined to adopt a definition

of "reckless disregard" that incorporates the "subjective" versus "objective"

terminology and have instead explained that 

the test for determining whether an affiant's statements were made with

reckless disregard for the truth is not simply whether the affiant

acknowledged that what he [or she] reported was true, but whether,

viewing all the evidence, the affiant 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.
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United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir. 1995), quoted in United States

v. Johnson, 78 F.3d 1258, 1262 (8th Cir. 1996). The district court expressly

acknowledged that United State v. Clapp sets forth the applicable standard, see Report

& Recommendation at 9, and clearly rejected the conclusion that Deputy Palen must

have had serious doubts as to the truth of her statements or had obvious reasons to

doubt the accuracy of the information she reported. 

Finally, Schmitz argues that Palen's affidavit contains several deliberately and

materially false or misleading statements and omissions. For example, Schmitz argues

that Palen falsely stated that (1) Schmitz twice tried to drive over Yeager on the

morning in question, (2) that Yeager was either struck or slipped into a ditch, and (3)

that Yeager had mud on her clothes. Schmitz also maintains that Palen intentionally

omitted the facts that, upon the officers' arrival at his home shortly after the alleged

assault occurred, Yeager appeared not to be injured, she appeared to be in good spirits,

and she was dressed in clean clothes. Schmitz concludes that, if the allegedly false

statements were removed, and the omitted material facts inserted, Palen's affidavit

would have not supported a finding of probable cause to believe that an assault had

occurred and that evidence of the assault (i.e., the dirty clothing) would be found in the

home. 

We have reviewed the district court's findings of fact and find no clear error. As

stated above, the district court found that "Elaine Palen . . . observed the truck

precipitously stop and back up in Ms. Yeager's direction in [what] [Palen] believed to

be a threatening manner," that "Deputy Palen again observed the truck driven in a

threatening manner in [Yeager's] direction," that "Ms. Yeager went into the ditch and

ultimately ran back to the house," and that "Deputy Palen observed that plaintiff's white

clothes were soiled as a result." Id. at 3-4. Thus, assuming those facts to be true, the

statements in Palen's affidavit challenged by Schmitz are not false or, at the very least,

not deliberately false under the applicable legal standard. As to Schmitz's argument
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based on alleged factual omissions, we note that Palen did state in her affidavit that

"Ms. Yeager was wearing different clothes when police arrived according to what they

told this affiant." See id. at 3 (quoting affidavit). The other alleged omissions

regarding Yeager's appearance when the officers first came to the house (i.e., that she

lacked any apparent injuries, that she appeared in good spirits, and that her clothes

were clean) are not necessarily inconsistent with Palen's description of the early

morning assault and thus were not material to the question of whether probable cause

existed to search for evidence of that alleged assault. In sum, Schmitz's argument

based upon alleged material falsehoods and omissions is without merit. Accordingly,

we need not consider whether probable cause would have existed if the affidavit were

modified as Schmitz suggests. Reviewing the affidavit as it was submitted to the state

court judge who issued the warrant, we hold that the evidence as a whole provided a

substantial basis for the issuing state court judge's finding of probable cause, and no

violation of Franks v. Delaware occurred.

Scope of the warrant

Schmitz alternatively argues that the district court should have granted his motion

to suppress because the initial search exceeded the scope of the first search warrant.

He argues that the officers used the warrant authorizing them to search for specific

articles of clothing as a pretext to engage in "general, exploratory rummaging" through

his personal belongings, in violation of the Fourth Amendment. Brief for Appellant at

14-15 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). In support of

his argument, Schmitz highlights the district court's observation that the officers'

testimony about the delayed discovery of the muddy socks behind the door was "hard

for the court to believe." Report & Recommendation at 10. 

The district court, however, concluded that, because the officers never found

Yeager's allegedly soiled white shirt, "the object of their search would not have been

complete upon finding the socks." Id. The district court also concluded that the police
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were "appropriately looking for [the socks and shirt] when they found marijuana in

[Schmitz's] closet." Id. at 10-11. We cannot say that the district court, having heard

live testimony from officers who participated in the initial search, clearly erred in

finding that they were in fact still looking for the socks and shirt when the marijuana

was discovered. Because it is possible that the socks or shirt could have been hidden

in the jacket pocket, the officers had authority to look or reach inside the pocket. "A

lawful search extends to all areas and containers in which the object of the search may

be found." United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.), cert. denied, 502

U.S. 896 (1991) quoted in United States v. Weinbender, 109 F.3d 1327, 13290 (8th

Cir. 1997) (affirming denial of motion to suppress pistol, parts of silencer, holster and

magazine discovered and seized from behind drywall during execution of search

warrant authorizing search of home for articles of clothing). Nor can we say that the

officers executing the first search warrant otherwise engaged in exploratory conduct

that was so unreasonable as to violate Schmitz's Fourth Amendment rights. See id. at

1329-30 ("'[T]he manner in which a warrant is executed is always subject to judicial

review to ensure that it does not traverse the general Fourth Amendment proscription

against unreasonableness.'") (quoting Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th

Cir. 1994)). In the present case, nothing was destroyed or disturbed by the officers

when they searched inside the jacket pocket. In sum, we hold that the initial search did

not exceed the scope of the first search warrant or otherwise violate Schmitz's Fourth

Amendment rights. 

Conclusion

For the reasons stated, we hold that the district court did not err in denying

Schmitz's motion to suppress. The judgment of the district court is affirmed. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.