                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2320
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Tiloe C. Williams,                       *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 19, 2006
                                 Filed: February 13, 2007
                                  ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       A jury found Tiloe Williams guilty of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g). Williams argues on appeal that the district court1
erred by failing to suppress firearms evidence resulting from a search warrant in which
the affiant officer omitted material facts concerning the reliability of a confidential
informant. We affirm.




      1
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
                                            I

        After receiving a citizen’s complaint that drugs were being sold on the
premises, Omaha police officers Wells and Milone directed a confidential informant,
Randy Conway, to purchase crack cocaine from the residence of Tiloe Williams on
April 11, 2005. Although the officers watched Conway approach the house, they lost
sight of him as he reached its entrance. Conway was not equipped with any recording
device or transmitter. Soon after, they received a cell-phone call from Conway. He
was “excited, talking really fast, [and] breathing heavily.” Conway stated that he
spoke to a man at the doorway about buying crack; he told the man that he knew him
a long time ago, whereupon the man pointed a rifle at Conway, who immediately fled
the residence. The officers met up with Conway in person and observed that he was
still “excited, breathing heavily, and talking a mile a minute.” Conway repeated the
same story, described the man he encountered, and identified the man as Williams
when presented with Williams’s mug shot.

       Subsequent to this encounter, Officer Wells learned of Williams’s status as a
convicted felon. He and Officer Milone submitted an affidavit that included the
information provided by Conway in an application for a search warrant of Williams’s
residence. Their affidavit also mentioned that Conway had been utilized by the police
unit in several prior narcotics operations, and that his assistance had resulted in search
warrants and several felony narcotics arrests. It further averred that Conway had
experience making controlled purchases of illegal narcotics for which preliminary
field tests of the purchases had positively indicated cocaine. Finally, the affidavit
stated that Conway was not on any terms of parole, probation, or work release at the
time he approached Williams.

      The affidavit did not mention that Conway had been arrested for providing false
information to a police officer in 2003. At that time, Conway knew of an outstanding
warrant for his arrest when a police officer pulled over the car in which he was riding.

                                           -2-
When the officer asked the passengers for their respective names, Conway identified
himself with a false name to avoid being arrested and losing his job. The officer
discovered Conway’s deceit, and Conway subsequently pled guilty to a misdemeanor
offense for lying to the officer and was sentenced to a single day in jail. The affidavit
also failed to mention that Conway had been convicted for two felonies and had been
arrested on a charge of felony theft for receiving stolen property. Finally, the affidavit
did not mention Conway’s financial arrangement with the police under which he
received payment for his confidential informant services depending on the type of
service he provided and the outcome of the investigation.

       Citing these omissions, Williams moved for a hearing to suppress the entry of
the firearms into evidence. A magistrate judge2 granted the hearing but limited the
scope of the inquiry to the omissions of Conway’s conviction for lying to a police
officer and Conway’s financial relationship with the police department. At the
conclusion of the hearing, the magistrate judge found that Officer Wells had
intentionally omitted the information at issue, but that even had the information not
been omitted, the affidavit would still have provided probable cause for the warrant.
Accordingly, the magistrate judge recommended a denial of Williams’s suppression
motion.

        The district court reviewed the magistrate judge’s recommendations and
likewise considered the omitted information material and relevant. After reviewing
all of the evidence de novo, and even after assuming, arguendo, the truth of the full
extent of Conway’s criminal history, the district court concluded that probable cause
would have existed had the omitted information been part of the affidavit and
accordingly denied the motion to suppress.




      2
        The Honorable F.A. Gossett, III, United States Magistrate Judge for the
District of Nebraska.

                                           -3-
       Williams appeals from his conviction, arguing that the district court erred (1)
by not remanding the case to the magistrate judge for further inquiries into Conway’s
criminal history in light of the limitations that the magistrate judge imposed on the
scope of the hearing and (2) by finding that probable cause would still have existed
even with the inclusion of the omitted information. The government responds that
Williams was not even entitled to a hearing because he failed to make a substantial
preliminary showing that Officer Wells omitted facts with an intent to make, or in
reckless disregard of whether they made, the affidavit misleading. It further contends
that even had Williams made such a showing, he failed to show that the omitted facts
would have altered the probable cause finding; therefore, any procedural errors that
might have occurred during the hearing were harmless.

                                           II

       We review factual findings supporting the denial of a suppression motion for
clear error, and we review de novo the legal conclusions pertinent to the ultimate
question of whether the Fourth Amendment has been violated. United States v. Allen,
297 F.3d 790, 794 (8th Cir. 2002).

       The Fourth Amendment requires a showing of probable cause before a search
warrant may be issued. Determinations of probable cause must be premised on the
totality of the circumstances. “The task of the issuing magistrate is simply to make
a practical, common-sense decision whether, given all the circumstances set forth in
the affidavit before him . . . 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). Where an issuing judge’s probable cause determination was premised on an
affidavit containing false or omitted statements, the resulting search warrant may be
invalid if the defendant can prove by a preponderance of evidence “(1) that the police
omitted facts with the intent to make, or in reckless disregard of whether they thereby
made, the affidavit misleading . . . and (2) that the affidavit, if supplemented by the

                                          -4-
omitted information would not have been sufficient to support a finding of probable
cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (citations
omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).

