Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

In executing a search warrant at the residence of Michael Nolan, DEA agents found a methamphetamine lab in an outbuilding and methamphetamine, lab equipment, and firearms inside his home. After his arrest, he admitted that he manufactured methamphetamine in the outbuilding. He entered a conditional guilty plea to a charge of manufacturing methamphetamine, preserving his right to appeal the district court's denial of his motion to suppress.

Nolan asserts that the evidence obtained during the search should have been suppressed because of alleged falsities in the affidavit supporting the warrant.¹  He argues also that the evidence should have been suppressed because of alleged property damage occurring during the execution of the warrant. We affirm.

ANALYSIS

Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant is entitled to a hearing on an alleged "false affidavit" issue only if these conditions are met:

(1) The defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause.

United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir. 1985).

Once a substantial preliminary showing is made, the court must hold a hearing to determine if any deliberate or reckless false statements were material to the finding of probable cause. United States v. Burns, 816 F.2d 1354, 1357 (9th Cir. 1987). If the affidavit is sufficient to support a finding of probable cause without the alleged false material, no hearing is required. Id. An affidavit is sufficient to support a finding of probable cause if all circumstances set forth gave the magistrate a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1982).

We review de novo the district court's refusal to hold a Franks hearing. Burns, 816 F.2d at 1356. We also review de novo its ruling as to the existence of probable cause, but its findings of fact will be accepted unless clearly erroneous. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.), petition for cert. filed, (August 23, 1990).

Nolan alleges seven false statements in the affidavit. First, it stated that Dottie Brown was a "convicted narcotics dealer", when there is no such Oregon crime. In fact, she had been convicted of possession of a controlled substance (methamphetamine). The district court found that this minor technical error had no effect on the magistrate's decision to issue the warrant. We agree. Brown's involvement with methamphetamine and the defendant were established without the statement.

It also appears that the statement was inadvertent, not reckless or intentional. "Mere negligence in checking or recording the facts relevant to a probable cause determination is not sufficient to warrant a Franks hearing." Burns, 816 F.2d at 1358.

Second, it stated that Nolan's house was located on the Northwest corner of "Winnetka and Catalpa" in Jackson County, Oregon. The only discrepancy raised by Nolan is that a field occupied the actual corner and the house was behind the field. The statement in the affidavit was neither false nor material to the finding of probable cause. This contention, too, is ridiculous.

Third, it misrepresented that a barn was on the property. The affidavit identified Nolan's residence as 3619 Catalpa Drive. It further stated that when the special agents observed the residence, they saw a house and a barn-type structure. Nolan claims that this was a material false statement because the tax records show that the barn was on an adjacent property not owned by him. The court found the affidavit to be truthful. So do we.

The tax records and the affidavit show that he owned the residence at 3619 Catalpa. The statement that the agents observed a barn-like structure was true. The affidavit never claimed that it was on the same lot. Anyway, the technical location of the barn was not material to the finding of probable cause.

Fourth, it included a misleading photograph of his house. The affiant attached a photograph of the Nolan house to the affidavit. Nolan claims that the photograph was insufficient to identify the house at 3619 Catalpa, but he never claimed that the photograph was not of his house. He failed to allege a falsity and was not entitled to a Franks hearing.

Fifth, it included false statements relating to confidential informant # 3. The affidavit described how a purchase of a white powdery substance (methamphetamine) was made from Nolan by a known narcotics dealer who in turn sold the substance to confidential informant # 3. Nolan argues that the white powdery substance was different from the methamphetamine seized in the search and could not have been purchased from him. He did admit, however, that he had sold methamphetamine to the dealer.

The evidence shows that the affidavit contains information obtained from reliable sources who conducted a controlled purchase. It contains no intentional or reckless false statement. The affiant relied on statements from an informant and other agents, and believed that the information was true. Such reliance does not give rise to a hearing. See Franks, 438 U.S. at 165.

Sixth, it included false statements from confidential informant # 2. The affidavit states that the informant had smelled a chemical odor in the area and pointed out Nolan's house as the source. The agents exposed the informant to the odor from a methamphetamine lab. He identified it as the same odor that came from Nolan's house. Nolan argues that the informant could not have known where the odor came from because there were multiple residences in the area. He does not argue that the affiant falsified the informant's statement. He failed to attack the veracity of the affiant and was not entitled to a Franks hearing. Id. at 171.

Finally, there was attached a map fabricated by the government. It was obtained in the execution of a search warrant at the Dottie Brown residence and an "X" on the map showed the defendant's residence. The court held a Franks hearing and found that the map was not fabricated.

There was conflicting evidence on the issue, but there was more than enough evidence to support the court's finding. Brown testified that she did not remember such a map. The government testified to its existence, seizure, and transfer to the affiant. The district court found that Brown's statement simply evidenced a lack of recollection on her part. Its finding is not clearly erroneous.

We affirm the denial of the motion to suppress. The magistrate had a substantial basis for finding probable cause for the warrant.

The district court also denied Nolan's motion to suppress because of alleged property damage during the execution of the warrant. He claims that the officers nailed a stop sign to his door and damaged it. The government says that the sign was already on the door.

This issue is irrelevant to a motion to suppress. The cases cited by Nolan are not on point. They address the issue whether a suit for civil damages may be brought for property damage caused in the execution of a warrant. The motion to suppress was properly denied.

AFFIRMED.