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.
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I.

At approximately 8:35 p.m. on April 17, 1995, a Kinloch, Missouri,

police officer stopped Adams for a traffic violation. Upon discovering an

outstanding warrant for Adams’ arrest, the officer 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 his

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 impounded the truck but that it “was tight though. It was

tight as Fort Knox.” During a call made at 12:58 a.m., Adams told his

brother, “I was dirty when they stopped me man,” “I was dirty. They tow.

. .they towed my truck 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 dog

reacted positively to a console between the truck’s front seats, indicating

the presence of a controlled substance. 

The agents 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 intercepted call that he “was

riding dirty,” but that the truck was “tight, tight as Fort Knox.” The

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.

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The truck was driven to an FBI facility. A search of the truck

revealed a semi-automatic .32 caliber handgun, a .41 caliber Smith & Wesson

revolver, a plastic bag containing cocaine, and paperwork bearing Adams’

name. These items were hidden in the console between the front seats of

the truck, which was locked with a custom-wire mechanism. Adams’

fingerprints were discovered on the Smith & Wesson 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 was

provided to Adams’ defense 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 the

statements which Scott quoted in his affidavit, Adams moved to suppress the

evidence recovered pursuant to the warrant. 

At the suppression hearing, Scott was 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 the

3

motion to suppress, finding that the magistrate judge issuing the warrant

had been misled by the paraphrased quotes but that Scott had not

intentionally or knowingly misled the issuing magistrate judge on a

material 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.
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II.

Adams first 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 the

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 no

Franks violation occurred. The evidence shows, and Adams does not contest,

that Adams in fact made the quoted statements during the 12:58 a.m.

conversation. Thus, Scott’s warrant was based on true information and

Franks is inapplicable. See United States v. Angell, 11 F.3d 806, 810 (8th

Cir. 1993) (no Franks violation where officer’s testimony contained no

falsehoods).

Adams also asserts that the warrant was improperly based on the

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

magistrate 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). 

Probable cause exists when a practical, common-sense evaluation of

the facts and circumstances shows a fair probability that contraband or

other evidence 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 had a ‘substantial basis for . . . conclud[ing]’ that

probable cause existed.” See id. at 238-39 (quoting Jones v. United

States, 362 
-5-

U.S. 257, 271 (1960)). Here, the issuing magistrate judge was aware of the

facts that Adams had been driving the truck in question and that the truck

had been impounded and of Adams’ inculpatory statements in the intercepted

telephone conversations. This evidence provided a substantial basis for

the magistrate judge’s conclusion that a fair probability existed that

contraband would be found in the truck.

III.

Adams next asserts that the evidence showing that he possessed the

weapons was insufficient to support the verdict. We examine this claim by

reviewing the evidence in the light most favorable to the government. See

United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir. 1996). We will

overturn a jury verdict only if a reasonable jury must have had a

reasonable doubt regarding the proof of an essential element of the

offense. See id. At 1547-48. Without repeating the summary of the

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.