UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4038

GREGORY SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-95-196-WMN)

Submitted: October 27, 1998

Decided: November 16, 1998

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Harold I. Glaser, GLASER & DEROS, Baltimore, Maryland, for

Appellant. Lynne A. Battaglia, United States Attorney, Harvey Ellis

Eisenberg, Assistant United States Attorney, Baltimore, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Gregory Smith of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) (1994). The district

court sentenced him to forty-one months' imprisonment. Smith now

contends on appeal that the district court erred when it denied his

request for a hearing under Franks v. Delaware ,1 when it found that

he did acknowledge an ownership interest in the firearm seized from

his car after he was advised of his constitutional rights under Miranda

v. Arizona, 384 U.S. 436 (1966), and when it held that the weapon

seized from his vehicle was an operable firearm. Consequently, Smith

contends that there was insufficient evidence to sustain his conviction

under § 922(g)(1). Finding no reversible error, we affirm.

After police received an anonymous tip that drug trafficking was

occurring at the Public Works Falls Road site, they initiated surveillance at that location. During this time, Smith was an employee of the

Department of Public Works in Baltimore City and worked at the

Falls Road location. On December 20, 1994, Baltimore City Circuit

Court Associate Judge John Prevas issued a search warrant for Smith

and his vehicle. Judge Prevas determined that probable cause existed

for the search based on the twenty-one page affidavit submitted by

Detective Thomas Fore and Sergeant John Kowalczuk ("affiants"),

detailing their investigation of Smith and other employees of Baltimore City's Department of Public Works for possible violations of

controlled substance laws. Firearms were specifically included as

items subject to seizure. Later that same day, police executed the

search warrant, recovering a .380 semiautomatic pistol and additional

ammunition for the weapon from Smith's vehicle.

Police arrested Smith and charged him with being a felon in possession of a firearm in violation of § 922(g)(1). Following initiation

of the proceedings, Smith filed a suppression motion arguing that the

police lacked probable cause to perform a search of his car, and thus,

the weapon recovered from his vehicle and his post-arrest statement

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1 438 U.S. 154, 155-56 (1978).

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that he purchased and owned the seized weapon, should not be admitted into evidence. At the conclusion of a suppression hearing, the district court found that Judge Prevas had probable cause to issue the

warrant and denied Smith's motion.

Smith then filed a supplemental motion to suppress the seized firearm, raising issues as to the veracity of the statements in the affidavit

supporting the application for a search warrant. The district court

again denied Smith's motion to suppress the evidence and concluded

that Smith had not presented sufficient evidence to require a hearing

under Franks. Judgment was subsequently entered against Smith and

he timely filed a notice of appeal.

Smith first asserts that the district court erred in denying his request

for a Franks hearing, and consequently, his supplemental motion to

suppress. Smith claims that the warrant was invalid because it contained false information that was knowingly and intentionally given

by the affiants and that he provided enough support to warrant a hearing under Franks. Specifically, he points to the fact that co-worker

Ronald Johnson's affidavit conflicts with the affiants' statement that

Smith's vehicle was observed at the Public Works' Falls Road site on

September 28, 1994, at about 3:00 p.m. Smith also points to the fact

that no drugs were found during the search of his vehicle or on his

person.

Under Franks, the Supreme Court held that the Fourth Amendment

entitles a defendant to a pre-trial hearing to challenge the validity of

a search warrant affidavit if the defendant "makes a substantial preliminary showing that a false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is necessary

to the finding of probable cause." Franks, 438 U.S. at 155-56. The

district court's finding that the statements were not deliberately false

or in a reckless disregard for the truth is reviewed under the clearly

erroneous standard. See United States v. Jones , 913 F.2d 174, 176

(4th Cir. 1990).

As the district court properly found, Smith presented no evidence

establishing that the challenged statement constituted a deliberate

falsehood or that the officers had a reckless disregard for the truth.

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The record does not reflect that the detectives intentionally lied when

stating that Smith's vehicle was observed at the Falls Road location

on September 28, 1994. Further, the affidavit detailed a series of

secret transactions involving Smith selling what appeared to be drugs

from his vehicle. Although Smith provided the court with affidavits

of several individuals asserting that he would routinely sell various

items from his vehicle other than drugs, such as shoes, boots, and

handbags, this information alone does not detract from the district

court's finding that the detectives could have reasonably and honestly

mistaken these transactions for drug transactions. We therefore find

that Smith did not establish the requisite showing to warrant a Franks

hearing, and thus, the district court properly denied his supplemental

motion to suppress.

Smith next asserts that the district court erred when it denied his

initial motion to suppress and allowed into evidence his post-arrest

statement that he purchased and owned the seized weapon. At the

suppression hearing, Smith denied that he admitted to police following his arrest that he bought the gun that was seized from his vehicle.

Smith further claimed that if he did make such a statement it was not

admissible because he was not given any Miranda warnings. After

conducting a thorough evidentiary hearing, the court believed the officers' testimony rather than Smith's. This finding that the police gave

Smith Miranda warnings will be accepted unless clearly erroneous.

See United States v. Gray, 108 F.3d 545, 549 (4th Cir. 1997). Because

the district court's finding is based on a credibility determination and

is otherwise supported by the testimony presented at the hearing, we

affirm the district court's denial of Smith's motion to suppress this

incriminating statement.

Finally, Smith asserts that the evidence was insufficient to sustain

a conviction under § 922(g). Smith claims that the evidence presented

did not conform to the statutory definition of a firearm because the

firearm seized was not operable. First, we note that Smith stipulated

at trial that the firearm described in his indictment "fit[ ] the definition

of a firearm as specified in" 18 U.S.C. § 921(a)(3). Furthermore, there

is no requirement that a firearm be operable in order to satisfy the definition of firearm under § 921(a)(3).2 See United States v. Willis, 992

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2 "The term `firearm' means (A) any weapon (including a starter gun)

which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." 18 U.S.C.§ 921(a)(3) (1994).

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F.2d 489, 491 n.2 (4th Cir. 1993); United States v. Brown, 117 F.3d

353, 355-56 (7th Cir. 1997) (listing cases holding that removal or disabling of firing pin does not disqualify weapon as"firearm"). Thus,

considering Smith's stipulation and viewing the evidence in a light

most favorable to the Government, we find it sufficient to support

Smith's conviction. See United States v. Tresvant, 677 F.2d 1018,

1021 (4th Cir. 1982).

Accordingly, we affirm Smith's conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the material before the court and argument would not aid in

the decisional process.

AFFIRMED

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