Unpublished Disposition, 844 F.2d 793 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 793 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Richard SOULE, Janet Faries, Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1988.Decided March 30, 1988.

Before PREGERSON, WIGGINS and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Co-defendants Janet Faries and Richard Soule entered conditional guilty pleas to counterfeiting offenses in violation of 18 U.S.C. §§ 371, 471, 472, 473, and 474. They contend that the affidavit used to obtain the search warrant contained material false statements and omissions, recklessly or intentionally made. Accordingly, they appeal the district court's denial of their motion to suppress evidence obtained through use of the search warrant. We affirm.

BACKGROUND

On September 22, 1986, U.S. Secret Service Agents executed a search warrant for 7029 Indiana Ave., Riverside, California. The magistrate issued the search warrant pursuant to an affidavit filed by Secret Service Agent Ronald Williams. The affidavit identified Faries as the suspected source of counterfeit Federal Reserve Notes and detailed her actions on September 20th and 21st, the days another suspect, Mike La Placa, traveled to Riverside allegedly to purchase $10,000 worth of counterfeit notes.

On September 20th, Secret Service Agents observed Faries travel to 7029 Indiana Ave., Riverside, California. The next day, she made three additional trips, and that evening agents saw a "red infra red lamp color" go on and off in the front bedroom window of the residence. Citing his sixteen years of experience in counterfeit investigations, Williams concluded that "the infra red light was being utilized as a darkroom to develop negatives in the initial process of counterfeiting currency."

With the above information and La Placa's identification of Faries as the source of the notes, Williams acquired the search warrant. On October 3, 1986, Soule and Faries were indicted, and on January 30, 1987, Soule noticed a motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to quash and traverse the search warrant. Faries joined in the motion which the district court granted on Feb. 23, 1987.

Following an evidentiary hearing, the district court denied the motion to suppress. Both Faries and Soule entered conditional guilty pleas under 18 U.S.C.A. Rule 11(a) (2) (West 1986), reserving their right to appeal the denial of their motions to suppress. On July 13, 1987, Faries and Soule were sentenced. On appeal, they contend that the district court erred in not finding that Williams acted in reckless or intentional disregard of the truth when he noted the existence and significance of the intermittent red light and omitted five additional trips made by Faries on September 21st.

STANDARD OF REVIEW

Whether false statements or omissions in a search warrant affidavit were intentionally or recklessly made is a factual finding reviewed under the clearly erroneous standard. United States v. Dozier, 826 F.2d 866, 869 (9th Cir. 1987).

DISCUSSION

To justify suppression, Faries and Soule must prove by a preponderance of the evidence that Williams' statements regarding the existence and significance of the intermittent red light were false, that they were recklessly or intentionally made, and that those statements were material to the finding of probable cause. See Franks v. Delaware, 438 U.S. 158, 171-2 (1978).

Faries and Soule contend that the agents could not have seen a red light in the front bedroom window because no such light existed. In addition to her own, Faries submitted seven declarations to the district court supporting her contention. None of these declarants, however, could swear to the absence of a red light on September 21, 1986, the night five secret service agents declared they had seen the red light go on and off in the front bedroom window of 7029 Indiana Ave. We do not find that the district court clearly erred in balancing the credibility of Faries' declarations against the agents' credibility and finding that the agents saw an intermittent red light.1 

Even if the agents did see a red light, Faries and Soule argue that Williams and the other agents falsely concluded that the intermittent red light was indicative of counterfeit printing activity on the premises. At the hearing, Williams admitted that in his experience darkrooms are made to be completely impenetrable by light from the outside and that he failed to consider the probability that if red light could be seen coming through the sheets in the window, the room could not be used as a darkroom.

Although the district court found William's lack of knowledge about the counterfeiting process disturbing, the court found that Williams and the other agents "believed (even though it may have been only 'conventional wisdom' within the Service) that red light was indicative of printing activity." The district court did not believe that Faries' expert witnesses informed the court as to "exactly how the printing in question occurs." We do not find that the district court clearly erred in finding the expert testimony of a printing student and that of a former dental assistant unconvincing and finding that Faries and Soule failed to meet their burden of proving that Williams falsely concluded that the red light indicated the photographic developing process required in counterfeiting.

Soule contends that the district court erred in considering the "conventional wisdom" of the Secret Service Agents in evaluating the veracity of Williams' conclusion. In doing so, Soule argues, the district court improperly exalts the subjective belief of the officer above the objective standards required by Fourth Amendment analysis.2  See Beck v. Ohio, 379 U.S. 89, 97 (1964).

Soule cites numerous cases as holding that conclusions and opinions based on expertise and experience must be objectively reasonable, but in each of them, the officers based their conclusions on considerably less evidence than the evidence possessed by the agents in the instant case. Terry v. Ohio, 392 U.S. 1, 22 (1968); United States v. Ortiz, 422 U.S. 891, 892 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 875 (1975); United States v. Chadwick, 393 F. Supp. 763, 769 (D.Mass 1975), aff'd, 532 F.2d 773 (1st Cir. 1976), aff'd, 433 U.S. 1 (1977).

