United States v. Jack Dean Johnson
78 F.3d 1258
8th Cir.
1996
Check Treatment

*1 America, STATES UNITED

Plaintiff-Appellee, JOHNSON, Defendant- Dean

Jack

Appellant.

No. 95-3067. Appeals,

Eighth Circuit. 9, 1996. Jan.

Submitted 1, 1996.

Decided March Rehearing Suggestion for

Rehearing and 18,1996.* April

En Bane Denied * McMillian, Arnold, rehearing. grant suggestion nold Chief Richard Wolhnan, Sheppard Morris Ar- *2 possibly refrigerator, filing in a cabinet. The

some relayed unrelated information jeep. stolen Whalen, Federal Public De- Asst. James Moines, argued, appel- fender, Des *3 completed, Detective After the call was lant. address with the Konopa verified Johnson’s utility Konopa also dis- city files. Detective Luxa, Attorney, Asst. U.S.

Mary Clare had arrested in covered that Johnson been appellee. Moines, argued, for Des marijuana possession. Detective 1988 for ARNOLD, Chief RICHARD Before relayed this information to Konopa then BOWMAN, Judge, and Circuit Judge, Detective Ames James Robinson. Detective Judge. JONES,** District Senior that the address Robinson also verified city the caller was Johnson’s with JONES, Judge. District B. Senior JOHN utility Detective Robinson also veri- office. a conditional entered Dean Johnson Jack wife name was Vicki. fied Johnson’s manufacturing charge of plea guilty to of directed an officer to Detective Robinson sentenced thereon. marijuana, and has been verify by the house to it was drive Johnson suppress evidence seized sought to He and had a across the street from the DOT pursuant to a search of his residence search garage to it. attached Fourth Amend- by alleging that his by the search. He shared the information rights were violated Detective Robinson ruling that court1 appeals County Attorney the district ad- with an Assistant suppressed. af- not be We evidence should application for a prepare him to an vised firm. pre- warrant. Detective Robinson search Marel an affidavit

sented Steven Van I. of address. for a search warrant Johnson’s the conversation with The affidavit detailed 14,1994 February Konopa Detective of On steps caller and the taken to Department received the Ames Police plus corroborate the caller’s information phone call. The call came history. Judge Johnson’s criminal Van Mar- pm. 12:40 The caller was approximately el a search warrant and it was execut- issued twenty approximately stated male who ed that afternoon. The search of Johnson’s tall, skinny he had observed a minutes earlier discovery plastic home resulted in the pounds of deliver three-and-a-half white male marijuana refrigerator bags of in Johnson’s marijuana the Jack Johnson residence. to file and also uncovered 373 and his cabinet was caller stated marijuana plants growing equipment. one-pound bag wrapped in three bun- paper half-pound The caller one bundle. dles and 3,May On 1994 the defendant filed a mo- made, delivery that after stated suppress the evidence obtained from tion the deliverer went out Johnson and pursuant search of his residence The caller also garage Johnson’s home. court an eviden- warrant. The district held lived with his wife Vicki stated that Johnson tiary hearing denying and entered an order (Iowa from the De- in a house across DOT the motion on June 1994. The district partment Transportation). When Detec- probable court ruled that cause did not exist Konopa questioned the caller about the tive warrant, to issue the but determined knowledge, replied the caller he source of his evidence was admissible because the search- and had inside Johnson’s house ing had a faith belief marijuana. fur- The caller went on seen the ther, validity. entered a condi- stating that Johnson left some of the warrant’s ** Jones, Longstaff, Ronald E. John B. Senior United 1. The Honorable Honorable District of District of South States District for the Southern States District Dakota, sitting by designation. Iowa. (3) 6,1994 manner; guilty reserving on plea tional June where the affidavit is so lacking suppression right appeal issue. cause that it is unrea- it; rely sonable for the officer to on or to 120 Johnson was sentenced months facially warrant is so deficient that the officer prison. brought appeal. Johnson then reasonably presume cannot the warrant to be valid. 468 U.S. at 104 S.Ct. at 3420-21. II. Johnson contends that the first three situa- reviewing the decision of the dis applicable tions are in this case. deny suppress trict court a motion evidence, this court will not reverse unless Johnson first asserts that the affi the decision is erroneous. “The deci davit included false information for two rea sion will be affirmed unless the decision of sons, first, fabricated the exis *4 (1) unsupported by the district court is sub anonymous tence of the tip that led to the (2) evidence, stantial an is based on errone search, secondly the statement that the (3) or, interpretation applicable ous of in law informant had not false information in light of the entire the court is left past impression. created a false firm with a and definite conviction that a logs There are no documentary or other mistake has been made.” United States v. prove evidence to phone the existence of the Gibson, (8th Cir.1991) (cit 250, 928 F.2d 253 anonymous call from the informant. The Pantazis, ing United v. 816 F.2d States question of phone whether the call existed is (8th Cir.1987)). 363 clearly question of fact. Konopa Detective Counsel the United States conceded at suppression testified at the hearing that he argument oral cause was insuf- phone received the call. Konopa Detective ficient for a search warrant to issue. We telephone testified that the lines connected to agree with the district court’s conclusion that the detective automatically division do not probable cause was insufficient. Konopa record calls. Detective stated he inadvertently disconnected the caller and

