                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-4149
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa
Lynn F. Schmitz,                          *
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: October 21, 1998

                                    Filed: June 25, 1999
                                     ___________

Before McMILLIAN, JOHN R. GIBSON and HANSEN, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.


       Lynn F. Schmitz appeals from a final judgment entered in the United States
District Court1 for the Northern District of Iowa following his conditional plea of guilty
to one count of unlawful possession of ammunition by a felon, in violation of 18 U.S.C.
§ 922(g)(1). The district court sentenced Schmitz to ninety months imprisonment, three
years of supervised release, and a special assessment of $100.00. United States v.

      1
       The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
Schmitz, No. 2:96CR01011-001 (N.D. Iowa Nov. 20, 1997) (judgment). For reversal,
Schmitz argues that the district court erred in denying his motion to suppress evidence
because (1) the district court misapplied the legal standard set forth in Franks v.
Delaware, 438 U.S. 154 (1978), in upholding the lawfulness of a search warrant and
(2) the law enforcement officers who executed the search warrant exceeded the scope
of the warrant in violation of his constitutional rights. See id. (July 11, 1997)
(transcript of guilty plea hearing, including district court's oral order denying motion to
suppress and statement of reasons) (copy in Addendum to Brief for Appellee at 13).
For the reasons discussed below, we affirm.
       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. Crim. P. 4(b).

                                      Background

       On July 10, 1999, Schmitz was charged in a two-count indictment with
possession of ammunition by a felon and forfeiture of the ammunition. On August 30,
1996, Schmitz moved to suppress evidence seized during the execution of a search
warrant, which was obtained by law enforcement officers after Schmitz had declined
a request for consent to search his home, was placed under arrest for aggravated
domestic assault, and was taken to jail. In his suppression motion, Schmitz asserted
that the affidavit supporting the search warrant application contained materially false
information, which the affiant gave either intentionally and knowingly or with reckless
disregard for the truth, thus requiring a hearing and suppression of evidence under
Franks v. Delaware. Schmitz further asserted, as an alternative argument, that the
officers used the warrant as a pretext for generalized rummaging through his home, thus
exceeding the scope of their authorization and violating his Fourth Amendment rights.
The government resisted Schmitz's motion to suppress, and the matter was referred to




                                           -2-
a magistrate judge2 for a recommended disposition. The magistrate judge held an
evidentiary hearing. The affiant for the search warrant application, Deputy Sheriff
Elaine Palen, among other law enforcement officers, testified for the government.
Schmitz and his girlfriend, Micki Yeager, testified for the defense. The magistrate
judge thereafter issued a report and recommendation. United States v. Schmitz, No.
2:96CR01011-001 (N.D. Iowa Nov. 7, 1996) (hereinafter "Report &
Recommendation"). In his findings of fact, the magistrate judge reviewed the events
leading up to the controverted search of Schmitz's home and made the following
findings. See id. at 2-8. On May 10, 1996, an application for a warrant to search
Schmitz's residence was submitted to an Iowa state court judge. Id. at 2. The warrant
application contained Deputy Palen's affidavit, which stated:

      On the morning of May 10, 1996, at approximately 7:15 a.m., this affiant
      was traveling on Roosevelt away from Peru Road; that as I approached
      1030 Roosevelt, I observed a large black newer pickup truck in the
      driveway; that a young woman threw something at the pickup truck; that
      the driver looked over his shoulder directly at the woman who was behind
      the vehicle and drove at her; that she avoided him and threw something
      at the vehicle again; that she went to the front of the vehicle; that he then
      put the vehicle into a forward gear and drove at her again; that she was
      either struck or slipped into an approximately five foot deep ditch; that
      she came out of the ditch with mud on her clothes; that she was wearing
      a white top, white pants and white socks with no shoes; that the affiant
      not[ified] the Dubuque Police Department which responded; that they
      found Lynn Schmitz and Micky Yeager who resided at that residence and
      initially both denied any incident occurring; however, when the police
      returned, Mr. Schmitz admitted that he had been involved in a verbal
      argument with Ms. Yeager and had driven quickly backwards, but had not
      struck her or tried to strike her; that approximately 20 feet of fresh skid
      marks were evident in the driveway area; that Mr. Schmitz refused to give


      2
        The Honorable John A. Jarvey, United States Magistrate Judge for the Northern
District of Iowa.

                                          -3-
      permission to police to search the residence for the clothes; that Ms.
      Yeager was wearing different clothes when police arrived according to
      what they told this affiant.


