                                  ___________

                                  No. 95-3067
                                  ___________

United States of America,          *
                                   *
     Plaintiff - Appellee,         * Appeal from the United States
                                   * District Court for the Southern
           v.                      * District of Iowa.
                                   *
Jack Dean Johnson,                 *
                                   *
     Defendant - Appellant.        *
                                   *
                                  ___________

                     Submitted:   January 9, 1996

                         Filed:   March 1, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES,*
      Senior District Judge.

                                  ___________

JONES, Senior District Judge.


      Jack Dean Johnson entered a conditional plea of guilty to a charge
of manufacturing marijuana, and has been sentenced thereon.   He sought to
suppress evidence seized in the search of his residence pursuant to a
search warrant by alleging that his Fourth Amendment rights were violated
by   the search.     He appeals the    district court1 ruling that the
evidence should not be suppressed.         We affirm.


                                      I.
      On February 14, 1994 Detective Konopa of the Ames Police
Department received an anonymous phone call.         The call came in at




       *
      The Honorable John B. Jones, Senior United States District
Judge for the District of South Dakota, sitting by designation.
       1
       The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
approximately 12:40 pm.            The caller was a male who stated that
approximately twenty minutes earlier he had observed a tall, skinny
white male deliver three-and-a-half pounds of marijuana to the Jack
Johnson residence.     The caller stated the marijuana was in a paper
bag wrapped in three one-pound bundles and one half-pound bundle.
The caller stated that after the delivery was made, Johnson and the
deliverer went out to the garage of Johnson's home.                    The caller
also stated that Johnson lived with his wife Vicki in a house
across from the DOT (Iowa Department of Transportation).                       When
Detective Konopa questioned the caller about the source of his
knowledge, the caller replied he had been inside Johnson's house
and had seen the marijuana.           The caller went on further, stating
that Johnson left some of the marijuana in the refrigerator, and
possibly some in a filing cabinet.                 The caller also relayed
unrelated information concerning a stolen jeep.


       After   the   call    was   completed,    Detective   Konopa      verified
Johnson's address with the city utility files.               Detective Konopa
also   discovered     that    Johnson    had    been   arrested   in    1988   for
marijuana      possession.         Detective    Konopa    then    relayed      this
information to Ames Detective James Robinson.              Detective Robinson
also verified that the address given by the caller was Johnson's
with the city utility office.            Detective Robinson also verified
that Johnson's wife name was Vicki.            Detective Robinson directed an
officer to drive by the Johnson house to verify it was across the
street from the DOT and had a garage attached to it.


       Detective Robinson shared the information with an Assistant
County Attorney who advised him to prepare an application for a
search warrant.       Detective Robinson presented Judge Steven Van
Marel an affidavit for a search warrant of Johnson's address.                  The
affidavit detailed the conversation with the anonymous caller and
the steps taken to corroborate the caller's information plus

                                        -2-
Johnson's criminal history.    Judge Van Marel issued a search
warrant and it was executed that afternoon.   The search of




                               -3-
Johnson's   home   resulted   in   the    discovery    of   plastic    bags   of
marijuana in Johnson's refrigerator and his file cabinet and also
uncovered 373 marijuana plants and growing equipment.


    On May 3, 1994 the defendant filed a motion to suppress the
evidence obtained from the search of his residence pursuant to the
warrant.    The district court held an evidentiary hearing and
entered an order denying the motion on June 1, 1994.            The district
court ruled that probable cause did not exist to issue the warrant,
but determined the evidence was admissible because the searching
officers had   a   good   faith    belief   in   the   warrant's      validity.
Johnson entered a conditional plea of guilty on June 6, 1994
reserving the right to appeal the suppression issue.


     Johnson was sentenced to 120 months in prison.             Johnson then
brought this appeal.


                                    II.
     In reviewing the decision of the district court to deny a
motion to suppress evidence, this court will not reverse unless the
decision is clearly erroneous.           "The decision will be affirmed
unless the decision of the district court (1) is unsupported by
substantial evidence, (2) is based on an erroneous interpretation
of applicable law or, (3) in light of the entire record, the court
is left with a firm and definite conviction that a mistake has been
made."   United States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991)
(citing United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.
1987).


     Counsel for the United States conceded at oral argument that
probable cause was insufficient for a search warrant to issue.                We
agree with the district court's conclusion that probable cause was


                                    -4-
insufficient.




