                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-1693
                                ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Northern District of Iowa.
Gary Briscoe, Jr.,                         *
                                           *
             Appellant.                    *

                                ________________

                                Submitted: October 8, 2002
                                    Filed: January 30, 2003
                                ________________

Before HANSEN, Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

       After the district court1 denied his motion to suppress evidence seized pursuant
to a search warrant, Gary Briscoe, Jr. conditionally pleaded guilty to being a felon in


      1
        The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the United States
Court of Appeals for the Eighth Circuit, adopting the report and recommendation of
the Honorable John A. Jarvey, Chief Magistrate Judge, United States District Court
for the Northern District of Iowa.
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to
ninety-six months in prison and three years of supervised release. On appeal, Briscoe
challenges the district court's denial of his suppression motion. For the reasons
discussed below, we affirm the judgment of the district court.

                                          I.

       One of Briscoe's neighbors approached a Cedar Rapids Police Department
intelligence analyst while they exercised at a gym. He told her that there had recently
been several residential burglaries in his neighborhood and he suspected Briscoe. He
noted that Briscoe lived across the street from one of the burglarized houses, owned
two pit bulls, and had a lot of people coming to and going from his house.
(Appellant's Br. Add. at 11, 14.) In a written memorandum she sent to all of the
officers of the Cedar Rapids Police Department, the analyst wrote that a "caller"
suspected Briscoe of committing the burglaries because of "a heavy amount of short
term visitors to" his home and his ownership of two pit bulls. She noted that Briscoe
had previously been arrested for burglary and had previously been charged with
assault and disorderly conduct. Although the neighbor's suspicion had only been that
Briscoe was involved in the burglaries, the analyst's memo referred to suspicion that
Briscoe was also engaged in "possible narcotics trafficking." (Id. at 31.)

       Approximately nine weeks later, police searched the garbage left outside
Briscoe's residence and found forty marijuana seeds and twenty-five marijuana stems
that tested positive for tetrahydrocannabinol, the active component of marijuana. The
same day, police applied for a warrant to search Briscoe's residence based on the
marijuana seeds and stems found in the trash and the portion of the intelligence
analyst's report regarding suspected narcotics trafficking. A state judge approved the
search warrant, and police executed it five days later. They recovered from Briscoe's
residence a .38-caliber handgun, ammunition, $1835 in cash, a scale, marijuana
residue, and drug paraphernalia.

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       After he was charged in federal court, Briscoe moved to suppress the seized
evidence. He attacked the paragraph in the search warrant application derived from
the intelligence analyst's report as well as a paragraph in which the applying officer
related his general experience regarding drug traffickers and where they store their
drugs. The district court denied Briscoe's motion, concluding that Franks v.
Delaware, 438 U.S. 154 (1978), had not been violated because if the applying officer
had provided any misleading information, he had done so negligently or in reasonable
reliance on the intelligence analyst's report. The district court further concluded that
the paragraph about the applying officer's general experience with drug trafficking
was not a recitation of facts meant to establish probable cause; that the search warrant
application established probable cause with or without the challenged statements; and
that even if the search warrant application did not establish probable cause, the search
was valid under United States v. Leon, 468 U.S. 897 (1984), because police relied on
the warrant in good faith.

      Briscoe conditionally pleaded guilty, was sentenced, and now appeals.

                                          II.

      We may assume for the sake of argument that the challenged statements in the
search warrant application were false or made in reckless disregard for the truth,
because Briscoe must also prove that the challenged statements were necessary for
the application to establish probable cause. See United States v. Gabrio, 295 F.3d
880, 883 (8th Cir.), cert. denied, 123 S. Ct. 390 (2002). We conclude that the
application would have been sufficient without the challenged statements because the
marijuana seeds and stems recovered from Briscoe's garbage were independently
adequate to establish probable cause.

