1

Count one was for the methamphetamine; count two was for the marijuana.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3495

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* District of North Dakota.

Arthur Lee Crissler, * 

* 

Appellant. *

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Submitted: June 10, 2008

Filed: August 25, 2008

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Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

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SMITH, Circuit Judge.

Pursuant to a search warrant, law enforcement officers searched Arthur

Crissler's residence and recovered a supply of methamphetamine, marijuana, drug

paraphernalia, and a firearm. Based on this evidence, the government indicted Crissler

on two counts of possession of a controlled substance1

 with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and one count of possession of a

firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. §

922(g)(3). Crissler moved to suppress the evidence obtained from the search and
2

Franks v. Delaware, 438 U.S. 154 (1978).

3

The Honorable Daniel L. Hovland, Chief Judge, United States District Court

for the District of North Dakota.

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sought a Franks2

 hearing before the district court,3 but the district court denied both

requests. Subsequently, a jury convicted Crissler of all three counts. The district court

sentenced Crissler to 97 months' imprisonment, followed by 48 months' supervised

release. Crissler appeals the district court's denial of a Franks hearing on his motion

to suppress. We affirm.

I. Background

On July 26, 2006, Gene Wilkie, a former confidential informant (CI), was

arrested on outstanding warrants. In an attempt to reduce his charges, Wilkie

implicated Crissler as a suspected drug dealer, which confirmed law enforcement

authorities' suspicions about Crissler. In fact, authorities had conducted surveillance

on Crissler's residence as recently as the day before Wilkie's arrest.

Wilkie informed the officers that: (1) he had been dealing drugs for Crissler for

the last month; (2) he had been at Crissler's house that morning; (3) he had personally

seen a quarter pound of methamphetamine in a green pouch that Crissler had on his

person and a pound and a half of marijuana in a cooler in the basement of Crissler's

residence; (4) there was methamphetamine in a black sport utility vehicle parked in

the driveway of Crissler's residence; and (5) Crissler was a gun collector, and there

were guns throughout Crissler's residence. After receiving this information, Ben

Leingang, of the North Dakota Bureau of Criminal Investigation and Metro Area Safe

Trail Task Force, and Ray Eisenmann, a police officer with the Mandan, North Dakota

Police Department assigned to the drug task force, drove by Crissler's address and

observed a black sport utility vehicle in Crissler's driveway. A check of the vehicle's

license plate number confirmed that the vehicle was registered to Crissler.
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With the information received from Wilkie, combined with the information

compiled from their existing investigation, authorities applied for a search warrant for

Crissler's residence. That same day a state court judge conducted a hearing on the

application and received testimony from Leingang and Eisenmann. Leingang testified

that for the previous five or six months his task force had received information from

law enforcement agencies of suspected drug trafficking at Crissler's residence.

Leingang testified that he periodically conducted surveillance of Crissler's residence

and had observed a number of individuals coming and going from the residence at

various hours of the day and night. Further, Leingang testified that he had performed

surveillance on Crissler's residence the night before Wilkie's arrest and again observed

a number of vehicles in the driveway and on the streets near the residence. Based on

his training and experience, Leingang testified that the quantity and frequency of

individuals and vehicles visiting the residence correlated with drug trafficking.

Eisenmann, who had assisted with the arrest of Wilkie earlier that day, testified

that Wilkie had previously worked as a CI and had provided Eisenmann with reliable

information regarding drug activities that led to the arrest of three individuals.

Eisenmann also testified that Wilkie had been deactivated from his CI status, but he

was not asked, nor did he disclose, the reasons for Wilkie's deactivation. Further,

Eisenmann testified that Wilkie had been arrested that morning on failure to appear

warrants and informed the judge that at the time of his arrest, Wilkie was in

possession of drug paraphernalia, including a scale with methamphetamine residue on

it. Eisenmann also testified that he had no reason to believe that the information

Wilkie had provided was unreliable. At the conclusion of the hearing, the judge found

probable cause and issued a search warrant for Crissler's residence.

Upon executing the search warrant, the officers recovered substantial amounts

of marijuana and methamphetamine; most of the drugs were found hidden inside a big

screen television console in the basement of Crissler's home. The officers also located

drug paraphernalia and a firearm in the residence.
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Crissler was arrested and subsequently indicted on two counts of possession of

a controlled substance with intent to distribute and one count of possession of a

firearm by an unlawful user of a controlled substance. Crissler moved to suppress the

evidence obtained from the search of his residence and requested a Franks hearing.