                -5-
                                     III.
      The Fourth Amendment to the United States Constitution does
not   expressly    preclude   the    use    of    evidence   obtained    in   its
violation.      United States v. Leon, 468 U.S. 897, 906, 104 S. Ct.
3405, 3411, 82 L.Ed.2d 677 (1984).           The Court in Leon created the
good-faith exception to the exclusionary rule.                Id. at 922.     The
purpose of the exclusionary rule is to deter police misconduct.
United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir. 1990),
cert. denied, 498 U.S. 1101 (1991).                The exclusionary rule is
generally not served by the suppression of evidence seized in a
search conducted on a facially valid search warrant.             Id.    The Leon
good faith exception provides four situations in which an officer's
reliance on a warrant would be unreasonable: (1) the officer
included information in an affidavit that he "knew was false or
would have known was false except for his reckless disregard of the
truth"; (2) where the judge abandons his role and fails to act in
a neutral and detached manner; (3) where the affidavit is so
lacking in probable cause that it is objectively unreasonable for
the officer to rely on it; or (4) the warrant is so facially
deficient that the officer cannot reasonably presume the warrant to
be valid.    468 U.S. at 923.      Johnson contends that the first three
situations are applicable in this case.


      Johnson    first   asserts    that    the   affidavit    included     false
information for two reasons, first, that the police fabricated the
existence of the anonymous tip that led to the search, and secondly
the statement that the informant had not given false information in
the past created a false impression.


      There are no logs or other documentary evidence to prove the
existence of the phone call from the anonymous informant.                     The
question of whether the phone call existed is clearly a question of


                                     -6-
fact.   Detective Konopa testified at the suppression hearing that
he received the phone call.   Detective Konopa testified that the
telephone lines connected to the detective division do not




                                -7-
automatically        record    calls.          Detective   Konopa    stated       he
inadvertently disconnected the caller and took the second call in
his office.     Detective Konopa was unsure if the caller would call
back after being disconnected and did not take the time to set up
a tape recorder.         Detective Konopa also pointed out that his
department does not require the taping of anonymous phone calls.
The anonymous caller provided reasonably detailed information.                     To
rebut this information and in support of his claim that the police
received no such phone call, Johnson offered the testimony of Carol
Scott at   the    supplemental      suppression      hearing.       Scott    is   an
acquaintance of Johnson's, who claimed to be at his residence from
noon until around 1:00 pm on the day the police executed the search
warrant.   Scott testified that Johnson and his wife, Vicki, were
the only two present at the house when she arrived and no one else
came to the house during the time she was there.                    The district
court judge was present to listen to the testimony and evaluate the
credibility of both Detective Konopa and Carol Scott.               The district
court's finding that an anonymous phone call was made to the police
department is not "clearly erroneous."            See, Prince v. Sargent, 960
F.2d 720, 720 (8th Cir. 1992).


      The affidavit for search warrant had a printed form attached,
Attachment B.        This form had a section relating to whether the
informant was anonymous or confidential, and a section                 with four
printed reasons why the informant is reliable.             The officer checked
two   reasons    why    the    anonymous       caller   was   reliable:           "C.
Information     he     has    supplied    has    been   corroborated        by    law
enforcement personnel." and "D.          He has not given false information
in the past."


      Judge Van Marel wrote on the search warrant affidavit, "Court
finds informant's information to be reliable in that he has given
specific information concerning the delivery, packaging and storage

                                         -8-
of the marijuana.   His information has been corroborated by law
enforcement.   Court knows of no reason for informant to lie."




                                -9-
     The   police   officers     had     corroborated       the    information
concerning Johnson before seeking the warrant from Judge Van Marel.
The issue then becomes whether the officer's included information
in the affidavit that they "knew was false or would have known was
false except for his reckless disregard of the truth" when they
checked the line stating that the informant had not given false
information in the past.


     In determining whether statements were made with a "reckless
disregard for the truth", we have applied the standard used in
First Amendment cases.     United States v. Clapp, 46 F.3d 795, 801
(8th Cir. 1995).    That standard being, "whether the affiant `in
fact entertained serious doubts as to the truth of the affidavits
or had obvious reasons to doubt the accuracy of the information
contained therein.'"      Id. (citing United States v. Dorfman, 542
F.Supp. 345, 369 (N.D.Ill. 1982)).


