Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

MEMORANDUM^* 

Defendant-Appellant Thomas Ceglia (Ceglia) appeals the district court's denial of his motion to suppress evidence subsequent to his entry of a conditional plea of guilty to possessing a machine gun with an obliterated serial number in violation of 26 U.S.C. § 5861(d). Ceglia argues that there was insufficient probable cause for the issuance of a search warrant for his house; that in the absence of sufficient probable cause, the good faith exception to the probable cause requirement should not have applied; and that he should have been granted a hearing under Franks v. Delaware, 438 U.S. 154 (1978). We affirm.

Sergeant James Carroll of the Santa Barbara County Sheriff's Department Narcotics Detail sought and obtained a search warrant on October 26, 1989 to search Ceglia's house and the motorhome parked outside. The search of the motorhome, which belonged to Ceglia's brother, who was also a resident of Ceglia's house, turned up two small containers of cocaine. A search of the house revealed a safe containing several handguns, rifles, jewelry, and a loaded MAC 10 machine gun with a silencer and an obliterated serial number. Ceglia consented to the search of the safe and admitted that the machine gun was his.

Sergeant Carroll's affidavit in support of his request for a search warrant set out that an anonymous informant had telephoned the Santa Barbara Sheriff's Narcotics Bureau on October 24, 1989 and asserted that Ceglia and his brother were in Colorado and would be returning shortly, bringing marijuana back with them to Ceglia's residence; that there was at least one safe in the Ceglia residence; and that cocaine had been stored in the safe in the past. Sergeant Carroll's affidavit also stated that he had been receiving information about the Ceglia brothers from this same, anonymous informant for over two and one half years and that the information had been accurate.¹  Sergeant Carroll had placed the Ceglia residence under surveillance and corroborated that Ceglia had returned from Colorado on the morning of October 26.

The affiant elaborated that he wished to search the motorhome because when appellant's brother, Phil Ceglia, had been convicted of selling drugs to undercover agents in 1987 he had boasted that he knew how to conceal up to a ton of marijuana in a motorhome. Additional factors in the affidavit probative to probable cause included information from 1986 onwards regarding an investigation of the Ceglias as suspected cocaine suppliers by the Durango, Colorado police department, and uncorroborated information from the informant that the Ceglias and one of their cousins had been dealing drugs out of a Santa Maria restaurant. ER 7-9.

The district court found that the search warrant was supported by probable cause. Aple's ER 27.²  In denying Ceglia's request for a Franks hearing, the court also made the factual finding that there were no reckless or intentional misstatements of fact in the affidavit. Aple's ER 50-51. The district court also ruled that in the alternative, the police officers' good faith reliance on the warrant rendered the evidence admissible under United States v. Leon, 468 U.S. 897 (1984).

Where a Franks hearing challenging the veracity of the affidavit is requested, we review de novo the district court's ruling on probable cause and accept the findings of fact underlying the decision unless clearly erroneous. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.), cert. denied, 111 S. Ct. 268 (1990).

A prima facie showing of wrongdoing is not necessary for a judge magistrate appropriately to find probable cause. Illinois v. Gates, 462 U.S. 213, 235 (1983). The state judge need only determine that there is a probability of criminal activity by making a practical, commonsense determination based on the totality of the circumstances. Id. at 230-31; United States v. Ayers, 924 F.2d 1468 (9th Cir. 1991).

The state judge need only determine "that it would be reasonable to seek the evidence in the place indicated in the affidavit," United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) cert. denied 474 U.S. 847 (1985), and is entitled to draw reasonable inferences about the material before her. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).

Here, the state judge concluded that factors such as an independent investigation of the brothers for drug activities in Colorado and the fact that the anonymous informant familiar with their modus operandi had been telephoning for two and a half years accusing the Ceglia brothers of drug distribution appropriately combined with the corroborated "deep background" information offered by the informant to produce probable cause to search the residence. In addition, it is relevant that Ceglia's brother, convicted of drug charges in 1987, also lived at the residence. See Ayers, 924 F.2d at 1478 (finding that defendant's previous arrest for possession of drugs was probative to probable cause); United States v. Castillo, 866 F.2d 1071, 1076-78 (9th Cir. 1988) (holding that it was proper to consider hearsay information that defendant was a known drug dealer).

Appellant makes much of the fact that information from the informer is innocuous-sounding and general and "could easily have been obtained from an offhand remark heard at a neighborhood bar." Aplt.Br. at 26, quoting Spinelli v. United States, 393 U.S. 410, 417 (1969). Such a characterization ignores that the information was considerably more detailed than that.³ 

In close cases like this one, the reviewing courts "should give preference to the validity of the warrant." United States v. Calabrese, 825 F.2d 1342, 1349 (9th Cir. 1987) citing United States v. Peacock, 761 F.2d at 1315. We therefore affirm the district court's determination that there was sufficient probable cause for the issuance of the search warrant.

Since we find the district court's determination of probable cause was not in error, we do not reach the question of whether the good faith exception under United States v. Leon ought to apply.

When "the defendant makes a substantial preliminary showing that a false statement (1) was deliberately or recklessly included in the affidavit and (2) was material to the magistrate's finding of probable cause, the court must hold a hearing to investigate the veracity of the affiant." United States v. Motz, No. 90-30174, slip op. at 7345 (9th Cir. June 17, 1991); United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987) (quoting Franks v. Delaware at 155-56); United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

We review the district court's decision regarding a Franks hearing de novo. Burnes, 816 F.2d at 1356. Whether allegedly false statements or omissions in the affidavit supporting the warrant were intentional or reckless is a question of fact reviewed for clear error, while the materiality of such omissions to the finding of probable cause is reviewed de novo. United States v. Bertrand, 926 F.2d 838, 842-43 (9th Cir. 1991).

Here, Ceglia has not made the requisite substantial preliminary showing that the affidavit contains deliberate falsehoods. Ceglia claims that a declaration by his defense investigator that a Durango, Colorado police officer "refused to confirm" telling the affiant that the Ceglias were suspected drug dealers in 1986 merits a Franks hearing; in fact, the Colorado detective had merely not returned the private investigator's telephone call. Ceglia also asserts that the affiant's failure to highlight for the judge that the motorhome to be searched was a 1989 model and not a 1986 model was misleading, as was the officer's withholding of the fact that previous surveillance had not turned up any narcotics activity. But cf. United States v. Whitworth, 856 F.2d 1268, 1280-82 (9th Cir. 1988) (holding that no Franks hearing was required even though the court found that the government improperly withheld the fact that a prior consent search had been conducted without finding any evidence of criminal activity) (cert. denied, 489 U.S. 1084 (1989); United States v. Dozier, 844 F.2d at 705 (holding that a Franks hearing was not required even though the affiant had misled the court as to the defendant's prior criminal record by misreading a rap sheet). There is no requirement to state a negative finding that the surveillance revealed no criminal activity. United States v. Watts, 848 F.2d 134, 137 (9th Cir.), cert. denied, 488 U.S. 928 (1988).

Further, these disputed facts were not material to the judge magistrate's finding of probable cause. The crucial information was that Ceglia's brother, a convicted drug offender who had boasted to undercover officers about his ability to conceal drugs in a camper, had just returned from Colorado in a camper, in line with an informant's prediction of his movements, and this previously reliable informant indicated that there would be drugs in the house and in the camper. See Burnes, 816 F.2d at 1357 (citing Illinois v. Gates, 462 U.S. at 236); Dozier, 844 F.2d at 705. The district court's finding was not error. AFFIRMED.