III. took the in second call his office. Detective Konopa The Fourth Amendment to the was if unsure the caller would call express United States Constitution being does not back after disconnected and did not ly preclude the use of in up tape evidence obtained its take the time to set recorder. Leon, violation. v. Konopa pointed United States 468 U.S. Detective also out that his 897, 906, 104 3405, 3411, 82 L.Ed.2d department require taping S.Ct. 677 does not of (1984). good- anonymous phone The Court Leon created the anonymous calls. The exception exclusionary faith provided reasonably rule. Id. caller detailed informa- 922, 104 purpose at at S.Ct. 3420. The of the tion. To rebut in sup- this information and exclusionary police port rule is to deter miscon of his claim that the received no call, Simpkins, phone duct. United 914 F.2d such Johnson offered the testimo- Cir.1990), denied, ny cert. supplemental sup- of Carol Scott at the pression U.S. 112 L.Ed.2d hearing. acquaintance S.Ct. Scott is an (1991). Johnson’s, exclusionary generally rule is claimed be at his resi- suppression not served pm of evidence dence from noon until around 1:00 on the facially seized a search conducted on executed the search warrant. wife, valid search warrant. Id. The Leon testified that Scott Johnson and his Vicki, exception provides only present four situations in were the two at the house which officer’s reliance on a warrant when she arrived and no one else came to the (1) would be during unreasonable: the officer includ house the time she was there. The ed information in an affidavit that judge present he “knew district court was to listen to testimony was false or would credibility have known was false evaluate except disregard for his reckless Konopa both Detective and Carol Scott. The truth”; judge where the finding abandons his district court’s that an role and fails to act in a phone police depart- neutral and detached call was made to the See, investiga- resulting completed Prince other cases “clearly erroneous.” not ment is felony arrests.” Id. at 947. (8th Cir.1992). tions 720, 720 and/or Sargent, 960 testimony suppression hear- Monroe’s warrant had a for search The affidavit provided had ing revealed that the informant attached, Attachment B. This

