Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 1137 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.James Jerold BOEH, Defendant-Appellant.

No. 89-10610.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 14, 1990.* Decided March 22, 1991.

Appeal from the United States District Court for the Eastern District of California; No. CR-89-169-EJG, Edward J. Garcia, District Judge, Presiding.

E.D. Cal.

AFFIRMED.

Before HUG, BEEZER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

James Jerold Boeh appeals, pursuant to a conditional guilty plea under Fed. R. Crim. P. 11(a) (2), the district court's denial of his motion to suppress evidence seized from a search of his residence at 5330 Loop Road. We affirm.

Probable Cause

In reviewing the four corners of the affidavit in this case, we are convinced that, under the totality of the circumstances, the magistrate had a substantial basis for concluding that there was a fair probability that illegal drugs and contraband would be found at the residence located at 5330 Loop Road. See United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir. 1988).

In essence, Boeh argues that the affidavit's inclusion of his prior criminal record is merely an attempt to bolster otherwise conclusory and unsupported statements in the affidavit with stale information. It is well settled, however, that " [a] magistrate may consider hearsay statements in an affidavit in determining whether there is probable cause...." Id. at 1077 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). This court has found proper an affiant's reliance on facts provided by other law enforcement officers, so long as the affiant properly identifies his sources of information. See United States v. Davis, 714 F.2d 896, 899 (9th Cir. 1983). In finding probable cause, we have also upheld an affidavit which included a law enforcement affiant's conclusions that, based on other detailed incriminating information contained in the affidavit, a suspect appears to be involved in unlawful narcotics trafficking. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1564-66 (9th Cir. 1989), cert. denied, 110 S. Ct. 3237 (1990).

In this case, Agent DeWoody provided the magistrate with significant detail of Boeh's criminal history, including his involvement with illegal narcotics. This history included Boeh's repeated involvement with methamphetamine, the subject of the warrant at issue in this case. Although this information alone may have been insufficient to establish probable cause for the March 16, 1989 search, we find that, together with the observations of suspicious activity outside Boeh's residence, it was sufficient to establish a pattern of criminal drug activity supporting a fair probability that illegal drugs and contraband would be located at Boeh's residence. See, e.g., United States v. Calabrese, 825 F.2d 1342, 1349 (9th Cir. 1987).

We are similarly unpersuaded by Boeh's argument that the information detailing his prior criminal record was too stale to establish probable cause in March 1989. In Hernandez-Escarsega, we rejected a similar argument by noting with approval an affidavit which detailed numerous instances of the defendant's involvement with drugs going back over 10 years. 886 F.2d at 1566. Instead, we found that the affidavit tended to establish the existence of, inter alia, an "ongoing narcotics operation in which [the defendant] played a pivotal role." Id. (noting that " [i]n such circumstances, staleness arguments lose much of their force").

Franks Hearing

To be entitled to a Franks hearing, a defendant must make a substantial preliminary showing that "(1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause." United States v. Stanert, 762 F.2d 775, 780 (9th Cir.), amended on other grounds, 769 F.2d 1410 (1985) (citations omitted).

Boeh has pointed to five misstatements that he contends were deliberately or recklessly included in DeWoody's affidavit and that are material to the magistrate's determination of probable cause. We disagree.

We find no representation in the affidavit, as Boeh argues, that the surveillance described by Deputies Long and Kemp was ongoing and extensive. Instead, the affidavit merely describes both Long and Kemp undertaking "surveillance" in response to neighbor complaints of an abundance of short-term vehicle traffic at the residence. There is no description as to the duration or nature of this surveillance.

Boeh challenges the truth of Deputy Long's stop of the first vehicle leaving the Boeh residence on the grounds that no police reports or dispatch cards ever recorded these events. Contrary to Boeh's assertions, however, Deputy Long did prepare written reports of both the February 18 and February 25, 1989 vehicle stops which were attached as exhibits to the Government's opposition to Boeh's motion to suppress. These traffic stops were also recorded on police dispatch cards. (See McCormack Declaration at p. 2). Boeh also contends that it was untrue that there had been complaints by neighbors that there had been an abundance of short-term traffic at the residence, because such complaints had never been shown on police reports. The district court reasonably found that the neighbor complaints were not officially reported by the deputies because it is not the type of information necessarily recorded in police logs or reports.

The Government concedes and the district court acknowledged that the affidavit was in error when it described Boeh's 1985 state court conviction as a violation of California Health and Safety Code section 11378 (possession of controlled substances for sale). The parties agree that Boeh was actually convicted in 1985 for a violation of section 11377 (mere possession). Boeh does not dispute, however, that DeWoody attached copies of Boeh's "rap sheets" to the affidavit, thereby indicating his intent to provide the magistrate with a correct history of Boeh's prior record. As a result, we agree with the district court that the misstatement was at worst negligent. This has been held to be insufficient conduct to warrant a Franks hearing. See United States v. Young Buffalo, 591 F.2d 506, 510 (9th Cir.), cert. denied, 441 U.S. 950 (1979).

Finally, Boeh contends the affidavit misrepresented incriminating testimony from the March 10, 1989 state court trial of Donna Patterson. At this trial, a government informant witness named Gary Charlton testified that Boeh was a methamphetamine dealer. Agent DeWoody described this testimony in his affidavit by stating "that James Boeh was supplying Patterson with large quantities of methamphetamine for sale." This inaccurately portrayed the testimony by mischaracterizing the extent of Boeh's dealership activities. However, there is no indication that this misstatement was intentional or reckless or that the distinction would have made a difference in the magistrate's determination. The testimony of his being a dealer, regardless of quantities, was the important fact.

Boeh finally contends that Agent DeWoody's intentional or reckless omission of material facts in the affidavit warrants a Franks hearing. After thorough and careful consideration of all these alleged omissions, we conclude the district court did not err in finding that these facts were not intentionally or recklessly omitted from the affidavit for the purpose of misleading the magistrate in determining probable cause.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

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