                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3816
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Edward Lee Smith,                        *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 9, 2009
                                  Filed: September 15, 2009
                                   ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and GRUENDER, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      Edward Lee Smith appeals his conviction and sentence for manufacturing and
possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). Smith argues that the district court1 erred in denying his motion to
suppress evidence seized during a warrant search of his home because the warrant
application failed to establish probable cause, and that his 120-month sentence



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, adopting the Report and Recommendation of the Honorable Jeanne J.
Graham, United States Magistrate Judge for the District of Minnesota.
violates the Double Jeopardy Clause because the district court increased the
mandatory minimum sentence based on a prior conviction. We affirm.

                              I. Suppression Issues

      Detective Joe Poidinger of the Hennepin County Violent Offenders Task Force
applied for a warrant to search 4401 5th Avenue South in Minneapolis for evidence
of controlled substances and firearms. The supporting affidavit averred in relevant
part:

      Poidinger was told by a confidential reliable informant that Smith “was the
      leader of the Vice Lord gang in Minneapolis and is selling narcotics.” Search
      of a gang database confirmed that Smith is a member of the Vice Lord gang.
      A DEA agent advised Poidinger that search of the DEA database showed that
      Smith “was arrested and convicted in 1996 of possessing 2 kilos of cocaine,
      handguns, machine guns, and grenades.” Smith’s parole officer advised he is
      on parole for these offenses.

      Smith resides at 4401 5th Avenue South. Poidinger supervised a trash pull
      from that residence within the past 48 hours. Task Force members collected the
      discarded trash, brought it to a secure location, and searched it. The trash
      contained multiple sandwich baggies with the corners ripped off. Some baggies
      contained soapy residue, three field-tested positive for cocaine, and others
      contained marijuana residue and seeds that field-tested positive for marijuana.
      The trash also included “[m]ultiple mailings for the residence located at 4401
      5th Ave S in Minneapolis.”

A Hennepin County District Court judge granted the application and issued a no-
knock warrant to search Smith’s home, where incriminating evidence was seized.

       Smith moved to suppress evidence seized during the search of his home. At the
suppression hearing, defense counsel cross-examined Detective Poidinger,
establishing that Smith’s prior drug conviction was in 1998, not 1996, and did not

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include possession of machine guns or grenades; that 4401 and 4405 5th Avenue
South are separate units of a side-by-side bungalow duplex; that two garbage cans are
located behind Smith’s home, one for each unit; that Poidinger did not know whether
trash was pulled from one can or two because his partner watched the trash pull; and
that at least some of the mailings found in the trash were not addressed to Smith but
to seven other individuals, including the owner of the duplex. Disregarding other
statements challenged by Smith, the magistrate judge concluded that the affidavit’s
showing of a prior drug conviction and of drug residue and paraphernalia found in the
trash at his residence provided probable cause to issue the search warrant.

      On appeal, Smith limits the Fourth Amendment issue to whether the search
warrant application failed to state probable cause. “Probable cause means a ‘fair
probability’ that the object of the search warrant may be found in the place to be
searched.” United States v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008)
(quotation omitted). In ruling on a motion to suppress, probable cause is determined
based on “the information before the issuing judicial officer.” United States v.
Reivich, 793 F.2d 957, 959 (8th Cir. 1986). Though the issue is reviewed de novo,
we accord great deference to the issuing judge’s determination that Poidinger’s
affidavit established probable cause. United States v. Solomon, 432 F.3d 824, 827
(8th Cir. 2005).

       Poidinger’s affidavit recited that Smith had a prior drug conviction and that a
recent search of the trash at his residence yielded evidence of illegal drug activity. We
agree with the district court that this information alone established probable cause to
issue a warrant to search Smith’s residence for evidence of drug trafficking. See
United States v. Allebach, 526 F.3d 385, 387 (8th Cir. 2008); United States v. Briscoe,
317 F.3d 906, 908 (8th Cir. 2003), and cases cited; United States v. Reinholz, 245
F.3d 765, 776-77 (8th Cir.), cert. denied 534 U.S. 896 (2001). Thus, the warrant was
facially valid.



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       Relying on Franks v. Delaware, 438 U.S. 154 (1978), Smith argues that the
warrant is invalid because Poidinger’s affidavit failed to disclose that Smith’s home
was in a side-by-side double bungalow with separate garbage cans, that the drug
residue and paraphernalia might have been in the other unit’s trash, and that the mail
referred to in the affidavit was addressed to other persons. This contention reflects a
misunderstanding of our Fourth Amendment precedents.

        Franks held that a facially sufficient affidavit may be challenged on the ground
that it used deliberately or recklessly false statements to demonstrate probable cause.
438 U.S. at 168-70. We have extended this rule “to allow challenges to affidavits
based on alleged deliberate omissions.” Reivich, 793 F.2d at 960. However, to
warrant a Franks hearing, a defendant must make a strong threshold showing of
deliberate falsehood or reckless disregard for the truth, “and those allegations must be
accompanied by an offer of proof.” 438 U.S. at 171. Here, Smith made no such
showing in the district court. Nor did he request a Franks hearing. He merely cross-
examined Detective Poidinger at the suppression hearing, no doubt seeking to develop
the basis for a Franks hearing that was then not requested. Therefore, as Smith
conceded at oral argument, his appeal is limited to the issue of probable cause. There
is no Franks issue before us.

         Despite not requesting a Franks hearing, Smith seeks relief under Franks
because Poidinger allegedly “employed a clever deception by omitting important
information” about the trash pull that established probable cause. But Smith failed to
put the limited basis for Franks relief -- deliberate falsehood or reckless disregard for
the truth -- at issue by requesting a Franks hearing. Absent a finding of deliberate
falsehood or reckless disregard for the truth, what a facially valid warrant affidavit
might have contained is simply irrelevant. Moreover, because a warrant application
need only show facts establishing probable cause, “recklessness may be inferred from
the . . . omission of information from an affidavit . . . only when the material omitted
would have been clearly critical to the finding of probable cause.” United States v.

                                          -4-
Ozar, 50 F.3d 1440, 1445 (8th Cir. 1995) (quotation omitted). Here, as the district
court noted, omission of the fact that Smith’s trash included mail addressed to other
persons at 4401 5th Avenue South, and that trash from two garbage cans might have
been pulled, raising the possibility that the drug residue and paraphernalia came from
the other unit’s trash, did not eliminate the affidavit’s showing of a fair probability
that evidence of narcotics trafficking could be found in Smith’s home.

       When no issue of deliberate falsehood or reckless disregard for the truth is
raised, the suppression motion turns on the warrant’s facial validity. Therefore,
Smith’s motion to suppress was properly denied.

                          II. The Double Jeopardy Issue

       Smith’s prior felony conviction increased his mandatory minimum sentence for
possession with intent to distribute five grams of cocaine base from five to ten years.
See 21 U.S.C. § 841(b)(1)(B). Smith argues that increasing his sentence based on a
prior conviction violates the Double Jeopardy Clause by punishing him a second time
for the earlier crime. This argument is without merit for two reasons. First, double
jeopardy claims may not be raised for the first time on appeal. United States v. High
Elk, 442 F.3d 622, 624 (8th Cir. 2006). Second, the argument is foreclosed by cases
such as Witte v. United States, 515 U.S. 389, 400 (1995) (increased punishment
imposed by a recidivism statute is “a stiffened penalty for the latest crime,” not an
increased punishment for the earlier crime).

      The judgment of the district court is affirmed.
                     ______________________________




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