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The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska, adopting the report and recommendations of the Honorable David L.

Piester, United States Magistrate Judge for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2617

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United States of America,

Appellee,

v.

Merrill D. Olvey, Jr.,

Appellant.

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Appeal from the United States

District Court for the

District of Nebraska.

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Submitted: December 13, 2005 

 Filed: February 14, 2006

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Before BYE, BEAM and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

 Merrill D. Olvey, Jr. (“Olvey”) appeals the denial by the district court1

 of his

motion to suppress evidence obtained in a search of his residence. Olvey contends

that the search warrant was not supported by probable cause. For the reasons

discussed below, we affirm the judgment of the district court.
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18 U.S.C. § 922(g) states:

It shall be unlawful for any person . . . 

(8) who is subject to a court order that–

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I. BACKGROUND

On January 23, 2004, in Box Butte County, Nebraska, Olvey’s then-wife, Kerry

Olvey, obtained an ex parte protection order against Olvey. The protection order

forbade Olvey from “threatening assaulting, molesting, attacking, or otherwise

disturbing the peace of” Kerry. It also temporarily awarded sole custody of the

Olveys’ children to Kerry and forbade Olvey from going to the children’s school.

Olvey was served with the protection order while incarcerated in the county jail. As

required by Neb. Rev. Stat. § 42-925, enacted as part of the Nebraska Protection from

Domestic Abuse Act, Olvey was given notice that he had five days to challenge the

order by filing a Request for Hearing form. He immediately completed the form and

gave it to the jailer for transmission to the clerk of the county court. However, the

form never reached the court. 

Kerry and the children moved to Texas. After his release from the county jail,

Olvey moved to modify the protection order to allow him to visit the children’s former

school and to gain telephone visitation privileges with the children. On March 9,

2004, a hearing was conducted on Olvey’s request for modification. Olvey chose not

to attend but was represented by counsel. The Nebraska district judge signed a journal

entry on March 10, 2004, ordering that the protection order be modified as requested

by Olvey.

On September 15, 2004, Special Agent Ronald E. Meadows of the Bureau of

Alcohol, Tobacco, Firearms and Explosives applied for a warrant to search for

firearms in Olvey’s residence, asserting probable cause to believe that Olvey was a

prohibited person in possession of firearms in violation of 18 U.S.C. § 922(g).2

 The
(A) was issued after a hearing of which such person received actual

notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an

intimate partner of such person or child of such intimate partner or

person, or engaging in other conduct that would place an intimate partner

in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to

the physical safety of such intimate partner or child; or 

(ii) by its terms explicitly prohibits the use, attempted use, or

threatened use of physical force against such intimate partner or

child that would reasonably be expected to cause bodily injury

. . . 

to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

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search warrant application included copies of the original protection order and the

journal entry modifying the order. Paragraph 4(f) of Meadows’s supporting affidavit

stated:

OLVEY is listed as the Respondent on a current Domestic Abuse

Protection Order . . . dated January 23, 2004 . . . and remaining in effect

for one year from that date. A copy of the Protection Order and related

Journal are attached as exhibit 3. . . . The protection order . . . does, by

its terms, explicitly prohibit Olvey from threatening, assaulting,

molesting, attacking, or otherwise disturbing the peace of the petitioner

(Olvey’s wife), which appears to satisfy the requirements of 18 U.S.C.

§ 922(g)(8)(C)(ii). The backside of the protection order contains a

paragraph entitled “Firearms Prohibition” . . . . [T]his paragraph states

“If a final order is entered against you after a hearing, whether or not you

attended, you are prohibited from possessing . . . a firearm or

ammunition . . . [under] 18 U.S.C. § 922(g)(8).” A final order was

entered against Olvey after hearing at which he was represented by an

attorney on March 9, 2004, as reflected by the attached Journal Entry

(exhibit 3).
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The magistrate judge issued the search warrant. The law enforcement personnel

who conducted the search found a sawed-off shotgun in Olvey’s possession. Olvey

was charged with possession of the sawed-off shotgun in violation of 26 U.S.C. §§

5841, 5861(d) and 5871. He moved to suppress the discovery of the shotgun, arguing

that the search warrant was not supported by probable cause and that Meadows’s

affidavit included a false statement made intentionally, or with reckless disregard for

the truth, that misled the magistrate judge. The same magistrate judge who issued the

search warrant wrote a report and recommendation denying the motion to suppress,

ruling that the affidavit established probable cause regardless of Meadows’s allegedly

misleading statement and that, in any case, the good faith exception to the

exclusionary rule would apply. The district court adopted the report and

recommendation. Olvey entered a conditional plea of guilty to the charge of

possession of the sawed-off shotgun, preserving his right to appeal the denial of his

motion to suppress. The district court sentenced Olvey to ten months’ imprisonment.

Olvey now appeals the denial of his motion to suppress.

II. DISCUSSION

This court reviews a magistrate judge’s determination of probable cause “to

ensure that the magistrate had a substantial basis for . . . concluding that probable

cause existed.” United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)) (alteration in Gladney). “The task of the

issuing magistrate is 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.’” Id.

