Unpublished Disposition, 884 F.2d 582 (9th Cir. 1988)

MEMORANDUM^* 

Robert L. Huffman ("Huffman") appeals his conviction following his entry of a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a) (2). On appeal, Huffman contends that the district court erred in denying both his motion to suppress and his request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Huffman specifically contends that the affidavit submitted in support of the search warrant for his residence contained materially false statements, in that it avers that the affiant, a male law enforcement officer, searched a confidential informant prior to conducting two controlled buys of contraband without disclosing that the confidential informant was female and was, in fact, strip searched by a different female officer. We have jurisdiction under 28 U.S.C. § 1291 (1982). Because the alleged misrepresentations in the underlying affidavit were not material to a determination of probable cause, we affirm.

Huffman's residence was searched pursuant to a search warrant issued by a Judge of the Sonoma County Municipal Court. Probable cause for the warrant was set forth exclusively in the affidavit of Sonoma County Deputy Sheriff William P. Cogbill ("Cogbill").

Cogbill's affidavit states that in January 1988, he was introduced to a confidential informant ("CI") who stated that "he/she" had purchased narcotics from appellant on several occasions. Throughout his affidavit, Cogbill referred to the CI as "he/she."

There is nothing in the record to suggest that the CI had previously provided information to Cogbill or any other member of the Sonoma County Sheriff's department. However, the informant admitted "to being addicted to methamphetamine in the past" and Cogbill noted that "the CI demonstrated an extensive knowledge" regarding the use, packaging and sales of methamphetamine.

In his affidavit, Cogbill stated that "(w)ithin the past ten days" he had "made two controlled purchases of methamphetamine from Huffman" using recorded county funds. Cogbill further stated that "(o)n each occasion, I searched the CI and his/her vehicle for controlled substances and/or money, with negative results." In both instances, Cogbill observed the CI enter and exit appellant's residence and then followed the CI to a prearranged meeting place where the CI gave Cogbill a plastic bag containing a substance which subsequently proved to be methamphetamine.

Cogbill's supplemental declaration submitted in connection with a separate state court action reveals that the confidential informant was female and that the two controlled buys occurred on January 19 and January 20, 1988. ER, Ex. F. The supplemental declaration also reveals that Cogbill did not physically search the CI prior to conducting the controlled buys. Rather, with respect to the first buy on January 19th, he had a female community services officer strip search the CI while he searched the CI's purse and her car. Id. With respect to the second search, Cogbill did not have the CI strip searched because "she was expecting it to be done." Instead, Cogbill had the CI empty her pockets and then he "pat-searched her for contraband with negative results."

The warrant for appellant's residence was issued on January 27, 1988 and the return indicates that the warrant was executed on February 2, 1988. ER, Ex. E. Inside Huffman's residence, the officers discovered narcotics, several thousand dollars in cash, and numerous weapons. Appellant was subsequently charged in a seven count indictment with: (a) violating Title 21 U.S.C. § 841(a) (1); (b) violating Title 26 U.S.C. § 5861(d); and (c) violating Title 18 U.S.C. § 924(c) (1). ER, Ex. C.

On July 1, 1988, the district court heard argument on appellant's motions to suppress and for an evidentiary hearing. Appellant sought to convince the district court that deputy Cogbill intentionally misled the municipal court judge by: (a) stating that he had searched the CI prior to making the controlled buys; and (b) concealing the CI's gender in order to cover-up the fact that he had not actually searched the CI. Appellant argued that the discrepancy in Cogbill's affidavit entitled him to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

The district court denied the motion. The court concluded that probable cause arose out of the controlled purchases and that any information regarding the search of the CI was "peripheral" to the establishment of probable cause. ER, Ex. D at 7-8. Finally, the district court concluded that there had not been any attempt to mislead the judge because, by using the expression "he/she," the agent had indicated to the municipal court judge that the confidential informant could be a woman. Id.

This court reviews de novo a district court's denial of a motion for a Franks hearing. United States v. Burnes, 816 F.2d 1354, 1356 (9th Cir. 1987); United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986).

In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the Supreme Court held that:

(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-56, 57 L. Ed. 2d at 672.

Although the decision to hold a hearing must be made on a case by case basis, the Court set forth guidelines for determining whether a defendant has made a substantial preliminary showing:

(t)o mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.... Allegations of negligence or innocent mistake are insufficient.... Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

Id. at 171-172, 57 L. Ed. 2d at 682.

