1

The Honorable Joseph F. Bataillon, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2320

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* District of Nebraska.

Tiloe C. Williams, *

*

Appellant. *

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Submitted: October 19, 2006

Filed: February 13, 2007

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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

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WOLLMAN, Circuit Judge.

A jury found Tiloe Williams guilty of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g). Williams argues on appeal that the district court1

erred by failing to suppress firearms evidence resulting from a search warrant in which

the affiant officer omitted material facts concerning the reliability of a confidential

informant. We affirm.
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I

After receiving a citizen’s complaint that drugs were being sold on the

premises, Omaha police officers Wells and Milone directed a confidential informant,

Randy Conway, to purchase crack cocaine from the residence of Tiloe Williams on

April 11, 2005. Although the officers watched Conway approach the house, they lost

sight of him as he reached its entrance. Conway was not equipped with any recording

device or transmitter. Soon after, they received a cell-phone call from Conway. He

was “excited, talking really fast, [and] breathing heavily.” Conway stated that he

spoke to a man at the doorway about buying crack; he told the man that he knew him

a long time ago, whereupon the man pointed a rifle at Conway, who immediately fled

the residence. The officers met up with Conway in person and observed that he was

still “excited, breathing heavily, and talking a mile a minute.” Conway repeated the

same story, described the man he encountered, and identified the man as Williams

when presented with Williams’s mug shot.

Subsequent to this encounter, Officer Wells learned of Williams’s status as a

convicted felon. He and Officer Milone submitted an affidavit that included the

information provided by Conway in an application for a search warrant of Williams’s

residence. Their affidavit also mentioned that Conway had been utilized by the police

unit in several prior narcotics operations, and that his assistance had resulted in search

warrants and several felony narcotics arrests. It further averred that Conway had

experience making controlled purchases of illegal narcotics for which preliminary

field tests of the purchases had positively indicated cocaine. Finally, the affidavit

stated that Conway was not on any terms of parole, probation, or work release at the

time he approached Williams. 

The affidavit did not mention that Conway had been arrested for providing false

information to a police officer in 2003. At that time, Conway knew of an outstanding

warrant for his arrest when a police officer pulled over the car in which he was riding.
2

The Honorable F.A. Gossett, III, United States Magistrate Judge for the

District of Nebraska.

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When the officer asked the passengers for their respective names, Conway identified

himself with a false name to avoid being arrested and losing his job. The officer

discovered Conway’s deceit, and Conway subsequently pled guilty to a misdemeanor

offense for lying to the officer and was sentenced to a single day in jail. The affidavit

also failed to mention that Conway had been convicted for two felonies and had been

arrested on a charge of felony theft for receiving stolen property. Finally, the affidavit

did not mention Conway’s financial arrangement with the police under which he

received payment for his confidential informant services depending on the type of

service he provided and the outcome of the investigation.

Citing these omissions, Williams moved for a hearing to suppress the entry of

the firearms into evidence. A magistrate judge2

 granted the hearing but limited the

scope of the inquiry to the omissions of Conway’s conviction for lying to a police

officer and Conway’s financial relationship with the police department. At the

conclusion of the hearing, the magistrate judge found that Officer Wells had

intentionally omitted the information at issue, but that even had the information not

been omitted, the affidavit would still have provided probable cause for the warrant.

Accordingly, the magistrate judge recommended a denial of Williams’s suppression

motion.

The district court reviewed the magistrate judge’s recommendations and

likewise considered the omitted information material and relevant. After reviewing

all of the evidence de novo, and even after assuming, arguendo, the truth of the full

extent of Conway’s criminal history, the district court concluded that probable cause

would have existed had the omitted information been part of the affidavit and

accordingly denied the motion to suppress.
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Williams appeals from his conviction, arguing that the district court erred (1)

by not remanding the case to the magistrate judge for further inquiries into Conway’s

criminal history in light of the limitations that the magistrate judge imposed on the

scope of the hearing and (2) by finding that probable cause would still have existed

even with the inclusion of the omitted information. The government responds that

Williams was not even entitled to a hearing because he failed to make a substantial

preliminary showing that Officer Wells omitted facts with an intent to make, or in

reckless disregard of whether they made, the affidavit misleading. It further contends

that even had Williams made such a showing, he failed to show that the omitted facts

would have altered the probable cause finding; therefore, any procedural errors that

might have occurred during the hearing were harmless. 

II

We review factual findings supporting the denial of a suppression motion for

clear error, and we review de novo the legal conclusions pertinent to the ultimate

question of whether the Fourth Amendment has been violated. United States v. Allen,

297 F.3d 790, 794 (8th Cir. 2002).

The Fourth Amendment requires a showing of probable cause before a search

warrant may be issued. Determinations of probable cause must be premised on the

totality of the circumstances. “The task of the issuing magistrate is simply to make

a practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him . . . there is a fair probability that contraband or evidence of

a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

(1983). Where an issuing judge’s probable cause determination was premised on an

affidavit containing false or omitted statements, the resulting search warrant may be

invalid if the defendant can prove by a preponderance of evidence “(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
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omitted information would not have been sufficient to support a finding of probable

cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (citations

omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).