Id. at 2-3 (quoting affidavit of Elaine Palen) (copy of affidavit in Addendum to Brief
for Appellee at 1). Based upon Palen's affidavit, the state court judge issued a warrant
authorizing the police to search for "a dirty white top, dirty white pants, and dirty white
socks; these items should have mud on them." Id. at 2.

        The magistrate judge found, with respect to these early morning events of
May 10, 1996, that "Elaine Palen . . . observed the truck precipitously stop and back
up in Ms. Yeager's direction in [what] [Palen] believed to be a threatening manner,"
that "Deputy Palen again observed the truck driven in a threatening manner in
[Yeager's] direction," that "Ms. Yeager went into the ditch and ultimately ran back to
the house," and that "Deputy Palen observed that plaintiff's white clothes were soiled
as a result." Id. at 3-4. In addition, the magistrate judge found that Palen's 911 call
to the police was placed only moments before another person anonymously called the
police to report that "Lenny Schmitz" had attempted to run over his girlfriend on
Roosevelt Road. Palen reported that the events occurred at approximately 7:15 a.m.,
and the anonymous caller indicated that the events occurred at approximately 7:17 a.m.
Id. at 6.

      Although the magistrate judge found that Palen's testimony was "obviously
inaccurate" with regard to some specific details, he nevertheless concluded:

             The court's criticism of Deputy Palen 's testimony regarding some
      of the details of this incident does not undermine its confidence that
      Deputy Palen believed that she observed an assault in progress. She was
      not on duty, she had her young son in the car and this could explain some
      of her failure to recall details. She did not know Lynn Schmitz prior to
      this event and the defendant has suggested no motive for the alleged

                                           -4-
       fabrication of her claim. The court does not believe it was fabricated and
       believes that the tape recorded call to the dispatcher from the anonymous
       caller provides strong, corroborative support for Ms. Palen's observations.


Id. at 6-7.

       The magistrate judge further found that, shortly after obtaining the search
warrant, the police went to Schmitz's home, where they found Yeager, dressed in white
pants and a black shirt.3 At the officer's request, she turned over the white pants. Id.
at 7. After a period of searching, they found a pair of muddy white socks on the floor
behind the door leading from the house to the garage. Id. The officers never found a
muddied white shirt. Id. In the course of searching for the white shirt and socks, the
police discovered marijuana in the pocket of a jacket inside a closet. Id. at 8. Based
on that discovery, they obtained a second search warrant, the execution of which led
to the discovery of a gun and ammunition. Id.4

        In his conclusions of law, the magistrate judge determined that the search
warrant was valid notwithstanding Schmitz's claim that it was issued in violation of
Franks v. Delaware. Id. at 10. The magistrate judge also concluded that the officers'
initial search did not exceed the scope of the first warrant. Id. at 10-11. The magistrate
judge recommended that Schmitz's motion to suppress be denied, and the district court



       3
       The magistrate judge also found, citing certain consistent facts and presumably
based in part on an assessment of witness credibility, that, although Yeager was
wearing a black shirt at the time the officers arrived to execute the warrant, she had
been wearing a white shirt at the time Palen observed her on Roosevelt Road earlier
that morning. Report & Recommendation at 7.
       4
       According to the government, the muddy socks were not discovered until the
execution of the second search warrant, which was issued after the officers discovered
the marijuana. Brief for Appellee at 17.

