Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Darrow K. ERLIN, Defendant-Appellant

No. 88-1198.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 19, 1989.Decided May 12, 1989.

Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.


Darrow Erlin appeal his conviction for possession of cocaine with intent to distribute. We affirm.


After his indictment, Erlin moved to suppress all evidence seized from his home pursuant to a search warrant. He contended that the affidavit in support of the warrant contained material intentionally or recklessly false statements and omissions. Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the district court held an evidentiary hearing and amended the affidavit to include certain omitted facts and to modify certain facts that were erroneous or exaggerated. The district court then found that the affidavit, as amended, still established probable cause to support the warrant and denied the motion to suppress.

The affidavit, as amended, contained information obtained from an informant and from police surveillance of Erlin's home. The informant stated that Erlin was selling about six kilograms of cocaine a week from his home and that the informant had once seen six kilograms of cocaine in Erlin's kitchen. Police surveillance, described in the affidavit, established that during the course of a day as many as 12 cars stopped at Erlin's home. The car's occupants usually entered the house, remained about 15 to 30 minutes, and then left. Some of the visitors were identified by the police as having been arrested or convicted on drug-related charges.

Erlin was convicted and makes a timely appeal.


Erlin first argues that the information contained in the affidavit was stale and thus did not support a finding of probable cause. Erlin's argument is specious. The informant provided information that Erlin was continuing to sell drugs from his home less than a month before the warrant issued. Moreover, police surveillance described in the affidavit linked him to activity which suggested drug sales from March 6 until March 11, the day the warrant was issued. See United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987) (pattern of short visits suggests drug sales). This evidence of ongoing illegal activity occurring until the very day before issuance of the warrant provided a " 'substantial basis for ... conclud [ing]' that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting Jones v. United States, 362 U.S. 257 (1960)).

Erlin also argues that the confidential informant was an unreliable source of information. In reviewing this claim, we consider whether the affidavit established the informant's basis of knowledge and his veracity or the reliability of the report, either by history of reliable information or by corroboration. See United States v. Landis, 726 F.2d 540, 541 (9th Cir.), cert. denied, 467 U.S. 1230 (1984). According to the affidavit, the informant personally observed cocaine in Erlin's home. Moreover, the informant's information that Erlin was engaged in large-scale drug sales was corroborated by police surveillance of Erlin's home. We therefore conclude that the informant was reliable. See Landis, 726 F.2d at 542-43.

Erlin's conviction is hereby AFFIRMED.


The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4


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