Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

MEMORANDUM^** 

David Ross Day appeals his conviction following a conditional guilty plea to manufacture of marijuana, in violation of 21 U.S.C. § 841(a) (1). Day contends the district court erred by failing to suppress evidence resulting from the execution of a defective search warrant. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Day argues that the evidence of marijuana manufacture must be suppressed because the search warrant used to obtain that evidence was based upon an affidavit containing intentional or reckless misrepresentations upon which the magistrate relied to find probable cause.¹  The district court, after conducting a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), found the warrant affidavit did not contain intentional or reckless misrepresentations, and thus was sufficient to establish probable cause.² 

We review for clear error the district court's determination following a Franks hearing that the defendant has failed to demonstrate recklessness or deliberate falsity in the preparation of the affidavit underlying the search warrant. United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir. 1988).

During the Franks hearing, Detective Roshak testified that (1) Richard Couturier voluntarily provided Detectives Roshak, Hein, and Perski with information connecting Day to marijuana growing operations in the Bend, Oregon area, and (2) Bob Nelson, an employee of Pacific Power and Light in Bend, Oregon, told Detective Roshak that power usage at each of the properties under investigation was high and that he could think of no legitimate purpose for such high power usage. Detective Perski testified that Detective Roshak accurately depicted Richard Couturier's statements in the affidavit in support of the search warrant. Although the testimony of Richard Couturier and Bob Nelson contradicted that of Detective Roshak, the district court specifically found Detective Roshak's testimony credible on all issues and rejected Couturier's testimony as unpersuasive.

The district court, in making its factual findings as to the credibility of witnesses at a Franks hearing, " [is] in the unique position to observe the demeanor of [the witnesses] while we have only the cold record, which is sterile in comparison." United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir. 1988) (quoting United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852 (1974)), cert. denied, 488 U.S. 1034 (1989). Nothing in the record before us demonstrates that the district court's finding that Detective Roshak was a credible witness is clearly erroneous. See Castillo, 866 F.2d at 1078. Therefore, the search warrant was not rendered invalid because of intentional misrepresentations or omissions in the underlying affidavit.³  See id.

AFFIRMED.