     In United States v. Wellman, 33 F.3d 944, 946 (8th Cir. 1994),
cert. denied, 115 S. Ct. 1722 (1995) the defendant contended the
judge had been misled in issuing a warrant when the affiant,
Monroe, wrote in his affidavit, "[t]his Confidential Informant has
been proven to be reliable on other cases.                 This Confidential
Informant has given information in several other cases resulting in
completed investigations and/or felony arrests."                  Id. at 947.
Monroe's testimony at the suppression hearing revealed that the
informant had provided him with only one prior tip which enabled
Monroe to solve thirty-five to forty burglaries and led to the
convictions of three individuals.        Id.    The question became whether
Monroe could have used clearer language than "on other cases", when
in fact the informant had only assisted once previously.              Id.    The
Court believed that this less than precise statement was not
intended   to   mislead   the   judge.         Id.   The   Court    deemed   it
unreasonable to expect from a nonlawyer law enforcement officer the

                                   -10-
"same clarity of language we would expect to find in an appellate
lawyer's brief."   Id.




                              -11-
        Both officers Konopa and Robinson were questioned about the
assertion checked in Attachment B that "D.    He had not given false
information in the past." in the suppression hearing.   The officers
took the literal view of the phrase that the caller had not given
false information in the past even though this was the informant's
first call.   We do not believe that checking this statement rises
to the level of making a false statement knowingly or intentionally
or with a reckless disregard for the truth.       Like the Court in
Wellman,   we do not subject law enforcement officers to absolute
syllogistic precision.


     Johnson also contends the police officers acted with reckless
disregard for the truth by failing to inform Judge Van Marel that
the anonymous caller also provided information regarding a stolen
jeep which could not be corroborated.      The day after the search
warrant relating to Johnson was issued, the police presented an
application for a search warrant for the stolen jeep to Judge Van
Marel and he refused to sign the warrant because it was without
probable cause.   The failure to include the information about the
jeep does not indicate police misconduct.    The stolen jeep had no
connection with Johnson and there was no valid reason for referring
to it in the affidavit for the Johnson search warrant.     There is
nothing in this record which would support a finding that the
officers were attempting to mislead the magistrate by excluding
information regarding this unrelated offense.


     Johnson next asserts that the search warrant was not issued by
a neutral and detached magistrate.      He contends that his prior
contacts with Judge Van Marel demonstrate that a reasonable person
would doubt the judge's impartiality.


     Judge Steven Van Marel has served as a part time Magistrate
and as a District Associate Court Judge.     The first contact cited

                               -12-
by Johnson is a letter dated October 27, 1989 which Johnson wrote




                              -13-
to Judge Van Marel from the Story County jail complaining about not
being given time-served credit on a case.     The record next shows
that Johnson was upset because Judge Van Marel refused to assist
Johnson in filing a criminal complaint which Johnson sought to file
in September, 1991.   It next appears that Johnson brought a civil
action against Judge Van Marel and other judges in that area in
October, 1991 alleging that he had been falsely arrested and
imprisoned.   Judge Van Marel testified that after he was served
with the complaint he contacted the Iowa Attorney General's office
which was responsible for the defense of judicial officers.   Judge
Van Marel had no further contact with Johnson until he learned the
case had been dismissed.


     Johnson also asserts that he publicly stated that he thought
that the Judge had obtained his license to practice law in a
Crackerjack box and that the Judge's parents probably bribed the
bar examiners to get him admitted to the Iowa bar.


     A witness for Johnson at the supplemental hearing testified
that Judge Van Marel presided over a hearing concerning a dispute
between Johnson and the City of Ames over a pile of wood chips in
the fall of 1993.   He testified that when Judge Van Marel was asked
to recuse himself by Johnson's attorney, Judge Van Marel became
visibly upset and terminated the hearing.


     The final evidence presented by Johnson was a letter written
by Johnson to Judge Van Marel dated October 14, 1993 objecting to
taxation of costs in the case entitled State v. Johnson, which had
been reversed by the Court of Appeals of Iowa, No. 92-1049, and
stating that he believed Judge Van Marel had been recused from
cases involving Johnson.


     All of the incidents referred to by Johnson establish that

                                -14-
Johnson did not like Judge Van Marel, but the incidents are
tempered by evidence that Johnson held the same dislike towards all




                               -15-
of the other judges in Story County.          The record is devoid of any
showing that the incidents referred to caused Judge Van Marel to
exhibit any prejudice toward Johnson.