To be entitled to a hearing on this issue (“Franks hearing”) a defendant must

make a substantial preliminary showing that includes

allegations of deliberate falsehood or of reckless disregard for the truth[.]

[T]hose allegations must be accompanied by an offer of proof. They

should point out specifically the portion of the warrant affidavit that is

claimed to be false; and they should be accompanied by a statement of

supporting reasons. Affidavits or sworn or otherwise reliable statements

of witnesses should be furnished, or their absence satisfactorily

explained. Allegations of negligence or innocent mistake are

insufficient. The deliberate falsity or reckless disregard whose

impeachment is permitted . . . is only that of the affiant, not of any

nongovernmental informant.

Franks v. Delaware, 438 U.S. 154, 171 (1978). While clear proof of these elements

is not required at the stage at which the defendant is demonstrating an entitlement to

an evidentiary hearing, United States v. Owens, 882 F.2d 1493, 1498 (10th Cir. 1989),

the defendant still must make a “substantial preliminary showing” comprised of

specific allegations along with supporting affidavits or similarly reliable statements.

Cf. Franks, 438 U.S. at 171 (describing the showing requirements for false

statements in warrant affidavits). Because “[t]here is . . . a presumption of validity

with respect to the affidavit supporting the search warrant[, t]o mandate an evidentiary

hearing, the challenger's attack must be more than conclusory and must be supported

by more than a mere desire to cross-examine.” Id. The substantiality requirement is

not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987). 
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III

In its order granting the Franks hearing, the magistrate judge found that the

defendant made a substantial preliminary showing that fficer Wells may have

omitted information from the search warrant affidavit with a reckless disregard for the

truth. Such a finding alone is legally insufficient to justify a Franks hearing absent a

determination that the intentionally or recklessly omitted information may have

rendered the affidavit misleading and may have otherwise made a probable cause

finding unsupportable. Because neither the magistrate judge nor the district court

fully addressed whether a Franks hearing was even justified, we now consider the

sufficiency of Williams’s preliminary showing.

In support of his motion for a Franks hearing, Williams alleged that Officer

Wells omitted the following facts from his affidavit: (1) the details of the financial

arrangement between the police department and Conway and (2) Conway’s criminal

background, which includes a conviction for lying to officers in 2003. Williams

offered support for his contention that Officer Wells was aware of each and suggests

that they would have made a probable cause finding improbable if they had been

included in the original affidavit.

A. Omission of the Confidential Informant Agreement

Omitting the details and existence of the bargaining agreement between

Conway and Wells was not misleading. We have held that an affidavit is not robbed

of its probative effect by its failure to mention that the informant “was a paid

informant who avoided prosecution by virtue of her testimony. . . .” United States v.

Milton, 153 F.3d 891, 896 n.3 (8th Cir. 1998); see also Reivich, 793 F.2d at 962-63;

United States v. Wold, 979 F.2d 632, 635 (8th Cir. 1992); United States v. Furlong,

844 F. Supp. 624, 628 (D. Mont. 1994), rev’d in part on other grounds sub nom.

United States v. Hand, 61 F.3d 913 (9th Cir. 1995) (unpublished table decision)
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Furthermore, the omission of the agreement’s terms was considered even more

egregious when coupled with the affiant officer’s concomitant failure to state that the

informant had a history of violating the agreement – a fact with direct bearing on the

informant’s reliability. Medina-Reyes, 877 F. Supp. at 475.

4

In fact, the resulting Franks hearing established that Conway would be

blacklisted as an informant by the entire police department if he provided unreliable

information, and that leading up to his participation in the Williams operation,

Conway had received only nominal payments in the $20-$80 range if his information

yielded tangible results. Nothing about this system encourages unreliable behavior.

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(stating that it was reasonable for the affiant to assume that the issuing justice would

have supposed that the informant had an ulterior motive, such as a reward, for

providing the information). In fact, a properly developed pay-based incentive system

with appropriate consequences for invalid information may even bolster reliability.

Nothing in Williams’s Franks hearing motion, brief in support of the motion, or

attached affidavits suggests that the omission of Conway’s agreement with the police

renders the warrant application misleading.

Williams cites United States v. Medina-Reyes, 877 F. Supp. 468, 475 (S.D.

Iowa 1995), in which a district court granted the defendant’s suppression motion after

a Franks hearing in part because the affiant officers failed to disclose details of the

cooperation and plea agreement. The district court emphasized the relevance of an

unusual incentive system in which the informant stood to benefit from a suspended

sentence or parole only if he succeeded in making a prosecutable case against

specifically named defendants within a fixed period of time. Id. at 475 (“in an

allegorical sense, [he had to] deliver the head[] of ‘Medina-Reyes’ . . . to the

prosecutor on a silver platter.”).3

 Nothing in Williams’s Franks motion, supporting

affidavits, or showing of proof suggests that Conway’s agreement or associated

behavior might adversely impact his reliability, unlike the powerful incentive in the

Medina-Reyes agreement for the informant to submit unreliable information.4

Without more, the omission of the terms of Conway’s agreement does not materially
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change Conway’s apparent reliability or otherwise render the warrant application

misleading.

