United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3872

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Peter Contrell Coleman, *

* [UNPUBLISHED]

Defendant-Appellant. *

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Submitted: May 12, 2005

Filed: July 28, 2005

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Before MORRIS SHEPPARD ARNOLD, LAY, and BENTON, Circuit Judges.

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PER CURIAM.

After a search of his home, Peter Coleman was convicted of being a felon in

possession of a firearm. Coleman argued that Detective Bjornson of the Des Moines,

Iowa Police Department made misleading or false statements in his application for

a warrant, and that Des Moines police officers arrested him without probable cause.

The district court found that Detective Bjornson did not deliberately or recklessly

mislead the judge in his application for a warrant, and that the search warrant for

Coleman’s home was supported by probable cause. We affirm. 
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While the owners were present, Barb’s Pawn and Loan (“Barb’s”) in Des

Moines, Iowa, was robbed by three men wearing stocking caps. The owners were

able to provide a general description of the assailants. They described the first as

approximately 5'8" tall, 180 pounds, the second as approximately 5'6" tall, 170

pounds, and the third as approximately 5'6" tall, 170 pounds. The owners also stated

that the three were black males in their twenties, and were carrying a blue gym bag.

Other witnesses reported a blue vehicle leaving the scene of the robbery. 

The day after the robbery, three men arrived at another pawn shop in Des

Moines, Pawn City, owned by Randi Ryan. One of the men, forty-four year old

Anthony Mosley, attempted to pawn a unique ring. Although Ryan did not know

whether Mosley was with the two other men, she thought the ring offered by Mosley

looked suspicious, and called the owners of Barb’s to check if the pawned ring was

among the rings stolen from their store. The owners confirmed that the ring was

stolen in the robbery. 

The next day, Mosley again appeared at Pawn City to pawn another ring. Ryan

refused to pawn the ring, telling Mosley that she believed it was stolen from Barb’s.

Mosley responded by saying “don’t get me involved in a robbery.” Ryan then called

the police, who arrived and took Mosley into custody. 

While in custody, Mosley told Detective Bjornson that he had encountered a

Peter Copeland behind a Hy-Vee grocery store on the afternoon of the robbery. He

stated that Peter was in a small white vehicle with a black garbage bag full of jewelry.

Mosley stated that the two of them spoke for a while, and then Peter reached into the

bag and pulled out three rings which he gave to Mosley. Mosley knew Peter’s

mother, Mildred Copeland, and described the location of Peter’s apartment. 

After investigating Mosley’s statements, police corroborated much of the

details provided by Mosley. Peter’s mother’s name was Mildred Copeland, although
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Peter went by the last name of “Coleman,” not “Copeland.” Mosley’s description of

Coleman’s apartment was confirmed by checking police records and by contacting

the apartment manager. Police also discovered that Tomeka Taylor, Coleman’s livein girlfriend, owned a white car fitting the description provided by Mosley. Police

records indicated that Coleman was twenty-five years old, 5'5" tall, and weighed 152

pounds. 

Based on the information provided by Mosley, Detective Bjornson sought a

search warrant of Coleman’s home. When Coleman was taken into custody by police,

he was driving Tomeka’s white vehicle. In his affidavit in support of a search

warrant, Officer Bjornson did not reveal to the issuing judge that (1) witness’s

observed a blue getaway car; (2) the victims reported that the assailants were carrying

a navy blue gym bag; (3) Mosley entered the store with two other men during his first

visit to Ryan’s store; and (4) during Mosley’s second visit to Pawn City, Mosley told

her not to get him “involved in a robbery.” In his affidavit, Officer Bjornson also

included a statement noting that Coleman matched the physical description of the

assailants given by the victims. The police obtained a search warrant and searched

Coleman’s home, which eventually led to his conviction for being a felon in

possession of a firearm. 

A. Franks Challenge

Coleman contends that Detective Bjornson violated the rule of Franks v.

Delaware, 438 U.S. 154, 155-56 (1978), by deliberately or recklessly omitting and

including false statements in his warrant affidavit. The district court’s Franks

determination is reviewed for clear error, and its legal conclusions are reviewed de

novo. United States v. Shurn, 849 F.2d 1090, 1096 (8th Cir. 1988).

To receive an evidentiary hearing based upon Franks, a defendant is required

to make a substantial preliminary showing that (1) a false statement was knowingly,
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intentionally, or recklessly included in the affidavit, or that facts were omitted with

an intent to make the affidavit misleading; and (2) the affidavit’s remaining content,

once the inappropriately included statements are removed, or once supplemented with

the omitted information, is insufficient to establish probable cause. United States v.

