Filed: Aug. 25, 2008
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 07-3495 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of North Dakota. Arthur Lee Crissler, * * Appellant. * _ Submitted: June 10, 2008 Filed: August 25, 2008 _ Before SMITH, BOWMAN, and GRUENDER, Circuit Judges. _ SMITH, Circuit Judge. Pursuant to a search warrant, law enforcement officers searched Arthur Crissler's residence and recovered a supply of methamphetamine,
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 07-3495 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of North Dakota. Arthur Lee Crissler, * * Appellant. * _ Submitted: June 10, 2008 Filed: August 25, 2008 _ Before SMITH, BOWMAN, and GRUENDER, Circuit Judges. _ SMITH, Circuit Judge. Pursuant to a search warrant, law enforcement officers searched Arthur Crissler's residence and recovered a supply of methamphetamine, ..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3495
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Arthur Lee Crissler, *
*
Appellant. *
___________
Submitted: June 10, 2008
Filed: August 25, 2008
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Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
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SMITH, Circuit Judge.
Pursuant to a search warrant, law enforcement officers searched Arthur
Crissler's residence and recovered a supply of methamphetamine, marijuana, drug
paraphernalia, and a firearm. Based on this evidence, the government indicted Crissler
on two counts of possession of a controlled substance1 with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and one count of possession of a
firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. §
922(g)(3). Crissler moved to suppress the evidence obtained from the search and
1
Count one was for the methamphetamine; count two was for the marijuana.
sought a Franks2 hearing before the district court,3 but the district court denied both
requests. Subsequently, a jury convicted Crissler of all three counts. The district court
sentenced Crissler to 97 months' imprisonment, followed by 48 months' supervised
release. Crissler appeals the district court's denial of a Franks hearing on his motion
to suppress. We affirm.
I. Background
On July 26, 2006, Gene Wilkie, a former confidential informant (CI), was
arrested on outstanding warrants. In an attempt to reduce his charges, Wilkie
implicated Crissler as a suspected drug dealer, which confirmed law enforcement
authorities' suspicions about Crissler. In fact, authorities had conducted surveillance
on Crissler's residence as recently as the day before Wilkie's arrest.
Wilkie informed the officers that: (1) he had been dealing drugs for Crissler for
the last month; (2) he had been at Crissler's house that morning; (3) he had personally
seen a quarter pound of methamphetamine in a green pouch that Crissler had on his
person and a pound and a half of marijuana in a cooler in the basement of Crissler's
residence; (4) there was methamphetamine in a black sport utility vehicle parked in
the driveway of Crissler's residence; and (5) Crissler was a gun collector, and there
were guns throughout Crissler's residence. After receiving this information, Ben
Leingang, of the North Dakota Bureau of Criminal Investigation and Metro Area Safe
Trail Task Force, and Ray Eisenmann, a police officer with the Mandan, North Dakota
Police Department assigned to the drug task force, drove by Crissler's address and
observed a black sport utility vehicle in Crissler's driveway. A check of the vehicle's
license plate number confirmed that the vehicle was registered to Crissler.
2
Franks v. Delaware, 438 U.S. 154 (1978).
3
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
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With the information received from Wilkie, combined with the information
compiled from their existing investigation, authorities applied for a search warrant for
Crissler's residence. That same day a state court judge conducted a hearing on the
application and received testimony from Leingang and Eisenmann. Leingang testified
that for the previous five or six months his task force had received information from
law enforcement agencies of suspected drug trafficking at Crissler's residence.
Leingang testified that he periodically conducted surveillance of Crissler's residence
and had observed a number of individuals coming and going from the residence at
various hours of the day and night. Further, Leingang testified that he had performed
surveillance on Crissler's residence the night before Wilkie's arrest and again observed
a number of vehicles in the driveway and on the streets near the residence. Based on
his training and experience, Leingang testified that the quantity and frequency of
individuals and vehicles visiting the residence correlated with drug trafficking.
Eisenmann, who had assisted with the arrest of Wilkie earlier that day, testified
that Wilkie had previously worked as a CI and had provided Eisenmann with reliable
information regarding drug activities that led to the arrest of three individuals.
Eisenmann also testified that Wilkie had been deactivated from his CI status, but he
was not asked, nor did he disclose, the reasons for Wilkie's deactivation. Further,
Eisenmann testified that Wilkie had been arrested that morning on failure to appear
warrants and informed the judge that at the time of his arrest, Wilkie was in
possession of drug paraphernalia, including a scale with methamphetamine residue on
it. Eisenmann also testified that he had no reason to believe that the information
Wilkie had provided was unreliable. At the conclusion of the hearing, the judge found
probable cause and issued a search warrant for Crissler's residence.
Upon executing the search warrant, the officers recovered substantial amounts
of marijuana and methamphetamine; most of the drugs were found hidden inside a big
screen television console in the basement of Crissler's home. The officers also located
drug paraphernalia and a firearm in the residence.