B. Omission of Conway’s Criminal Background

The Supreme Court has indicated that a misstatement must be the product “of

deliberate falsehood or of reckless disregard for the truth . . . . Allegations of

negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171. Franks

offers little guidance in determining whether an omission-based misrepresentation was

made with reckless disregard for the truth or merely out of negligence. See United

States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982). We have acknowledged that

recklessness may be “inferred from the fact of omission of information from an

affidavit . . . when the material omitted would have been ‘clearly critical’ to the

finding of probable cause.” Reivich, 793 F.2d at 961-62 (citing United States v.

Martin, 615 F.2d 318, 329 (5th Cir. 1980)); see also United States v. Jacobs, 986 F.2d

1231, 1235 (8th Cir. 1993) (stating that officers act with reckless disregard if they

knowingly withhold facts that “[a]ny reasonable person would have known . . . was

the kind of thing the judge would wish to know.”). Assuming that Officer Wells’s

omission of Conway’s prior misdemeanor conviction and the remainder of Conway’s

criminal background was made with reckless disregard of whether it rendered the

warrant application misleading, we conclude that in light of Conway’s extensive

history as a reliable police informant and Officer Wells’s personal observations of his

demeanor, the supplementation of the affidavit with Conway’s criminal background

would not alter the probable cause finding and therefore would not warrant a Franks

hearing. “The core question in assessing probable cause based upon information

supplied by an informant is whether the information is reliable.” United States v.

Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing Draper v. United States, 358 U.S.

307, 313 (1959)). We have held that probable cause is not defeated by a failure to

inform the magistrate judge of an informant's criminal history if the informant's

information is at least partly corroborated, see, e.g., Wold, 979 F.2d at 635; United
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In fact, every single time Conway served as a confidential informant, the police

considered his contributions valuable enough to reward him for his efforts.

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States v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990) (per curiam); United States v.

Parker, 836 F.2d 1080, 1083 (8th Cir. 1987); United States v. Dennis, 625 F.2d 782,

791-92 (8th Cir. 1980). Probable cause is likewise not found wanting where the

affiant establishes the information’s reliability through some other means. Williams,

10 F.3d at 593 (“Information may be sufficiently reliable to support a probable cause

finding if the person providing the information has a track record of supplying reliable

information, or if it is corroborated by independent evidence.”); see also United States

v. Wright, 145 F.3d 972, 974-75 (8th Cir. 1998) (“The reliability of a confidential

informant can be established if the person has a history of providing law enforcement

officials with truthful information ”); United States v. Goodson, 165 F.3d 610, 614

(8th Cir. 1999); United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004). Despite

the lack of independent corroboration, the judicial officer issuing the warrant knew

that Conway had provided truthful and useful information and had made controlled

drug purchases for the police department on five previous occasions.5

 See, e.g.,

United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002) (finding that the

informant’s provision of reliable information on at least two occasions, coupled with

his return of stolen property, established his reliability). This represents an extensive

history of reliable assistance that postdated Conway’s dishonesty-related conviction.

Furthermore, although Conway initially related the events by phone, Officer Wells

met with Conway soon after the incident and had ample opportunity to directly assess

Conway’s credibility by observing his demeanor as he recounted the events that had

occurred and as he identified Williams as the man involved when presented with

Williams’s mug shot. See id. at 883 (citing the affiant officer’s direct observations of

the informant subsequent to a criminal incident as pertinent to a credibility

determination). Taken as a whole, and balanced against Conway’s criminal history,

these considerations more than suffice to validate Conway’s status as a sufficiently
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reliable informant to justify a finding of probable cause based upon the information

he provided.

Williams suggests that Conway’s track record as a reliable informant should be

disregarded because Conway’s prior assistance involved drug crimes, not gun crimes.

We assume from this that Williams believes Conway’s lack of expertise with guns

renders suspect his information pertaining to a gun crime. It does not; one needs no

special expertise in gun crimes to be aware that a gun is pointed at one’s face. In this

case, were we to consider Conway’s reliability as a historically trustworthy informant

diminished by his lack of experience with guns, we would be exercising “excessively

technical dissection of [the] informant’s tips, with undue attention being focused on

isolated issues that cannot sensibly be divorced from the other facts presented to the

magistrate.” Gates, 462 U.S. at 234-35. This we will not do.

IV

We conclude that Williams failed to make a substantial preliminary showing

sufficient to justify a Franks hearing. Every fact allegedly omitted was either not

misleading because it could have been assumed by the warrant-issuing judicial officer

or otherwise would not have altered the probable cause determination. Accordingly,

any errors that may have occurred during the Franks hearing were necessarily

harmless, given that the hearing ultimately resulted in the denial of Williams’s

suppression motion. 

The judgment is affirmed.

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