Unpublished Disposition, 918 F.2d 181 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Carl Wayne Johnson appeals the denial of his pretrial motions for disclosure of the identities of confidential informants, his motion to suppress, and motion to controvert. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

In late April or early May 1989, Detective Mark Stephens of the Douglas County Sheriff's office began an investigation into the suspected methamphetamine trafficking of Johnson. On June 8, 1989 an Oregon district court judge issued a search warrant for Johnson's residence at 569 Shakemill Road, Wilbur, Oregon, based on an affidavit by Detective Stephens in which he stated that he believed methamphetamine, drug paraphernalia, and other evidence of drug sales and purchases would be found there. He based his affidavit on information provided by four named informants, two confidential informants, and the detective's own observations from conducting a surveillance of Johnson's residence.

The affidavit specifically stated that Kimberely Arrant told Detectives Stephens and Parnell she had been to Johnson's residence and had bought methamphetamine from him within the last two months. The affidavit also stated that Patti Hall told Detective Hoy on several occasions within the past year that Johnson sold drugs and traded stolen property for drugs. It further stated that Vita Fugate had told Detective Robeson that Johnson sold methamphetamine, and Howard Goddard told Detectives Stephens and Hoy he had purchased methamphetamine from Johnson at Johnson's residence.

In addition, Stephens' affidavit stated that a confidential reliable informant claimed to have visited Johnson's residence within the last five months and observed at least an ounce of methamphetamine and numerous guns this informant knew to be stolen. A second confidential informant, "B", told Detective Hoy that "B" also observed an ounce of methamphetamine at Johnson's residence while Johnson was present at the house.

Detectives conducted a search and seized various items, including stolen property, scales, methamphetamine residue, and a machine gun with a silencer. A grand jury charged Johnson with unlawful possession of the machine gun, the silencer, and a destructive device.

Johnson filed motions for discovery, to suppress evidence, to controvert, and to disclose the identities of the confidential informants in the search warrant. At an evidentiary hearing on these motions, Johnson introduced a signed affidavit from Goddard denying he provided the information attributed to him in Detective Stephens' warrant affidavit.

At this same hearing, Michael Whitney, a private investigator working with Johnson's counsel, testified that Vita Fugate signed an affidavit denying she made the statements attributed to her to any police officer. It became clear at the hearing, however, that she did provide this information to her probation officer, who then relayed it to Detective Robeson. Investigator Whitney further testified that Arrant denied talking to the detectives, but he could not find Arrant to verify her affidavit statements. Investigator Whitney also told the court he had been unable to locate Hall.

The trial court granted Johnson's motion for discovery but denied the other motions. Johnson entered a conditional plea of guilty to the machine gun and silencer counts, reserving his right to appeal the denial of his motions. The destructive device count was dismissed.

DISCUSSION

A. Disclosure of Identities of Confidential Informants

Johnson contends that the trial court erred in denying his motions to disclose the identities of the two confidential informants referred to in Detective Stephens' affidavit in support of the search warrant for Johnson's residence. Johnson argues that the disavowals to Investigator Whitney by sources named in the search warrant placed in doubt the truthfulness of Detective Stephens' sworn statement. Johnson contends the court must require the prosecution to disclose the informants' identities to enable him to challenge Detective Stephens' veracity and the probable cause grounds for issuance of the warrant.

In Roviaro v. United States, 353 U.S. 53 (1957), the Supreme Court recognized that the government has an interest in keeping the identities of informants confidential in order to protect the public interest and to encourage citizens to communicate information about crimes to law enforcement officers. Id. at 59. However, the Court also recognized that " [w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61. The Court refused to lay down a strict rule for when disclosure is required, stating instead that the district court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62. The burden rests with the defendant to prove that disclosure of the informant's identity is necessary. United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir. 1989), cert. denied, 110 S. Ct. 1830 (1990).

The trial court found Detective Stephens had not lied or recklessly misrepresented the truth in statements he attributed to the named informants. Validity of the warrant did not rest solely on information provided by the confidential informants. The district court concluded that Johnson had failed to show disclosure of the informants' identities was necessary to his challenge of the search warrant. We agree.

Johnson contends the court should have at least conducted an in camera hearing to determine the informants' identities so that the trial judge could have tested Detective Stephens' veracity. We have recognized that an in camera hearing can serve to "accommodat [e] ... competing interests of the Government and the accused ... wherein the question is whether a law enforcement officer has lied." United States v. Moore, 522 F.2d 1068, 1072-73 (9th Cir. 1975).

The district court has discretion, however, whether to conduct such a hearing. It need not do so just because the defendant requests it. United States v. Fixen, 780 F.2d 1434, 1440 (9th Cir. 1986). True, in United States v. Kiser, 716 F.2d 1268, 1273 (9th Cir. 1983), we held that a trial court abused its discretion in denying an in camera hearing. But there, the defendant had made a substantial preliminary showing that he had identified the informant and that the affiant had significantly misstated the facts concerning information from this person. Id.; see also United States v. Stanert, 762 F.2d 775, 783 (9th Cir. 1985), amended, 769 F.2d 1410 (9th Cir. 1985).

Here, the trial court denied Johnson's request for an in camera hearing because it wasn't necessary. Detective Stephens' testimony was found to be credible. The district court thus credited statements in the warrant attributed to the named defendants. Detective Stephens' affidavit, apart from statements attributed to the confidential informants, was sufficient to support the warrant.

We conclude that the district court did not abuse its discretion by denying Johnson's motion for disclosure of the confidential informants' identities, or by refusing to hold an in camera hearing.

B. Misrepresentations by Affiant in Search Warrant

Johnson contends the trial court erred by conducting the pretrial hearing on Johnson's motion to controvert as a hearing on the veracity of the search warrant affidavit under Franks v. Delaware, 438 U.S. 154 (1978), rather than as a preliminary determination of whether or not to conduct a Franks hearing. Johnson argues that because of this error, he was required to prove by a preponderance of the evidence that Detective Stephens made intentional or reckless misstatements in his affidavit. See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

The record does reflect some confusion concerning whether the trial court, in denying Johnson's motions, conducted a Franks hearing or merely determined that Johnson failed to meet the preliminary requirements for challenging the warrant. In either event, the district court did not err.

In Franks, the Supreme Court ruled that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks, 438 U.S. at 155-56.

Here, Johnson failed to make the necessary preliminary showing. While Detective Stephens' affidavit may have included some statements which were false, Johnson has not shown that these statements resulted from anything more than mere negligence or innocent mistake. If the challenged portions of the affidavit were excluded, the affidavit is still sufficient to support a finding of probable cause. Finally, "given all the circumstances set forth in the affidavit ..., including the 'veracity' and 'basis of knowledge' of persons supplying information ...", Illinois v. Gates, 462 U.S. 213, 238 (1983), we conclude that there was probable cause for the issuance of the search warrant.

AFFIRMED.¹