Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

Defendant-appellant, Riley J. McIntire, appeals his conviction, following a conditional guilty plea to a single count of the manufacture and attempted manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) & 846. McIntire challenges the district court's denial of his motion to suppress evidence obtained during a search made pursuant to a warrant. We affirm.

* Under the good faith exception to the exclusionary rule, evidence obtained through an officer's reasonable reliance on a search warrant issued by a neutral magistrate is generally admissible. United States v. Leon, 468 U.S. 897, 922 (1984). Leon, however, recognized that suppression would remain an appropriate remedy in four situations: (1) when the magistrate wholly abandoned his judicial function; (2) when the warrant itself fails to specify the place to be searched and the things to be seized; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)); and (4) when the affiant knowingly or recklessly misled the magistrate. Id. McIntire here alleges that both the third and fourth exceptions apply, i.e., that the affidavit was substantially lacking in probable cause, and that the magistrate was misled into believing that probable cause existed by deliberate and reckless misstatements or omissions.

In applying Leon, we must determine "whether a reasonably well-trained officer would have known that the search was illegal despite the magistrates authorization." Id. at 922. We review de novo whether the good faith exception applies in a particular case. United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1985).

Here, the affidavit was not "so substantially lacking in indicia of probable cause" as to render the officer's reliance on it unreasonable. In United States v. Tate, 795 F.2d 1487 (9th Cir. 1986), we held that evidence of a PCP manufacturing operation, seized pursuant to a search warrant, was admissible even though the affidavit did not allege sufficient facts to establish probable cause. The affidavit in that case was based on information from an anonymous informant who stated that he observed three to four black males at a particular residence "utilizing" a white Dodge van. The informant also stated that he could smell a strong odor of ether coming from the residence. The affiant, a police officer, verified, based on his own observation, that there was such an odor at that address. The affiant also stated that, based on his experience, the process of manufacturing PCP emits a strong odor of ether.

Tate is similar to the instant case inasmuch as this case also involves information from an informant, corroborated by the observations of an officer. This case is stronger than Tate, however, because the affidavit here was based on information from a known, previously reliable informant who stated that he had seen glassware and a "cooker," and believed that there was a methamphetamine lab operating in the residence. In Tate, an unknown informant simply stated that he had observed three to four black males "utilizing" a white van.

McIntire argues that unlike Tate, neither the informant nor Officer Garrahan ever smelled "the strong smell of ether." This fact alone, however, is not essential to a finding of probable cause. We find that the totality of circumstances supports reasonable reliance.

We hold that the indicia of probable cause in the affidavit is at least as strong as it was in Tate. Accordingly, a reasonably well-trained officer could, in good faith, conclude that there was probable cause to search the residence.

II

McIntire also contends that Officer Garrahan prepared the affidavits with a deliberate or reckless disregard for the truth. Pursuant to Franks, a hearing is required to determine whether false statements were deliberately or recklessly included in the affidavit. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

The district court held a Franks hearing to determine whether Officer Garrahan had deliberately or recklessly included false statements in the affidavit. McIntire alleged five instances of intentional or reckless misstatements or omissions in the affidavit that influenced the magistrate's decision to issue the warrant. The court found that there was no demonstration of deliberate falsehood or reckless disregard for the truth. "The district court's conclusion about whether the defendant has demonstrated recklessness or deliberate falsity after the Franks hearing ... is a finding of fact reviewed under the clearly erroneous standard." United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985). The court's finding is not clearly erroneous.

AFFIRMED.