Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Stephen DANIELS, Defendant-Appellant.

No. 89-30021.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1989.Decided Jan. 19, 1990.

Before EUGENE A. WRIGHT, TANG and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Stephen Daniels appeals his conviction for conspiracy to manufacture, to possess with intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. § 841(a) (1) and 846. We affirm.

DISCUSSION

(i) 264 Menthorne Road

Daniels contends that the search warrant for the 264 Menthorne Road address: (1) lacked probable cause; (2) was stale; and (3) was insufficiently particular.

(1) Probable cause

We conclude that the magistrate had a sufficient basis to find probable cause. The affidavit indicated that: Parker had (1) seen large amounts of drugs at the 264 Menthorne Road address and (2) obtained a sample of the methamphetamine from that address. The affidavit also contains information supporting the informant's credibility: (1) the police inspected the informant for drugs before Parker's return; (2) the police received a later offer from Parker to sell drugs; (3) the informant helped successfully in two previous law enforcement actions.

(2) Staleness

We conclude that the warrant was not stale. Because of the continuing nature of the drug operation in this case, the short delay in executing the warrant did not make it stale. See United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986).

(3) Particularity

The warrant did not lack particularity. It clearly specified by the address which premises could be searched. The warrant also expressly authorized that the premises could be searched for methamphetamine. The phrase "controlled substance" limited the officers to search for only illegal activity. See United States v. Fannin, 817 F.2d 1379, 1383 (9th Cir. 1987). Moreover, within the context of the warrant, one could fairly conclude that the term "records of sales" referred to drug sales and the term "records of domicile" referred to ownership records for the 264 Menthorne Road address.

(ii) 825 Old Onion Mountain Road

Daniels waived his right to appeal all claims except denial of his motions to suppress when he entered his conditional guilty plea. We therefore reject his challenge to the 825 Old Onion Mountain Road search warrant.

Even if there had been no waiver Daniels could not prevail. Because we hold that the search at 264 Menthorne Road was proper, the 825 Old Onion Mountain Road warrant was not tainted. Daniels was not entitled to a Franks hearing because he failed to make a substantial showing that Claar recklessly or knowingly included false information.

We reject the ineffectiveness claim. We conclude that Daniels' counsel's failure to raise the knock and announce issue could not have affected the outcome of the case. See United States v. Ramirez, 770 F.2d 1458, 1460-61 (9th Cir. 1985) (because the officers reasonably believed that the defendants were heavily armed, they did not need to knock and announce).

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