                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2587
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
William Douglas Montgomery,             *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: February 11, 2008
                                Filed: June 6, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       William Douglas Montgomery pleaded guilty to two counts of possession of a
firearm by an unlawful user of controlled substances, in violation of 18 U.S.C. §
922(g). Having reserved his right to do so, Montgomery appeals from the district
court’s1 denial of his motion to suppress the evidence seized during two searches of




      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
his residence, the denial having been recommended by a magistrate judge2 following
a hearing on the matter. We affirm.

                                   I. Background

        On March 1, 2005, Jerry Lawson, a private citizen, contacted Scott Richardson,
a Missouri State Highway Patrol trooper, to report that Montgomery had taken his
Jeep Cherokee without permission. Lawson produced proof of ownership and took
Richardson and a Mountain Grove, Missouri, police officer, Danny Bledsoe, to
Montgomery’s residence. No one was home, so after verifying the vehicle
identification number on the Jeep, Richardson took Lawson to Mountain Grove to file
a report while Bledsoe kept the property under surveillance. Montgomery returned,
demonstrated his control over the Jeep by moving it, and entered the house. Shortly
thereafter, he made several trips from his house to a Dodge Durango parked in his
driveway. Bledsoe was some distance away, and it appeared to him that Montgomery
was unloading items from the Durango and also possibly loading other items into it.
In moving between the house and the vehicle, Montgomery frequently looked at the
road and ran crouched low to the ground as if worried about being observed. A
woman who was later identified as Christi Gabel then got in the truck and reclined the
passenger seat as if hiding while Montgomery drove the two of them away. Bledsoe
stopped Montgomery on suspicion of having stolen the Jeep. While they waited for
Richardson to arrive, Bledsoe believed that he saw Montgomery surreptitiously hand
something to Gabel. Richardson arrested Montgomery on the stolen vehicle charge.
Montgomery claimed that he had been gone all day and had not seen the Jeep, which
Richardson knew to be false. Gabel and the Durango were searched. Gabel was
initially found with a marijuana roach. She was later searched more thoroughly and
was found to possess two bags of marijuana, one bag of white powder that field-tested


      2
      The Honorable James C. England, Chief United States Magistrate Judge for the
Western District of Missouri.

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positive for cocaine, a straw, two pipes, several empty plastic baggies, four spoons,
a bag of white paper, one unopened and six opened syringes, cotton swabs, and four
generic Xanax pills. Bledsoe included this information in an affidavit, and a warrant
was issued that evening to search Montgomery’s residence, including the outbuildings
and vehicles on the premises, for drugs and drug paraphernalia and for the stolen Jeep.
The search yielded illegal drugs, drug paraphernalia including syringes with the same
lot number as those found on Gabel, and a .45 caliber pistol. Several shotguns and a
rifle were found but not seized. The .45 pistol formed the basis of the first count to
which Montgomery pleaded guilty.

       While Montgomery was driving in Springfield, Missouri, on March 17, 2005,
he was stopped by police for crossing the center line. Two local law enforcement
officers had been following him, one of whom had been asked by an agent from the
Bureau of Alcohol, Tobacco, Firearms and Explosives to follow Montgomery. Gabel
was again Montgomery’s passenger. Both parties consented to a search of their
persons and the vehicle, which revealed a baggie of methamphetamine and a baggie
of cocaine in the vehicle, each containing approximately two grams. Gabel possessed
some methamphetamine and drug paraphernalia on her person. Montgomery admitted
that he was a methamphetamine user, that he had purchased some for purely personal
use, and that he had used it the previous night. Gabel stated that Montgomery was
returning to his home later that day. This information was placed in an affidavit for
a warrant for a second search of Montgomery’s home. The affidavit noted that the
earlier search had uncovered drugs, drug paraphernalia, and guns. Additionally, the
affidavit incorrectly stated that Montgomery had been arrested for possession and
distribution of a controlled substance on March 1, 2005. The affiant testified at the
suppression hearing that another officer had told him about the March 1 arrest and that
he had included that information in the affidavit without further verifying it.
Montgomery’s rifle and shotguns were seized during the execution of the second
warrant and formed the basis of the second count to which Montgomery pleaded
guilty.