                                           -5-
adopted that recommendation. (Hereinafter the magistrate judge's factual findings and
legal conclusions are attributed to the district court.5) Schmitz thereafter entered a
conditional plea of guilty to count one of the indictment, for being a felon in possession
of ammunition, while reserving the right to withdraw his plea if he were to succeed in
appealing the denial of his motion to suppress. Following his sentencing, Schmitz
timely appealed.

                                       Discussion

       In reviewing the district court's denial of Schmitz's motion to suppress, our role
is "to ensure that the evidence as a whole provides a substantial basis for finding
probable cause for the issuance of the warrant." United States v. Buchanan, 167 F.3d
1207, 1209 (8th Cir. 1999) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)
(per curiam); United States v. Day, 949 F.2d 973, 977 (8th Cir. 1991)). We review the
district court's findings of fact for clear error and its conclusions of law based upon
those facts de novo. See United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999)
(quoting United States v. Glenn, 152 F.3d 1047, 1048 (8th Cir. 1998)); United States
v. Buchanan, 167 F.3d at 1209.




      5
        Schmitz's arguments on appeal specifically and directly challenge the magistrate
judge's Report & Recommendation, not the district court's separate statement of
reasons for denying the motion to suppress. See United States v. Schmitz, No.
2:96CR01011-001 (N.D. Iowa July 11, 1997) (transcript of guilty plea hearing,
including district court's oral order denying motion to suppress and statement of
reasons) (copy in Addendum to Brief for Appellee at 13). Although the district court
did provide its own statement of reasons, those reasons closely followed the magistrate
judge's analysis and was prefaced by the statement that the district court was "deny[ing]
the motion to suppress essentially for the reasons set forth in [the magistrate judge's]
order." Id., transcript at 3, lines 10-16 (Addendum to Brief for Appellee at 15).

                                           -6-
Franks v. Delaware

       Schmitz first argues that the district court applied an incorrect legal standard for
affording relief under Franks v. Delaware and, as a consequence, erroneously denied
his motion to suppress. Specifically, Schmitz argues:

      The gravamen of Appellant's argument is that the district court utilized the
      wrong legal test in its analysis. The court below characterized "the
      central question in this case [as] whether Elaine Palen actually observed
      the matters set forth in her affidavit, and appropriately concluded that a
      domestic assault was taking place."


Brief for Appellant at 6. Schmitz further argues that the magistrate judge should
instead have determined:

      (1) whether there were false statements in Deputy Palen's affidavit, and
      if so (2) whether those statements were knowingly or intentionally made,
      or made with a reckless disregard for the truth, and finally, if intentionally
      or recklessly made, (3) whether after excising the false or incorrect
      statements, the affidavit's remaining statements provided enough
      information to establish probable cause nonetheless.

Id.

       Schmitz's argument is conceptually flawed. To begin, Schmitz has misquoted
the language of the district court and has taken the district court's words out of context.
As a result, he has misunderstood and misrepresented the district court's rationale. The
district court's actual statement, in its full context, is as follows:

            Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the affidavit
      must contain statements that are truthful. However:



                                           -7-
             This does not mean "truthful" in the sense that every fact
             recited in the warrant affidavit is necessarily correct. For
             probable cause may be founded upon hearsay and upon
             information received from informants, as well as upon
             information within the affiant's own knowledge that some
             times must be garnered hastily. But surely it is to be
             "truthful" in the sense that the information put forth is
             believed or appropriately accepted by the affiant as true.

      Franks v. Delaware, supra, at 165.

            Thus, the central factual question in this case is whether Elaine
      Palen observed the matters set forth in her affidavit, and appropriately
      concluded that a domestic assault was taking place.

             If material information in the affidavit is known by the affiant to
      be false or if she had no reasonable basis for believing it, then it is not
      objectively reasonable for her to use to it obtain a warrant. Burk v.
      Beene, 948 F.2d 489, 495 (8th Cir. 1991). However, Franks is limited to
      cases of perjurious or recklessly false statements or omissions made by
      a police officer in support of a warrant; the rule does not apply to
      negligent misrepresentations or omissions. Kelly v. Curtis, 21 F.3d 1544,
      1554 (11th Cir. 1994).


