              United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 18-2603
                    ___________________________

                           United States of America

                     lllllllllllllllllllllPlaintiff - Appellee

                                        v.

                                 Brent Daigle

                   lllllllllllllllllllllDefendant - Appellant
                                   ____________

                 Appeal from United States District Court
                  for the District of North Dakota - Fargo
                                ____________

                       Submitted: October 18, 2019
                         Filed: January 14, 2020
                             ____________

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.
      Appellant Brent Daigle appeals the district court’s1 denial of his motion to
suppress and request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                          I.

       On November 9, 2015, Daigle’s wife, Celetra, reported to Griggs County
Sheriff Robert Hook that she believed her twelve-year-old daughter, R.M., had been
sexually abused by Daigle, the minor’s step-father. Sheriff Hook arranged for R.M.
to speak with a forensic interviewer at Red River Children’s Advocacy Center
(RRCAC) on November 12, 2015. Sheriff Hook observed the forensic interview in
real-time on a closed-circuit television in a separate room at RRCAC.

       During the forensic interview, R.M. disclosed that Daigle had been sexually
abusing her since she was seven years old and that the last incident had occurred
about one month prior. R.M. provided explicit details regarding how, where, when,
and how often Daigle had sexually abused her, and stated that it was his usual
practice to take video recordings of the sexual abuse. She explained that Daigle had
used various electronic devices to record the abuse over the years, but most recently
he had used his cell phone, which she described as a silver phone in a camouflage
case with tan rubber parts. In terms of brand, R.M. stated, “I know it’s not an iPhone.
I think it’s a Samsung. One of those bigger Samsungs.” After the forensic interview,
Sheriff Hook asked Celetra to describe Daigle’s cell phone. Celetra described it as
an LG phone in a camouflage case with tan-brownish corners. She informed Sheriff
Hook that Daigle had the LG phone in his possession and that he was on his way to
Louisiana.

      1
        The Honorable Ralph R. Erickson, then United States District Judge for the
District of North Dakota, now United States Circuit Judge for the Court of Appeals
for the Eighth Circuit; and the Honorable Daniel L. Hovland, United States District
Judge for the District of North Dakota.

                                         -2-
       That evening, law enforcement officers obtained Celetra’s consent to search
the family residence, in which they found and seized numerous electronic devices
capable of storing electronic images. On November 13, 2015, Sheriff Hook applied
for a warrant to search the seized devices and, in support, gave a sworn telephonic
affidavit to North Dakota District Judge James D. Hovey. He informed Judge Hovey
about R.M.’s forensic interview, summarized R.M.’s detailed allegations of sexual
abuse, and noted that, according to R.M., Daigle had used a silver phone in a
camouflage case with tan rubber parts, among other devices, to record the abuse.
Judge Hovey asked whether the silver phone was listed in the warrant application as
a device to be searched. Sheriff Hook clarified that it was not included in the warrant
application, because Daigle was on his way to Louisiana and likely had the phone in
his possession. Judge Hovey issued the warrant to search the devices seized from the
family residence.2

       Later that day, Daigle was arrested in Louisiana on North Dakota state charges
resulting from R.M.’s forensic interview. Arresting officers seized a silver LG cell
phone in a camouflage case with tan rubber parts from Daigle’s person. Sheriff Hook
received the LG cell phone on December 3, 2015 and applied for a warrant to search
it. In support, he submitted a sworn written affidavit, in which he provided a less
detailed recitation of the information presented in his sworn telephonic affidavit in
support of the first search warrant. Specifically, the written affidavit noted Celetra’s
report to Sheriff Hook; R.M.’s forensic interview; R.M.’s explanations of how,
where, and how often the sexual abuse took place; and Sheriff Hook’s observation
that R.M. “is a reliable source and says that there is video of her on the LG phone that
was in possession of the Defendant at the time of arrest.” Sheriff Hook also provided
oral testimony in support of the second warrant application at a probable cause
hearing held by Judge Hovey, in which Sheriff Hooks testified that the cell phone


      2
      Daigle has not challenged the validity of the November 13, 2015 search
warrant.

                                          -3-
found on Daigle’s person at the time of arrest matched “to a tee” R.M.’s description
of the cell phone used by Daigle to record the sexual abuse. Finding probable cause,
Judge Hovey issued the warrant to search the LG cell phone.