                                         -3-
                                 II. Probable Cause

       A judge’s finding of probable cause to support the issuance of a search warrant
is afforded great deference on review. United States v. Caswell, 436 F.3d 894, 897
(8th Cir. 2006); Illinois v. Gates, 462 U.S. 213, 236 (1983). We will not upset a
judicial finding of probable cause unless there was no substantial basis for that
finding. Caswell, 436 F.3d at 897-98.

       “For a search warrant to be valid, the warrant must be based upon a finding by
a neutral and detached judicial officer that there is probable cause to believe that
evidence, instrumentalities or fruits of a crime, [or] contraband . . . may be found in
the place to be searched.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007)
(internal quotation omitted). Probable cause means a “fair probability” that the object
of the search warrant may be found in the place to be searched. Id. (quoting Gates,
462 U.S. at 238). This determination is made by considering the totality of the
circumstances. Caswell, 436 F.3d at 897.

       Montgomery first argues that the March 1 affidavit was insufficient to establish
probable cause that drugs would be found at his residence because the affidavit does
not allege that contraband was actually seen at Montgomery’s residence or that any
contraband was found in his vehicle or on his person. True enough, but Montgomery
was observed making several trips between his house and his vehicle during which he
appeared to be trying to avoid observation. He also either retrieved or hid something
underneath his vehicle. When he and Gabel left his residence, Gabel immediately
reclined her seat as if attempting to avoid being seen. After being searched, Gabel
was found with illegal drugs and a variety of drug paraphernalia. Regardless of
whether the drugs in Montgomery’s residence belonged to him or to Gabel, the
circumstances created a fair probability that drugs were located in his residence and
vehicles.



                                         -4-
       Montgomery next argues that the March 17 affidavit was insufficient to
establish probable cause that drugs would be found at his residence. That affidavit
noted that Montgomery had been found driving with a baggie of cocaine and a baggie
of methamphetamine. Gabel, again his passenger, said that he was dropping her off
and then returning to his home. Montgomery admitted to being a user of
methamphetamine and that he had recently purchased some. The affidavit further
noted the recent search of his residence, which had resulted in the seizure of illegal
drugs and drug paraphernalia. These facts established a fair probability that drugs
would be found at Montgomery’s residence.

      Montgomery argues that the information gained from the first search warrant
should not be considered as support for the March 17 warrant because the first search
was invalid. Because we have determined that the first search was not invalid, it was
permissible to use the information derived therefrom in the March 17 warrant
application.

        Montgomery also argues that the March 17 affidavit was insufficient to create
probable cause because it contained a materially false statement. A warrant is invalid
if the affiant knowingly includes a material misstatement or includes a statement with
reckless disregard for its falsity, and if the affidavit would not support a finding of
probable cause if the false information were omitted. United States v. Davis, 471 F.3d
938, 946 (8th Cir. 2006) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).
As indicated earlier, the affidavit for the March 17 warrant included the erroneous
statement that Montgomery had been arrested for possession and distribution of a
controlled substance on March 1. Notwithstanding the inclusion of this statement, and
as noted by the magistrate judge, the factually correct information within the affidavit
supports a finding of probable cause.




                                          -5-
                             III. Scope of the Searches

       We review de novo whether a search violated the Fourth Amendment. United
States v. Olivera-Mendez, 484 F.3d 505, 509 (8th Cir. 2007).

       Montgomery’s final argument is that the seizure of the guns exceeded the scope
of the search because the search warrants did not include firearms and because the
handgun seized in the first search was found in a vehicle on the premises, not in the
house. Police may lawfully search all buildings, containers, and vehicles on the
property to be searched in which the contraband sought might be found. United States
v. Gamboa, 439 F.3d 796, 807 (8th Cir. 2006); United States v. Nichols, 344 F.3d 793,
798 (8th Cir. 2003) (per curium). Under the plain view doctrine, officers may seize
objects if they are lawfully present where the object is seen and if the incriminating
nature of the object is immediately obvious. Nichols, 344 F.3d at 799. The
incriminating nature of guns in close proximity to drugs and drug paraphernalia is
immediately obvious. Id. In Nichols, we upheld the seizure of guns that were
discovered during a lawful search for drugs. Id. at 798-99. Similarly, officers in this
case discovered the weapons, the incriminating nature of which was immediately
obvious, during the lawful search for drugs and drug paraphernalia.

                                   IV. Conclusion

      The issuing judge possessed a substantial basis for signing the search warrants,
and neither search exceeded its scope. The judgment is affirmed.
                       ______________________________




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