United States v. Wesley Warren Wellman

33 F.3d 944
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 19, 1994
Docket93-3500
StatusPublished
Cited by8 cases

This text of 33 F.3d 944 (United States v. Wesley Warren Wellman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wesley Warren Wellman, 33 F.3d 944 (8th Cir. 1994).

Opinions

BOWMAN, Circuit Judge.

Wesley Warren Wellman appeals his convictions and sentence imposed by the District Court1 based on drug-trafficking and firearms offenses. We affirm.

I.

In February 1993, Addis W. Monroe, a county sheriffs deputy, swore an affidavit in support of an application for a search warrant in which he stated that a confidential informant had told him furniture stolen in a recent burglary was in Wellman’s mobile home. The warrant issued, and the executing officers found the stolen furniture. When they conducted a pat-down search of Wellman, they found two semiautomatic pistols and a film canister containing methamphetamine packaged for distribution.

In April 1993, an unrelated operation in which undercover officers attempted to purchase methamphetamine from Scott Travis led to Wellman. Another search warrant was executed at Wellman’s residence, and officers found on Wellman more methamphetamine and a $100 bill that the undercover officers had given to Travis as buy money in exchange for methamphetamine Travis later delivered to the officers.

Wellman subsequently was charged in federal court under a four-count indictment. Based on the evidence discovered pursuant to the February search, he was charged with one count of possession with intent to distribute methamphetamine and one count of use of a firearm in relation to a drug-trafficking crime. The April evidence led to counts of possession with intent to distribute, and distribution of, methamphetamine.

Wellman was convicted on all four counts. He was sentenced to 151 months imprisonment for the methamphetamine offenses and a consecutive sixty-month term for the firearms offense. Wellman raises four arguments on this appeal. We consider each in turn.

II.

A.

Wellman argued at a pretrial suppression hearing that the search warrant was issued without probable cause, and that the government’s evidence therefore should have been suppressed. The District Court denied the motion, finding that the affidavit Monroe executed established probable cause for issuance of the warrant. Wellman renews this argument as his first point on appeal.

In the search warrant application, Monroe stated that stolen antique furniture was at Wellman’s residence. In the affidavit he executed in support of the application, Monroe stated the extent of his law enforcement experience, that a confidential informant had told him furniture stolen during a recent burglary would be found in Wellman’s trailer, and that the informant had been rehable in the past.

Wellman argues that the search warrant application and the affidavit fail to establish the existence of probable cause. He points out that the affidavit offers no basis for the informant’s knowledge, fails to describe the furniture specifically (even though the warrant application lists the items), and does not verify that furniture in fact was stolen in the referenced burglary or that Wellman lived in a trailer at the listed address.

[946]*946During the oral argument of this appeal, the government conceded that the affidavit fails to establish sufficient probable cause to justify the judge’s issuance of the search warrant. The government argues, however, that the evidence seized during the execution of the warrant properly was admitted because the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies in this case. We note that it is appropriate for us to apply Leon's standards to the facts developed in the District Court, even though that court did not pass on the issue. See United States v. Sager, 743 F.2d 1261, 1265-66 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). We agree with the government that Leon applies here, and thus we do not express an opinion as to whether the affidavit submitted in support of the warrant application establishes probable cause.

Under Leon, where officers reasonably believed and a judge determined that probable cause existed, suppression of evidence seized pursuant to the resulting search warrant is unnecessary, even if a reviewing court subsequently concludes that the warrant is invalid. In determining whether the officers conducted themselves reasonably, we examine the totality of the circumstances, including information the officers possessed that they did not present to the judge via the affidavit. United States v. Frangenberg, 15 F.3d 100, 103 (8th Cir.1994), cert. denied, — U.S. -, 114 S.Ct. 2686, 129 L.Ed.2d 818 (1994) and petition for cert. filed, No. 93-9611 (U.S. June 17, 1994).

The evidence adduced at the suppression hearing shows that, at the time he applied for the search warrant, Monroe had significant information, both from the informant’s tip and from Monroe’s extensive efforts to corroborate that information, to support his conclusion that probable cause existed. Accordingly, we have no difficulty in determining that Monroe (and hence the other officers who executed the search warrant) had an objectively reasonable basis for concluding that probable cause existed.

At the suppression hearing, Monroe testified that the informant stated he personally had seen the items in Wellman’s trader and specifically described some of them. Monroe pulled the police report for the burglary referenced in the informant’s tip, but the report did not contain descriptions of the items. Monroe then called the victim, who offered the same descriptions of the items as had the informant, to verify the information in the tip. Monroe further verified the information by telephoning Wellman’s wife, who lived with Wellman in the trailer. Wellman’s wife acknowledged that the stolen items were present in the trailer. It was at this point that Monroe applied for the search warrant.

Although Monroe corroborated the informant’s information before he applied for the search warrant, Wellman contends that the good-faith exception does not apply in this case because the judge was misled by several material false statements in and omissions of fact from the affidavit Monroe executed in support of the search warrant application. Wellman offers specific examples to bolster this argument. The record clearly shows, however, that Monroe did not willfully or recklessly misstate or omit any facts.

First, Wellman claims that Monroe knew Wellman had been having sexual intercourse with the informant’s wife, but that Monroe, even though he understood that this fact could reflect poorly on the informant’s credibility,2 did not include it in the affidavit. This fact, although interesting, is irrelevant in light of the additional investigatory work conducted by Monroe. Clearly, Monroe’s affidavit was not sworn solely in reliance on the informant’s information, and there is no evidence that he intended to mislead the judge by not disclosing the information or that the judge was misled.

Wellman also claims that Monroe misstated the extent of his law enforcement experience.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jack Dean Johnson
78 F.3d 1258 (Eighth Circuit, 1996)
United States v. Frank Skorniak
59 F.3d 750 (Eighth Circuit, 1995)
DePugh v. Penning
888 F. Supp. 959 (N.D. Iowa, 1995)
Ex Parte Tucker
667 So. 2d 1339 (Supreme Court of Alabama, 1995)
United States v. Wesley Warren Wellman
33 F.3d 944 (Eighth Circuit, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
33 F.3d 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wesley-warren-wellman-ca8-1994.