printed form tip only prior him with one which enabled relating to whether the form had section forty burgla- thirty-five to Monroe to solve confidential, anonymous or informant convictions of three indi- ries and led to the why printed reasons four and a section with question whether viduals. Id. The became The officer is reliable. the informant language have used clearer Monroe could why cheeked two reasons cases”, “on other when fact the infor- than he has “C. Information caller was rehable: previously. Id. only assisted once mant en- corroborated law supplied has been precise believed that this less than not personnel.” and “D. He has forcement was not intended to mislead the past.” information in the given it unreason- judge. Id. The Court deemed nonlawyer enforce- expect able to from a law on the search war- Judge Van Marel wrote clarity language officer the “same affidavit, finds informant’s infor- rant “Court expect appellate lawyer’s in an to find in that he has mation to be rehable brief.” delivery, specific information Konopa Robinson Both officers marijuana. storage His packaging and questioned about the assertion checked *5 by law has corroborated information given B “D. had not Attachment that He knows of no reason enforcement. Court past.” suppres- in the in the false information to he.” informant hearing. The officers took the literal sion officers had corroborated pohce The phrase that the caller had not view the before seek- Johnson information past in the even false information Judge from Van Marel. The ing warrant though the informant’s first call. this was in- whether the officer’s issue then becomes checking that this state- We do not believe they affidavit that cluded information making a false ment rises to the level have known was false or would “knew was knowingly intentionally or or with disregard of the except for his reckless disregard a for the truth. Like the reckless they stating checked the hne truth” when Wellman, subject we do not law Court had not false infor- that the informant syllogistic enforcement officers absolute past. mation precision. determining Johnson also contends the offi whether statements In disregard cers acted with reckless disregard for the a “reckless were made with by failing Judge truth to inform Van Marel truth”, used in applied have standard we provided in cases. United States v. First Amendment jeep regarding formation a stolen which Cir.1995). (8th 795, That Clapp, 801 46 could not be corroborated. The after the being, the affiant ‘in fact “whether standard relating to Johnson was is search doubts as to the truth of entertained serious sued, police presented application the affidavits or had obvious reasons doubt jeep Judge for the stolen search warrant accuracy of the information contained sign ” Marel and he refused to the war Van (citing therein.’ United States Dorf probable cause. rant because it was without (N.D.Ill.1982)). 345, man, F.Supp. The failure to include the information about Wellman, 33 F.3d States v. jeep does not indicate misconduct. — (8th Cir.1994), denied, cert. U.S. jeep stolen had no connection with John -, 131 L.Ed.2d 580 115 S.Ct. no valid reason for refer son there was judge had been the defendant contended ring to it in the affidavit for the Johnson affiant, issuing a warrant when the misled nothing in search warrant. There is “[tjhis affidavit, Monroe, in his Confi wrote support finding that record which would proven to Informant has been be dential attempting to mislead the magistrate by excluding regard on other cases. This Confidential reliable information ing offense. given information in several this unrelated Informant has Johnson next asserts that the search All of the incidents by referred to Johnson establish that Johnson did Judge not like warrant was not issued neutral and Marel, Van but the tempered incidents are magistrate. detached He contends that his by evidence that Johnson held the same dis- prior Judge with contacts Van Marel demon like towards all of judges the other in Stoiy person strate that a reasonable would doubt County. The any record is devoid of show- judge’s impartiality. ing that the incidents referred to caused Judge Steven Van Marel has served as a Judge Van Marel to any prejudice exhibit part Magistrate time aas District Asso- toward Johnson. Judge. ciate The first contact cited Judge Longstaff found after considering Johnson is a letter dated October 1989 this evidence in separate two hearings that Judge which Johnson wrote to Van Marel Judge impartially Van Marel’s in considering Story jail County complaining from the about the search warrant could not reasonably being given not time-served credit on a case. questioned. After a careful review next record shows that Johnson was agree that it was not error for upset sign Van because Marel to Van Marel warrant for refused search of Johnson’s home. filing assist complaint Johnson a criminal sought September, which Johnson file finally contends the offi appears 1991. It brought next that Johnson cers’ reliance on the warrant against Judge a civil action Van Marel and unreasonable based on an affidavit lacking so judges October, other in that area in 1991 indicia of cause. In reviewing the test, prong third of the Leon alleging falsely we defer to he had been arrested finding unless errone imprisoned. Van Marel testified ous, subject but to de novo review conclu complaint after he was served with the objective sions about the reasonableness of he Attorney contacted the Iowa General’s the officers’ reliance. United States v. Jack responsible office which was for the defense son, Cir.1995). 