                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 05-2617
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      District of Nebraska.
Merrill D. Olvey, Jr.,                     *
                                           *
             Appellant.                    *

                                 ________________

                          Submitted: December 13, 2005
                              Filed: February 14, 2006
                               ________________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                         ________________


GRUENDER, Circuit Judge.

       Merrill D. Olvey, Jr. (“Olvey”) appeals the denial by the district court1 of his
motion to suppress evidence obtained in a search of his residence. Olvey contends
that the search warrant was not supported by probable cause. For the reasons
discussed below, we affirm the judgment of the district court.


      1
        The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendations of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.
I.    BACKGROUND

       On January 23, 2004, in Box Butte County, Nebraska, Olvey’s then-wife, Kerry
Olvey, obtained an ex parte protection order against Olvey. The protection order
forbade Olvey from “threatening assaulting, molesting, attacking, or otherwise
disturbing the peace of” Kerry. It also temporarily awarded sole custody of the
Olveys’ children to Kerry and forbade Olvey from going to the children’s school.
Olvey was served with the protection order while incarcerated in the county jail. As
required by Neb. Rev. Stat. § 42-925, enacted as part of the Nebraska Protection from
Domestic Abuse Act, Olvey was given notice that he had five days to challenge the
order by filing a Request for Hearing form. He immediately completed the form and
gave it to the jailer for transmission to the clerk of the county court. However, the
form never reached the court.

       Kerry and the children moved to Texas. After his release from the county jail,
Olvey moved to modify the protection order to allow him to visit the children’s former
school and to gain telephone visitation privileges with the children. On March 9,
2004, a hearing was conducted on Olvey’s request for modification. Olvey chose not
to attend but was represented by counsel. The Nebraska district judge signed a journal
entry on March 10, 2004, ordering that the protection order be modified as requested
by Olvey.

       On September 15, 2004, Special Agent Ronald E. Meadows of the Bureau of
Alcohol, Tobacco, Firearms and Explosives applied for a warrant to search for
firearms in Olvey’s residence, asserting probable cause to believe that Olvey was a
prohibited person in possession of firearms in violation of 18 U.S.C. § 922(g).2 The

      2
       18 U.S.C. § 922(g) states:

      It shall be unlawful for any person . . .
      (8) who is subject to a court order that–
                                         -2-
search warrant application included copies of the original protection order and the
journal entry modifying the order. Paragraph 4(f) of Meadows’s supporting affidavit
stated:

              OLVEY is listed as the Respondent on a current Domestic Abuse
      Protection Order . . . dated January 23, 2004 . . . and remaining in effect
      for one year from that date. A copy of the Protection Order and related
      Journal are attached as exhibit 3. . . . The protection order . . . does, by
      its terms, explicitly prohibit Olvey from threatening, assaulting,
      molesting, attacking, or otherwise disturbing the peace of the petitioner
      (Olvey’s wife), which appears to satisfy the requirements of 18 U.S.C.
      § 922(g)(8)(C)(ii). The backside of the protection order contains a
      paragraph entitled “Firearms Prohibition” . . . . [T]his paragraph states
      “If a final order is entered against you after a hearing, whether or not you
      attended, you are prohibited from possessing . . . a firearm or
      ammunition . . . [under] 18 U.S.C. § 922(g)(8).” A final order was
      entered against Olvey after hearing at which he was represented by an
      attorney on March 9, 2004, as reflected by the attached Journal Entry
      (exhibit 3).


      (A) was issued after a hearing of which such person received actual
      notice, and at which such person had an opportunity to participate;
      (B) restrains such person from harassing, stalking, or threatening an
      intimate partner of such person or child of such intimate partner or
      person, or engaging in other conduct that would place an intimate partner
      in reasonable fear of bodily injury to the partner or child; and
      (C) (i) includes a finding that such person represents a credible threat to
           the physical safety of such intimate partner or child; or
          (ii) by its terms explicitly prohibits the use, attempted use, or
          threatened use of physical force against such intimate partner or
          child that would reasonably be expected to cause bodily injury
      ...
      to ship or transport in interstate or foreign commerce, or possess in or
      affecting commerce, any firearm or ammunition; or to receive any
      firearm or ammunition which has been shipped or transported in
      interstate or foreign commerce.
                                          -3-
       The magistrate judge issued the search warrant. The law enforcement personnel
who conducted the search found a sawed-off shotgun in Olvey’s possession. Olvey
was charged with possession of the sawed-off shotgun in violation of 26 U.S.C. §§
5841, 5861(d) and 5871. He moved to suppress the discovery of the shotgun, arguing
that the search warrant was not supported by probable cause and that Meadows’s
affidavit included a false statement made intentionally, or with reckless disregard for
the truth, that misled the magistrate judge. The same magistrate judge who issued the
search warrant wrote a report and recommendation denying the motion to suppress,
ruling that the affidavit established probable cause regardless of Meadows’s allegedly
misleading statement and that, in any case, the good faith exception to the
exclusionary rule would apply. The district court adopted the report and
recommendation. Olvey entered a conditional plea of guilty to the charge of
possession of the sawed-off shotgun, preserving his right to appeal the denial of his
motion to suppress. The district court sentenced Olvey to ten months’ imprisonment.
Olvey now appeals the denial of his motion to suppress.

II.   DISCUSSION

       This court reviews a magistrate judge’s determination of probable cause “to
ensure that the magistrate had a substantial basis for . . . concluding that probable
cause existed.” United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)) (alteration in Gladney). “The task of the
issuing magistrate is to make ‘a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him, . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular place.’” Id.
(quoting Gates, 462 U.S. at 238). Where there is no evidentiary hearing before the
magistrate judge, the probable cause determination must be based upon “only that
information which is found within the four corners of the affidavit.” Id. (quoting
United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982)).