(quoting Gates, 462 U.S. at 238). Where there is no evidentiary hearing before the

magistrate judge, the probable cause determination must be based upon “only that

information which is found within the four corners of the affidavit.” Id. (quoting

United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982)).
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Neb. Rev. Stat. § 42-925 states:

If the respondent wishes to appear and show cause why the [ex parte]

order should not remain in effect, he or she shall . . . [return a requestfor-hearing form] to the clerk of the district court within five days after

service upon him or her. Upon receipt of the request for a show-cause

hearing, the court shall immediately schedule a show-cause hearing to be

held within thirty days after the receipt of the request for a show-cause

hearing and shall notify the petitioner and respondent of the hearing date.

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Olvey’s argument centers on whether the warrant application demonstrated that

he was a prohibited person under § 922(g)(8). The protection order as modified by

the journal entry satisfies the requirements of § 922(g)(8)(B) and (C) because it

restrains Olvey from threatening assaulting, molesting, attacking, or otherwise

disturbing the peace of his wife. Furthermore, the journal entry “was issued after a

hearing of which [Olvey] received actual notice, and at which [Olvey] had an

opportunity to participate.” § 922(g)(8)(A). Therefore, on its face the protection

order as modified rendered Olvey a prohibited person according to the three

requirements of § 922(g)(8).

Olvey contends that the March 9 hearing did not satisfy § 922(g)(8)(A) because,

under the Nebraska Protection from Domestic Abuse Act, he was unable to litigate the

merits of the protection order unless he requested a hearing within five days after he

was served with the ex parte order.3

 This argument is incorrect. Under Nebraska law,

a state district court generally retains power to address the full merits of any order it

issues during a term. See, e.g., Talkington v. Womens Servs., P.C., 588 N.W.2d 790,

794 (Neb. 1999) (“[A] district court has the inherent authority to vacate or modify its

decision within the same term that the initial decision was rendered.”). In addition,

Neb. Rev. Stat. § 25-2001 provides:

(1) The inherent power of a district court to vacate or modify its

judgments or orders during term may also be exercised after the end of
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the term, upon the same grounds, upon a motion filed within six months

after the entry of the judgment or order.

(2) The power of a district court under its equity jurisdiction to set aside

a judgment or an order as an equitable remedy is not limited by this

section.

Olvey relies on Buda v. Humble, 517 N.W.2d 622 (Neb. Ct. App. 1994), for the

proposition that the state district court’s general power to address the merits of its

previous orders does not apply to protection orders. Olvey asserts that after a

protection order is issued, “no further action [is] authorized under the Protection from

Domestic Abuse Act or the order entered by the court.” Id. at 624. We do not agree

with Olvey’s interpretation of Buda. The issue in Buda was whether a protection

order was appealable as a final order. The court held that the protection order was a

final order for appeal purposes because no further action was required under the

Protection from Domestic Abuse Act, or under the order itself, for the order to take

effect. Buda did not hold that orders under the Protection from Domestic Abuse Act

are somehow exempt from Nebraska courts’ general equitable and statutory authority

to vacate or modify injunctive orders. In fact, because Olvey did not request a hearing

within five days of service of the protection order on him, it was this general power

that allowed the state district court to grant Olvey’s request for a hearing and modify

the protection order as Olvey requested. Because Olvey had the opportunity to

address the merits of the protection order at a hearing, the requirements of §

922(g)(8)(A) are satisfied.

Olvey next contends that he is entitled to a hearing to determine whether

Meadows’s affidavit was intentionally or recklessly misleading. In paragraph 4(f) of

his affidavit, Meadows characterized the journal entry as a “final order.” Olvey

asserts that this is a false statement made intentionally or recklessly that misled the

magistrate judge into assuming the March 9 hearing was a full hearing on the merits

of the protection order. 
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In order to prevail on a challenge to a search warrant affidavit under Franks v.

Delaware, 438 U.S. 154 (1978), “a defendant must show: (1) that a false statement

knowingly and intentionally, or with reckless disregard for the truth, was included in

the affidavit, and (2) that the affidavit’s remaining content is insufficient to establish

probable cause.” United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998) (citation

omitted). Even if Olvey’s assertion is accepted as true, Olvey fails to show that the

affidavit’s remaining content was insufficient to establish probable cause. As the

magistrate judge noted, Meadows’s characterization of the journal entry was irrelevant

to the probable cause determination because copies of the protection order and journal

entry were attached to the affidavit. Therefore, the magistrate judge was able to

conduct his own analysis of the March 10 modification and make his own

determination as to whether it satisfied the standards of § 922(g)(8). Because the

warrant application would have supported the magistrate judge’s finding of probable

cause regardless of the challenged statement, Olvey did not merit a Franks hearing.

Finally, we note that even if the magistrate judge had erred in this case, the

good-faith exception to the exclusionary rule established in United States v. Leon, 468

U.S. 897 (1984), would apply. Under Leon, the Fourth Amendment exclusionary rule

does not exclude evidence obtained by officers who reasonably rely on a neutral

magistrate judge’s probable cause determination, even if the search warrant is

ultimately found to be invalid. United States v. Hessman, 369 F.3d 1016, 1020 (8th

Cir. 2004). In this case, law enforcement relied in good faith on the magistrate

judge’s legal determination that the protection order as modified by the journal entry

met the criteria of § 922(g)(8).

III. CONCLUSION

We conclude that the district court did not err in denying Olvey’s motion to

suppress. Therefore, we affirm the judgment of the district court.

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