United States v. Rendy Conant

Filing

OPINION FILED - THE COURT: Raymond W. Gruender, C. Arlen Beam and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4309923] [14-3158, 14-3201]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3158
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rendy Conant
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 14-3201
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bruce Conant
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri - Springfield
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Appellate Case: 14-3158

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Date Filed: 08/26/2015 Entry ID: 4309923

Submitted: June 11, 2015
Filed: August 26, 2015
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Before GRUENDER, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Rendy Fay Conant and Bruce Richard Conant conditionally pled guilty to
conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A)(viii). They reserved the right to appeal the denial
of their motions to suppress evidence and for a Franks hearing. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
Officer Victor Weir began investigating narcotics crimes in July 2011. A
Waynesville, Missouri, police officer, he had been in law enforcement for about 14
years, primarily as a patrolman. He then had about 40 hours of training in narcotics
investigations. In July 2012, he presented the prosecutor with a warrant to search the
Conants’ house. The affidavit reads:
On 7/15/12 CI 2011-12-2 who has proven reliable in the past on six
separate occasions, gave me information that Methamphetamine is being
distributed from and stored at this location. CI 2011-12-2 told me that
James Rhodenizer who lives at 723 East Main Street in Richland,
purchases quantities of Crystal Methamphetamine from Bruce and
Rendy Conant who reside and own the property at this address and is in
Pulaski County, MO. It is further stored in a storage unit located off the
140 mile marker of I-44 in Laclede County. A search warrant was
executed in Pulaski County and in the city of Richland on 6/28/12 and
the CI advised me that the crystal methamphetamine found in Mr.
Rhodenizer’s possession was purchased from Bruce and Rendy Conant
by James Rhodenizer. CI 2011-12-2 stated that there is enough on hand
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for sales; however the bulk is stored at the storage shed in Laclede
County. CI 2011-12-2 further stated that on or about 7/12/12 the
Conant’s brought a new supply of methamphetamine to the area.
Officer Weir told the prosecutor that the information from CI 2011-12-2 was not
based on firsthand knowledge, but he had met with the person with firsthand
knowledge that the Conants were selling meth from their home. Officer Weir
explained that the CI faced criminal charges and hoped to receive favorable
consideration for cooperation, but there was no agreement. The prosecutor signed the
application and did not tell Officer Weir to include any additional information. The
prosecutor had, in the past, refused to apply for warrants he thought lacked probable
cause. The officer signed the application in front of the judge’s clerk, who forwarded
it to the judge. The judge granted the search warrant.
The defendants moved to suppress evidence from the search, and from a later
warrant based on evidence from the first search. They also requested a Franks
hearing. The magistrate judge denied a Franks hearing. Later, during the hearing on
the motions to suppress, Officer Weir testified to the additional information: the CI
got the information from a second person while they used drugs together, and the CI
was subject to criminal charges at the time of the statement. Officer Weir’s testimony
raised the issue of an intentional falsehood. The magistrate judge issued a report and
recommendation on suppression in both cases. See United States v. Conant, 2014
WL 940324 (W.D. Mo. Feb 10, 2014); United States v. Conant, 2014 WL 940290
(W.D. Mo. Feb 10, 2014). The district court asked for clarification about the Franks
analysis in light of Officer Weir’s testimony. See United States v. Conant, 2014 WL
941310 (W.D. Mo. March 11, 2014). The magistrate judge issued a supplemental
report and recommendation, finding no Franks violation because the officer did not
act intentionally or recklessly to mislead the issuing judge, again recommending
denial of the suppression motion based on a good-faith analysis. See United States
v. Conant, 2014 WL 1375458 (W.D. Mo. March 20, 2014).
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Adopting the report and recommendation, the district court denied the motions
to suppress. The Conants appeal, arguing they deserved a Franks hearing and
suppression of the evidence.
This court would review a denial of a Franks hearing for abuse of discretion.
See United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013). However, as Bruce
Conant notes in his brief—and is apparent—“a Franks hearing was, in effect,
conducted” when the officers involved were questioned at the evidentiary hearing,
and the district court “treated the evidentiary hearing as a Franks hearing.”
I
The defendants challenge the denial of their motions to suppress based on
Officer Weir’s omissions that the CI did not have firsthand knowledge of the facts
and that the CI was “working off a case.”
“We review the district court’s underlying factual findings on these points for
clear error and its legal determinations de novo.” United States v. Ketzeback, 358
F.3d 987, 990 (8th Cir. 2004), citing Ornelas v. United States, 517 U.S. 690, 699
(1996). “Clear error exists where, viewing the record as a whole, we are left with the
definite and firm conviction that a mistake has been committed.” United States v.
Finley, 612 F.3d 998, 1002 (8th Cir. 2010).
“A search warrant may be invalid if the issuing judge’s probable cause
determination was based on an affidavit containing false or omitted statements made
knowingly and intentionally or with reckless disregard for the truth.” United States
v. Reinholz, 245 F.3d 765, 774 (8th Cir. 2001), citing Franks v. Delaware, 438 U.S.
154, 171 (1978).

