Unpublished Disposition, 874 F.2d 817 (9th Cir. 1988)

MEMORANDUM^* 

Puniaputhran, a.k.a. Gana, Naiken ("Naiken"), Troezene Naiken, Alan Naidoo ("Naidoo"), and Lucillano Oliva ("Oliva") appeal from convictions on drug-related charges. The appeals were consolidated because the convictions arise from the same set of facts. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

In reviewing a magistrate's finding of probable cause, we look to the affidavit in support of the warrant to determine whether the magistrate had a substantial basis for concluding that probable cause existed. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). With respect to the search of 14 Moonlit Circle, we adopt the reasoning of the district court in its order dated January 21, 1988, and conclude that the affidavit provided a substantial basis for the magistrate's determination of probable cause. The district court did not err in denying the Naikens' motions to suppress.

The affidavit in support of the search at 5 Angel Island Circle does not provide direct evidence of probable cause for the search. Yet, direct evidence that contraband or evidence will be found at a particular location is not essential to establish probable cause to search the location. Angulo-Lopez, 791 F.2d at 1399. A magistrate may draw inferences about where evidence is likely to be kept, on the basis of the nature of the evidence and the type of offense. Id. "In the case of drug dealers, evidence is likely to be found where the dealers live." Id. Thus, if there is probable cause to believe the owner or occupant of a residence is engaged in drug trafficking, the residence may be searched. Id. at 1398-99.

The apparent family relationship between the Naikens, Dick Naidoo, and Alan Naidoo, combined with the possibly legitimate business relationship between Gana Naiken and Alan Naidoo, could give an innocent cast to much of the evidence in the 5 Angel Island Circle affidavit. It is immaterial that certain acts, if reviewed separately, might be consistent with innocence, as long as the totality of the circumstances shows the existence of probable cause. United States v. Hoyos, 868 F.2d 1131, 1136 (9th Cir. 1989). In the 5 Angel Island Circle affidavit, however, even the totality of the circumstances presents a borderline case of probable cause to believe that Naidoo was involved in a drug conspiracy.

Nevertheless, we do not believe that the 5 Angel Island Circle affidavit was so lacking in indicia of probable cause that the good faith exception to the exclusionary rule would not apply. United States v. Leon, 468 U.S. 897, 923 (1984). The evidence pointed to by the district court, including the checks, the business cards with drug notations, the calling card found in a pile of cocaine, and the records check revealing that Naidoo was a prior suspect, is sufficient indicia of probable cause so that the magistrate's issuance of a warrant made reliance on the warrant objectively reasonable.

We also find no merit in Naidoo's argument that the good faith exception would not apply here because the magistrate was misled by Agent Margarita's dishonesty or reckless disregard for the truth. See United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986). There is not enough evidence in the record to support an inference that the omissions were intentional or reckless. Even if he were a stickler for detail, Agent Margarita still could have innocently concluded that his professional opinion was sufficient to establish that drug notations on the business cards were in fact drug-related. Also, nothing in Naidoo's pro se brief establishes that the failure by DEA agents to discover that there were two Alan Naidoos was anything more than mere negligence.

Finally, with regard to the checks, Agent Margarita could have concluded that the mere location of the checks in the briefcase with other drug-related evidence was sufficient to show the incriminating nature of the checks. Thus, the omission of the amounts, dates, and original payees was not necessarily reckless or indicative of an intent to deceive. In addition, the defendants had access to the evidence seized from the searches through the discovery process. If the omitted information in regard to the checks did tend to show that the checks were not related to drug trafficking, Naidoo could have introduced that evidence at the suppression hearing. That he did not do so leads to the inference that the missing evidence would have been corroborative of guilt.

The Leon good faith exception applies to the search of Naidoo's residence at 5 Angel Island Circle. Thus, the district court did not err in denying Naidoo's motion to suppress.¹ 

II. Alleged Refusal to Grant Naidoo a Franks Hearing

Naidoo contends that the district court should have granted a hearing regarding material omissions in the 5 Angel Island Circle affidavit, as required by Franks v. Delaware, 438 U.S. 154 (1978). Franks requires a hearing with respect to material omissions of fact that tend to mislead, as long as the defendant makes a substantial showing that the omissions were deliberately or recklessly made. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985). We need not address the merits of this contention, because we conclude that this issue was not raised before the district court. The failure to raise a particular ground in support of a motion to suppress results in waiver of that ground on appeal.²  United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987).

Naidoo concedes that his trial counsel, George Walker, did not raise the Franks issue. Even if we assume that Naidoo's wife's counsel, John Virga, could have raised the issue on Naidoo's behalf, Mr. Virga also failed to request a Franks hearing. Neither of the Naidoos' motions to suppress contained such a request. At the beginning of the suppression hearing, the district court reviewed the motions that had been made and asked whether there were any additional motions. Neither Mr. Walker nor Mr. Virga raised a Franks motion at that time.