     To be entitled to a hearing on this issue (“Franks hearing”) a defendant must
make a substantial preliminary showing that includes

      allegations of deliberate falsehood or of reckless disregard for the truth[.]
      [T]hose allegations must be accompanied by an offer of proof. They
      should point out specifically the portion of the warrant affidavit that is
      claimed to be false; and they should be accompanied by a statement of
      supporting reasons. Affidavits or sworn or otherwise reliable statements
      of witnesses should be furnished, or their absence satisfactorily
      explained. Allegations of negligence or innocent mistake are
      insufficient. The deliberate falsity or reckless disregard whose
      impeachment is permitted . . . is only that of the affiant, not of any
      nongovernmental informant.

Franks v. Delaware, 438 U.S. 154, 171 (1978). While clear proof of these elements
is not required at the stage at which the defendant is demonstrating an entitlement to
an evidentiary hearing, United States v. Owens, 882 F.2d 1493, 1498 (10th Cir. 1989),
the defendant still must make a “substantial preliminary showing” comprised of
specific allegations along with supporting affidavits or similarly reliable statements.
Cf. Franks, 438 U.S. at 171 (describing the showing requirements for               false
statements in warrant affidavits). Because “[t]here is . . . a presumption of validity
with respect to the affidavit supporting the search warrant[, t]o mandate an evidentiary
hearing, the challenger's attack must be more than conclusory and must be supported
by more than a mere desire to cross-examine.” Id. The substantiality requirement is
not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987).




                                          -5-
                                          III

       In its order granting the Franks hearing, the magistrate judge found that the
defendant made a substantial preliminary showing that fficer Wells may have
omitted information from the search warrant affidavit with a reckless disregard for the
truth. Such a finding alone is legally insufficient to justify a Franks hearing absent a
determination that the intentionally or recklessly omitted information may have
rendered the affidavit misleading and may have otherwise made a probable cause
finding unsupportable. Because neither the magistrate judge nor the district court
fully addressed whether a Franks hearing was even justified, we now consider the
sufficiency of Williams’s preliminary showing.

       In support of his motion for a Franks hearing, Williams alleged that Officer
Wells omitted the following facts from his affidavit: (1) the details of the financial
arrangement between the police department and Conway and (2) Conway’s criminal
background, which includes a conviction for lying to officers in 2003. Williams
offered support for his contention that Officer Wells was aware of each and suggests
that they would have made a probable cause finding improbable if they had been
included in the original affidavit.

               A. Omission of the Confidential Informant Agreement

       Omitting the details and existence of the bargaining agreement between
Conway and Wells was not misleading. We have held that an affidavit is not robbed
of its probative effect by its failure to mention that the informant “was a paid
informant who avoided prosecution by virtue of her testimony. . . .” United States v.
Milton, 153 F.3d 891, 896 n.3 (8th Cir. 1998); see also Reivich, 793 F.2d at 962-63;
United States v. Wold, 979 F.2d 632, 635 (8th Cir. 1992); United States v. Furlong,
844 F. Supp. 624, 628 (D. Mont. 1994), rev’d in part on other grounds sub nom.
United States v. Hand, 61 F.3d 913 (9th Cir. 1995) (unpublished table decision)

                                          -6-
(stating that it was reasonable for the affiant to assume that the issuing justice would
have supposed that the informant had an ulterior motive, such as a reward, for
providing the information). In fact, a properly developed pay-based incentive system
with appropriate consequences for invalid information may even bolster reliability.
Nothing in Williams’s Franks hearing motion, brief in support of the motion, or
attached affidavits suggests that the omission of Conway’s agreement with the police
renders the warrant application misleading.

       Williams cites United States v. Medina-Reyes, 877 F. Supp. 468, 475 (S.D.
Iowa 1995), in which a district court granted the defendant’s suppression motion after
a Franks hearing in part because the affiant officers failed to disclose details of the
cooperation and plea agreement. The district court emphasized the relevance of an
unusual incentive system in which the informant stood to benefit from a suspended
sentence or parole only if he succeeded in making a prosecutable case against
specifically named defendants within a fixed period of time. Id. at 475 (“in an
allegorical sense, [he had to] deliver the head[] of ‘Medina-Reyes’ . . . to the
prosecutor on a silver platter.”).3 Nothing in Williams’s Franks motion, supporting
affidavits, or showing of proof suggests that Conway’s agreement or associated
behavior might adversely impact his reliability, unlike the powerful incentive in the
Medina-Reyes agreement for the informant to submit unreliable information.4
Without more, the omission of the terms of Conway’s agreement does not materially


      3
       Furthermore, the omission of the agreement’s terms was considered even more
egregious when coupled with the affiant officer’s concomitant failure to state that the
informant had a history of violating the agreement – a fact with direct bearing on the
informant’s reliability. Medina-Reyes, 877 F. Supp. at 475.
      4
       In fact, the resulting Franks hearing established that Conway would be
blacklisted as an informant by the entire police department if he provided unreliable
information, and that leading up to his participation in the Williams operation,
Conway had received only nominal payments in the $20-$80 range if his information
yielded tangible results. Nothing about this system encourages unreliable behavior.

