Unpublished Disposition, 877 F.2d 65 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 65 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.James D. JEWETT, Sr., Defendant-Appellant.

No. 88-1382.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1989.Decided June 16, 1989.

Before HUG, SCHROEDER and CANBY, Circuit Judges.


Appellant James D. Jewett challenges his convictions, based upon a conditional plea of guilty, for manufacture of methamphetamine, a violation of 21 U.S.C. § 841(a) (1) (1982), and use of a firearm, a violation of 18 U.S.C. § 924(c) (1) (Supp.IV 1986). Specifically, he contests the validity of the warrants that authorized the search of his residence and a self-storage locker. Jewett also argues that the district court improperly denied his request for a hearing made pursuant to Franks v. Delaware, 438 U.S. 154 (1978). We affirm.

A. Adequacy of the Orangevale Avenue Search Warrant

Jewett first contends that the search warrant for his residence was issued without probable cause. We review a magistrate's probable cause determination only for clear error, see United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986), and must uphold the warrant if "under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed." Id. (citation omitted).

Given the overwhelming amount of circumstantial evidence collected by drug enforcement agents in this case as well as Jewett's past record of drug involvement, the magistrate clearly had a "substantial basis" for concluding that probable cause existed.1  Further, contrary to Jewett's assertions, the information relied upon by the magistrate in issuing the search warrant was not impermissibly stale, but rather tended to establish the existence of an ongoing methamphetamine operation. In such circumstances, consideration of evidence accumulated over time is proper. See United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 109 S. Ct. 312 (1988); United States v. Landis, 726 F.2d 540, 542 (9th Cir.), cert. denied, 467 U.S. 1230 (1984).

Since the search of the Orangevale property was supported by a valid warrant, the district court correctly denied Jewett's suppression motion.

Jewett next argues that, even if the search of his residence is upheld, a subsequent search of a self-storage locker must be invalidated because the search warrant upon which it was based was not supported by probable cause. We disagree. Agent Potes' affidavit established a sufficient connection between the locker and the illegal activities that were taking place at Jewett's residence to provide independent probable cause justifying its search. Indeed, in United States v. Cardona, 769 F.2d 625 (9th Cir. 1985), we upheld a warrant for two storage lockers on remarkably similar facts. Thus, the magistrate did not commit clear error by issuing a warrant for the locker, see McQuisten, 795 F.2d at 861, and the contents of the locker need not be suppressed.

Claiming that false statements were knowingly or recklessly made by Agent Potes in order to obtain the Orangevale Avenue warrant, Jewett requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The district court, however, refused to hold a Franks hearing. We review this decision independently. See United States v. Burnes, 816 F.2d 1354, 1356 (9th Cir. 1987).

In order to establish an entitlement to a Franks hearing, a defendant must: (1) allege specifically which portions of the warrant affidavit are claimed to be false; (2) contend that the false statements were deliberately or recklessly made; (3) submit a detailed offer of proof, including affidavits, to substantiate these allegations; (4) challenge the veracity of only the affiant; and (5) establish that the challenged statements were necessary to the magistrate's finding of probable cause. See United States v. DiCesare, 765 F.2d 890, 894-95 (9th Cir.), modified on other grounds, 777 F.2d 543 (1985). We agree with the district court that the 3-page affidavit submitted by Jewett's attorney in an attempt to comply with these requirements does not constitute a "detailed offer of proof" sufficient to require that a hearing be held. Indeed, the affidavit would do little to support Jewett's argument that Agent Potes is guilty of knowing or reckless misrepresentation even if the unsubstantiated allegations made in it by Jewett's attorney were taken as true. Refusing a Franks hearing in such circumstances was not error.

The warrants challenged by Jewett were supported by probable cause and the district court did not err in refusing to hold a Franks hearing. Thus, Jewett's convictions must be affirmed.



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


Because we conclude that probable cause existed to search the Orangevale property even without the information supplied by the anonymous informant, we do not reach Jewett's argument that reliance on the telephone tip was improper under Illinois v. Gates, 462 U.S. 213 (1982)