The Honorable Donald D. Alsop, United States District Judge for the District 1 of Minnesota, sitting by designation. The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 2 the Northern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-3063

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * Northern District of Iowa. Larry Deshonus Buchanan, * * Appellant. *

___________ Submitted: January 12, 1999 Filed: February 16, 1999

___________ Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and ALSOP, Distric t 1 Judge.

___________ BOWMAN, Chief Judge. Larry Deshonus Buchanan entered a conditional plea of guilty to one count o f possession with intent to distribute cra ck cocaine in violation of 21 U.S.C. § 841(a)(1)

an d (b)(1)(B) (1994), reserving the right to appeal the order of the District Court 2The record reflects that O'Neal a nd Buchanan were cousins or at least believed 3 they shared some familial relationship.
-2- denying his motion to suppress evidence seized pursuant to a search warrant. W e affirm the denial of his suppression motion.

On t he evening of June 5, 1996, Officer Mark Meyer of the Waterloo Polic e Department received in formation that three individuals were selling crack cocaine out of a car in a parking lot at 302 Commercial Street in Waterloo, Iowa. A t approx imately 11:30 p.m. that night, officers dispatched to the parking lot observe d fo ur individuals--Anthony O'Neal, Shawn Washington, Nick Woodyard, and Patricia West--standing around a Ford au tomobile and discovered Maurice Washington asleep in the backseat of a nearby Buick automobile. Officers found a plastic bag containing crack cocaine on the ground under the Ford car's right rear panel where O'Neal alone

was standing. After arresting O'Neal, officers also found a quantity of crack cocaine on his person. All five individuals were taken to the police station for questioning.

Office r Meyer and Officer Richard Knief interviewed O'Neal at the polic e station. O'Neal told the officers he had bought the crack cocaine from a man named "Bass." Shawn Washington, however, consistently told the police that O'Neal ha d bought the crack cocaine earlier that evening from Larry Buchanan. After the police informed O'Neal that Bass could not have been the drug source because Bass was in jail, O'Neal identified his supplier as Larry Baker or Larry Johnson. The police were convinced Washington was telling the truth a nd told O'Neal they thought he was lying. Whe n confronted with the officers' belief that the drug source was Buchanan, O'Neal confirmed Buchanan was his source and later pointed out Buchanan's residence to the police. 3

Officer Knief prepared an application, which included his sworn affidavit, fo r a warrant to search Buchanan's residence at 1023 West Mullan Avenue. The affidavit stated that, following the arrest of O'Neal for possession of crack cocaine with intent-3-

t o deliver, the police received information from a confidential and reliable informant, late r identified as Washington, that O'Neal had bought the crack cocaine fro m Bucha nan at Buchanan's residence, which Washington described as being located i n a row of brick townhouses on West Mullan Avenue. The affidavit stated that O'Neal confirmed this information when the police confronted him with it and that O'Nea l identifie d 1023 West Mullan Avenue, which is located in a row of brick townhouses,

as Buchanan's residence. Officer Knief explained in his affidavit that utility record s indicated Schalisa Taylor paid the utility bills for 1023 West Mullan Avenue and that Waterloo Police Department records listed numerous d omestic violence calls involving Schalisa Taylor and Larry Buchanan.
The application prepared by Officer Kn ief to obtain the search warrant included

a preprinted form that calls for the officer simply to place a checkmark or an "x" i n front of the applic able listed responses to indicate the basis for the officer's belief that the informant should be found reliable. The officer swears to the accuracy of th e checklist regarding the informant's reliability and the checklist becomes part of th e officer's sworn affidavit. In this case, Officer Knief indicated that
The informant is a concerned citizen who has been known by the above officer for 1 years and who: Is a mature individual. Is regularly employed. Is a person of truthful reputation. Has no motivation to falsify the information. Has otherwise demonstrated truthfulness. The informant has supplied information in the past 1 times. The informant's past information has led to the making of 1 arrests. Past infor mation from the informant has led to the discovery and seizure of stolen property, drugs, or other contraband. The informant has not given false information in the past. Th e information supplied by the informant in this investigation has been corroborated by law enforcement personnel.Bucha nan also moved to suppress statements he made to officers during th e 4 execution of

the search warrant. The District Court granted the motion to suppres s these statements and this part of the District Court's order has not been appealed. The Honorable John A. Jarvey, United States Magistrate Judg e for the Northern 5 District of Iowa.
-4- An Iowa state judge signed the search warrant at 3:20 a.m. on June 6, 1996. When the search warrant was executed around 4: 30 a.m. on June 6, 1996, officers found, among other things, approximately forty-two grams of crack cocaine.

