                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                    No. 08-3022
                                 ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * Northern District of Iowa.
Edmond Louis Cote,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 14, 2009
                                Filed: June 23, 2009
                                  ___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

      After his motion to suppress the search of his home was denied, Edmond Cote
(Cote) entered a conditional guilty plea to one count of being an unlawful user of a
controlled substance in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3)
and 924(a)(2). The district court1 sentenced Cote to 24 months imprisonment and two


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the Report and Recommendation of the
Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District
of Iowa.
years of supervised release. On appeal, Cote challenges the denial of his motion to
suppress. Cote argues his rights under the Fourth Amendment, Fed. R. Crim. P.
41(d)(2)(C), and Iowa Code § 808.3 were violated because the state court judge who
issued the warrant to search Cote’s residence failed to record the supplemental sworn
testimony of a police officer used to establish probable cause, thereby preventing
meaningful review of the probable cause finding. We affirm.

I.    BACKGROUND
      On December 4, 2007, Officer Rebecca Fort (Officer Fort) of the Cedar Rapids
(Iowa) Police Department met with two school students and their parents. The students
told Officer Fort that N.C., age 14, threatened to use N.C.’s father’s AK-47 rifle and
a magnum-type firearm to shoot other students. N.C. showed one of the students a
dagger-type weapon strapped to N.C.’s leg. Officer Fort went to the school principal’s
house and obtained N.C.’s address.

       Based upon the information obtained from the students and the address provided
by the principal, Officer Fort applied for a search warrant requesting authority to
search a residence in Palo, Iowa. The application affidavit omitted to mention N.C.
lived at the residence. Officer Fort presented the warrant application to Iowa District
Associate Judge Jane Spande (Judge Spande), who placed Officer Fort under oath.
Officer Fort then provided Judge Spande with a summary of the facts of Officer Fort’s
investigation, including the fact N.C. lived with his parents at the Palo address listed
in the warrant. Judge Spande issued the warrant. Officers proceeded to the Cote
address, searched the residence, and found an Arma Lite rifle, a Ruger handgun,
ammunition, including AK-47 ammunition, and a plastic baggie containing marijuana
in a safe to which only Cote possessed the key. N.C.’s father, Cote, was arrested and
indicted on one count of being an unlawful drug user in possession of firearms.

      Cote filed a motion to suppress, asserting the warrant affidavit failed to link N.C.
to the place to be searched. The magistrate filed a report and recommendation

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suggesting the motion to suppress be denied. Cote objected to the report and
recommendation. Cote entered a conditional guilty plea, reserving the right to appeal
an adverse ruling on his motion to suppress. The district court adopted the report and
recommendation, denied Cote’s motion to suppress, and subsequently accepted Cote’s
guilty plea. This appeal followed.

II.   DISCUSSION
      We review de novo a district court’s legal conclusions underlying its denial of
a motion to suppress. See United States v. Cantrell, 530 F.3d 684, 689 (8th Cir. 2008).
Cote contends Judge Spande’s failure to record Officer Fort’s supplementary oral
testimony prevented meaningful review of the probable cause finding, and violated the
Fourth Amendment, Fed. R. Crim. P. 41(d)(2)(C), and Iowa Code § 808.3. We
disagree.

       Defendant acknowledges our court has repeatedly held the Fourth Amendment
does not require the issuing judge to record sworn supplementary oral testimony. See
Campbell v. Minnesota, 487 F.2d 1, 4-5 (8th Cir. 1973) (“While it would have been
preferable to make a contemporaneous recording of the testimony, . . . there is nothing
in the Fourth Amendment to require the adoption of such a procedure.”); Frazier v.
Roberts, 441 F.2d 1224, 1226 (8th Cir. 1971) (“It is clear that the Fourth Amendment
permits the warrant-issuing magistrate to consider sworn oral testimony supplementing
a duly executed affidavit to determine whether there is probable cause upon which to
issue a search warrant.”); United States v. Berkus, 428 F.2d 1148, 1152 (8th Cir. 1970)
(explaining, while “it is at all times preferable to record testimony given before a
magistrate to supplement an affidavit[,] . . . the Fourth Amendment contains no
prescription as to the form or manner in which probable cause must be shown”).
Eighth Circuit precedent “prohibits any three-judge panel of the Court from overruling
a previous panel opinion.” United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir.
2003). Cote’s Fourth Amendment challenge therefore fails.



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      Fed. R. Crim. P. 41(d)(2)(C) is inapplicable in Cote’s case. Rule 41(d)(2)(C)
provides, “[t]estimony taken in support of a warrant must be recorded by a court
reporter or by a suitable recording device, and the judge must file the transcript or
recording with the clerk, along with any affidavit.” However, “‘Rule 41 applies only
where a warrant is sought by a federal law enforcement officer or where the search can
otherwise be characterized as federal in character.’” United States v. Jones, 471F.3d
868, 871 (8th Cir. 2006) (quoting United States v. McCain, 677 F.2d 657, 662 (8th Cir.
1982)). It is undisputed the warrant in Cote’s case was issued by a state court judge
and was sought and executed entirely by state, not federal, law enforcement officers.
Cote does not contend the search was otherwise “federal in character.”

       Iowa Code § 808.3, which requires an abstract of witness testimony that serves
as a basis for granting a warrant application, is also inapplicable in Cote’s case. “In a
federal prosecution, we evaluate a challenge to a search conducted by state authorities
under federal Fourth Amendment standards.” United States v. Bieri, 21 F.3d 811, 816
(8th Cir. 1994) (citing United States v. Johnson, 12 F.3d 827, 835 (8th Cir. 1994),
abrogated on other grounds by Bailey v. United States, 516 U.S. 137 (1995)).
“‘[E]vidence seized by state officers in conformity with the Fourth Amendment will
not be suppressed in a federal prosecution because state law was violated.’” Id.
(quoting United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992)). Because we
conclude the warrant in Cote’s case did not violate the Fourth Amendment, we need
not determine whether Judge Spande’s failure to record Officer Fort’s supplementary
testimony constituted a violation of Iowa law.

II.    CONCLUSION
       We affirm the district court’s denial of Cote’s motion to suppress, and the
resulting judgment.
                      ______________________________




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