United States Court of Appeals
For the Eighth Circuit
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No. 16-1836
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jerry L. Gater,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: April 5, 2017
Filed: August 17, 2017
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Jerry Gater was convicted of possession with intent to distribute cocaine base
and sentenced to 146 months’ imprisonment. On appeal, he argues that the district
court1 erred when it denied his request for a hearing on his claim that police officers
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The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, adopting the report and recommendation of the
secured a search warrant by omitting material information from the affidavit
submitted to the issuing judge. We conclude that the district court properly denied
Gater’s request for a hearing, and we therefore affirm.
I.
In December 2014, Officer Bobby Sullivan of the Sikeston, Missouri
Department of Public Safety served as a task force officer with the Drug Enforcement
Administration. On December 16, Sullivan prepared an affidavit and application for
a search warrant to search Gater’s residence. In the affidavit, Sullivan provided
information that he said was disclosed to him by two confidential sources on three
separate days.
According to the affidavit, the first source explained to Sullivan on December
9 that during the previous two weeks, the source had witnessed Gater selling more
than an ounce of powder and crack cocaine from his truck in Sikeston. The next day,
Sullivan averred, a second source told him that the source had visited Gater’s
residence several times with others while they purchased cocaine. On each occasion,
said the source, Gater had more than an ounce of crack cocaine in his possession.
The same source, on December 16, told Sullivan that the source had just seen Gater
at his residence with approximately five ounces of cocaine, over two pounds of
marijuana, and three rolls of one-hundred-dollar bills that totaled more than $20,000.
After the search warrant was issued, Sullivan and other officers searched
Gater’s residence. They found crack cocaine, drug paraphernalia, and $4,600 in cash.
A grand jury charged Gater with possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Honorable Abbie Crites-Leoni, United States Magistrate Judge for the Eastern
District of Missouri.
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Gater, proceeding pro se, filed a motion to suppress evidence and two
supplemental motions on related matters. In his motions, Gater argued that Officer
Sullivan omitted from his affidavit negative information about the two confidential
sources that would have undermined the reliability of their statements. Gater claimed
that if it had included the omitted information, then the affidavit would not have
supported a finding of probable cause.
A magistrate judge held a hearing at which Sullivan testified, but apparently
did not consider it a “Franks hearing,” and said that such a hearing was not
warranted. See R. Doc. 57, at 25. The judge then recommended denial of Gater’s
motion to suppress. The judge found no evidence that Sullivan omitted the
information with the intent to make the affidavit misleading, or in reckless disregard
of the fact that it would do so. The judge also concluded that including the omitted
facts in Sullivan’s affidavit would not have prevented the issuing judge from finding
probable cause to search. The district court adopted the recommendation.
A few days before trial, the government sent Gater a memorandum that
provided information about the second confidential source, who was scheduled to
testify at trial. The memorandum explained that the source was paid six-hundred
dollars for the information that she provided on December 16. The government also
disclosed that the source had a history of using controlled substances and had been
convicted of several misdemeanors.
On the day of trial, the district court granted Gater a continuing objection to the
denial of his suppression motion. A jury ultimately convicted Gater of possession
with intent to distribute cocaine base, and the district court imposed sentence. Gater
appeals, arguing that he should have been granted a hearing on his claim that Sullivan
omitted material information from his affidavit. We review the district court’s denial
of the hearing for abuse of discretion. United States v. Shockley, 816 F.3d 1058, 1061
(8th Cir. 2016).
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II.
In Franks v. Delaware, 438 U.S. 154 (1978), the Court held that “where the
defendant makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause,” a hearing must be held at the defendant’s request. Id. at 155-56.
Gater does not allege that Officer Sullivan made a false statement. This court,
however, has extended Franks to allow challenges to affidavits based on deliberate
or reckless omissions. United States v. Reivich, 793 F.2d 957, 960-61 (8th Cir. 1986).
Others have followed Reivich, while noting that the extension of Franks to alleged
omissions “potentially opens officers to endless conjecture about investigative leads,
fragments of information, or other matter that might, if included, have redounded to
defendant’s benefit.” United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990);
see United States v. Fowler, 535 F.3d 408, 415-16 (6th Cir. 2008) (applying a “higher
bar” for obtaining a hearing based on an allegedly material omission because of the
“potential for endless rounds of Franks hearings”). Gater relies on this extension of
Franks and contends that Sullivan omitted information that would have undermined
the reliability of a confidential source.
Under our decisions, the Fourth Amendment requires a hearing where the
defendant makes a substantial preliminary showing that (1) the affiant omitted facts
with the intent to mislead the issuing judge, or omitted the facts in reckless disregard
of the fact that the omissions would mislead, and (2) the affidavit, if supplemented
by the omitted information, could not support a finding of probable cause. United
States v. Conant, 799 F.3d 1195, 1200 (8th Cir. 2015). Gater focuses exclusively on
Sullivan’s alleged omission of information about the second confidential source.
Gater argues that Sullivan recklessly omitted that the source had a history of drug use,
had recently used drugs, and was paid for information about Gater.
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The district court found “no evidence to support that TFO Sullivan intended
to omit facts to make the affidavit misleading, or that he did so in reckless disregard
of making the affidavit misleading.” We see no error in this conclusion. Sullivan
informed the issuing judge that the source had provided information for three years
about persons selling narcotics, had participated in controlled purchases of drugs for
law enforcement, and had visited Gater’s residence several times with others while
they purchased drugs. Sullivan presumably thought the issuing judge naturally would
infer that a confidential source with that background must have a history of
involvement with illegal drugs. As the district court observed, “it is often people
involved in criminal activities themselves that have the most knowledge about other
criminal activities, [so] it is no surprise that most confidential informants are engaged
in some sort of criminal activity.” R. Doc. 57, at 24 (quoting Fowler, 535 F.3d at 416
(internal quotation marks and citation omitted)).
We also agree with the district court that Gater made no substantial preliminary
showing that including more information about the confidential source would have
precluded a determination of probable cause to search Gater’s house. Probable cause
exists when there is a fair probability that contraband or evidence of a crime will be
found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). As with any
witness, drug use or compensation might be used to impeach credibility, but these
factors do not necessarily establish that the source’s information is unreliable. See
United States v. Scott, 610 F.3d 1009, 1015 (8th Cir. 2010); United States v. Williams,
477 F.3d 554, 558 (8th Cir. 2007).
Here, the affidavit included information that corroborated the source’s
statements about Gater. Law enforcement had received information for months that
Gater and his associates were obtaining large quantities of cocaine and marijuana
from California and distributing the drugs in the Sikeston area. Another confidential
source recently saw Gater distributing narcotics in Sikeston. Sullivan explained that
the challenged source had a track record of providing reliable information to law
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enforcement that led to state and federal prosecutions. Disclosing explicitly that the
source had a history of drug use and that police paid the source for information would
not have prevented the issuing judge from finding probable cause to search Gater’s
house.
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The judgment of the district court is affirmed.
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