The Ho n. David S. Doty, United States District Judge for the District o f 1 Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-2293MN

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the District of * Minnesota. Jon Troy Alle, * * Appellant. *

___________ Submitted: October 23, 1998 Filed: December 4, 1998

___________ Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARN OLD, Circuit Judges.

___________ RICHARD S. ARNOLD, Circuit Judge.

Jon Troy Alle appeals his drug-related conviction, arguing error in the District Cou rt’s order denying his motion to suppress evidence seized pursuant to a searc h

1 w a rrant. Mr. Alle contends that an affidavit supporting the search warrant contained an intentional misrepresentation and omissions, which misled a state judge intoThe Hon. John M. Mason, United States Magistrate Judge for the District o f 2 Minnesota. -2- 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

. 2 Delawar e , 438 U.S. 154 (1978), to which a defendant is entitled if he makes a substa ntial preliminary showing that a false statement, necessary to the finding o f probable cause, was included in a warrant affidavit, and that the statement was mad e either knowingly or with reckless disregard for the truth. We aff irm, substantially on the basis of the Magistrate Judge’s Report and Recommendation. Suspe cted of engaging in a drug transaction, David Garcia was arrested b y Minneapolis and St. Paul police officers on February 2 1, 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-si x ounces of methamphetamine. A search warrant affidavit, sworn by Sergeant Jerom e Jung of the St. Paul Police Department, identified Mr. Garcia as a “Conf idential Reliable Informant ,” apparently a term of art used by law enforcement officials to describ e someone whose information, in the past, had proven reliable. In fact, until his arrest , Serg eant 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 bee n 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 ju dge who issued the search warrant. Mr. Alle also argues that, once th e 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.-3-

In other w ords, the affidavit would still have sufficiently shown probable cause i f Mr. Garcia had been called a “Cooperating Witness,” the designation suggested b y defend ant in his brief. The Magistrate’s Report and Recommendation thoroughl y reviewed the facts and the law to be applied, and we believ e the Court’s conclusion was correct. Mr. Garcia’s statements were made against his penal in terest, and he consented to a search of his own apartment, which produced the “fronted” drugs. As th e 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 othe r informati onhe provided to the officers, such as Mr. Alle’s address and telephon e number, was independently corroborated by the police.
Affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT