Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 41 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Bruce Laudine KELLY, Defendant-Appellant.

No. 89-30185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 1990.Decided May 1, 1990.

Before WALLACE, CYNTHIA HOLCOMB HALL, and WIGGINS, Circuit Judges.


MEMORANDUM

Kelly appeals from his conviction pursuant to 21 U.S.C. § 844(a) and 18 U.S.C. § 3231. He argues that the district court erred in not suppressing evidence found in room 316 pursuant to a search executed with a search warrant. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

The first issue we have before us is whether the affidavit in support of the search warrant properly shows probable cause. We test the affidavit based upon the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). Our review of the finding of probable cause is based upon a clearly erroneous test. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 109 S. Ct. 312 (1988).

We conclude that the district court was not clearly erroneous in finding probable cause in this case. Gates teaches us that we should not treat the separate pieces of the affidavit in a discrete manner, but rather view each piece of the affidavit as part of an aggregate. When viewed in this light, Scott's information, corroborated by Sly, and the officers' firsthand information that Patterson was a gang member, provides a sufficient factual predicate with which to uphold the district court's decision. Even though Scott's information was not corroborated by prior instances of conveying reliable information, the other information contained in the affidavit suffices to corroborate Scott. Under Gates, "even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case." Id. at 234. Here, there is no reason to doubt Scott's motives, and the "weight" to which his explicit, detailed, and firsthand tip is entitled should be great. Thus, we conclude that the affidavit meets the Gates totality of the circumstances test.

The only other issue raised is whether there was a technical violation of rule 41 of the Federal Rules of Civil Procedure because the individual who executed the search warrant was allegedly not a judge of a "state court of record." Fed. R. Civ. P. 41. We need not reach the question whether rule 41 was technically violated. We have held that if the result of the warrant application would not have been any different in the absence of a nonfundamental violation of rule 41, suppression is unnecessary. See, e.g., United States v. Luk, 859 F.2d 667, 673-74 (9th Cir. 1988); United States v. Ritter, 752 F.2d 435, 441-42 (9th Cir. 1985). The alleged violation in this case was nonfundamental. See Luk, 859 F.2d at 673. Since we have found that there was probable cause, any alleged rule 41 violation would be immaterial to the outcome of the case.

AFFIRMED.