Crissler asserted that Eisenmann omitted relevant information from his testimony in

support of the warrant. Specifically, Crissler argued that Eisenmann did not disclose

information detracting from Wilkie's reliability and failed to corroborate Wilkie's

information before presenting it to the issuing judge. The district court denied

Crissler's request for a Franks hearing and denied the motion to suppress. Crissler was

subsequently convicted by a jury of all three counts and sentenced by the court to 97

months' imprisonment.

II. Discussion

Crissler does not challenge the district court's finding of probable cause to issue

the search warrant. Rather, he challenges the district court's denial of his request for

a Franks hearing on the ground that Eisenmann deliberately or recklessly omitted

material information from the warrant application. Crissler also challenges

Eisenmann's testimony in support of the warrant and avers that Eisenmann failed to

adequately corroborate the information Wilkie provided before presenting it to the

issuing judge. "We review the denial of a request for a Franks hearing for abuse of

discretion." United States v. Jansen, 470 F.3d 762, 766 (8th Cir. 2006).

"In order to be entitled to a hearing under Franks the defendant must make a

'substantial preliminary showing' of a false or reckless statement or omission and must

also show that the alleged false statement or omission was necessary to the probable

cause determination." United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998)

(citing United States v. Fairchild, 122 F.3d 605, 610 (8th Cir.1997)). "Such a showing

is not easily made." United States v. Engler, 521 F.3d 965, 969 (8th Cir. 2008); see

also Milton, 153 F.3d at 896 ("The 'substantial preliminary showing' requirement

needed to obtain a Franks hearing is not lightly met"). Because Crissler did not make
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a substantial preliminary showing that a Franks violation had occurred, the district

court did not abuse its discretion by denying his request for a Franks hearing.

Crissler first contends that he is entitled to a Franks hearing because Eisenmann

failed to inform the court of the specific circumstances surrounding Wilkie's past

performance as a CI and the reasons for Wilkie's deactivation from CI status. Further,

Crissler asserts that Eisenmann should have clearly testified that Wilkie: was not

acting as a CI at the time he provided the information about Crissler; had been

deactivated from his CI status because he failed to make any controlled purchases or

stay in contact with his handler—conditions required of him to retain the status; and

only provided the information about Crissler after he was arrested and in an attempt

to avoid his own criminal charges.

These alleged omissions do not meet the "substantial preliminary showing"

required by Franks for several reasons. First, Eisenmann testified that Wilkie was not

an active CI. Wilkie's deactivation occurred because he failed to live up to the terms

of his CI agreement, but Wilkie's lack of compliance did not mean the information he

provided was not reliable. Second, Eisenmann informed the court that Wilkie was

providing information about Crissler after Wilkie's arrest; yet, even if this fact had

been omitted it would not have entitled Crissler to a Franks hearing. See United States

v. Gabrio, 295 F.3d 880, 884 (8th Cir. 2002) ("[T]ipsters often provide information

in the hopes of obtaining leniency with respect to their own situation and that does not

necessarily mean they are unreliable"). Third, Crissler made no offer of proof that the

alleged omissions were intentionally or recklessly omitted. See United States v.

Mathison, 157 F.3d 541, 548 (8th Cir. 1998) ("A mere allegation standing alone,

without an offer of proof in the form of a sworn affidavit of a witness or some other

reliable corroboration, is insufficient to make the difficult preliminary showing [under

Franks]."); Franks, 438 U.S. at 171 ("Affidavits or sworn or otherwise reliable

statements of witnesses should be furnished, or their absence satisfactorily

explained."); see also Engler, 521 F.3d at 970 (affirming denial of Franks hearing
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requested on basis of officer's omissions, noting that defendant made "assertions

without any supporting proof that they [were] accurate . . . provided no evidence to

establish that . . . officers deliberately or recklessly omitted information . . . [and] did

not provide an explanation for the absence of such evidence").

Additionally, Eisenmann adequately corroborated the information provided by

Wilkie. Eisenmann confirmed Wilkie's tip that there was a black sport utility vehicle

parked in Crissler's driveway and verified that the vehicle was in fact registered to

Crissler. See United States v. Humphreys, 982 F.2d 254, 259 (8th Cir. 1992)

("[W]here the informants' information is at least partially corroborated, attacks upon

credibility and reliability are not crucial to the finding of probable cause."); United

States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980) ("The credibility of an informant

may be established by corroboration . . . of only parts of an informant's story."); see

also United States v. Caswell, 436 F.3d 894, 898 (8th Cir. 2006) ("When an informant

has provided reliable information in the past or where the tip was independently

corroborated, a court may deem the informant's tip sufficiently reliable to support a

probable cause determination"). In sum, Crissler failed to meet his preliminary burden

under Franks, and thus the district court did not abuse its discretion in denying the

requested Franks hearing.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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