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United States v. Gater

United States Court of Appeals, Eighth Circuit

August 17, 2017

United States of America, Plaintiff- Appellee,
v.
Jerry L. Gater, Defendant-Appellant.

          Submitted: April 5, 2017

         Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

          Before COLLOTON, BEAM, and BENTON, Circuit Judges.

          COLLOTON, Circuit Judge.

         Jerry Gater was convicted of possession with intent to distribute cocaine base and sentenced to 146 months' imprisonment. On appeal, he argues that the district court[1] erred when it denied his request for a hearing on his claim that police officers secured a search warrant by omitting material information from the affidavit submitted to the issuing judge. We conclude that the district court properly denied Gater's request for a hearing, and we therefore affirm.

         I.

         In December 2014, Officer Bobby Sullivan of the Sikeston, Missouri Department of Public Safety served as a task force officer with the Drug Enforcement Administration. On December 16, Sullivan prepared an affidavit and application for a search warrant to search Gater's residence. In the affidavit, Sullivan provided information that he said was disclosed to him by two confidential sources on three separate days.

         According to the affidavit, the first source explained to Sullivan on December 9 that during the previous two weeks, the source had witnessed Gater selling more than an ounce of powder and crack cocaine from his truck in Sikeston. The next day, Sullivan averred, a second source told him that the source had visited Gater's residence several times with others while they purchased cocaine. On each occasion, said the source, Gater had more than an ounce of crack cocaine in his possession. The same source, on December 16, told Sullivan that the source had just seen Gater at his residence with approximately five ounces of cocaine, over two pounds of marijuana, and three rolls of one-hundred-dollar bills that totaled more than $20, 000.

         After the search warrant was issued, Sullivan and other officers searched Gater's residence. They found crack cocaine, drug paraphernalia, and $4, 600 in cash. A grand jury charged Gater with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

          Gater, proceeding pro se, filed a motion to suppress evidence and two supplemental motions on related matters. In his motions, Gater argued that Officer Sullivan omitted from his affidavit negative information about the two confidential sources that would have undermined the reliability of their statements. Gater claimed that if it had included the omitted information, then the affidavit would not have supported a finding of probable cause.

         A magistrate judge held a hearing at which Sullivan testified, but apparently did not consider it a "Franks hearing, " and said that such a hearing was not warranted. See R. Doc. 57, at 25. The judge then recommended denial of Gater's motion to suppress. The judge found no evidence that Sullivan omitted the information with the intent to make the affidavit misleading, or in reckless disregard of the fact that it would do so. The judge also concluded that including the omitted facts in Sullivan's affidavit would not have prevented the issuing judge from finding probable cause to search. The district court adopted the recommendation.

         A few days before trial, the government sent Gater a memorandum that provided information about the second confidential source, who was scheduled to testify at trial. The memorandum explained that the source was paid six-hundred dollars for the information that she provided on December 16. The government also disclosed that the source had a history of using controlled substances and had been convicted of several misdemeanors.

         On the day of trial, the district court granted Gater a continuing objection to the denial of his suppression motion. A jury ultimately convicted Gater of possession with intent to distribute cocaine base, and the district court imposed sentence. Gater appeals, arguing that he should have been granted a hearing on his claim that Sullivan omitted material information from his affidavit. We review the district ...


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