United States v. Gerald Smith

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, C. Arlen Beam and Bobby E. Shepherd (UNPUBLISHED) [4130977] [12-4003]

United States Court of Appeals
For the Eighth Circuit
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No. 12-4003
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gerald L. Smith
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 22, 2013
Filed: March 7, 2014
[Unpublished]
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Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.

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Gerald Smith appeals from the district court's1 denial of his motion to suppress
evidence and also challenges two of the district court's2 evidentiary rulings at trial.
We affirm in all respects.
I.

BACKGROUND

On November 19, 2010, Officers Jeff Henson and Tatem DeWitt of the
Springfield Police Department began working with a confidential informant (CI) who
had been previously arrested on an unrelated matter and sought reduced charges. The
CI informed the officers that he could purchase marijuana from Smith, also known
as "G Nut," at any time. To establish his reliability as a CI, the officers requested that
the informant engage in a controlled purchase with Smith. On November 19, the CI
called Smith, and he agreed to sell the informant $30 worth of marijuana at a certain
location in Springfield, Missouri. Officers listened to the phone conversation. Later
that day, officers followed the CI to the meeting place and witnessed a man, whom
they recognized as Smith, approach the informant's car to make the exchange. The
CI returned with approximately six to seven grams of a substance that later proved
to be marijuana. The CI indicated he purchased the marijuana from "G Nut."
Sometime after the controlled purchase, police received more information
concerning Smith from an entirely separate informant. This second CI had
consistently proved reliable in the past and informed the officers that Smith was
selling marijuana out of a trailer home located at 501 W. Williams #3 in Springfield.
The informant indicated that he had been inside the trailer with Smith and Smith's

1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable Matt
J. Whitworth, United States Magistrate Judge for the Western District of Missouri.
2

The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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girlfriend, Shawna Krause, and witnessed marijuana in the living room area packaged
for distribution. The informant also observed several people arrive at the trailer and
purchase marijuana from Smith. Subsequently, officers conducted surveillance of the
trailer and saw Smith and Krause leaving the residence together. Before applying for
a warrant, officers confirmed that the utilities at the residence were listed in Krause's
name.
On December 10, 2010, Officer DeWitt prepared a search warrant affidavit for
501 W. Williams #3, Springfield, Missouri. The affidavit recounted the information
provided to officers from both CIs. In recounting the information from the first CI,
Officer DeWitt stated that he had received the tip "[w]ithin the past ten days."
Additionally, the affidavit contained Smith's extensive criminal record, and noted
both that officers had confirmed through investigation that Smith and Krause had on
occasion exited the trailer together, and that Krause held the utilities in her name.
Based upon this information, the officers obtained a warrant to search 501 W.
Williams #3.
On December 15, 2010, officers executed the search warrant. While inside the
trailer, officers discovered a gray backpack containing several documents belonging
to Smith, including mail bearing Smith's name and addressed to the 501 W. Williams
#3 location. The backpack also contained two packages of green leafy material, later
proving not to be marijuana; small bags containing a residue that had the scent of
marijuana; and a box of .38 caliber bullets.
A grand jury indicted Smith on one count of being a felon in possession of
ammunition and one count of distributing a substance with a detectable amount of
marijuana. Before trial, Smith moved to suppress evidence obtained during the
search and requested a Franks3 hearing. The district court denied the motion.
3

Franks v. Delaware, 438 U.S. 154 (1978).
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Eventually, a jury convicted Smith on both counts. Smith now appeals the district
court's denial of his motion to suppress evidence and also challenges two evidentiary
rulings.
II.

DISCUSSION
A.

Motion to Suppress

Smith first claims the district court erred in denying his motion to suppress and
request for a Franks hearing. "In reviewing the denial of a motion to suppress, we
review the district court's factual findings for clear error and the ultimate question of
whether the Fourth Amendment was violated de novo." United States v. Allen, 705
F.3d 367, 369 (8th Cir. 2013). "We review the district court's denial of a Franks
hearing for an abuse of discretion." United States v. Lucca, 377 F.3d 927, 931 (8th
Cir. 2004).
Smith asserts that due to inaccuracies in the search warrant affidavit, the
affidavit lacked probable cause upon which to issue a search warrant. The
government concedes that the warrant affidavit contained inaccuracies. Specifically,
Officer DeWitt stated that he had received information from the first CI "[w]ithin the
past ten days," when, in fact, a longer period of time had passed between the time
Officer DeWitt spoke with the informant and the time he applied for the search
warrant. According to Smith, because information relating to the first CI contained
inaccuracies, the information provided "by the second [CI] cannot be trusted," and
thus the search warrant lacked probable cause. We disagree.
In Franks v. Delaware, the Supreme Court instructed that evidence must be
suppressed if a defendant establishes at a hearing that (1) the search warrant affidavit
contains content that is knowingly and intentionally false or embraces a reckless
disregard for the truth, and (2) "the affidavit's remaining content is insufficient to
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establish probable cause." 438 U.S. at 156. However, a defendant is not even entitled
to a so-called Franks hearing "if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there remains sufficient content in the
warrant affidavit to support a finding of probable cause." Id. at 171-72. Like the
magistrate judge, we proceed on the assumption that Smith made the requisite
"substantial preliminary showing" to satisfy the first prong of the Franks analysis and,
therefore, evaluate the affidavit's remaining content. Id. at 155.
"The statements of a reliable [CI] are themselves sufficient to support probable
cause for a search warrant." United States v. Hart, 544 F.3d 911, 914 (8th Cir. 2008)
(quotation omitted). In United States v. Williams, we found the warrant affidavit
provided probable cause to search when it explained: (1) that the CI had been in an
apartment and observed drugs, (2) that the CI had been reliable in past instances, and
(3) that officers corroborated some of the CI's tips by establishing who lived at the
apartment. 10 F.3d 590, 594 (8th Cir. 1993).
Presently, when the affidavit is read without the information provided by the
first CI, the affidavit is nearly indistinguishable from the one we found sufficient in
Williams. Indeed, in the affidavit, Officer DeWitt stated that the second CI observed
marijuana and marijuana distribution in Smith's residence; the second CI had proved
reliable in the past, leading to drug seizures and arrests; and officers corroborated
some of the informant's tips through investigation. Therefore, because the remainder
of the warrant affidavit contained sufficient factual information to establish probable
cause to search, Smith was neither entitled to a Franks hearing nor suppression of
evidence.4
4

