Unpublished Disposition, 940 F.2d 1537 (9th Cir. 1990)

MEMORANDUM^** 

Defendant, Edward M. Parris, appeals from his conviction for manufacture of marijuana. Specifically, he asserts that a search warrant for his premises (the Proctor Ranch) was issued without probable cause, and that the affidavit in support of the warrant contained false statements or omissions of material facts. We affirm.

Parris previously appealed on the same grounds, as well as others. See United States v. Parris, No. 89-30223 (9th Cir. 1990). In a memorandum disposition, we remanded the case to the district court so that the court could make the findings required by Fed. R. Crim. P. 12(e). See our memorandum disposition in No. 89-30223 which was filed September 13, 1990. The district court has now made those findings.

The district court found that there was probable cause for the issuance of the warrant. That determination was not erroneous. The magistrate's finding of probable cause is accorded "great deference." Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983). The probable cause determination will be sustained if, under all of the circumstances in the affidavit, there is a "fair probability" that evidence of a crime will be found in a place described. Id. at 238, 103 S. Ct. 2332. The affidavit showed that Parris had previously been involved in marijuana cultivation. His involvement had been with Dale Burns and others who commenced marijuana growing activities at a rural property at about the time that Parris commenced his activities at the Proctor Ranch. The affidavit made reference to the fact that a gravel truck had visited the premises and that a water truck was to be found upon the premises. Both gravel and large quantities of water are required for an indoor cultivation operation of the type that Parris was suspected of conducting. The affidavit also described activities on the ranch, and modifications consistent with indoor cultivation. These facts demonstrated a fair probability that an indoor cultivation operation existed on the ranch. Cf. United States v. Calabrese, 825 F.2d 1342, 1349 (9th Cir. 1987).

Parris, however, contends that the affidavit contained false statements or omitted facts. To succeed he must at least show that the false statements were made intentionally or recklessly. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978). He must also show that with the offending information set aside there would not be probable cause. Id. The same approach has been extended to deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 780-82 as amended, 769 F.2d 1410 (9th Cir. 1985). The district court found that those conditions did not obtain in this case. In so doing, it did not err.

Parris attempts to nibble away at the affidavit and at the district court's holdings by asserting, in effect, that the numerous suspicious circumstances could have an innocent explanation and that the affiant should have told the magistrate so. For example, the affidavit referred to the taking of a load of gravel (a substance used in indoor grow operations) to the vicinity of the buildings on the ranch. Parris says that gravel can be used for things other than marijuana growing. True, but that is beside the point. The affidavit referred to a substantial increase in electricity usage, something often associated with indoor growing operations. Parris says that the increase may have been caused by other household needs. He notes that he, in fact, ran many of the marijuana grow lights from generators. Again, that is beside the point. His other objections are of the same ilk. They are not sufficient to overturn the district court's findings.

AFFIRMED.