Report & Recommendation at 8-9 (emphasis added).

        We find no error in the district court's statement of the law, nor do we disagree
with the district court's clear meaning that, in determining whether statements in Palen's
affidavit were truthful in the sense of being "believed or appropriately accepted by
[Palen] as true," it is necessary to determine as factual matters, whether Palen actually
observed the events she reported in her affidavit and, if so, whether she "appropriately
concluded" that Schmitz had assaulted Yeager by driving his truck at her. If Palen
never saw what she reported in her affidavit, then her affidavit would have contained
false statements; as Schmitz himself contends, the Franks v. Delaware inquiry requires

                                           -8-
an initial determination of "whether there were false statements in Deputy Palen's
affidavit." Brief for Appellant at 6 (citing Franks v. Delaware, 438 U.S. at 165). If
Palen lacked a reasonable basis for her conclusion that an assault had occurred, then
her statement to that effect might have been an intentional lie or the result of reckless
disregard for the truth; again, the district court's reasoning is entirely consistent with
Schmitz's own argument that, under Franks v. Delaware, if statements in the affidavit
were false, then a determination must be made as to "whether those statements were
knowingly or intentionally made, or made with a reckless disregard for the truth." Id.

        Schmitz further argues that the district court appears to have applied only a
subjective standard to determine whether Palen recklessly disregarded the truth in
stating that an assault had occurred. See id. at 8-9. We disagree. First, the district
court ruled out the possibility that the material statements in Palen's affidavit were not
objectively reasonable. See Report & Recommendation at 8 ("If material information
in the affidavit is known by the affiant to be false or if she had no reasonable basis for
believing it, then it is not objectively reasonable for her to use to it obtain a warrant.")
(citing Burk v. Beene, 948 F.2d at 495). Second, the district court explicitly noted that
the standard is not based upon the affiant's subjective beliefs. See id. at 9 ("To
determine whether statements are believed or appropriately accepted by the affiant as
true, the court does not look to the officer's subjective beliefs as to the reasonableness
of the affidavit."). But more importantly, the district court correctly recognized that,
in the context of a Franks v. Delaware inquiry, we have declined to adopt a definition
of "reckless disregard" that incorporates the "subjective" versus "objective"
terminology and have instead explained that

       the test for determining whether an affiant's statements were made with
       reckless disregard for the truth is not simply whether the affiant
       acknowledged that what he [or she] reported was true, but whether,
       viewing all the evidence, the affiant must have entertained serious doubts
       as to the truth of his [or her] statements or had obvious reasons to doubt
       the accuracy of the information he [or she] reported.

                                            -9-
United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir. 1995), quoted in United States
v. Johnson, 78 F.3d 1258, 1262 (8th Cir. 1996). The district court expressly
acknowledged that United State v. Clapp sets forth the applicable standard, see Report
& Recommendation at 9, and clearly rejected the conclusion that Deputy Palen must
have had serious doubts as to the truth of her statements or had obvious reasons to
doubt the accuracy of the information she reported.

       Finally, Schmitz argues that Palen's affidavit contains several deliberately and
materially false or misleading statements and omissions. For example, Schmitz argues
that Palen falsely stated that (1) Schmitz twice tried to drive over Yeager on the
morning in question, (2) that Yeager was either struck or slipped into a ditch, and (3)
that Yeager had mud on her clothes. Schmitz also maintains that Palen intentionally
omitted the facts that, upon the officers' arrival at his home shortly after the alleged
assault occurred, Yeager appeared not to be injured, she appeared to be in good spirits,
and she was dressed in clean clothes. Schmitz concludes that, if the allegedly false
statements were removed, and the omitted material facts inserted, Palen's affidavit
would have not supported a finding of probable cause to believe that an assault had
occurred and that evidence of the assault (i.e., the dirty clothing) would be found in the
home.