Smith's attempt to cast doubt on the second CI due to the affidavit's
inaccuracies concerning the first informant stands in direct contrast to Franks's
teaching. And, contrary to Smith's position, we are not concerned that the second CI
provided some details that did not ultimately come to fruition during the search, as
our "inquiry is limited to discerning whether the issuing judge had a substantial basis
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B.

Evidentiary Objections

Next, Smith challenges the district court's trial decision to admit certain hearsay
testimony as well as audio recordings of telephone conversations Smith had while in
jail. We generally review a district court's ruling on hearsay evidence for an abuse
of discretion, but where, as here, the defendant raises a Confrontation Clause issue,
we review de novo. United States v. Brun, 416 F.3d 703, 706 (8th Cir. 2005). We
review the district court's decision to admit the recorded conversations for an abuse
of discretion. United States v. Oslund, 453 F.3d 1048, 1054 (8th Cir. 2006).
Smith asserts that a Confrontation Clause violation occurred when the district
court allowed officers to testify as to statements the first CI made to them.
Specifically, Smith primarily challenges officers' testimony informing the jury that,
after the controlled purchase, the first CI told the officers that he bought the
marijuana from Smith. In Smith's view, without the officers' testimony, the jury
would not have known what occurred between Smith and the informant during the
controlled purchase.
The Confrontation Clause is a concern "whenever a statement by an
unavailable declarant is introduced into evidence at trial, and the defendant has not
had an opportunity to cross-examine the declarant." Bobadilla v. Carlson, 575 F.3d
785, 788 (8th Cir. 2009). However, where a defendant's confrontation rights are
technically violated, "we assess whether the Constitutional violation was harmless
beyond a reasonable doubt." United States v. Holmes, 620 F.3d 836, 844 (8th Cir.
2010). "Evidence erroneously admitted in violation of the Confrontation Clause is
harmless beyond a reasonable doubt as long as the remaining evidence is
overwhelming." Id.

for concluding that probable cause existed." Lucca, 377 F.3d at 933.
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Here, we conclude that overwhelming evidence against Smith established the
drug distribution charge notwithstanding the hearsay statements. First, officers
testified about the monitored conversation between the CI and a male speaker who
agreed to sell the informant marijuana and indicated a meeting location. Second, a
search of the CI and his vehicle before conducting the controlled purchase revealed
no contraband. Third, during the controlled purchase, two officers witnessed a man
they recognized as Smith and observed him briefly interact with the informant
through the informant's car window. Fourth, when the informant and officers
reconvened immediately after the controlled purchase, the CI handed over a bag of
marijuana. Finally, in the subsequent search of Smith's residence, officers discovered
a backpack that contained documents bearing Smith's name and plastic bags
containing a residue that had the scent of marijuana. With this substantial evidence
of guilt, the Confrontation Clause violations that may have occurred are harmless
beyond a reasonable doubt.
Smith's final evidentiary challenge concerns audio recordings the district court
admitted over Smith's objection. The district court admitted audio recordings
containing telephone conversations Smith had while he was an inmate at Green
County Jail. Because no officer from the Green County Jail testified about the
recording device or the authenticity of the recordings, Smith contends that the
recordings lacked proper foundation and authentication.
Nearly forty years ago our circuit outlined factors a proponent of a recorded
telephone conversation should consider when laying foundation:
(1)
(2)
(3)

That the recording device was capable of taking the conversation
now offered in evidence.
That the operator of the device was competent to operate the
device.
That the recording is authentic and correct.

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(4)
(5)
(6)
(7)

That changes, additions or deletions have not been made in the
recording.
That the recording has been preserved in a manner that is shown
to the court.
That the speakers are identified.
That the conversation elicited was made voluntarily and in good
faith, without any kind of inducement.

United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974). Due to advances in
recording technology, however, we have since made clear that these factors are useful
guidelines but "not a rigid set of tests to be satisfied." Oslund, 453 F.3d at 1055.
Indeed, the first and second factors are practically foregone conclusions by the very
fact that an officer produced the recording and it is in existence. See United States
v. McCowan, 706 F.2d 863, 865 (8th Cir. 1983) (per curiam). As for additions,
deletions, and preservation, absent contrary evidence, a "court may assume that public
officials who had custody of the evidence properly discharged their duty and did not
tamper with the evidence." Id. Finally, an officer specifically identified Smith as a
speaker on the recordings, which consisted of Smith's voluntary telephone
conversations with acquaintances. Therefore, given the broad discretion a district
court has on evidentiary matters, and after thoroughly reviewing the record, we
perceive no abuse of discretion in the district court's decision to admit the recordings.
III.

CONCLUSION
We affirm in all respects.
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