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Crissler was arrested and subsequently indicted on two counts of possession of
a controlled substance with intent to distribute and one count of possession of a
firearm by an unlawful user of a controlled substance. Crissler moved to suppress the
evidence obtained from the search of his residence and requested a Franks hearing.
Crissler asserted that Eisenmann omitted relevant information from his testimony in
support of the warrant. Specifically, Crissler argued that Eisenmann did not disclose
information detracting from Wilkie's reliability and failed to corroborate Wilkie's
information before presenting it to the issuing judge. The district court denied
Crissler's request for a Franks hearing and denied the motion to suppress. Crissler was
subsequently convicted by a jury of all three counts and sentenced by the court to 97
months' imprisonment.
II. Discussion
Crissler does not challenge the district court's finding of probable cause to issue
the search warrant. Rather, he challenges the district court's denial of his request for
a Franks hearing on the ground that Eisenmann deliberately or recklessly omitted
material information from the warrant application. Crissler also challenges
Eisenmann's testimony in support of the warrant and avers that Eisenmann failed to
adequately corroborate the information Wilkie provided before presenting it to the
issuing judge. "We review the denial of a request for a Franks hearing for abuse of
discretion." United States v. Jansen, 470 F.3d 762, 766 (8th Cir. 2006).
"In order to be entitled to a hearing under Franks the defendant must make a
'substantial preliminary showing' of a false or reckless statement or omission and must
also show that the alleged false statement or omission was necessary to the probable
cause determination." United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998)
(citing United States v. Fairchild,
122 F.3d 605, 610 (8th Cir.1997)). "Such a showing
is not easily made." United States v. Engler,
521 F.3d 965, 969 (8th Cir. 2008); see
also
Milton, 153 F.3d at 896 ("The 'substantial preliminary showing' requirement
needed to obtain a Franks hearing is not lightly met"). Because Crissler did not make
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a substantial preliminary showing that a Franks violation had occurred, the district
court did not abuse its discretion by denying his request for a Franks hearing.
Crissler first contends that he is entitled to a Franks hearing because Eisenmann
failed to inform the court of the specific circumstances surrounding Wilkie's past
performance as a CI and the reasons for Wilkie's deactivation from CI status. Further,
Crissler asserts that Eisenmann should have clearly testified that Wilkie: was not
acting as a CI at the time he provided the information about Crissler; had been
deactivated from his CI status because he failed to make any controlled purchases or
stay in contact with his handler—conditions required of him to retain the status; and
only provided the information about Crissler after he was arrested and in an attempt
to avoid his own criminal charges.
These alleged omissions do not meet the "substantial preliminary showing"
required by Franks for several reasons. First, Eisenmann testified that Wilkie was not
an active CI. Wilkie's deactivation occurred because he failed to live up to the terms
of his CI agreement, but Wilkie's lack of compliance did not mean the information he
provided was not reliable. Second, Eisenmann informed the court that Wilkie was
providing information about Crissler after Wilkie's arrest; yet, even if this fact had
been omitted it would not have entitled Crissler to a Franks hearing. See United States
v. Gabrio, 295 F.3d 880, 884 (8th Cir. 2002) ("[T]ipsters often provide information
in the hopes of obtaining leniency with respect to their own situation and that does not
necessarily mean they are unreliable"). Third, Crissler made no offer of proof that the
alleged omissions were intentionally or recklessly omitted. See United States v.
Mathison, 157 F.3d 541, 548 (8th Cir. 1998) ("A mere allegation standing alone,
without an offer of proof in the form of a sworn affidavit of a witness or some other
reliable corroboration, is insufficient to make the difficult preliminary showing [under
Franks]."); Franks, 438 U.S. at 171 ("Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or their absence satisfactorily
explained."); see also Engler, 521 F.3d at 970 (affirming denial of Franks hearing
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requested on basis of officer's omissions, noting that defendant made "assertions
without any supporting proof that they [were] accurate . . . provided no evidence to
establish that . . . officers deliberately or recklessly omitted information . . . [and] did
not provide an explanation for the absence of such evidence").
Additionally, Eisenmann adequately corroborated the information provided by
Wilkie. Eisenmann confirmed Wilkie's tip that there was a black sport utility vehicle
parked in Crissler's driveway and verified that the vehicle was in fact registered to
Crissler. See United States v. Humphreys, 982 F.2d 254, 259 (8th Cir. 1992)
("[W]here the informants' information is at least partially corroborated, attacks upon
credibility and reliability are not crucial to the finding of probable cause."); United
States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980) ("The credibility of an informant
may be established by corroboration . . . of only parts of an informant's story."); see
also United States v. Caswell, 436 F.3d 894, 898 (8th Cir. 2006) ("When an informant
has provided reliable information in the past or where the tip was independently
corroborated, a court may deem the informant's tip sufficiently reliable to support a
probable cause determination"). In sum, Crissler failed to meet his preliminary burden
under Franks, and thus the district court did not abuse its discretion in denying the
requested Franks hearing.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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