       At the time of the December probable cause hearing, law enforcement had not
yet found evidence of sexual abuse on the devices seized from the family residence.
However, the forensic examination of the LG cell phone uncovered deleted videos
of Daigle sexually abusing R.M.

       Daigle was charged with three counts of sexual exploitation of minors in
violation of 18 U.S.C. §§ 2251(a) and (e), and one count of possession of materials
involving sexual exploitation of minors in violation of 18 U.S.C. §§ 2252(a)(4)(B)
and (b)(2). He moved to suppress the videos found on the LG cell phone, arguing
that Sheriff Hook’s written affidavit failed to establish probable cause, that the “good
faith” exception under United States v. Leon, 468 U.S. 897 (1984), did not apply, and
that a Franks hearing was warranted because the affidavit contained an intentional
misstatement and omission. Following a hearing, the district court denied Daigle’s
motion to suppress, finding that the search warrant was supported by probable cause.
Further, the district court dismissed as moot Daigle’s request for a Franks hearing,
finding that his Franks issues had been addressed at the suppression hearing and, in
any case, he had failed to establish a Franks violation.

       Thereafter, defense counsel learned about a 2013 investigation into Daigle’s
alleged sexual abuse of his two oldest biological daughters. Daigle filed a motion to
reconsider, arguing that a Franks hearing was warranted because Sheriff Hook had
intentionally or recklessly omitted from his written affidavit information regarding
the 2013 investigation—specifically, that no charges had resulted from that
investigation, and that R.M. had denied being sexually abused by Daigle during a
forensic interview in connection with that investigation. The district court denied the
motion to reconsider, finding that Daigle should have been aware of the 2013

                                          -4-
investigation at the time he filed his motion to suppress, and that, even if the
argument had been timely raised, the inclusion of the omitted information in the
written affidavit would not have eliminated the existence of probable cause to search
the LG cell phone.

      Daigle filed pro se a second motion to reconsider and a motion for a Franks
hearing. The district court denied both motions. Daigle pled guilty to all counts
pursuant to a plea agreement, but reserved the right to appeal the denial of his motion
to suppress. The district court sentenced Daigle to 840 months imprisonment. This
appeal follows.

                                          II.

      Daigle first argues that the district court erred in denying his motion to
suppress because Sheriff Hook’s written affidavit was insufficient to establish
probable cause and the Leon “good faith” exception to the exclusionary rule did not
apply. He then argues that, even if the affidavit was sufficient, he was entitled to a
Franks hearing because Sheriff Hook intentionally or recklessly omitted from his
affidavit material information that, if included, would have negated a finding of
probable cause. We address each issue in turn.

                                          A.

       “In reviewing the district court’s denial of a motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions de novo.”
United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016). “Issuance of a search
warrant must be supported by probable cause, which depends on whether, under the
totality of the circumstances, there is a fair probability evidence of a crime will be
found in a particular place.” Id. Judges “may draw reasonable inferences from the
totality of the circumstances in determining whether probable cause exists to issue a

                                          -5-
warrant.” United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000). “As a
reviewing court, we pay ‘great deference’ to the probable cause determinations of the
issuing judge or magistrate, and our inquiry is limited to discerning whether the
issuing judge had a substantial basis for concluding that probable cause existed.”
United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004) (quoting Illinois v. Gates,
462 U.S. 213, 236 (1983)).

       Daigle contends that Sheriff Hook’s written affidavit was insufficient to
establish probable cause because it failed to set forth: (1) a sufficient basis for
assessing R.M. as reliable; (2) Sheriff Hook’s qualifications and training in child
sexual abuse investigations and assessment of witness reliability; (3) the forensic
interviewer’s identity and qualifications; (4) the source of the information presented
in paragraphs 8, 9, and 10 of the affidavit, which set forth details of Daigle’s sexual
abuse of R.M.; and (5) the factual basis for R.M.’s knowledge that there was video
of her on Daigle’s phone at the time of arrest.3