After be ing indicted for possession with intent to distribute crack cocaine , Buc hanan filed a motion to suppress the evidence seized from his residence. 4 Buchana n

alleged that Officer Knief made false statements in his affidavit, and thu s the search warrant was void under Franks v. Delaware , 438 U.S. 154 (1978). Th e Magistrate Judge to wh om the matter was referred held an evidentiary hearing on the 5 mot ionpursuant to Franks . Upon thorough review of the facts and the relevant law , the Magistrate Judge found numerous misleading statements and omitted facts i n Officer Knief's affidavit. Examining a rewritten affidavit submitted by th e government, with misstatements excised and omitted fact s added, the Magistrate Judge concluded the warrant was supported by pr obable cause and recommended the motion to sup press be denied. The District Court, having held a hearing on objections to the Magistrate Judge's report and recommendation, agreed with the Magistrate Judge' s conclusion that the warrant was based on probable cause and, therefore, denied th e motion to suppress the evidence seized pursuant to the search warrant. Buchana n subsequently entered a conditional ple a of guilty to possession with intent to distribute 42.41 g rams of crack cocaine, reserving the right to appeal the District Court's denial of his motion to suppress evidence. See Guilty Plea & Sentencing Tr. at 31-32. The Dist rict Court sentenced Buchanan to seventy-eight months of imprisonment, fou r years of supervised released, and a $100 special assessment. See id. at 38-40

. Buchanan appeals the denial of his motion to suppress.-5-

In re viewing the District Court's denial of the suppression motion, the function of this C ourt is to ensure that the evidence as a whole provides a substantial basis for finding probable cause for the issuance of the search warrant. See Massachusetts v

. Upton , 466 U.S. 727, 728 (1984) (per curiam); United States v. Day , 949 F.2d 973 , 977 (8th Cir. 1991). The District Court's findings of fact may be reviewed only fo r clear error. See United States v. Martinez , 78 F.3d 3 99, 401 (8th Cir. 1996); Day , 949 F.2d at 977. We review de novo the District Court's legal conclusion that the Fourth Amendment was not violated. See Martinez , 78 F.3d at 401.

To prevail on his Franks challenge to the search warrant, Buchanan mus t estab lish(1) that "a false statement knowingly and intentionally, or with reckles s disregard f

or the truth, was included by the affiant in the warrant affidavit," and (2 ) that, "with the affidavit's false material set t o one side, the affidavit's remaining content is insufficient to establish probable cause." Franks , 438 U.S. at 155-56; see als o United States v. Clapp , 46 F .3d 795, 799 (8th Cir. 1995). This same analysis applies to material omissions of facts. Buchanan must establish (1) that Officer Knief omitted facts "wi th the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading," and (2) "that the affidavit, if supplemented by the omitte d information, could not support a finding of proba ble cause." United States v. Gladney , 48 F.3d 309, 313 (8th Cir. 19 95) (quoting United States v. Humphreys , 982 F.2d 254, 258 n.2 (8th Cir. 1992), cert. denied , 51 0 U.S. 814 (1993)); see also Clapp , 46 F.3d at 799. If the affidavit as so redacted and supplemented is not sufficient to establis h probable cause, the warrant will be voided and the evidence gathe red pursuant to it will be excluded. See Franks , 438 U.S. at 156.

The Magistrate Judge's findings of fact, which were adopted by the Distric t Court, show that Officer Knief's affidavit contained numerous false or misleadin g statem ents and omitted relevant facts. Contrary to the affidavit's assertions, Office r Knief was not personally acquainted with the informant, later identified a s Wash ington, prior to June 5-6, 1996, and the officer knew little about the informant'sBuchana n argues that Officer Knief failed to discuss in his affidavit that tw o 6 pack ages of crack cocaine were found. It is unclear from the record exactly whic h package or packages O'Neal admitted buying from Buchanan, and the Ma gistrate Judge did not make findings of fact regarding this issue. Assuming O'Neal admitte d p o ssessing only the crack cocaine found on his person and that other members of the group such as Washington may have possessed the second package, we still conclude that the affidavit establishes probable cause. Reliance on information from a n informant such as Washington who cooperates to gain leniency or other benefits does not ther eby undermine the probable cause determination especially when th e inform ation provided by the informant is at least partially corroborated, which is th e case here. See Gladney , 48 F.3d at 315; Un ited States v. Wold , 979 F.2d 632, 634-35 (8th Cir. 1992).
-6- e m ployment or reputation. The statement that the informant was a concerned citizen

