United States of America, Plaintiff-appellant, v. Steven H. Elliott, Defendant-appellee, 904 F.2d 25 (9th Cir. 1990)

ORDER AMENDING OPINION AND DENYING REHEARING

The opinion filed in the above case on January 3, 1990, reported at 893 F.2d 220, is amended as follows:

On pages 224-25, righthand column, first and second full paragraphs are deleted and the following is inserted:

Finally, Elliott argues at length that Wilson fabricated the evidence against him. This contention is insufficient. The magistrate refused to find that Wilson had in fact fabricated any testimony. Although there was some evidence that Wilson once considered such a plan, the magistrate concluded that " [t]here was no evidence presented at the hearing to show that informant Wilson ever carried out any proposed scheme to plant cocaine." Elliott is unable to point to any finding in the record showing that Wilson made misstatements. Moreover, Elliott's allegations of wrongdoing go only to the presence of cocaine. Wilson also testified as to the presence of a marijuana-growing operation, and to the fact that sometime previously Elliott had a garbage bag full of marijuana at his residence. These statements alone are sufficient to establish probable cause.

The panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.