                                           -4-
       Olvey’s argument centers on whether the warrant application demonstrated that
he was a prohibited person under § 922(g)(8). The protection order as modified by
the journal entry satisfies the requirements of § 922(g)(8)(B) and (C) because it
restrains Olvey from threatening assaulting, molesting, attacking, or otherwise
disturbing the peace of his wife. Furthermore, the journal entry “was issued after a
hearing of which [Olvey] received actual notice, and at which [Olvey] had an
opportunity to participate.” § 922(g)(8)(A). Therefore, on its face the protection
order as modified rendered Olvey a prohibited person according to the three
requirements of § 922(g)(8).

       Olvey contends that the March 9 hearing did not satisfy § 922(g)(8)(A) because,
under the Nebraska Protection from Domestic Abuse Act, he was unable to litigate the
merits of the protection order unless he requested a hearing within five days after he
was served with the ex parte order.3 This argument is incorrect. Under Nebraska law,
a state district court generally retains power to address the full merits of any order it
issues during a term. See, e.g., Talkington v. Womens Servs., P.C., 588 N.W.2d 790,
794 (Neb. 1999) (“[A] district court has the inherent authority to vacate or modify its
decision within the same term that the initial decision was rendered.”). In addition,
Neb. Rev. Stat. § 25-2001 provides:

      (1) The inherent power of a district court to vacate or modify its
      judgments or orders during term may also be exercised after the end of


      3
       Neb. Rev. Stat. § 42-925 states:

      If the respondent wishes to appear and show cause why the [ex parte]
      order should not remain in effect, he or she shall . . . [return a request-
      for-hearing form] to the clerk of the district court within five days after
      service upon him or her. Upon receipt of the request for a show-cause
      hearing, the court shall immediately schedule a show-cause hearing to be
      held within thirty days after the receipt of the request for a show-cause
      hearing and shall notify the petitioner and respondent of the hearing date.
                                           -5-
      the term, upon the same grounds, upon a motion filed within six months
      after the entry of the judgment or order.

      (2) The power of a district court under its equity jurisdiction to set aside
      a judgment or an order as an equitable remedy is not limited by this
      section.

       Olvey relies on Buda v. Humble, 517 N.W.2d 622 (Neb. Ct. App. 1994), for the
proposition that the state district court’s general power to address the merits of its
previous orders does not apply to protection orders. Olvey asserts that after a
protection order is issued, “no further action [is] authorized under the Protection from
Domestic Abuse Act or the order entered by the court.” Id. at 624. We do not agree
with Olvey’s interpretation of Buda. The issue in Buda was whether a protection
order was appealable as a final order. The court held that the protection order was a
final order for appeal purposes because no further action was required under the
Protection from Domestic Abuse Act, or under the order itself, for the order to take
effect. Buda did not hold that orders under the Protection from Domestic Abuse Act
are somehow exempt from Nebraska courts’ general equitable and statutory authority
to vacate or modify injunctive orders. In fact, because Olvey did not request a hearing
within five days of service of the protection order on him, it was this general power
that allowed the state district court to grant Olvey’s request for a hearing and modify
the protection order as Olvey requested. Because Olvey had the opportunity to
address the merits of the protection order at a hearing, the requirements of §
922(g)(8)(A) are satisfied.

       Olvey next contends that he is entitled to a hearing to determine whether
Meadows’s affidavit was intentionally or recklessly misleading. In paragraph 4(f) of
his affidavit, Meadows characterized the journal entry as a “final order.” Olvey
asserts that this is a false statement made intentionally or recklessly that misled the
magistrate judge into assuming the March 9 hearing was a full hearing on the merits
of the protection order.


                                          -6-
        In order to prevail on a challenge to a search warrant affidavit under Franks v.
Delaware, 438 U.S. 154 (1978), “a defendant must show: (1) that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included in
the affidavit, and (2) that the affidavit’s remaining content is insufficient to establish
probable cause.” United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998) (citation
omitted). Even if Olvey’s assertion is accepted as true, Olvey fails to show that the
affidavit’s remaining content was insufficient to establish probable cause. As the
magistrate judge noted, Meadows’s characterization of the journal entry was irrelevant
to the probable cause determination because copies of the protection order and journal
entry were attached to the affidavit. Therefore, the magistrate judge was able to
conduct his own analysis of the March 10 modification and make his own
determination as to whether it satisfied the standards of § 922(g)(8). Because the
warrant application would have supported the magistrate judge’s finding of probable
cause regardless of the challenged statement, Olvey did not merit a Franks hearing.

      Finally, we note that even if the magistrate judge had erred in this case, the
good-faith exception to the exclusionary rule established in United States v. Leon, 468
U.S. 897 (1984), would apply. Under Leon, the Fourth Amendment exclusionary rule
does not exclude evidence obtained by officers who reasonably rely on a neutral
magistrate judge’s probable cause determination, even if the search warrant is
ultimately found to be invalid. United States v. Hessman, 369 F.3d 1016, 1020 (8th
Cir. 2004). In this case, law enforcement relied in good faith on the magistrate
judge’s legal determination that the protection order as modified by the journal entry
met the criteria of § 922(g)(8).

III.   CONCLUSION

      We conclude that the district court did not err in denying Olvey’s motion to
suppress. Therefore, we affirm the judgment of the district court.
                  ______________________________

                                           -7-