       As an initial matter, “probable cause is determined based on the information
before the issuing judicial officer.” United States v. Smith, 581 F.3d 692, 694 (8th
Cir. 2009) (internal quotation marks omitted). Here, because the information before
Judge Hovey included both Sheriff Hook’s written affidavit and his oral testimony
from the probable cause hearing, we consider both in determining whether probable
cause supported the issuance of the search warrant. Further, Daigle focuses solely on

      3
        Daigle also argues that the affidavit failed to include the circumstances and
motives surrounding Celetra’s report to Sheriff Hook—specifically, that Celetra was
in the midst of leaving Daigle because he had physically harmed her and had cheated
on her. He raises this argument as a basis for establishing both the insufficiency of
the affidavit and his Franks claim. However, his briefs contain arguments that are
relevant only to a Franks claim, i.e., that the inclusion of this information in the
affidavit would have negated probable cause; he does not explain how the affidavit
was insufficient to establish probable cause absent this information. Thus, we
address this argument only in the context of Daigle’s Franks claim.

                                          -6-
what the affidavit lacked. However, “[t]he affidavit is judged on the adequacy of
what it does contain, not on what it lacks, or on what a critic might say should have
been added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000). In any case,
for the reasons discussed below, we agree with the district court that the alleged
insufficiencies were either non-existent or harmless because the issuing judge
nonetheless had a substantial basis for finding probable cause.

       First, we reject Daigle’s argument that Sheriff Hook failed to set forth a
sufficient basis for assessing R.M. as reliable. This Court has explicitly held that,
when information is provided by a victim-eyewitness to a crime, the affidavit in
support of the search warrant application need not attest to the credibility of that
informant or the reliability of the information he or she provided. United States v.
Rajewich, 470 F.2d 666, 668 (8th Cir. 1972). As we explained in United States v.
Sellaro, “the statement of an eyewitness [or victim] to a crime supplies its own indicia
of reliability as a statement of facts rather than conclusions which must be tested to
determine their factual basis.” 514 F.2d 114, 124 (8th Cir. 1973); see United States
v. Wallace, 550 F.3d 729, 734 (8th Cir. 2008) (per curiam) (“[L]aw enforcement
officers are entitled to rely on information supplied by the victim of a crime, absent
some indication the information is not reasonably trustworthy or reliable.”). Sheriff
Hook’s affidavit and testimony make clear that R.M. was a victim-eyewitness to
Daigle’s crimes. This is sufficient to establish R.M.’s reliability.4



      4
       Although Daigle argues that Sheriff Hook’s affidavit omitted information
indicating that R.M. was not reliable, that argument is not relevant for the purpose of
determining whether the issuing judge had a substantial basis for finding probable
cause. See Allen, 211 F.3d at 975. Rather, that argument is relevant only in the
context of the Franks claim. In any case, this Court has noted that, even where the
victim makes untrue statements, such statements do not necessarily detract from the
victim’s credibility regarding the crime at issue. Wallace, 550 F.3d at 734.



                                          -7-
       Second, we reject Daigle’s argument that Sheriff Hook’s failure to set forth his
law enforcement training and qualifications in child sexual abuse investigations and
assessment of witness reliability rendered his affidavit insufficient. “[A]n officer’s
testimony about his experience, although relevant . . . , is not a necessary element of
a probable cause determination[.]” United States v. Brown, 374 F.3d 1326, 1328
(D.C. Cir. 2004); see United States v. Garay, 938 F.3d 1108, 1113 (9th Cir. 2019)
(“We have long held that affiants seeking a warrant may state conclusions based on
training and experience without having to detail that experience.”). While Sheriff
Hook opines in the affidavit that R.M. “is a reliable source,” for the reasons discussed
above, the affidavit sufficiently establishes R.M.’s reliability even absent that
statement. Thus, the fact that the affidavit does not set forth Sheriff Hook’s training
and qualifications does not detract from a finding of probable cause.

       Third, as to Daigle’s claim the affidavit lacked the forensic interviewer’s
identity and qualifications, the affidavit does not include any statements or opinions
of the forensic interviewer. All of the information contained in the affidavit was
based on R.M.’s statements during the forensic interview and Sheriff Hook’s
observations of those statements. Thus, the forensic interviewer’s identity and
qualifications were irrelevant to the probable cause determination.

