The Hon. David S. Doty, United States District Judge for the District of

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Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2293MN

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the District of

* Minnesota.

Jon Troy Alle, *

*

Appellant. *

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Submitted: October 23, 1998

Filed: December 4, 1998

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Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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RICHARD S. ARNOLD, Circuit Judge.

Jon Troy Alle appeals his drug-related conviction, arguing error in the District

Court’s order denying his motion to suppress evidence seized pursuant to a search

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warrant. Mr. Alle contends that an affidavit supporting the search warrant contained

an intentional misrepresentation and omissions, which misled a state judge into
The Hon. John M. Mason, United States Magistrate Judge for the District of

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Minnesota.

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concluding that probable cause existed to support issuance of the warrant. A Magistrate

Judge recommended denial of Mr. Alle’s motion for a hearing under Franks v.

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Delaware, 438 U.S. 154 (1978), to which a defendant is entitled if he makes a

substantial preliminary showing that a false statement, necessary to the finding of

probable cause, was included in a warrant affidavit, and that the statement was made

either knowingly or with reckless disregard for the truth. We affirm, substantially on the

basis of the Magistrate Judge’s Report and Recommendation.

Suspected of engaging in a drug transaction, David Garcia was arrested by

Minneapolis and St. Paul police officers on February 21, 1995. Mr. Alle, who was with

Mr. Garcia, was also arrested. Following the arrests, Mr. Garcia told the officers that

Mr. Alle was the source of his drugs, and that Mr. Alle had “fronted” him twenty-six

ounces of methamphetamine. A search warrant affidavit, sworn by Sergeant Jerome

Jung of the St. Paul Police Department, identified Mr. Garcia as a “Confidential Reliable

Informant,” apparently a term of art used by law enforcement officials to describe

someone whose information, in the past, had proven reliable. In fact, until his arrest,

Sergeant Jung had never met Mr. Garcia. In addition, Sergeant Jung omitted from the

affidavit other facts relevant to Mr. Garcia’s reliability, namely that Mr. Garcia, a drug

dealer, had himself just been arrested. Mr. Alle argues that the inclusion of the term of

art “Confidential Reliable Informant,” and the omission of the other relevant facts,

misled the judge who issued the search warrant. Mr. Alle also argues that, once the

misrepresentation is removed and the omitted information included, the affidavit will no

longer support a determination of probable cause.

Mr. Alle made these arguments to the Magistrate Judge, who disagreed, finding

that there would have been sufficient probable cause to support the warrant even if the

alleged misrepresentation were omitted from, and the omissions added to, the affidavit.
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In other words, the affidavit would still have sufficiently shown probable cause if

Mr. Garcia had been called a “Cooperating Witness,” the designation suggested by

defendant in his brief. The Magistrate’s Report and Recommendation thoroughly

reviewed the facts and the law to be applied, and we believe the Court’s conclusion was

correct. Mr. Garcia’s statements were made against his penal interest, and he consented

to a search of his own apartment, which produced the “fronted” drugs. As the

Magistrate observed, had this omitted information been included in the affidavit, Mr.

Garcia’s reliability would have only been enhanced. In addition, some of the other

information he provided to the officers, such as Mr. Alle’s address and telephone

number, was independently corroborated by the police.

Affirmed.

A true copy.

Attest:

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