                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1218
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Franklin Gordon Tucker,                  *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 19, 2006
                                 Filed: July 18, 2006
                                  ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________

PER CURIAM.

       Franklin Gordon Tucker was convicted of being a felon in possession of three
firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals from his
conviction, contending that the district court1 erred in denying his motion to suppress
evidence. We affirm.



      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, denied Tucker’s motion to suppress. The Honorable Richard E.
Dorr, United States District Judge for the Western District of Missouri, presided over
Tucker’s bench trial.
                                         I.
       On December 26, 2002, Kevin Eubanks went to the Webb City Police
Department with information pertaining to drug activity at Tucker’s home. A police
officer relayed the information to Lieutenant John Luckey, an investigator with the
Jasper County Drug Task Force (drug task force). Lt. Luckey then interviewed both
Eubanks and his female companion for thirty minutes to an hour and found that the
information they provided to him was consistent with that which they had previously
provided to the police.

       Eubanks and his companion told Lt. Luckey that they had gone to Tucker’s
residence that day because they believed that Tucker’s wife had stolen some of their
personal property. While there, they saw a firearm and evidence of methamphetamine
production. They described where the Tuckers were living, but they did not give a
specific address. Lt. Luckey recognized the description of the trailer. He was familiar
with Tucker’s residence because he had seized a methamphetamine lab from Tucker’s
garage in 2001 and had seized a methamphetamine lab from a car parked in Tucker’s
driveway in 2002. Lt. Luckey also had other intelligence that the methamphetamine
activity at Tucker’s residence continued after the two seizures.

       Based on the information provided by Eubanks and his previous dealings with
the residence, Lt. Luckey decided to apply for a warrant. Lt. Luckey and Eubanks met
with a county prosecutor at the police department, where Eubanks executed an
affidavit before a state court judge. Eubanks’s affidavit described the activities he had
seen at Tucker’s residence related to the manufacture of methamphetamine. Eubanks
named the individuals present at Tucker’s home and described what each one was
doing or possessing. He stated that he had seen a firearm at Tucker’s home that day.

      Members of the drug task force searched Tucker’s residence on December 30,
2002, and found three firearms, methamphetamine, and ingredients and equipment



                                          -2-
used to manufacture methamphetamine. Tucker was charged with being a felon in
possession of three firearms.2

       Tucker moved to suppress all evidence gathered and statements obtained
following the search of his residence, contending that Eubanks’s affidavit failed to
support a finding of probable cause. At the suppression hearing, Lt. Luckey testified
that he met Eubanks for the first time on December 26, 2006, when Eubanks came
forward with information regarding drugs and firearms at Tucker’s home. Lt. Luckey
had not previously used Eubanks as an informant, and, to the best of his knowledge,
neither had any other members of the drug task force. Lt. Luckey testified that
Eubanks was not paid for providing the information, that he provided a very detailed,
first-hand account of what he saw at Tucker’s residence, and that he did not seem like
he was mentally unfit or under the influence of drugs or alcohol.

       Before executing the warrant, Lt. Luckey did not perform a background check
on Eubanks, nor did he ask other law enforcement officers whether they had any
knowledge of Eubanks. Lt. Luckey testified that he was not familiar with the arrest
reports that included information regarding Eubanks’s temper, mental illness, and the
medication he was taking. He further testified that he was not aware of Eubanks’s
criminal history or mental status and that he did not purposefully omit information
that he thought might bear on Eubanks’s credibility.

     Following the suppression hearing, the magistrate judge3 recommended denying
the motion. The district court overruled Tucker’s objection and adopted the



      2
       In a related state case, Tucker pled guilty to possession of a controlled
substance.
      3
      The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri.

                                         -3-
magistrate judge’s report and recommendation in its entirety. Following a bench trial,
Tucker was found guilty of being a felon in possession of three firearms.

                                         II.
       We review the denial of a motion to suppress de novo. United States v. Adams,
401 F.3d 886, 893 (8th Cir. 2005). We review the factual determinations for clear
error, giving due weight to the inferences drawn by the district court and law
enforcement officials. Id.

       Tucker first argues that Eubanks’s affidavit did not support the finding of
probable cause because it contained no evidence that the affiant was credible. Our
duty as a reviewing court is to ensure that the issuing judge had a substantial basis for
concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1983).
“The task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit, . . . there is a
fair probability that contraband or evidence of a crime will be found in a particular
place.” Id.

       In his affidavit, Eubanks provided a first-hand account of what he saw at
Tucker’s home on December 26, 2006. The affidavit stated that there was a handgun
lying on the coffee table, that the home smelled like the odor associated with cooking
methamphetamine, that he saw people carrying tools used to manufacture
methamphetamine, and that two surveillance cameras were located outside the home.
The affidavit also revealed Eubanks’s potential bias against Tucker when it stated that
Eubanks had gone to Tucker’s home in an attempt to recover stolen property and that
Tucker “answered the door with a baseball bat.” J.A. at 14. Eubanks signed the
affidavit in person before the issuing judge, who had the opportunity to assess
Eubanks’s credibility in person. Considering the totality of the circumstances, we
conclude that the detailed affidavit, based as it was on Eubanks’s personal knowledge
and signed in the presence of the issuing judge, supports a finding of probable cause.

                                           -4-
Cf. Marvin v. United States, 732 F.2d 669, 672 (8th Cir. 1984) (informant personally
appeared, thus no requirement of independent corroboration of trustworthiness);
United States v. Hunley, 567 F.2d 822, 827 (8th Cir. 1977) (same).

       Tucker next argues that Eubanks’s affidavit contained material omissions, in
violation of Franks v. Delaware, 438 U.S. 154 (1978). To prevail on a Franks claim
based on an omission of fact, the defendant must prove (1) that facts were omitted
with the intent to make, or in reckless disregard of whether they thereby made, the
affidavit misleading, and (2) that the affidavit, if supplemented with the omitted
information, would not have been sufficient to support a finding of probable cause.
United States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002); United States v. Reivich,
793 F.2d 957, 960-61 (8th Cir. 1986).

        Tucker contends that the affidavit recklessly or intentionally omitted that
Eubanks had an extensive criminal record and that he suffered from a mental illness.
At the suppression hearing, Lt. Luckey testified that he was not aware of Eubanks’s
criminal record or mental status and that Eubanks appeared mentally stable and that
his manner “remained the same throughout the day.” Tr. at 18. Lt. Luckey further
testified that he had had experience with people under the influence of drugs and
alcohol and that Eubanks had not seemed to be under the influence of either. Because
the record does not show that Eubanks’s mental illness and criminal history were
omitted from his affidavit with the intent to make, or in reckless disregard of whether
they made, the affidavit misleading, we conclude that no Franks violation occurred.

      The judgment is affirmed.
                      ______________________________




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