In United States v. Michaelian, 803 F.2d 1042 (9th Cir. 1986), this court noted that "opinions and conclusions of an experienced agent regarding a set of facts are properly a factor in the probable cause equation under the Gates totality of the circumstances approach." Id. at 1045. In Michaelian, this court held that a magistrate would have a substantial basis for a finding of probable cause for violation of federal tax laws when informants told IRS agents that Michaelian was involved in a cash skimming scheme, in violation of state law, and that the ledger containing phony entries was used to prepare taxes. Based on their experience, the IRS concluded from this information that large sums were being fraudulently deducted in violation of tax laws. As in Michaelian, agents in the instant case used their experience to come to an objectively reasonable conclusion; the agents knew red lights are involved in photographic developing which is part of the process of counterfeiting; the agents saw an intermittent red light in a house frequented three times in a single day by a counterfeiting suspect and concluded that the photographic developing related to counterfeiting was taking place. At worst, the agents failed to take their logic a step further and consider the possibility that the visibility of red light might make developing impossible.

As the above discussion indicates, Faries and Soule failed to meet their heavy burden of proving by a preponderance of the evidence that the agents did not see an intermittent red light and that the intermittent red light could not be indicative of counterfeit printing activity. Because appellants failed to prove that the affidavit contained misstatements, we need not address the questions of reckless or intentional disregard of the truth or the materiality of said statements.

Faries contends that the district court erred in finding Williams merely negligent in his failure to mention her five other trips on September 21st, including trips on which La Placa accompanied her.3  The government argues that Williams reasonably omitted Faries' other visits because she visited the other addresses only once while she visited 7029 Indiana Ave. three times. The government also argues that Williams could reasonably find Faries' trips to her parents' home, her brother's home, an automobile dealership, real estate office, and an open house irrelevant to the counterfeit investigation.

Whether misstatements or omissions are knowingly, recklessly or negligently made is a factual question guided by cases in which we have found reckless disregard by an affiant. United States v. Dozier, 826 F.2d 866, 870 (9th Cir. 1987). In Dozier, we held that a district court did not clearly err in finding a DEA agent merely negligent when he stated in an affidavit that a suspect had a record detailing convictions for drug violations when the suspect had only one conviction 15 years earlier. We also affirmed the district court's finding that the agent did not knowingly or recklessly disregard the truth when he knowingly stated in the affidavit that another officer had told him that he had seen cars in the suspect's driveway registered to individuals arrested for growing marijuana, when the officer had made no such statement. Id.

Dozier demonstrates the heavy burden of proof borne by appellants and the great deference given to district court determinations in Franks hearings. Williams' failure to include Faries' additional trips seems far less reckless and misleading than the gross misrepresentations in Dozier.4 

In light of Dozier, we do not find that the district court clearly erred in finding that Williams' failure to mention Faries' other trips was a merely negligent omission.

CONCLUSION

The district court did not clearly err in finding that Faries and Soule failed to meet their burden of proving that Agent Williams' affidavit contained misstatements and omissions made in intentional or reckless disregard of the truth. We affirm.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Soule argues that the district court improperly based its ruling on the government's argument that only Williams' veracity could be challenged, not the veracity of Agent Hunter and the other agents. Contrary to Soule's allegation, however, the district court looked directly at the veracity of the agents reporting to Williams: " [i]t is clear that a number of agents did in fact see what they thought was an intermittent red light coming from a window at the Indiana address."

 2

Because Williams represented in the affidavit that the conclusion was his alone, Soule finds fault with the district court's consideration of the other agents' conclusions that the red light indicated counterfeiting was in progress. The other agents' conclusions, however, are relevant to the reasonableness of Williams' conclusion

 3

Faries also contends that Williams recklessly failed to indicate that Faries ran a business from 7029 Indiana Ave., Riverside, California which would explain her many trips. The record gives no indication that, at the time of writing the affidavit, Williams knew or should have known that Faries ran a business from that address. Thus, Williams would not be reckless in omitting that fact

 4

Faries seeks support for her contention that the district court erred in not finding reckless disregard of the truth in United States v. Davis, 714 F.2d 896, 900 (9th Cir. 1983). In Davis, we held that reckless disregard of the truth had been proved when the affiant signed an affidavit written in the first person which represented that he had done all the witness interviews and had first hand knowledge of the facts, when he had not. Again, Williams' omissions do not rise to this level of misrepresentation

Faries also cites United States v. Stanert, 762 F.2d 775 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985), United States v. Burnes, 816 F.2d 1354, 1357-8 (9th Cir. 1987), and United States v. Chesher, 678 F.2d 1353 (9th Cir. 1982). Stanert, Burnes, and Chesher, however, involved this court's determination that a substantial preliminary showing of reckless disregard existed, entitling the defendants to a Franks evidentiary hearing. The case at hand involves the much higher standard of proof required for suppression, preponderance of the evidence.