was mi sleading because it implied Washington was disinterested in the event s described in the affidavit. Similarly, it was misleading to state the informant lacke d motivation to falsify information because the affid avit omitted the fact that Washington had been taken into custody and interrogated regard ing the crack cocaine found on and

near O'Neal in the parking lot. Officer Knief inappropriately suggested tha t Washington had supplied information on a prior occasion by categorizing the "past " information as regarding O'Neal and the "present" information as regarding Buchanan, when the information about O'Neal and Buchanan was all part of a singular event. The affidavit also o mitted that O'Neal initially had identified two or three other persons as the source of the crack cocaine, but this omission is not misleading because th e affidavit stated that O'Neal admitted Buchanan was his sou rce only after the police told O'Neal they were convinced h e was lying and confronted him with their belief that his source was Buchanan. 6
Upon review of the transcript of the suppression hearing and other documents in the record, we do not find clear error in the Magistrate Judge's findings of fac t rega rding the misleading and omitted elements of Officer Knief's affidavit. It i s obvious that, as the District C ourt stated, Officer Knief provided "false and inaccurateBuchanan argues that the facts of this case are similar in their egregiousness to 7 the facts of United States v. Madrid , 152 F.3d 1034 (8th Cir. 1998). Madrid , wherein the Court refused to extend the inevitable discovery doctrine to cover warrantles s searches when exigent circumstances do not exist, is inapposite to this Franks case. -7- information" in his affi davit. Although Officer Knief's conduct was at best extremely 7 careless and at worst reprehensible, our Franks analysis does not end there. Instead,

un der Franks we must examine the affidavit as rewritten, with the misleadin g statements subtracted and the omitted facts added, to determine whether there was a substantial basis for finding probable cause.

"'Probable cause' to issue a search warrant exists when an affidavit sets fort h

su fficient facts to justify a prudent person in the belief that contraband will be foun d in a pa rticular place." United States v. Reivich , 793 F.2d 957, 959 (8th Cir. 1986) , quoted in Clapp , 46 F.3d at 801; see also Illinois v. Gates , 462 U.S. 213, 238 (1983). Co urts should apply a common-sense approach and, considering all the relevan t circumstances, determine whe ther probable cause exists. See Gates , 462 U.S. at 238; Clapp , 46 F.3d at 801.

The rewr itten affidavit shows the police were informed that individuals wer e selling crack cocaine in the parking lot at 302 Commercial Street in Waterloo, Iowa. O'Nea lwas arrested with a package of crack cocaine on his person and anothe r packa ge of crack cocaine was found near the spot where he alone was standing

. Wash ingtonunequivocally and voluntarily stated that O'Neal had bought the crac k cocaine from Buchanan at Buchanan's residence e arlier that evening. Although O'Neal

was reluct ant to admit he bought the crack cocaine from Buchanan, he did admit i t when the police confronted him with Buchanan's name and thereby corroborated th e informat ion given by Washington. O'Neal had reason to protect Buchanan, whom he considered a member of his family , and in fact identified two or three other persons as his source before admitting that his source was Buchanan. His description o f Buchanan's residence and its location and his statement that Buchanan lived with his-8-

girlfr iendwere consistent with Washington's information. Through independen t investigation of utility records and police incident reports, the police corroborated that Bucha nan lived at 1023 West Mullan Avenue, the address O'Neal had identified a s being Buchanan's address.
We agree with the Magistrate Judge's expression of concern regarding the extent to which Officer Knief's affidavit had to be rewritten to make it truthful and no t misleading. We conclude, however, as did the Magistrate Judge and t he District Court, that the r ewritten affidavit, which accurately reflects the information the police ha d when Off icer Knief prepared the application for the search warrant, is sufficient t o establish probable cause for the warrant's issuance. We therefore affirm the order of the District Court denying Buchanan's motion to suppress evidence seized pursuant to the search warrant.
A true copy.

Attest:

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