We have held that in order to make a "substantial preliminary showing," a defendant must satisfy five requirements:

(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; (5) the challenged statements must be necessary to find probable cause.

United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (citing United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985)).

The only issues in dispute are: whether the statement "I searched the CI" was deliberately false or was made with a reckless disregard of the truth; and whether the affidavit would support a finding of probable cause without the allegedly false statement.

Appellant contends that the discrepancy between Cogbill's affidavit and his supplemental declaration is analogous to the discrepancies noted in United States v. Burnes, 816 F.2d 1354 (9th Cir. 1987) and United States v. Davis, 714 F.2d 896 (9th Cir. 1983). Although a Franks hearing would have provided credibility determinations, it is unnecessary to resolve whether Cogbill deliberately or recklessly made a false statement or was merely negligent because the challenged statements are not material to establishing probable cause. See Burnes, 816 F.2d at 1358.

A reviewing court must apply the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) in order to determine whether the district court had a substantial basis for concluding that probable cause existed for issuance of the warrant. A district court's probable cause determination in a case with a redacted affidavit is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 109 S. Ct. 312, 102 L. Ed. 2d 331 (1988). "The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively. We must determine, therefore, whether the affidavit, once corrected and supplemented, would provide a magistrate with a substantial basis for concluding that probable cause existed." United States v. Stanert, 762 F.2d 775, 782 (9th Cir), amended, 769 F.2d 1410 (9th Cir. 1985).

Huffman contends that, absent Cogbill's statement that he searched the CI, there is no basis for concluding that the previously untested CI purchased narcotics at appellant's residence. The government argues that: (1) Cogbill's failure to mention that the CI was searched by another officer is an omission which only tends to reinforce the probable cause determination; (2) even if Cogbill's statement regarding the first buy were disregarded, the second controlled buy still provides a sufficient basis for concluding that there was probable cause to search appellant's residence; and (3) the informant's reliability is established by her admissions against interest and by the fact that the two controlled buys occurred.

The district court's conclusion is well founded. The affidavit indicates that a confidential informant, who appeared knowledgeable about narcotics, had purchased narcotics from appellant in the past. The affidavit further indicates that Cogbill had orchestrated two controlled buys from appellant using the same confidential informant. It also states that the informant had admitted to purchasing and using narcotics in the past. This statement arguably subjected the informant to "possible personal or penal risk." United States v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir.), cert. denied, 449 U.S. 824 (1980). Finally, the information about appellant was, in fact, corroborated by the two controlled buys.

Nothing in Gates or any other case involving the use of confidential informants suggests that affiants are required to set forth some type of additional facts (such as searching a confidential informant) before a magistrate may permissibly find probable cause arising out of the controlled purchase of narcotics from a defendant. Rather, the operative inquiry is whether, taken together, the "totality of the circumstances" suggests that there is probable cause to believe that evidence of a crime will be discovered at the premises to be searched. Under the totality of the circumstances in this case, the district court did not err in concluding that, even without the information about searching the informant, there was probable cause to search appellant's residence.

Appellant's final contention is that the warrant was stale because it was executed 13 days after completion of the second controlled buy, and that, in light of the small amount of methamphetamine purchased by the CI, it was not reasonable to conclude that appellant was still engaging in narcotics sales on the premises 13 days later. This issue was not raised before the district court and is therefore not properly raised on appeal. In any event, "(t)he mere lapse of time is not controlling in a question of staleness." United States v. Dozier, 844 F.2d 701, 707 (9th Cir. 1988) (five and one half month delay between gathering information about marijuana operation and preparing affidavit for search warrant did not render information stale given that "marijuana cultivation is a long-term crime").

Given that appellant's narcotics sales had apparently been continuing over the period of several months and that the confidential informant saw appellant remove the methamphetamine from a large plastic bag containing approximately three ounces of methamphetamine, it was not unreasonable to conclude that evidence of the narcotics transactions would still be on the premises.

CONCLUSION

Regardless of whether the officer intentionally or recklessly stated that he had searched the confidential informant, that information was not material to the municipal court judge's decision to issue a warrant. The district court did not err in refusing to grant appellant's request for a Franks hearing and in denying appellant's motion to suppress the evidence seized from appellant's residence. Accordingly, the judgment is AFFIRMED.