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To prevail on a Franks claim the defendants must show: (1) that a false
statement knowingly and intentionally, or with reckless disregard for the
truth, was included in the affidavit; and (2) that the affidavit’s remaining
content is insufficient to establish probable cause. The same analysis
applies to omissions of fact. The defendant must show: (1) that facts
were omitted with the intent to make, or in reckless disregard of whether
they make, the affidavit misleading; and (2) that the affidavit, if
supplemented by the omitted information, could not support a finding
of probable cause.
Id. at 774. “In determining if an affiant’s statements were made with reckless
disregard for the truth, the test is whether, after viewing all the evidence, the affiant
must have entertained serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information he reported.” United States v.
McIntyre, 646 F.3d 1107, 1114 (8th Cir. 2011). “Recklessness, however, may be
inferred from the fact of omission of information from an affidavit . . . when the
material omitted would have been clearly critical to the finding of probable cause.”
Id. “In general, no one factor necessarily dooms a search warrant.” United States v.
Glover, 755 F.3d 811, 816 (8th Cir. 2014). “Cases that test the sufficiency of
affidavits for warrants obtained are highly fact specific, but information about the
informant’s credibility or potential bias is crucial.” Id.
The magistrate judge concluded that Officer Weir misled the issuing judge
about the CI’s source of information, but not knowingly and intentionally or with
reckless disregard for the truth.1 Officer Weir testified he met with and spoke to the
CI face-to-face. The CI got the information about drugs at the Conants’ residence
1

