Unpublished Disposition, 859 F.2d 155 (9th Cir. 1988)

MEMORANDUM^** 

Defendant-appellant, Andrew William Walker, appeals the judgment of conviction entered by the district court pursuant to his conditional plea of guilty. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* Walker contends that the nighttime search of his apartment violated Fed. R. Crim. P. 41(c) (1). "The mere fact that evidence obtained by state officials, under a state warrant, based upon violations of state law, is used in a federal prosecution does not invoke the requirements of Rule 41. In such cases, the standard is whether the warrant comports with the requirements of the Fourth Amendment." United States v. Crawford, 657 F.2d 1041, 1046 (9th Cir. 1981). Here, the affidavit in support of the warrant presented the state court judge with reasonable cause for a nighttime search of Walker's apartment. The affidavit stated that the informant had been purchasing methamphetamine from Walker over a three-month period and that the informant had personal knowledge that Walker engaged in drug dealing late at night. Furthermore, the affiant stated that in his experience as a narcotics investigator, it was common for narcotics to be sold during the night. Given this showing, the authorization for the nighttime search was reasonable in light of the fourth amendment.

II

Walker also contends that he was entitled to discover the identity of the confidential informant because the informant's credibility was the key issue in Walker's challenge to the veracity of the search warrant. We review the denial of a motion to compel disclosure of an informant's identity for abuse of discretion. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986).

To challenge the veracity of a search warrant, a defendant must show entitlement to a Franks hearing. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983). A defendant must make specific allegations that indicate portions of the warrant claimed to be false; there must be a contention of deliberate falsehood or reckless disregard for the truth; the allegations must be accompanied by a detailed offer of proof; the offer of proof must challenge the veracity of the affiant and not that of his informant; and the challenged statements in the affidavit must be necessary to a finding of probable cause. Id. at 1271. Here, Walker has failed to make the substantial preliminary showing entitling him to a Franks hearing.

III

Walker also contends that the search warrant was based on insufficient probable cause. A magistrate's finding of probable cause may not be reversed unless it is clearly erroneous. United States v. Dozier, 844 F.2d 701, 706 (9th Cir. 1988). Applying the totality of circumstances test, it is clear that the state court judge had ample basis for finding probable cause that contraband or evidence of a crime would be found in Walker's apartment. Part of the affidavit was based on a tip by the informant that he had been buying methamphetamine from Walker for the past three months. The informant gave a detailed physical description of Walker which was later verified and corroborated by the affiant. Finally, the affiant set out in specific detail the circumstances under which the informant actually purchased methamphetamine from Walker at Walker's residence under a "controlled buy" monitored by the affiant and other officers. In view of these circumstances, there was a substantial basis for a magistrate to conclude that probable cause existed to issue the search warrant.

IV

Walker also contends that the search warrant did not authorize seizure of the 9mm semi-automatic pistol and the sawed-off shotgun. An unauthorized seizure by police of an item that comes within plain view during a lawful search of a private area must itself be supported by probable cause in order to be reasonable in light of the Fourth Amendment. Arizona v. Hicks, 107 S. Ct. 1149, 1153 (1987). "Because guns are used in many drug transactions, 'it may reasonably be inferred that an armed possessor of drugs has something more in mind than mere personal use'." United States v. Savinovich, 845 F.2d 834, 837 (9th Cir. 1988) (quoting United States v. Cannon, 472 F.2d 144, 145 (9th Cir. 1972)). Here, the officers who discovered the guns were in a lawful position to view the items and the guns were properly seized because they were probative evidence of the narcotics operation being conducted from Walker's apartment.

V

Walker's final contention is that the fifteen-year prison term without parole mandated by the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1), violates the eighth amendment's ban on cruel and unusual punishment. This is meritless. See United States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988) (15 year minimum sentence under Armed Career Criminals Act does not violate the eighth amendment).

AFFIRMED.