       Fourth, paragraphs 8, 9, and 10 of the affidavit identify specific sexual acts that
Daigle performed on R.M., and state where in the family residence these sexual acts
took place. “[S]o long as the issuing [judge] can fairly infer the source and basis of
the information, the [judge] permissibly may consider such an assertion when
determining whether probable cause exists.” United States v. Thurman, 625 F.3d
1053, 1056 (8th Cir. 2010); see United States v. Summage, 481 F.3d 1075, 1078 (8th
Cir. 2007) (holding that a single statement in the affidavit lent itself to a fair inference
that the victim was also the source of the rest of the information in the affidavit).




                                            -8-
Although paragraphs 8, 9, and 10 do not explicitly identify the source of the
information contained therein, it can be fairly inferred that R.M. was the source of all
information regarding the details of Daigle’s sexual abuse. Accordingly, the issuing
judge was permitted to rely on the information contained in those paragraphs when
assessing probable cause.

        Daigle’s final argument, that Sheriff Hook failed to establish the factual basis
for R.M.’s knowledge that there was video of her on Daigle’s cell phone, is
unsustainable on the record. At the probable cause hearing, Sheriff Hook testified
that the LG cell phone seized from Daigle at the time of his arrest was an average-
sized smartphone in a camouflage protective case with tan rubber bumpers. He
testified that the seized phone matched “to a tee” R.M.’s description of the device
most recently used by Daigle to record the sexual abuse, which had last occurred
about one month prior to the forensic interview. We find that these facts are
sufficient to establish the basis for R.M.’s knowledge that there was video of her on
Daigle’s LG cell phone at the time of his arrest.

      We hold that the issuing judge had a substantial basis for finding probable
cause.5 The district court did not err in denying Daigle’s motion to suppress.


      5
        Daigle also argues that the Leon “good faith” exception to the exclusionary
rule does not apply. The Leon “good faith” exception provides that “evidence seized
pursuant to a search warrant issued by a magistrate that is later determined to be
invalid, will not be suppressed if the executing officer’s reliance upon the warrant
was objectively reasonable.” United States v. Ross, 487 F.3d 1120, 1122 (8th Cir.
2007) (internal quotation marks omitted). Because we find that the search warrant
was valid, we need not address whether the Leon “good faith” exception applies as
to bar suppression. See United States v. Hyten, 5 F.3d 1154, 1156 n.5 (8th Cir. 1993)
(noting that the court need not reach the Leon issue if the warrant is supported by
probable cause).



                                          -9-
                                         B.

       Daigle argues that, even if Sheriff Hook’s affidavit, supplemented by his
testimony, was sufficient to establish probable cause, the district court abused its
discretion by denying his request for a Franks hearing. This Court reviews for abuse
of discretion the denial of a Franks hearing. United States v. Hollis, 245 F.3d 671,
673 (8th Cir. 2001).

      “Under Franks, a criminal defendant may request a hearing to challenge a
search warrant on the ground that the supporting affidavit contains factual
misrepresentations or omissions relevant to the probable cause determination.”
United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (citing Franks, 438 U.S.
at 155-56). “However, in order to merit a Franks hearing, [a defendant] must show
both (1) that the affiant [] ‘knowingly and intentionally’ made false statements or
made them in ‘reckless disregard for the truth’ and (2) if the false information is
excised (or the omitted information is included), the affidavit no longer establishes
probable cause.” Id. (quoting Franks, 438 U.S. at 155-56). “The requirement of a
substantial preliminary showing is not lightly met[.]” Id. (internal quotation marks
omitted).

       Daigle maintains that Sheriff Hook intentionally or recklessly omitted the
following material information from his affidavit: (1) that Daigle had passed a
polygraph test in connection with the 2013 investigation into his alleged sexual abuse
of his two oldest daughters, which resulted in no charges; (2) that during the 2013
forensic interview, R.M. denied being sexually abused by Daigle; (3) that, at the time
Sheriff Hook applied for the warrant to search the LG cell phone, no evidence of
sexual abuse had been found pursuant to the warrant to search the devices seized from




                                        -10-
the family residence; and (4) that Celetra was in the midst of leaving Daigle at the
time she made the initial report to Sheriff Hook.6

