### The HONORABLE ANDREW W. BOGUE, United States District Judge 1 

### for the District of South Dakota, sitting by designation. The Honorable George F. Gunn, Jr., United States District 2 

### Judge for the Eastern District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3063

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Laverne Adams, * * Appellant. *

___________ Submitted: February 11, 1997 Filed: March 26, 1997

___________ Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District 1 Judge.

___________ WOLLMAN, Circuit Judge. Laverne Adams appeals his conviction in the district court for being 2 a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We affirm.

### -2- I.

At appro ximately 8:35 p.m. on April 17, 1995, a Kinloch, Missouri , police officer stopped Adams for a traffic viola tion. Upon discovering an outstanding warrant for Adams’ arrest, the offic er arrested him, conducted a plain view inventory search of Adams’ truck, and had the truck towed.

On April 18, 1995, Adams, while in custody, twice telephoned hi s brother, who was the subject of a Federal Bureau of Investigation (FBI ) investigation. An FBI wiretap on the brother’s telephone line intercepted both of Adams’ calls. During a call made at 12: 18 a.m., Adams stated that the police had impoun ded the truck but that it “was tight though. It was tigh t as Fort Knox.” During a call made at 12:58 a.m., Adams told hi s brother, “I was dirty when they stopped me man,” “I was dirty. They tow. . .they towed my truc k man,” and “You know what I be havin’ with me man.” At approximately 11:00 a.m. on April 18, 1995, agents of the FBI and St. Louis County had a narcotics dog sniff Adams’ impounded truck. The do g reacted positively to a console between the truck’s front seats, indicatin g the presence of a controlled substance.
The ag ents then applied for a warrant to search Adams’ truck. St
. Louis County police officer Todd Scott prepared the affidavit in support of the warrant, citing the dog sniff and the intercepted conversations
. He attested that Adams had stated during the int ercepted call that he “was riding dirty,” but that the truck was “tight, tight as Fort Knox.” Th e magistrate judge determined probable cause existed and issued a warrant.

### The Honorable Lawrence O. Davis, United States Magistrate 3 

### Judge for the Eastern District of Missouri. -3- The truc k was driven to an FBI facility. A search of the truc k revealed a semi-automatic .32 caliber handgun, a .41 caliber Smith & Wesso n revolver, a plastic bag containing cocaine, and paperwork bearing Adams’ name. These items were hidden in the console between the front seats of the t ruck, which was locked with a custom-wire mechanism. Adams ’ fingerprints were discovered on the Smith & Wess on revolver and the bag of cocaine.
Adams was indicted for being a felon in possession of a firearm
. During discovery, a transcript of only the 12:18 a.m. conversation wa s provided to Adams’ de fense counsel, as investigating agents had forgotten about the 12:58 a.m. conversation. In light of the apparent discrepancy between Adams’ statements in the 12:18 a.m. conversation transcript and th e statements which Scott quoted in his affidavit, Adams moved to suppress th e evidence recovered pursuant to the warrant. At the suppression hearing, Scott wa s presented with a transcript of Adams’ 12:18 a.m. conversation. He testified that Adams’ statement that he “was riding dirty” was not in that conversation transcript and that he must have paraphrased the statement. The magistrate judge denied th e 3 motion to suppress, f inding that the magistrate judge issuing the warrant ha d been misled by the paraphrased quotes but that Scott had no t intent ionally or knowingly misled the issuing magistrate judge on a materia l matter or proceeded with a reckless disregard for the truth
. Subsequently, but prior to trial, the 12:58 a.m. conversation transcript containing the quoted statements was discovered and disclosed to defense counsel.

### -4- II.
Adams fir st asserts that the misstatement in the affidavit rendered the search of his truck invalid. Under Franks v. Delaware , 438 U.S. 154 (1978), a warrant is invalid if the affiant knowingly and intentionally, or with reckless disregard for the truth, includes a false statement in th e warrant affidavit. See Franks , 438 U.S. at 155-56; United States v. Clapp , 46 F.3d 795, 799 (8th Cir. 1995). We find it clear, however, that n o Franks violation occurred. The evidence shows, and Adams does not contest , that Adam s in fact made the quoted statements during the 12:58 a.m
. conversation. Thus, Scott’s warrant was based on true information an d Franks is inapplicable. See United States v. Angell , 11 F.3d 806, 810 (8t h Cir. 1 993) (no Franks violation where officer’s testimony contained n o falsehoods).
Adams als o asserts that the warrant was improperly based on th e warrantless search conducted with the aid of the narcotics dog. We need not reach this question, however, so long as the other evidence before the magist rate judge provided the requisite probable cause for the warrant
. See Clapp , 46 F.3d at 799 (even if some information in warrant affidavit is improper, warrant is valid if remaining information sufficiently shows existence of probable cause).

Pr obable cause exists when a practical, common-sense evaluation o f the facts and circumstances shows a fair probability that contraband o r other evi dence will be found in the asserted location. See Illinois v
. Gates , 462 U.S. 213, 238 (1983). Our task on review is “simply to ensure that the magistrate h ad a ‘substantial basis for . . . conclud[ing]’ that prob able cause existed.” See id. at 238-39 (quoting Jones v. Unite d States , 362

### -5-

U.S. 257, 271 (1960)). Here, the issuing magistrate judge was aware of th e facts that Adams had been driving the truck in q uestion and that the truck had been impounded and of Adams’ inculpatory sta tements in the intercepted telephone conversations. This evidence provided a substantial basis for the ma gistrate judge’s conclusion that a fair probability existed tha t contraband would be found in the truck.

III.

Adams ne xt asserts that the evidence showing that he possessed th e weapons was insufficient to support the verdict. We examine this claim by reviewing the evidence in the light most favorab le to the government. See United States v. Bordeaux , 84 F.3d 1544, 1547 (8th Cir. 1996). We wil l ove rturn a jury verdict only if a reasonable jury must have had a reasonable doubt regarding the proof of an essential element of th e offense. See id. At 1547-48. Without repeating the summary of th e evidence set forth above, we conclude that that evidence would allow, if indeed not compel, a reasonable jury to conclude that Adams possessed the firearms. The judgment is affirmed.
A true copy.

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