1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2928

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the Northern

* District of Iowa.

Marilyn Henderson, *

* [PUBLISHED]

Appellant. *

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Submitted: December 11, 2006

Filed: December 28, 2006

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Before BYE, COLLOTON, and BENTON, Circuit Judges.

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PER CURIAM.

A confidential informant told police that he had bought drugs from Marilyn

Jean Henderson at her apartment. Officer Chip Joecken applied for a search warrant

on October 1, 2004. Iowa judge Fae Hoover-Grinde issued the warrant that day. On

October 7, police searched Henderson's apartment, finding marijuana, drug

paraphernalia, and a rifle. On her person, they found more marijuana and two canisters

of crack cocaine. The district court1

 denied a motion to suppress all this evidence.
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After a bench trial, Henderson was convicted of possessing a firearm both as a felon

and as a drug user, in violation of 18 U.S.C. § 922(g)(1), (3). She appeals.

The Fourth Amendment requires that all search warrants be "supported by Oath

or affirmation." Judge Hoover-Grinde did not sign the jurat verifying that Officer

Joecken swore that the information in the application was true. The officer did sign

the application itself, and the judge signed the warrant. Officer Joecken waited six

days after the warrant issued before searching the apartment.

At the suppression hearing – thirteen months after the warrant issued – neither

the officer nor the judge remembered if the officer was sworn. Officer Joecken

testified that he had presented about 50 warrants and had always been sworn. Judge

Hoover-Grinde testified that she had reviewed 15 to 20 warrants, and had always

required officers to swear to the accuracy of the application. The application begins:

"Being duly sworn, I, the undersigned . . . ." An attachment to the application

describes Officer Joecken as "sworn" and repeatedly as the "affiant." The warrant

begins: "Based on sworn application made to the Court, I have found . . . ."

The district court found that Officer Joecken was sworn. Henderson contests

this finding, and asserts that the district court erred by admitting evidence of the

officer's and the judge's routine practices at the suppression hearing. She also argues

that the warrant is defective without the judge's signature on the jurat.

"When considering a suppression order, we review the district court’s factual

findings for clear error and review de novo its conclusion about whether the Fourth

Amendment was violated during the search." United States v. Sledge, 460 F.3d 963,

966 (8th Cir. 2006). Ample evidence supports the conclusion that Officer Joecken

was sworn. The officer testified that he had been sworn every time he applied for a

search warrant; the judge testified that she routinely required officers to be sworn.

The warrant, the application, and the attachment all indicate that Officer Joecken was
2 United States v. Leon, 468 U.S. 897, 922 (1984) (Evidence is admissible when

seized by an officer who reasonably and in good faith acts on a defective warrant

issued by a neutral and detached magistrate.).

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sworn. Compare United States v. Brooks, 285 F.3d 1102, 1105-06 (8th Cir. 2002).

The court's factual finding was not clearly erroneous.

At most, the judge made a "clerical error" in this case, which does not affect the

validity of the warrant. See United States v. Smith, 63 F.3d 766, 768-69 (8th Cir.

1995). According to Henderson, the recent case of Groh v. Ramirez, 540 U.S. 551,

563 (2004), means that such errors invalidate the warrant. Groh held that the Leon2

good-faith exception does not apply where a "cursory reading" of the paperwork

reveals that the warrant is patently defective. Id. at 564. The Groh case, however,

addresses an "obviously deficient" warrant. Id. at 558. In this case, Henderson attacks

only the jurat to the application. The warrant here is not obviously deficient.

Finally, Henderson argues that the testimony of Judge Hoover-Grinde and

Officer Joecken regarding their normal practices does not qualify as "habit or routine

practice evidence" under Federal Rule of Evidence 406. Thus, Henderson argues, the

district court erred in admitting this evidence at the suppression hearing to support the

factual finding that the officer was sworn.

Admission of evidence at a suppression hearing is reviewed for abuse of

discretion. United States v. Taylor, 106 F.3d 801, 803 (8th Cir. 1997). But "the rules

of evidence normally applicable in criminal trials do not operate with full force at

hearings before the judge to determine the admissibility of evidence." United States

v. Matlock, 415 U.S. 164, 172-73 (1974) (discussing Fed. R. Evid. §§ 104(a),

1101(d)); see also United States v. Raddatz, 447 U.S. 667, 679 (1980) (“[T]he

interests at stake in a suppression hearing are of a lesser magnitude than those in the

criminal trial itself. At a suppression hearing, the court may rely on hearsay and other

evidence, even though that evidence would not be admissible at trial.”).
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In accordance with Matlock and Raddatz, the district court was not bound by

Federal Rule of Evidence 406 at the suppression hearing. The court did not abuse its

discretion in considering the judge's and the officer's testimony as to their routine

practices.

The judgment of the district court is affirmed.

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