                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3933
                                    ___________

United States of America,            *
                                     *
           Plaintiff/Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of Minnesota.
Robert Lawrence Gabrio,              *
                                     *
           Defendant/Appellant.      *
                                ___________

                              Submitted: June 13, 2002
                                 Filed: July 22, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Robert Lawrence Gabrio pled guilty to being an armed career criminal in
violation of 18 U.S.C. § 922(g)(1), and he received a mandatory 15 year sentence
under 18 U.S.C. §§ 924(a)(2) and (e)(1). Gabrio’s plea agreement preserved his right
to appeal the denial of his pretrial suppression motion, and he argues on appeal that
the district court1 erred by denying his motion and by failing to hold a Franks hearing.
We affirm.


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
       Deputy Sheriff Daniel Guida of Aitkin County, Minnesota obtained a warrant
to search Gabrio’s residence. The search was executed the same day, four firearms
were seized, and Gabrio was arrested. Because a number of items in the residence
appeared to be stolen, three additional warrants were obtained and executed over the
next several days. Gabrio was eventually charged with being an armed career
criminal, 18 U.S.C. § 922(g)(1), and with possession of stolen firearms, 18 U.S.C.
§ 922(j).

       At issue is the validity of the first search warrant, which was issued by a state
judge based on Guida’s affidavit. The affidavit stated that Guida had received
information on February 5, 2001 from an informant who had given him “reliable
information on at least two prior occasions regarding stolen goods” and who had
“returned items of stolen property to law enforcement.” The informant claimed to
have been at Gabrio’s residence on February 5, to have seen Gabrio carrying a
handgun, and to have observed “several firearms which Gabrio indicated were stolen
in recent burglaries.” The affidavit also stated that Gabrio’s criminal history included
“felony convictions for burglary and escape from custody.”

       Gabrio moved to suppress the evidence obtained in the searches on the ground
that Guida’s affidavit lacked probable cause, that he was unreasonable to execute the
warrant, and that he had omitted relevant information touching on the reliability of
the informant. The information Gabrio argues was improperly omitted was the
identity and background of the informant who he believes was his brother. He says
his brother has a criminal record and a history of mental illness and that omission of
this information triggered his right to a hearing under Franks v. Delaware, 438 U.S.
154 (1978).

      The district court adopted a magistrate judge’s report and recommendation to
deny the motion. The court concluded that the affidavit showed probable cause
because it was based on the tip of an informant who had previously provided reliable

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information, had personally observed stolen firearms in Gabrio’s possession, and had
provided information in person rather than over the telephone. The court also
determined that the officers had executed the search in objectively reasonable reliance
on the search warrant and that, even if the informant were Gabrio’s brother,2 he had
not been shown to have been unreliable.

      After the motion to suppress was denied, Gabrio pled guilty to being an armed
career criminal under 18 U.S.C. § 922(g)(1), and received a mandatory 15 year
sentence under 18 U.S.C. §§ 924(a)(2) and (e)(1). On appeal Gabrio argues that
Guida’s affidavit was insufficient, that he did not execute the warrant in good faith,
and that his omissions from the affidavit merit a Franks hearing. The United States
responds that these issues were correctly resolved below. We review facts supporting
the denial of a suppression motion for clear error, and we review the legal
conclusions de novo. United States v. Davis, 288 F.3d 359, 362 (8th Cir. 2002).
Refusal to call a Franks hearing is reviewed for abuse of discretion. United States v.
Fairchild, 122 F.3d 605, 610 (8th Cir. 1997).

        The Fourth Amendment requires a showing of probable cause to support a
search warrant. Whether probable cause exists depends upon the totality of the
circumstances, Illinois v. Gates, 462 U.S. 213, 238 (1983), but it requires a showing
of facts "sufficient to create a fair probability that evidence of a crime will be found
in the place to be searched." United States v. Wells, 223 F.3d 835, 838 (8th Cir. 2000)
(citations and quotations omitted). An informant’s tip can be sufficient to establish
probable cause if the informant “has a track record of supplying reliable information”
or if the tip “is corroborated by independent evidence.” United States v. Williams,
10 F.3d 590, 593 (8th Cir. 1993).