                                          -7-
change Conway’s apparent reliability or otherwise render the warrant application
misleading.

                  B. Omission of Conway’s Criminal Background

       The Supreme Court has indicated that a misstatement must be the product “of
deliberate falsehood or of reckless disregard for the truth . . . . Allegations of
negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 171. Franks
offers little guidance in determining whether an omission-based misrepresentation was
made with reckless disregard for the truth or merely out of negligence. See United
States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982). We have acknowledged that
recklessness 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.” Reivich, 793 F.2d at 961-62 (citing United States v.
Martin, 615 F.2d 318, 329 (5th Cir. 1980)); see also United States v. Jacobs, 986 F.2d
1231, 1235 (8th Cir. 1993) (stating that officers act with reckless disregard if they
knowingly withhold facts that “[a]ny reasonable person would have known . . . was
the kind of thing the judge would wish to know.”). Assuming that Officer Wells’s
omission of Conway’s prior misdemeanor conviction and the remainder of Conway’s
criminal background was made with reckless disregard of whether it rendered the
warrant application misleading, we conclude that in light of Conway’s extensive
history as a reliable police informant and Officer Wells’s personal observations of his
demeanor, the supplementation of the affidavit with Conway’s criminal background
would not alter the probable cause finding and therefore would not warrant a Franks
hearing. “The core question in assessing probable cause based upon information
supplied by an informant is whether the information is reliable.” United States v.
Williams, 10 F.3d 590, 593 (8th Cir. 1993) (citing Draper v. United States, 358 U.S.
307, 313 (1959)). We have held that probable cause is not defeated by a failure to
inform the magistrate judge of an informant's criminal history if the informant's
information is at least partly corroborated, see, e.g., Wold, 979 F.2d at 635; United

                                         -8-
States v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990) (per curiam); United States v.
Parker, 836 F.2d 1080, 1083 (8th Cir. 1987); United States v. Dennis, 625 F.2d 782,
791-92 (8th Cir. 1980). Probable cause is likewise not found wanting where the
affiant establishes the information’s reliability through some other means. Williams,
10 F.3d at 593 (“Information may be sufficiently reliable to support a probable cause
finding if the person providing the information has a track record of supplying reliable
information, or if it is corroborated by independent evidence.”); see also United States
v. Wright, 145 F.3d 972, 974-75 (8th Cir. 1998) (“The reliability of a confidential
informant can be established if the person has a history of providing law enforcement
officials with truthful information ”); United States v. Goodson, 165 F.3d 610, 614
(8th Cir. 1999); United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004). Despite
the lack of independent corroboration, the judicial officer issuing the warrant knew
that Conway had provided truthful and useful information and had made controlled
drug purchases for the police department on five previous occasions.5 See, e.g.,
United States v. Gabrio, 295 F.3d 880, 883 (8th Cir. 2002) (finding that the
informant’s provision of reliable information on at least two occasions, coupled with
his return of stolen property, established his reliability). This represents an extensive
history of reliable assistance that postdated Conway’s dishonesty-related conviction.
Furthermore, although Conway initially related the events by phone, Officer Wells
met with Conway soon after the incident and had ample opportunity to directly assess
Conway’s credibility by observing his demeanor as he recounted the events that had
occurred and as he identified Williams as the man involved when presented with
Williams’s mug shot. See id. at 883 (citing the affiant officer’s direct observations of
the informant subsequent to a criminal incident as pertinent to a credibility
determination). Taken as a whole, and balanced against Conway’s criminal history,
these considerations more than suffice to validate Conway’s status as a sufficiently




      5
       In fact, every single time Conway served as a confidential informant, the police
considered his contributions valuable enough to reward him for his efforts.

                                          -9-
reliable informant to justify a finding of probable cause based upon the information
he provided.

       Williams suggests that Conway’s track record as a reliable informant should be
disregarded because Conway’s prior assistance involved drug crimes, not gun crimes.
We assume from this that Williams believes Conway’s lack of expertise with guns
renders suspect his information pertaining to a gun crime. It does not; one needs no
special expertise in gun crimes to be aware that a gun is pointed at one’s face. In this
case, were we to consider Conway’s reliability as a historically trustworthy informant
diminished by his lack of experience with guns, we would be exercising “excessively
technical dissection of [the] informant’s tips, with undue attention being focused on
isolated issues that cannot sensibly be divorced from the other facts presented to the
magistrate.” Gates, 462 U.S. at 234-35. This we will not do.

                                          IV

       We conclude that Williams failed to make a substantial preliminary showing
sufficient to justify a Franks hearing. Every fact allegedly omitted was either not
misleading because it could have been assumed by the warrant-issuing judicial officer
or otherwise would not have altered the probable cause determination. Accordingly,
any errors that may have occurred during the Franks hearing were necessarily
harmless, given that the hearing ultimately resulted in the denial of Williams’s
suppression motion.

      The judgment is affirmed.
                      ______________________________




                                         -10-
