                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2252
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Edgar Marion Box,                       *
                                        *
            Appellant.                  *
                                        *
                                        *
                                   ___________

                             Submitted: September 16, 1999
                                 Filed: October 20, 1999
                                  ___________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District
      Judge.
                          ___________

MURPHY, Circuit Judge.

       After methamphetamine was found in two searches of his house and the district
court2 denied his motion to suppress the evidence, Edgar Marion Box pled guilty to


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
possession of methamphetamine with intent to distribute and to possession of
methamphetamine in violation of 21 U.S.C. §§ 841 and 844. In his plea agreement
Box preserved his right to appeal the suppression issues, and he was sentenced to 46
months imprisonment. On appeal Box again argues that the search warrants were
issued upon affidavits that contained false statements and omitted material facts. We
affirm.

      Two separate warrants were issued to search Box’s house, the first on March 20,
1998, and the second on July 3, 1998. Both warrants were issued upon affidavits
submitted by Deputy John Scott, an investigator in the Hickory County Sheriff’s Office.



       In the affidavit supporting the application for the March warrant, Deputy Scott
swore to the following facts about Box’s possible possession of stolen goods: that
Scott had been told by a Michelle Maynard that her boyfriend, Jackie Morrison, had
stolen a collection of salt and pepper shakers from his mother, Dorothy Morrison, and
traded them to Box for drugs; that Dorothy Morrison had confirmed that Jackie
Morrison had stolen the salt and pepper shakers; and that law enforcement officials had
observed a large collection of salt and pepper shakers in Box’s house. Scott also stated
that Jackie Morrison had been convicted of burglary in 1990; that Jackie Morrison had
admitted to use of methamphetamine; that Box had been charged with manufacturing
methamphetamine; and that Michelle Maynard had told Scott that Box was
manufacturing methamphetamine in the area. On the basis of Deputy Scott’s affidavit,
Hickory County Judge John Anderton issued the warrant. The warrant was executed
the following day and methamphetamine and paraphernalia associated with the
production of methamphetamine were found in Box’s house.

      After his indictment, Box moved to suppress the evidence seized under the
March warrant and sought an evidentiary hearing. He alleged that in the affidavit
supporting his application Deputy Scott had deliberately or recklessly made false

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statements and omitted material information undermining the credibility of his sources
of information in violation of Franks v. Delaware, 438 U.S. 154, 171 (1978). United
States Magistrate Judge William A. Knox granted Box an evidentiary hearing on
November 13, 1998.

       Box offered testimony at the hearing in support of his allegations. Dorothy
Morrison testified that she had not told Deputy Scott that Jackie Morrison had stolen
her salt and pepper collection but that Scott had reported to her that the collection was
missing. Box also offered evidence showing that Michelle Maynard had received an
order of protection against Jackie Morrison on the day before Scott filed his affidavit
and had reported an assault by Morrison on the day the affidavit was filed. Deputy
Scott testified at the hearing that the statements in the affidavit were true, that he
omitted information concerning Maynard’s domestic problems because he did not think
that they were relevant to the issuance of the warrant, and that he had not known that
Maynard had an order of protection at the time he swore out the affidavit.

       The second warrant to search Box’s house was issued on July 3, 1998. In the
affidavit supporting his application for this warrant, Deputy Scott attested to the
following facts: that clandestine methamphetamine labs had been seized from Box’s
residences in 1996 and 1998; that a confidential informant had recently seen
methamphetamine and paraphernalia associated with the production of
methamphetamine in Box’s house; and that the informant had stated that he had
intended to manufacture methamphetamine with Box at the latter’s house. On the basis
of this affidavit, Judge Anderton issued the search warrant which was executed the
following day. Methamphetamine and paraphernalia associated with its production
were also found in Box’s house during this search.

      Box again claimed that Scott had deliberately or recklessly made false statements
and omitted material information in the affidavit supporting the July warrant and moved


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to suppress the evidence and for a Franks hearing. Magistrate Judge Knox granted his
motion for a hearing, and it was held on November 20, 1998.

        Box’s first witness at this hearing was Ronnie Stonebrook, the confidential
informant who had provided Scott with much of the information in the affidavit
supporting the application for the July warrant. Stonebrook’s testimony largely
corroborated the statements that Scott attributed to him in the affidavit, but he took
exception to one statement. He testified that he had not told Scott that he had planned
to manufacture methamphetamine with Box at his house, but that he had told Scott that
he and Box had planned to manufacture methamphetamine at Stonebrook’s house.
Stonebrook also testified that he had been charged with driving under the influence and
assaulting a law enforcement officer in May, 1998, and that these charges had been
reduced or dismissed after Scott had spoken with the prosecuting attorney. Stonebrook
further testified that he had received two hundred dollars in cash from Hickory County
in March, 1998 in exchange for information in another investigation.

       Magistrate Judge Knox addressed both of Box’s motions in a single report and
recommendation which recommended that the motions to suppress be denied. He
found that even if the affidavits supporting the March and July warrants were
constructively amended to include the information that Box claimed was omitted
wrongfully and to exclude the statements that Box claimed were attributed falsely to
Dorothy Morrison and Ronnie Stonebrook, both affidavits would have alleged
sufficient facts to support findings of probable cause. In the alternative, Magistrate
Judge Knox found that Scott did not deliberately falsify or omit information in either
affidavit. The district court adopted the report and recommendation in its entirety and
denied the suppression motions.

      A search warrant may be invalid if the issuing magistrate’s probable cause
determination was based on an affidavit that contained false statements made
knowingly and intentionally or with reckless disregard for the truth. Franks v.

                                          -4-
Delaware, 438 U.S. 154, 171 (1978). In order to prevail on a Franks challenge a
defendant must show: “1) that a false statement knowingly and intentionally, or with
reckless disregard to the truth, was included in the affidavit, and 2) that the affidavit’s
remaining content is insufficient to provide probable cause.” United States v.
Humphreys, 982 F.2d 254, 259 n.2 (8th Cir. 1993). A similar analysis applies to
omissions of fact where a defendant must show: “1) that facts were omitted with the
intent to make, or in reckless disregard of whether they thereby make, the affidavit
misleading, and 2) that the affidavit, if supplemented by the omitted information, could
not support a finding of probable cause.” Id. (citations omitted).

       Because both affidavits contained undisputed factual allegations sufficient to
show probable cause, we affirm. In the unchallenged portion of the affidavit supporting
the March warrant, Deputy Scott attested, among other things, that Box was being
prosecuted for attempting to manufacture a controlled substance and that Michelle
Maynard had informed law enforcement officials that Box currently was manufacturing
drugs. This affidavit, modified to exclude Dorothy Morrison’s statements and to
include the information about the domestic difficulties of Maynard and Jackie
Morrison, is sufficient to show probable cause. Similarly, the affidavit supporting the
July warrant, if read to exclude those statements challenged by Box and to include
information he alleges was wrongfully omitted, even more clearly provides sufficient
facts to make out probable cause. In the unchallenged portion of the affidavit, Scott
attested, among other things, that methamphetamine labs twice had been seized from
Box and that Stonebrook had been inside Box’s house in the previous week and had
seen methamphetamine and paraphernalia used in the manufacture of
methamphetamine. After examining the record, we conclude that the district court did
not err in denying the motions to suppress.

      Accordingly, we affirm the judgment of the district court.




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A true copy.

      Attest:

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




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