Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

MEMORANDUM^** 

Keigh Horsley appeals from the district court's order denying his motions to suppress and for a hearing to challenge the statements made in a search warrant affidavit under Franks v. Delaware, 438 U.S. 154 (1978). He alleges numerous errors in the affidavit used to secure a search warrant against him. We affirm.

* On February 4, 1988, a Multnomah County District judge issued a warrant to search Horsley's person and residence based on information set forth in an affidavit. The police executed the warrant on February 6, 1988, and found supplies of cocaine and proceeds of criminal activity in Horsley's home.

On May 25, 1988, a federal indictment was filed charging Horsley with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a) (1). On July 21, 1988, Horsley filed numerous motions, including a motion to suppress and a motion for a hearing under Franks. On September 9, 1988, the court issued a memorandum and order denying the motions. On October 31, 1988, Horsley pleaded guilty to the charge, but preserved his right to challenge the district court's order denying these motions. See Fed. R. Crim. P. 11(a) (2). The district court entered the judgment of conviction on January 13, 1989. This appeal followed.

II

A criminal defendant is entitled to a Franks hearing when he "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 finding of probable cause." Franks, 438 U.S. at 155-56. This court has broken down the Franks test into 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 ommissions 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; and (5) the challenged statements must be necessary to find probable cause." United States v. DiCesare, 765 F.2d 890, 894-95 (9ty Cir. 1985) (citing United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983)).

Horsley fails to make the requisite showing. First, Horsley does not contend that the statements of the affiant were false, reckless, or deliberately made. Rather, he objects to certain inferences of the affiant and an immaterial misstatement that one J.B. Hanson was the defendant's father when in fact this person was Horsley's grandfather. Second, Horsley challenges the veracity of the parole officer's statements and not those of the affiant. Thi rd, Horsley fails to make a detailed offer of proof; instead he points to vague" investigation by the defense." Finally, Horsley fails to show how the challen ged statements were necessary to find probable cause. In this last respect, th e case is distinguishable from United States v. Stanert, 762 F.2d 775 (9th Cir. 1985), modified, 769 F.2d 1410 (1985), cited by Horsley, where the affiant's § tatements were necessary to the finding of probable cause.

Horsley's challenge to the court's finding of probable cause to search must also fail. We ascertain whether there was probable cause by liiking at the " totality of the circumstances" set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 230 (1983). Of particular interest to us, however, is evidence of the affiant's reliability and basis of knowledge. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).

Horsley complains that the court erred in denying his motion to suppress because: (1) the informants did not have first-hand knowledge, but relied instead upon hearsay, which is incredible; (2) the information was stale; (3) the warrant failed to establish a nexus between the objects sought and the place to be searched; and (4) the affiant improperly relied upon Horsley's connection to other persons engaged in criminal activity to presume guilt by association.

Horsley's first argument -- that the informants did not have first-hand knowledge -- is meritless. The search warrant affidavit refers on numerous occasions to the informants' personal knowledge of facts giving rise to probable cause. For instance, the affiant relates that he observed one ounce of cocaine in Horsley's house in November 1987. Furthermore, the information provided by the principal informant was corroborated by several independent sources. Courts have "consistently recognized the value of corroboration of details of an informant's tip by independent police work." Gates, 462 U.S. at 241.

Horsley next argues that the information provided in the affidavit was stale. We disagree. The Supreme Court has long recognized that for probable cause to exist, "the proof must be of facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time." Sgro v. United States, 287 U.S. 206, 210 (1932) (emphasis added). Yet, this court recognizes that " [w]ith respect to drug trafficking, probable cause may continue for several weeks, if not months, of the last reported instance of suspect activity." United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). There must simply exist a "sufficient basis to believe, based on a continuing pattern of other good reasons, that the items to be seized are still on the premises." United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034 (1984).

Here, the information contained in the affidavit was not stale. The affiant's statement that he had observed one ounce of cocaine in Horsley's home in November 1987, in addition to the cumulative evidence of Horsley's involvment in a drug conspiracy, gave the court a sufficient basis to find probable cause at the time it issued a warrant in February 1988.

Finally, Horsley alleges that the affiant failed to establish the required nexus between the objects sought and the place to be searched. Again, we disagree. Direct evidence that contraband or evidence is at a particular location is not essential to establish probable cause to search the location. United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987); United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985). A judge is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense. Fannin, 817 F.2d at 1382. In the case of drug dealers, evidence is likely to be found where the dealers live. United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert. denied, 441 U.S. 965 (1979). When the traffickers consist of a ringleader and his assistants, a fair probability exists that drugs will be present at the assistants' residences as well as at the ringleader's. Angulo-Lopez, 791 F.2d at 1379 (citing authority).

The affidavit here provided the judge with specific and incriminating information that Horsley was a part of a drug conspiracy and had possessed cocaine in his home in the past. In light of the recitals in the affidavit and the person and place sought to be searched, we find that there was a "nexus" sufficient to support a finding of probable cause.

AFFIRMED.