In Mr. Virga's argument before the district court at the suppression hearing, he discussed the omissions and stated, "when you examine the objective good faith of the officer, ... it appears he did act with a reckless disregard.... And I would submit to you, Your Honor, that the least we're entitled to in this matter would be a hearing on the affidavit." In context, this discussion of reckless disregard was directed toward arguing that the Leon good faith exception should not apply. Later, during the United States Attorney's argument, she stated, " [w]e're not talking about any Franks issues being raised here." Neither Mr. Walker nor Mr. Virga refuted the United States Attorney's statement that Franks issues were not being raised. We conclude that the Franks issue was not raised before the district court.

III. Ineffective Assistance by Naidoo's Trial Counsel

Naidoo argues that his trial counsel's failure to investigate material omissions, including the fact that there was another Alan Naidoo to whom information in the affidavit referred, and the failure to raise the Franks hearing issue before the district court constituted ineffective assistance of counsel in violation of his Sixth Amendment rights. To establish a prima facie ineffective assistance of counsel claim, Naidoo must show that his counsel's performance was so deficient that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (9th Cir. 1988). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Thus, Naidoo "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

On the record before this court, Naidoo cannot effectively argue that his counsel's failure to investigate was prima facie ineffective assistance because there is no evidence in the record to substantiate that there is in fact another Alan Naidoo. Even if the business tax record appended to Naidoo's brief is a part of the record on appeal, it does not conclusively establish that Poobalan Naidoo is not Alan Naidoo, the appellant, and does not establish that Naidoo has no connection with Aristocraft Furniture as an employee who might also have business cards.

In addition, the record is clearly inadequate to resolve the claim that the failure to request a Franks hearing on the other material omissions constituted ineffective assistance. There is no evidence with which to fill in the missing details regarding the checks and the drug notations. Presumably, Naidoo's trial counsel had access to this evidence through discovery. Thus, the decision not to introduce specific evidence regarding the missing details may have been a tactical decision on the part of trial counsel because the missing details merely corroborated Alan Naidoo's guilt. That type of tactical decision would not be deficient performance and thus counsel would not be ineffective. Because so much of the information pertaining to Naidoo's ineffective assistance claim is not a part of the record before this court, we decline to address the issue on this direct appeal. See Restrepo-Rua, 815 F.2d at 1329.

Oliva challenges the denial of his motion to suppress the evidence seized from his truck pursuant to a warrantless search when Naidoo was arrested. The government must prove an exception to the warrant requirement by a preponderance of the evidence. United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987). The district court held that the initial search was justified either as a search incident to Naidoo's arrest or as a plain view search. The district court did not address the second search of the vehicle in its order but the government argues on appeal that the second search was justified under the automobile exception.

The initial search of the truck was justified by the plain view exception. There are three requirements for a valid plain view seizure: (1) there must be legitimate prior justification for the officer's presence; (2) discovery must be inadvertent; and (3) the criminal nature of the evidence must be immediately apparent. United States v. Limatoc, 807 F.2d 792, 795 (9th Cir. 1987). Agent Fong saw from outside the truck that the bag contained styrofoam wrappings and tape which looked like wrappings he had previously seen used to carry cocaine. It is undisputed that Agent Fong was standing outside the vehicle where he lawfully had a right to be and that he inadvertently spotted the bag when the truck door was opened. The parties dispute whether the criminal nature of the evidence was immediately apparent.

The test for whether the criminal nature of evidence is immediately apparent is whether the officer has probable cause to believe that a nexus existed between the viewed evidence and criminal activity. United States v. Washington, 797 F.2d 1461, 1469 (9th Cir. 1986). The probable cause determination may be made in the context of the investigation as a whole. United States v. Whitten, 706 F.2d at 1013. It may also be based in part on the officer's experience. Thus, in Texas v. Brown, 460 U.S. 730 (1983), the Supreme Court held that the criminal nature of a knotted party balloon held between the defendant's fingers was immediately apparent in light of the officer's experience with the use of such balloons to carry narcotics.

There was no evidence before the district court about what the alleged wrappings actually looked like. However, the bag was located at Naidoo's feet on the floorboard of the truck and Agent Fong knew at the time of the search that Naidoo was involved in drug trafficking. In addition, Agent Fong testified that the wrappings were similar to cocaine wrappings he had seen in the past on numerous occasions. These facts are sufficient to constitute probable cause that there was a nexus between the contents of the bag and criminal activity. Thus, the plain view exception applies to the search of the bag.

When Agent Fong searched the bag, he found white powder residue inside the packaging and several bindles which contained white powder. Agent Fong testified that the bindles were similar to bindles of narcotics he had seen before. Under the automobile exception to the warrant requirement, an automobile may be searched without a warrant if there is probable cause to believe it contains contraband. The search may extend to every part of the vehicle and its contents that may conceal the object of the search, including any containers therein. United States v. Klein, 860 F.2d 1489, 1494 (9th Cir. 1988); United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988). The discovery of what appeared to be drugs in the first brown bag found on the floorboard beneath where Naidoo had been sitting provided probable cause to search the entire truck for drug evidence. Thus, the search of the second brown paper bag containing the gun and cash was lawful under the automobile exception since the bag could have contained more drugs. The denial of Oliva's motion to suppress was proper.

AFFIRMED.