Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Alexander GAMBINO, Defendant-Appellant.

No. 88-1030.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 31, 1988.* Decided Dec. 2, 1988.

Before BROWNING, HUG and BEEZER, Circuit Judges.


MEMORANDUM** 

Alexander Gambino appeals the district court's denial of his motion to suppress evidence seized pursuant to a search warrant. Gambino argues that the affidavit that the warrant was based on did not establish probable cause, and that the statements of an anonymous informant were not corroborated sufficiently to support issuance of a warrant. Our review "is less probing than de novo review and shows deference to the issuing magistrate's determination." United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). We affirm.

The warrant to search Gambino's house was issued on the basis of an affidavit sworn out by Special Agent Jeffrey Stamm. Stamm related information given to him by a confidential informant known as "X." X described a man named "Alex," stated that he had observed Alex give another person methamphetamine at Alex's residence, stated he had smelled ether coming from Alex's garage, told how Alex had denied X access to the garage, and related a story from another individual that Alex manufactured methamphetamine in the garage. X later identified a photo of Gambino as "Alex." Stamm stated that X was being prosecuted for a felony and was cooperating in return for Stamm notifying the District Attorney.

Stamm's affidavit further described Stamm's own investigation of Gambino's residence. During three days of intermittent surveillance agents smelled chemicals in the immediate area of Gambino's house. The window of the garage was masked by opaque plastic. Utility records indicated that the residence used twice the amount of electricity as was average for the area. Gambino had been convicted for numerous felonies, including the manufacture of methamphetamine.

Gambino misconstrues the totality of the circumstances test described in Illinois v. Gates, 462 U.S. 213 (1983). Statements showing the "veracity" and "basis of knowledge" of informants are only two of many factors to be considered by a magistrate. The magistrate is not held to a specific checklist of requirements, rather he is asked to make "a practical, commonsense decision" based on all the circumstances set forth in the affidavit before him. Id. at 238. Furthermore, "other indicia of reliability" can compensate for deficiencies in any given factor. Id. at 233.

We have previously upheld a warrant when "the details converged to form a pattern." United States v. Kinstler, 812 F.2d 522, 525 (9th Cir. 1987). Any single factor listed on Stamm's affidavit may be meaningless standing alone, but together they form a " 'substantial basis for ... conclud [ing]' that probable cause existed." Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960), overruled in part on other grounds, United States v. Salvucci, 448 U.S. 83, 85 (1980)); see United States v. Potter, 830 F.2d 1049, 1051 (9th Cir. 1987) (fact pattern, including above average use of electricity, supported finding of probable cause).

The pattern of facts observed by Stamm also corroborates the statements made by X. See Jones, 362 U.S. at 269-71. Corroboration also overcomes Gambino's objection that the warrant was based partially on hearsay. Id. Corroboration obviously does not have to provide for every detail of an informant's tip. The fact that X was facing felony charges did not make his information incredible. See United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988). Furthermore, Gambino's own previous convictions for manufacturing methamphetamine supported X's statements. See United States v. Stanert, 762 F.2d 775, 779-80 (9th Cir. 1985), modified on other grounds, 769 F.2d 1410 (9th Cir. 1985).

Finally, Gambino asserts that Stamm misled the magistrate by referring to a chemical smell. Gambino contends that if the chemical had been ether Stamm would have been able to identify it; therefore, he must have known the chemical was not associated with the manufacture of methamphetamine. Gambino's argument is unpersuasive. The chemical smell was only one of a number of facts included in Stamm's affidavit. See Kinstler, 812 F.2d at 525. Furthermore, probable cause is a "practical, nontechnical conception." Gates, 462 U.S. at 231. Stamm's failure to use precise, technical language does not invalidate his affidavit as a basis for finding probable cause. The totality of the circumstances as presented to the magistrate in Stamm's affidavit provided a substantial basis for a finding of probable cause.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

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