United States v. Laverne Adams ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3063
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Laverne Adams, *
*
Appellant. *
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Submitted: February 11, 1997
Filed: March 26, 1997
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Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE,1 District
Judge.
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WOLLMAN, Circuit Judge.
Laverne Adams appeals his conviction in the district court2 for being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
We affirm.
1
The HONORABLE ANDREW W. BOGUE, United States District Judge
for the District of South Dakota, sitting by designation.
2
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
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.
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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 judge3 denied the
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.
3
The Honorable Lawrence O. Davis, United States Magistrate
Judge for the Eastern District of Missouri.
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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
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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.
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