      Many of our cases recognize that the recovery of drugs or drug paraphernalia
from the garbage contributes significantly to establishing probable cause. See, e.g.,

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United States v. Reinholz, 245 F.3d 765, 776 (8th Cir.) (brass pipe with cocaine
residue and twenty syringes (four with methamphetamine residue) found in trash,
coupled with occupant's prior drug conviction, established probable cause for search
warrant), cert. denied, 122 S. Ct. 218 and 300 (2001); United States v. Gonzalez-
Rodriguez, 239 F.3d 948, 950-51 (8th Cir. 2001) (crack pipe, baggies, and foil with
methamphetamine residue found in trash, coupled with informant's tip, established
probable cause for search warrant); United States v. Hohn, 8 F.3d 1301, 1302, 1306-
07 (8th Cir. 1993) (baggie and sno-seals with methamphetamine residue found in
trash, coupled with informant's tip, established probable cause for search warrant);
United States v. Sumpter, 669 F.2d 1215, 1220-22 (8th Cir. 1982) (baggie of
marijuana found in trash, coupled with tips from informant, neighbor, and garbage
collector, established probable cause for search warrant); United States v. Biondich,
652 F.2d 743, 744-46 (8th Cir.) (baggie containing small amount of marijuana and
folded paper containing traces of opiates found in trash, coupled with occupant's two
prior drug convictions, established probable cause for search warrant), cert. denied,
454 U.S. 975 (1981); see also United States v. Koons, 300 F.3d 985, 988, 991-92 (8th
Cir. 2002) (numerous marijuana stems found in trash, coupled with informant's tip,
established police officer's good-faith belief that search warrant was supported by
probable cause and validated search under Leon).

       In those cases, the drugs or drug paraphernalia in the garbage were sufficient
corroborating evidence to establish probable cause. The question in this case is
whether the marijuana seeds and stems in Briscoe's garbage were sufficient stand-
alone evidence to establish probable cause. We hold that they were. Cf. United
States v. Gregg, 829 F.2d 1430, 1433-34 (8th Cir. 1987) (for defendants convicted
of illegally exporting military equipment, discarded telex communications between
defendants and customers found in trash, standing alone, established probable cause
for search warrant), cert. denied, 486 U.S. 1022 (1988). The facts in the instant case
are even stronger than the facts in Gregg because, not only does the presence of
discarded marijuana stems and seeds reasonably suggest that ongoing marijuana

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consumption or trafficking is occurring within the premises, but the simple
possession of marijuana seeds is itself a crime under both federal and state law. See
21 U.S.C. § 802(16); Iowa Code § 124.101.17 (non-sterilized seeds are included in
federal and Iowa definitions of marijuana as controlled substance).

      Both federal and state law2 authorize the issuance of a search warrant for drugs,
drug paraphernalia, drug proceeds, and related evidence. The search warrant issued
by the Iowa court in this case was directed at, inter alia, marijuana, cash, and
paraphernalia "associated with the use, sale, manufacturing[,] or distribution of
controlled substances." (Appellant's Br. Add. at 20.) The items recovered from
Briscoe's residence in the search included a scale with marijuana residue, a roach clip,
$1835 in cash, a firearm, and ammunition. (Id. at 28-29.)

                                          III.

      Having concluded that the marijuana stems and seeds recovered from Briscoe's
garbage were independently adequate to establish probable cause for the search
warrant, there is no need to reach the Leon question. Accordingly, we affirm the
judgment of the district court.




      2
        "A warrant may be issued under this rule to search for and seize any (1)
property that constitutes evidence of the commission of a criminal offense; or (2)
contraband, the fruits of crime, or things otherwise criminally possessed; or (3)
property designed or intended for use or which is or has been used as the means of
committing a criminal offense . . . ." Fed. R. Crim. P. 41(b). "A search warrant may
be issued: 1. For property which has been obtained in violation of law. 2. For
property, the possession of which is unlawful. 3. For property used or possessed with
the intent to be used as the means of committing a public offense or concealed to
prevent an offense from being discovered. 4. For any other property relevant and
material as evidence in a criminal investigation." Iowa Code § 808.2.
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A true copy.

      Attest:

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




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