       We have reviewed the district court's findings of fact and find no clear error. As
stated above, the district court found that "Elaine Palen . . . observed the truck
precipitously stop and back up in Ms. Yeager's direction in [what] [Palen] believed to
be a threatening manner," that "Deputy Palen again observed the truck driven in a
threatening manner in [Yeager's] direction," that "Ms. Yeager went into the ditch and
ultimately ran back to the house," and that "Deputy Palen observed that plaintiff's white
clothes were soiled as a result." Id. at 3-4. Thus, assuming those facts to be true, the
statements in Palen's affidavit challenged by Schmitz are not false or, at the very least,
not deliberately false under the applicable legal standard. As to Schmitz's argument

                                          -10-
based on alleged factual omissions, we note that Palen did state in her affidavit that
"Ms. Yeager was wearing different clothes when police arrived according to what they
told this affiant." See id. at 3 (quoting affidavit). The other alleged omissions
regarding Yeager's appearance when the officers first came to the house (i.e., that she
lacked any apparent injuries, that she appeared in good spirits, and that her clothes
were clean) are not necessarily inconsistent with Palen's description of the early
morning assault and thus were not material to the question of whether probable cause
existed to search for evidence of that alleged assault. In sum, Schmitz's argument
based upon alleged material falsehoods and omissions is without merit. Accordingly,
we need not consider whether probable cause would have existed if the affidavit were
modified as Schmitz suggests. Reviewing the affidavit as it was submitted to the state
court judge who issued the warrant, we hold that the evidence as a whole provided a
substantial basis for the issuing state court judge's finding of probable cause, and no
violation of Franks v. Delaware occurred.

Scope of the warrant

       Schmitz alternatively argues that the district court should have granted his motion
to suppress because the initial search exceeded the scope of the first search warrant.
He argues that the officers used the warrant authorizing them to search for specific
articles of clothing as a pretext to engage in "general, exploratory rummaging" through
his personal belongings, in violation of the Fourth Amendment. Brief for Appellant at
14-15 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). In support of
his argument, Schmitz highlights the district court's observation that the officers'
testimony about the delayed discovery of the muddy socks behind the door was "hard
for the court to believe." Report & Recommendation at 10.

     The district court, however, concluded that, because the officers never found
Yeager's allegedly soiled white shirt, "the object of their search would not have been
complete upon finding the socks." Id. The district court also concluded that the police

                                          -11-
were "appropriately looking for [the socks and shirt] when they found marijuana in
[Schmitz's] closet." Id. at 10-11. We cannot say that the district court, having heard
live testimony from officers who participated in the initial search, clearly erred in
finding that they were in fact still looking for the socks and shirt when the marijuana
was discovered. Because it is possible that the socks or shirt could have been hidden
in the jacket pocket, the officers had authority to look or reach inside the pocket. "A
lawful search extends to all areas and containers in which the object of the search may
be found." United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.), cert. denied, 502
U.S. 896 (1991) quoted in United States v. Weinbender, 109 F.3d 1327, 13290 (8th
Cir. 1997) (affirming denial of motion to suppress pistol, parts of silencer, holster and
magazine discovered and seized from behind drywall during execution of search
warrant authorizing search of home for articles of clothing). Nor can we say that the
officers executing the first search warrant otherwise engaged in exploratory conduct
that was so unreasonable as to violate Schmitz's Fourth Amendment rights. See id. at
1329-30 ("'[T]he manner in which a warrant is executed is always subject to judicial
review to ensure that it does not traverse the general Fourth Amendment proscription
against unreasonableness.'") (quoting Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th
Cir. 1994)). In the present case, nothing was destroyed or disturbed by the officers
when they searched inside the jacket pocket. In sum, we hold that the initial search did
not exceed the scope of the first search warrant or otherwise violate Schmitz's Fourth
Amendment rights.

                                      Conclusion

     For the reasons stated, we hold that the district court did not err in denying
Schmitz's motion to suppress. The judgment of the district court is affirmed.




                                          -12-
A true copy.

      Attest:

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




                          -13-