        We find that Daigle failed to make the requisite “substantial preliminary
showing” to merit a Franks hearing. Assuming for the purpose of analysis that the
omissions were intentional or in reckless disregard for the truth, Daigle nonetheless
failed to show that the affidavit and testimony, if supplemented by the omitted
information, would not have been sufficient to support a finding of probable cause.
First, the search warrant was not based on any statements by Daigle, and nothing in
the warrant application suggested that Daigle had denied sexually abusing R.M. in
2015 (nor does Daigle argue that any such denials were omitted from the application).
Thus, Daigle’s credibility was not in play, and the results of the 2013 polygraph test
were not relevant to the probable cause determination. See Tech. Ordinance, Inc. v.
United States, 244 F.3d 641, 649 (8th Cir. 2001) (“A law enforcement official is not
required to include everything he knows about a subject in his affidavit, whether it
is material to a finding of probable cause or not.”).

      Second, the failure to discover evidence on the devices seized from the family
residence pursuant to the first search warrant did not make it any less probable that
such evidence would be found on the LG cell phone in Daigle’s possession. That is
especially true in light of the fact that R.M. had specifically described the LG cell
phone as the device most recently used to record the sexual abuse.


      6
       Daigle also argues for the first time on appeal that Sheriff Hook’s failure to
include his qualifications and experience constituted a Franks violation. Because
Daigle failed to raise this argument below, we do not address it on appeal.
See United States v. Rees, 447 F.3d 1128, 1130 (8th Cir. 2006) (“An argument not
raised below cannot be raised on appeal for the first time unless the obvious result
would be a plain miscarriage of justice.” (internal quotation marks omitted)).



                                        -11-
      Third, the circumstances and motives surrounding Celetra’s report to Sheriff
Hook had no bearing on the probable cause analysis. An informant’s motive for
providing information is not necessarily essential to a probable cause determination,
especially where probable cause would have been found even if the motive were
included. United States v. Taylor, 471 F.3d 832, 840 (7th Cir. 2006). The only
reference to Celetra in the affidavit was that she notified Sheriff Hook of her belief
that Daigle had sexually abused R.M. While this information showed why Sheriff
Hook subsequently arranged for R.M. to be forensically interviewed, it was the
information disclosed by R.M. in her forensic interview that established probable
cause. Thus, the inclusion in the affidavit of the circumstances and motives
surrounding Celetra’s report would not have negated probable cause. Cf. United
States v. Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990) (noting that, while the
affidavit included stale information, “this information [wa]s provided as mere
background, and its presence does not taint more recent information in the affidavit”).

       Finally, Daigle argues that Sheriff Hook omitted information about R.M.’s
2013 forensic interview that would have shown R.M. was unreliable. Daigle
correctly notes that R.M.’s reliability was critical to the probable cause determination,
and that certain information in R.M.’s 2013 forensic interview contradicts her 2015
forensic interview. Specifically, in 2013, R.M. denied being sexually abused by
Daigle, but in 2015, she stated that Daigle had been sexually abusing her since May
2011. However, had Sheriff Hook included this information in the affidavit, he could
have also included R.M.’s statements from her 2015 forensic interview that she had
lied about the sexual abuse in 2013 because Daigle had told her that, if she betrayed
him, he would kill her, and because she did not want to be branded as a liar, which
Daigle had called his two oldest daughters. “‘[O]nly if the affidavit as supplemented
by the omitted material could not have supported the existence of probable cause’ will
suppression be warranted.” United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.




                                          -12-
1993) (alteration and emphasis in original) (quoting United States v. Lueth, 807 F.2d
719, 726 (8th Cir. 1986)). Based on R.M.’s explanations for the inconsistencies, the
inclusion of this information in the affidavit would not have prevented a finding that
R.M. was reliable nor would it have negated a finding of probable cause.
See Wallace, 550 F.3d at 733-74 (finding that the officer’s omission from his affidavit
of the victim’s allegedly untrue statements did not constitute a Franks violation
because the statements did not necessarily detract from the victim’s credibility
regarding the crime at issue).

      Accordingly, we hold that the district court did not abuse its discretion in
denying Daigle’s request for a Franks hearing.

                                         III.

      For the foregoing reasons, we affirm.
                      ______________________________




                                         -13-
