Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

No. 89-10540.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BRUNETTI, Circuit Judges, and BELLONI, Senior District Judge^** .

MEMORANDUM^**

Defendant Jon Bias was sentenced to sixty months imprisonment, to be followed by five years of supervised release, after pleading guilty to possession of methamphetamine with the intent to distribute, in violation of 18 U.S.C. § 841(a) (1). Before entering his plea, he reserved the right to appeal the district court's denial of his motion to suppress evidence found in the trailer of Mackie Bias, a co-defendant. Pursuant to that reservation, he filed this timely appeal.

Bias claims that the search that produced the evidence that would have been used at trial to convict him was invalid because the warrant that authorized it was not supported by probable cause. The basis for this claim is that, while the affidavit in support of the warrant pointed to sufficient evidence to link a co-defendant named Kathy Mell with the manufacture of methamphetamine, it did not adequately link her with Mackie Bias or with his residence. Therefore, Bias argues, it could not be used as a basis to authorize the search of that residence.

Bias sought an order suppressing all of the evidence seized from the premises, an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, (1978), and an order compelling in camera disclosure of the identity of a confidential informant whose statements were included in the affidavit in support of this search warrant. The district court denied each of these motions.

The district court had a substantial basis for concluding that there was probable cause for the search because, under the totality of the circumstances, the affidavit established a fair probability that contraband or evidence of the manufacture of methamphetamine would be found on the premises. Specifically, the fact that Kathy Mell, who was known to be purchasing supplies for methamphetamine, gave the phone number of Mackie Bias' premises as her phone number when she was arrested and listed Mackie Bias as the person to be contacted in an emergency was sufficient grounds to support a reasonable belief that fruits of Mell's illicit activity might be found at that residence. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983).

The district court also did not err in denying Bias' request for an evidentiary hearing and for in camera disclosure of the identity of the confidential informant. Bias has not shown that any of the statements in the affidavit were made either knowingly or with the intent to mislead. See United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987); United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983). Furthermore, even if Bias' allegations were true, he points to no omission or misstatement that would affect the affidavit's value as a source of probable cause to support the warrant.

The district court denied Bias' request for an in camera hearing regarding the identity of the confidential informant because it found that, even without the informant's testimony, the other information in the affidavit would constitute sufficient evidence for a belief that Kathy Mell either lived at Mackie Bias' residence or had ready access to it. Such a belief would, in turn, constitute probable cause to search that residence. Thus, the district court did not abuse its discretion in refusing to order such a hearing.

AFFIRMED.