     Judge Longstaff found after considering this evidence in          two
separate hearings that Judge Van Marel's impartially in considering
the search warrant could not be reasonably questioned.            After a
careful review of the record, we agree that it was not error for
Judge Van Marel to sign the warrant for the search of Johnson's
home.


             Johnson finally contends the officers' reliance on the
warrant was objectively unreasonable based on an affidavit so
lacking indicia of probable cause.         In reviewing the third prong of
the Leon test, we defer to a finding of good faith unless clearly
erroneous, but subject to de novo review conclusions about the
objective reasonableness of the officers reliance.          United States
v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995).        When assessing the
objective reasonableness of officers executing a warrant, we "must
look to the totality of the circumstances," including information
that was not presented to the issuing judge.        Simpkins, 914 F.2d at
1057, (citing United States v. Martin, 833 F.2d 752, 756 (8th Cir.
1987)).    The district court found that the officers were acting in
good faith when they executed the warrant.


        In United States v. Gibson, the police department received an
anonymous phone call stating that a white male and his wife were
dealing cocaine from a specific address.         928 F.2d at 251-52.   The
caller stated she had been inside the house that day and had seen
money and cocaine.    Id. at 252.    The caller also described the dogs
and the cars at the residence.      Id.     An officer drove by the house
and observed one of the described cars and one of the dogs.            Id.
The officer then checked the physical description of the defendants

                                    -16-
given by the caller against records of the state department of
revenue.   Id.   The officer then prepared an affidavit for a search




                                 -17-
warrant.    Id.      Although details were corroborated there was no
police observation of criminal activity and no information about
the reliability of the caller.         Id. at 253.       On appeal, this Court
concluded that there was insufficient probable cause to issue the
warrant.    Id.     However, the Court went on to state, "Nonetheless we
hold that the district court did not err in denying Gibson's motion
to suppress because the police acted in objectively reasonable
reliance on a warrant issued by a neutral magistrate."                   Id.


     We believe this case is comparable to               Gibson.   As in Gibson,
the information given to the police by the anonymous caller was
specific as to time, place, description of the drugs, and the
quantity.      The caller named Johnson and his wife, Vicki.                    The
caller also described the person entering the residence as a white
male, tall and slender who drove a bronze-colored Bronco-type
vehicle.      The    caller   made   reference      to   the   place    where   the
marijuana would be found.       The officers also submitted the facts to
an Assistant County Attorney, who advised them to seek a search
warrant.    Seeking the advice of an attorney can be factored in to
determine     if    an   officer's   conduct   is    objectively       reasonable.
United States v. Mendosa, 989 F.2d 366, 369-70 (9th Cir. 1993).                  It
becomes clear that the officer's reliance on the validity of the
search warrant was objectively reasonable.


                                       IV.
     After a careful consideration of the entire record, we are
satisfied that the district court's decision sustaining the search
of Johnson's residence under the Leon good faith exception was not
clearly erroneous.        United States v. Rosnow, 977 F.2d 399, 409 (8th
Cir. 1992).    The decision of the district court is hereby affirmed.


RICHARD S. ARNOLD, Chief Judge, dissenting.


     The    affidavit for the warrant stated that the anonymous

                                      -18-
informant who had given all of the information on which a warrant
was to be based had not given false information in the past.   With




                               -19-
all respect to the Court, I believe this statement was misleading.
In fact, the affiant had never heard from the informant before.
The clear import of the statement was that the informant had
previously given truthful information, or, at least, information
that had not been shown to be false.


     This is hardly a matter of requiring law-enforcement officers
to observe "syllogistic precision," ante at 7.      It is, rather, a
matter of common ordinary speech.      A statement that an informant
had not previously given false information is clearly calculated to
influence the magistrate to whom the application for warrant was to
be submitted.    The statement could hardly have been other than
deliberate.     It is not contended that the officer making the
affidavit believed that the informant had furnished information on
some previous occasion.   To read the statement absolutely literally
seems disingenuous to me, and certainly not the way one would
understand the statement under the circumstances.       At the very
least, it could have been explained that the informant had not, to
the officers' knowledge, given false information in the past, for
the simple reason that the officers, so far as they knew, had never
heard from this particular informant before.


     For this reason, it seems to me that the affidavit falls
clearly within one of the exceptions to the Leon "good faith" rule,
and that the motion to suppress should have been granted.


     A true copy.


          Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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