67 F.3d judicial *6 officers. Van Marel had no assessing objective When the reasonableness further contact with Johnson until he learned warrant, executing officers a we “must the case had been dismissed. totality circumstances,” look to the of the publicly Johnson also asserts that he including stat- presented information that was not issuing to judge. Simpkins, the 914 F.2d at thought Judge ed that he that the had ob- 1057, (citing Martin, United States v. practice tained his license to law a Crack- Cir.1987)). F.2d The district erjack box Judge’s parents and that the court found that the officers acting probably get bribed the bar to examiners good they faith when executed the warrant. him admitted to the Iowa bar. Gibson, In United v. police States the de- A supplemental witness for Johnson at the partment received an phone call hearing testified that pre- Van Marel stating that a white male and his wife were hearing sided over a dispute dealing specific cocaine from a address. 928 City between Johnson and the Ames over F.2d at 251-52. The caller stated she had pile chips of wood in the fall of 1993. He been inside the house that and had seen testified that when Van Marel was money and Id. at cocaine. 252. The caller by asked to recuse himself Johnson’s attor- dogs also described the and the cars at the ney, Judge visibly upset Van Marel became by residence. Id. An officer drove the house and and observed one of the hearing. terminated the described cars dogs. and one of the Id. The officer then presented The final by evidence physical description checked the of the defen- was a letter written Johnson to given by against dants the caller records of Van Marel dated objecting October department the state of revenue. Id. The to taxation of costs in the case entitled State prepared officer then an affidavit for a Johnson, which had been reversed the Although search warrant. Id. details were Appeals 92-1049, Court of No. corroborated there was no observation stating that he believed Van Marel activity of criminal and no information about had been recused from involving eases John- reliability of the caller. Id. at 253. On son. appeal, this Court concluded that there was hardly requiring law- to issue the war- This is matter of probable cause insufficient However, “syllogistic on the Court went to enforcement to observe rant. is, rather, state, we hold that district ante at precision,” “Nonetheless 1262. It denying motion err in Gibson’s ordinary speech. did not common A state- court matter of objec- acted suppress because previously that an informant had not on a warrant is- tively reasonable reliance clearly calculated false information is magistrate.” Id. by a neutral sued magistrate ap- to influence to whom to be submitted. plication warrant was comparable ease is believe this We hardly could been other The statement have Gibson, the information As Gibson. It that the than deliberate. not contended is police by the caller given to the making officer the affidavit believed time, description of place, as to specific informant had furnished information on some quantity. caller drugs, and the previous occasion. To read the statement wife, his Vicki. The Johnson and named literally absolutely disingenuous seems entering person described the me, certainly way not the one would male, tall and slender as a white residence circum- understand the statement under the Bronco-type ve drove a bronze-colored least, very At the could have stances. it place reference to the The caller made hicle. not, explained that informant had be found. The where knowledge, given informa- the officers’ the facts to Assis officers also submitted past, simple reason that tion County them Attorney, who advised tant officers, knew, they so far had never as Seeking the a search warrant. advice seek particular heard from informant before. in to attorney can factored deter of an is mine if an officer’s conduct reason, For this to me that the it seems Mendonsa, reasonable. excep- falls of the affidavit within one (9th Cir.1993). It 369-70 becomes rule, “good tions to the Leon faith” validity on the that the officer’s reliance clear suppress the motion to should have been objectively reason of the search warrant was granted. able. IV. After a careful consideration entire are the district satisfied sustaining the search court’s decision VENEKLASE; Mehl; Chris Paul B. under the Leon residence Johnson’s Larson; Nancy Emmel; Darold *7 exception was not erroneous. Uchtman, Appellees, Jessica Rosnow, Cir.1992). decision of the district FARGO; Todd; CITY OF David Jim Scha- hereby court is affirmed. lesky; Holman; Wayne Jorgenson, Jon ARNOLD, Judge, Chief City RICHARD Sergeant, Fargo Depart- Police dissenting. ment, Appellants. stated The affidavit No. 95-1515. informant who had all Appeals, United States Court of of the information on which warrant Eighth Circuit.

be based had not false information in Court, past. respect all I With Submitted Oct. 1995. misleading. believe this statement was Decided March 1996. fact, heard from the affiant had never Rehearing Rehearing Suggestion import of informant before. The clear En April Banc Denied 1996.* previ- was that the informant information, or, least, ously given truthful shown to information had not been

false.

* rehearing Chief Richard S. Morris en banc. Arnold Sheppard grant suggestion Arnold