      2
          The government has not disclosed the identity of the informant.

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       The informant here had a track record of providing reliable information.
Guida’s affidavit stated that the informant had provided reliable information on at
least two prior occasions and had returned stolen property to law enforcement
officers. This information was sufficient to show reliability. See United States v.
Sherrill, 27 F.3d 344, 347 (8th Cir. 1994); United States v. House, 604 F.2d 1135,
1137 (8th Cir. 1979). Gabrio argues that a reliable track record is established when
an informant’s tips lead to arrests or convictions, but there is no rule requiring this.
Reliability may be found on the basis that past tips have led to seizures of contraband
or other evidence, United States v. Formaro, 152 F.3d 768, 770 (8th Cir. 1998); United
States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995); Williams, 10 F.3d at 594, and the
informant here had previously produced stolen property. Gabrio suggests that the
informant may have been involved in stealing the returned property in the first place,
but that would not necessarily make the act of returning the goods untrustworthy. Cf.
United States v. Hall, 171 F.3d 1132, 1144 (8th Cir. 1999), cert. denied, 529 U.S. 1027
(2000).

       The tip here was timely and “based on the informant’s first-hand observations,
not merely from rumor or innuendo.” Williams, 10 F.3d at 594. The informant had
seen the guns in Gabrio’s possession the same day that Guida obtained the search
warrant. Cf. United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995) (informants
were defendant’s former wife and a former girlfriend who observed him in possession
of contraband on a daily basis). Guida had an opportunity to assess the informant’s
credibility because he gave his tip in person. Moreover, the affidavit recited that
Gabrio had a felony record which increased the credibility of the tip. See United
States v. Campbell, 256 F.3d 381, 388 (6th Cir.), cert. denied, 122 S. Ct. 572 (2001).

       The district court concluded that even if it were to find the affidavit insufficient
to establish probable cause, the search would still be valid because Guida acted in
objective good faith in executing the warrant. United States v. Leon, 468 U.S. 897
(1984). Gabrio claims that Guida could not have acted in good faith because the

                                           -4-
affidavit was so deficient as to prevent any officer from reasonably relying on it, see
id. at 923, but this argument is without merit since the affidavit was sufficient to
establish probable cause.

      Gabrio argues that the affidavit was nevertheless faulty because Guida omitted
material facts about the informant that would have prevented the issuing judge from
finding probable cause. In order to obtain a Franks hearing, a defendant must make
a substantial preliminary showing of a false or reckless statement or omission and
must also show that the alleged false statement or omission was necessary to the
finding of probable cause. United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998).
The type of showing required is not easily met. Id. at 896.

        In support of his request for a hearing, Gabrio offered evidence of his brother’s
criminal record and his judicial commitment for mental illness from April to October
of 1999.3 The government did not disclose the informant’s identity, but the court
chose to treat the issue as if the informant had been Gabrio’s brother and concluded
that the brother’s criminal conduct would not have undercut his “general
believability” and that his background was not critical to the issue of probable cause.
The court also determined that Gabrio had failed to show that his brother suffered
from mental illness at the time of the tip to Guida in February 2001, especially since
a state court’s acceptance of a guilty plea by the brother in November 2000 implied
that it had found him competent.

       Gabrio provided no evidence that Guida knew or had reason to know of the
brother’s criminal record or history of mental illness. Even if Guida knew of the
brother’s criminal record, however, tipsters often provide information in the hopes
of obtaining leniency with respect to their own situation and that does not necessarily


      3
          A second commitment order was issued in March 2000, but that order was
stayed.

                                          -5-
mean they are unreliable. See Hall, 171 F.3d at 1143. Moreover, the affidavit would
have sufficed to show probable cause even if information about the brother’s history
of mental illness had been included in it since the brother’s commitment ended in
October 1999. Gabrio provided no proof that ongoing mental problems prevented his
brother from providing reliable information to Guida in February 2001. The district
court did not abuse its discretion by not holding a Franks hearing.

      For these reasons, we affirm the judgment of the district court.

      A true copy.

            Attest:

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




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