139 F.3d 909: United States of America, Plaintiff-appellee, v. Robert Troy Howard, Defendant-appellant

United States Court of Appeals, Ninth Circuit. - 139 F.3d 909

Submitted Feb. 9, 1998**.Decided Feb. 20, 1998


Appeal from the United States District Court for the Western District of Washington Jack E. Tanner, Senior Judge, Presiding.

Before PREGERSON, CANBY, and LEAVY, Circuit Judges.

1

MEMORANDUM*

2

Robert Troy Howard appeals his conviction following a conditional guilty plea to conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2, use of a minor in the manufacture of methamphetamine in violation of 21 U.S.C. §§ 861(a)(1), (d), and 841(a)(1), and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3

Howard challenges the validity of a search warrant he contends was based on an affidavit containing recklessly misstated material facts. This contention lacks merit.

4

We review for clear error the question whether misstatements or omissions in an affidavit supporting a search warrant were recklessly or intentionally made. See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988). In order to invalidate a search warrant based on the supporting affidavit, Howard must show by a preponderance of the evidence that (1) the affiant "knowingly or recklessly included false information," and (2) that "the challenged statement was essential to the finding of probable cause." Id. (citations omitted). Howard's contention fails because he did not demonstrate that the affidavit contained any materially false information, much less that the affiant made knowing or reckless misstatements. See id.

5

AFFIRMED.