In the supplemental report and recommendation, the magistrate judge analyzes
the Franks claims by applying principles from Leon good-faith-exception cases. The
bases for objectively reasonable reliance on an otherwise invalid search warrant do
not guide a decision about an affiant’s reckless disregard for the truth (or knowing
and intentional statement or omission). See United States v. Jacobs, 986 F.2d 1231,
1235 (8th Cir. 1993) (“[U]nder Leon, a Franks violation is not excused.”).
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while using drugs with the second person. Officer Weir spoke to the second person
about his or her firsthand knowledge of the Conants’ drug activities, confirming the
CI’s statements. Officer Weir said he omitted information about the second person
for this person’s safety, referring to a recent assault connected to the on-going drug
activities. Officer Weir said the CI was subject to criminal charges at the time, and
he did not put this in the affidavit. Officer Weir testified that he told the prosecutor
this additional information when presenting the affidavit for a search warrant. The
prosecutor did not tell him to add the omitted information.
In Reinholz, the district court correctly found that the officer “recklessly misled
the issuing judge by misrepresenting the nature of his source.” Reinholz, 245 F.3d
at 774. The affidavit there stated that the officer had information from a “confidential
and reliable source” that the defendant was “involved in the use of
methamphetamine” and “may also be involved in the distribution of
methamphetamine.” Id. at 771. This information was false because the source was
“a local pharmacist who knew only that Reinholz purchased iodine crystals.” Id. at
773, 775. The source was not confidential, having dropped his request for anonymity.
Id. at 774. Further, “his reliability was not related to any personal knowledge of or
corroborated information concerning Reinholz’s methamphetamine use.” Id. The
affidavit “implied that his source had knowledge of Reinholz’s drug activities and
that independent police investigation corroborated the informant’s declarations. In
fact, police investigation merely corroborated the pharmacist’s description of
Reinholz’s automobile and license plate.” Id.
The Conants stress a similarity to Reinholz: the magistrate judge here
determined that Officer Weir’s statement was misleading because it implied the
information was firsthand. The Conants, however, ignore many dissimilarities to
Reinholz: Officer Weir’s source was confidential, had been reliable six previous
times, and gave detailed information about the Conants selling meth. Although
Officer Weir’s statement that the CI was “confidential and reliable” was misleading,
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unlike the statements in Reinholz this statement was not false. See id. at 775 (“Officer
Podany’s affidavit included false statements made with reckless disregard for the
truth.”). Moreover, Officer Weir corroborated the CI’s hearsay statements with a
person who had firsthand knowledge. In Reinholz the police had no statement from
any informant that Reinholz was using or distributing meth.
The magistrate judge did not clearly err in finding that Officer Weir acted only
negligently. “[E]valuating an affiant’s state of mind requires [this court] to view all
of the evidence.” Finley, 612 F.3d at 1003 n.7. Officer Weir testified he did not
include information on the second person due to a potential threat of danger. He also
testified that he met with and talked with the second person with firsthand
knowledge, corroborating the CI’s information. Although the affidavit was
misleading, “the inference suggested in that paragraph was supported by other facts
known by [Officer Weir] at that time.” Id. at 1003. Further, failure to include
information that an informant is “working off a charge” is misleading if the
arrangement is “unusual and highly coercive.” Arnold, 725 F.3d at 899 (“[W]e
disagree with Arnold’s argument . . . that a misrepresentation occurred when the
affidavit omitted that the confidential informant was ‘working off a charge.’”). Here,
no promises had been made to the CI, and the prosecutor had not told the CI that the
CI’s information would work off a case. Finally, the magistrate judge was troubled
that Officer Weir relied on the prosecutor’s instruction to determine whether to add
the omitted information. However, in Franks the Supreme Court said “the deliberate
falsity or reckless disregard whose impeachment is permitted today is only that of the
affiant.” Franks, 438 U.S. at 171. For these reasons, this court is not “left with the
definite and firm conviction that a mistake has been committed.” See Finley, 612
F.3d at 1003.
Since “Franks does not apply to negligent misrepresentations,” United States
v. Coleman, 349 F.3d 1077, 1085 (8th Cir. 2003), the district court properly found no
Franks violation.
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II.
The defendants assert that the first search warrant was not supported by
probable cause. The magistrate judge determined that, “regardless of the outcome of
any probable cause analysis, the good-faith exception to the exclusionary rule applies
in this case.” “On appeal from the denial of a motion to suppress, we review a district
court’s findings of fact for clear error and its determination of probable cause and the
application of the Leon exception de novo.” United States v. Jackson, 784 F.3d
1227, 1231 (8th Cir. 2015).
“The Fourth Amendment commands that no warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” Id. “Under the good-faith
exception, evidence seized pursuant to a search warrant later determined to be invalid,
will not be suppressed if the executing officer’s reliance upon the warrant was
objectively reasonable. The court must look at the objectively ascertainable question
of whether a reasonably well trained officer would have known that the search was
illegal despite a judge’s issuance of the warrant.” Id. See generally United States v.
Leon, 468 U.S. 897, 920-21 (1984). The good-faith exception does not apply in four
situations:
(1) when the affidavit or testimony supporting the warrant contained a
false statement made knowingly and intentionally or with reckless
disregard for its truth, thus misleading the issuing judge;
(2) when the issuing judge “wholly abandoned his judicial role” in
issuing the warrant;
(3) when the affidavit in support of the warrant is “so lacking in indicia
of probable cause as to render official belief in its existence entirely
unreasonable;” and
(4) when the warrant is “so facially deficient” that no police officer
could reasonably presume the warrant to be valid.
Id., citing Leon, 468 U.S. at 923.
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The Conants argue that the misleading affidavit defeats Leon. However,
Franks “set forth a rationale for suppressing evidence obtained pursuant to a search
warrant” where “knowing or reckless falsity of the affidavit” is at issue. Leon, 468
U.S. at 914-15. A district court may use a good-faith analysis after finding no
knowing or reckless falsity. See United States v. Pluckett, 466 F.3d 626, 629-30 (8th
Cir. 2006) (after finding no Franks violation, Leon’s good-faith analysis determines
validity of warrant ). As discussed above, the magistrate judge did not clearly err in
finding no knowing or reckless falsity here. Thus, the affidavit does not prevent use
of Leon.
This court looks to the totality of the circumstances in assessing the objective
reasonableness of an officer’s execution of a warrant, “including any information
known to the officer but not presented to the issuing judge.” Jackson, 784 F.3d at
1231. Officer Weir testified that he never had any formal training on drafting an
affidavit for a search warrant, although he had been working narcotics investigations
for a year, and had applied for about 50 search warrants. He testified he personally
spoke with both the CI and the second person, but did not include all of this
information for the second person’s safety. He told the prosecutor about this and was
not instructed to add information to the affidavit. He knew that the CI had provided
information in the past resulting in the seizure of illegal drugs six times, even though
his affidavit included the conclusion that he had provided only reliable information
six times. Although he withheld information about the source of his information, his
relative inexperience, the prosecutor’s approval of the application, and the additional
information not in the affidavit made it objectively reasonable for Officer Weir to
honestly believe that the search warrant was valid. See United States v. Clay, 646
F.3d 1124, 1127-28 (8th Cir. 2011) (finding officer’s actions objectively reasonable
where officer “consulted with attorney prior to seeking the warrant,” “interviewed
the CI in person,” and “independently corroborated” the CI’s information); United
States v. Perry, 531 F.3d 662, 666 n.6 (8th Cir. 2008) (“Another factor that adds to
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the reasonableness of [an officer’s] belief that the affidavit was not so lacking in
probable cause was the county prosecutor’s determination that the affidavit provided
probable cause for the search.”); United States v. Hallum, 407 F.3d 942, 947 (8th
Cir. 2005) (finding good-faith exception applied to affidavit lacking information
about informant’s reliability when officer was inexperienced, prosecutor represented
that the affidavit established probable cause, and officer had furnished additional
corroborating information to prosecutor not included in affidavit).2
**********
The judgment is affirmed.
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2

Since the first search warrant was not invalid, this court need not address the
Conants’ “fruit of the poisonous tree” argument about the second and third search
warrants.
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