Wells, 223 F.3d 835, 838 (8th Cir. 2000). We have emphasized that the substantiality

requirement for making a preliminary showing under Franks is not easily met, and

that “[a]llegations of negligence or innocent mistake are not sufficient.” United

States v. Crook, 936 F.2d 1012, 1014 (8th Cir. 1991). 

Coleman fails to meet the substantiality requirement of Franks. Officer

Bjornson offered credible testimony regarding his motives for including and

excluding certain information in his application for a search warrant, and none of his

motives involved a deliberate or reckless attempt to deceive the issuing judge.

Moreover, the majority of the facts that Coleman claims were intentionally or

deliberately omitted or included are of minimal relevance – the facts have no bearing

upon whether Mosley was telling the truth regarding his interactions with Coleman.

First, the fact that the robbers used a navy blue gym bag, while Mosley told

police that Coleman carried the jewelry in a black garbage bag, is of little relevance.

Coleman could have transferred the contents of the navy blue gym bag, or the blue

gym bag could have belonged to one of the other assailants. Second, Coleman argues

that because the victims claimed the assailants drove a blue getaway car, the fact that

he was apprehended in a white car demonstrates that he did not commit the robbery.

However, the fact that Coleman did not own a blue vehicle does not mean he did not

have access to a blue vehicle, or that one of the other assailants owned a blue vehicle.

Third, Coleman argues that the warrant is invalid because it did not include the fact

that two men entered Pawn City at the same time as Mosley. The evidence

demonstrates, however, that Ryan did not report to Officer Bjornson that two men

entered the shop at the same time as Mosley. Moreover, Ryan stated that the three

men did not speak to or acknowledge each other while in the store, so whether they
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were together was unclear. Fourth, Coleman claims that Mosley’s statement – “don’t

get me involved in a robbery” – should have been included in the affidavit. As the

district court found, however, there is nothing unusual about this statement; it is a

typical response to an accusation that one is in possession of stolen goods. Like the

rest of Officer Bjornson’s omissions, its relevance is questionable. 

Lastly, Coleman contends that Officer Bjornson deliberately deceived the

issuing judge by stating that Coleman matched the description of the robbers. The

victims described two of their attackers as black, in their twenties, and estimated their

height at 5'6", and their weight as 170 pounds. Coleman is a black male, twenty-five

years old at the time of the robbery, approximately 5'5" tall, and weighed

approximately 152 pounds. Although it may be true that this is merely a general

description of the assailants, Officer Bjornson’s offer of this information does not

constitute a deliberate or reckless attempt to deceive the issuing judge. Given his

credible testimony that he did not attempt to deceive the issuing judge, the inclusion

of this information, at most, demonstrates that Officer Bjornson was negligent with

respect to this portion of his warrant application. Mere negligence, however, is not

enough to warrant an evidentiary hearing under Franks. Crook, 936 F.2d at 1014. 

B. Probable Cause

Coleman contends that the search warrant issued for his home was not based

upon probable cause. When an officer’s affidavit of probable cause is based on

information obtained from informers, its sufficiency is determined by the totality of

the circumstances. Illinois v. Gates, 462 U.S. 213, 230 (1983). A key issue for the

magistrate judge is whether the provided information is reliable, or whether the

information can be independently verified to establish reliability. United States v.

Brown, 49 F.3d 1346, 1349 (8th Cir. 1995). 
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Much of the information provided by Mosley was independently verified by

the police. The police independently verified the names of Coleman’s mother and

brother, the location of Coleman’s apartment, the address and phone number of

Coleman’s mother, and a description of the car Coleman was driving when he gave

the stolen rings to Mosley. The police were also able to confirm that Coleman was

the same gender, age, race, and stature of the robbers. 

Further strengthening Mosley’s credibility was the fact that the information

offered amounted to an admission that he had received stolen property from Coleman.

As such, Mosley’s statement incriminating himself was a statement against penal

interest. United States v. Harris, 403 U.S. 573, 583-84 (1971) (“Admissions of [a]

crime . . . carry their own indicia of credibility – sufficient at least to support a finding

of probable cause to search.”). 

 Given these facts, the evidence presented and the information known when the

warrant was issued support the conclusion that there was probable cause to believe

that evidence from the robbery would be found at Coleman’s apartment. And because

the facts omitted from the search warrant were of minimal relevance, the search

warrant would have been supported by probable cause even if the omitted facts were

included in Officer Bjornson’s affidavit. 

Accordingly, the ruling of the district court is AFFIRMED. 

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