Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

MEMORANDUM^**

Craig L. Beslanowitch appeals his conviction for knowing and intentional possession of methamphetamine with intent to distribute. He argues that the district court erred in denying his motions for a Franks hearing and to suppress evidence. We affirm the decisions of the district court and the conviction.

I. Probable Cause for Issurance of the Warrant

Beslanowitch argues that probable cause did not support the warrant because of defects in the supporting affidavit by Drug Enforcement Agent Goesch. Specifically, Beslanowitch argues that: (1) Goesch relied on hearsay information; (2) the affidavit failed to establish the reliability of the confidential informant who provided much of the information in the affidavit; and (3) the information in the affidavit was stale. We disagree.

We examine whether a magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). Our inquiry shows deference to the issuing magistrate's determination. Id.

Beslanowitch argues that the magistrate improperly relied on hearsay in the affidavit supporting the warrant. Affiant Goesch reported information the confidential informant gave to other law enforcement agents, who in turn reported that information to Goesch. A magistrate may consider hearsay statements for a determination of probable cause, if there is a substantial basis for crediting the hearsay. United States v. Castillo, 866 F.2d 1071, 1077 (9th Cir. 1989). Here the magistrate could presume the reliability of all the hearsay declarants in the affidavit, Goesch and two other law enforcement officers. Because they are law enforcement officers, their reliability may be presumed. See Angulo-Lopez, 791 F.2d at 1397. The magistrate therefore had a substantial basis for crediting the hearsay.

Beslanowitch further argues, however, that the affidavit failed to establish the confidential informant's reliability. To determine whether information provided by informants establishes probable cause, a magistrate examines the "totality of the circumstances." Id. at 1396. Here, circumstances bolstered the confidential informant's veracity. First, if an informant has provided accurate information on past occasions, the magistrate may presume trustworthiness on subsequent occasions. Id. at 1397. Goesch's affidavit recited that the confidential informant had provided accurate information in the past. Second, admissions against penal interest may establish an informant's veracity. Id. Here, Goesch's affidavit noted such admissions. The confidential informant had admitted purchasing illegal drugs from "Craig" and could expect no favorable consideration for supplying information to law enforcement officers. Finally, independent police corroboration of the information can demonstrate an informant's reliability. Id. Here, law enforcement officers independently corroborated the information about the location of Beslanowitch's house, the presence of a separate room in the garage, the presence of specific vehicles at the house, and Beslanowitch's first name. In sum, adequate circumstances supported the magistrate's decision to credit the confidential informant's information.

Beslanowitch further objects, however, that the information supplied by the confidential informant was stale. Because the information was stale, Beslanowitch argues, it could not support a probable cause determination. The recent independent corroboration of the informant's information answers Beslanowitch's concerns about staleness. Such recent corroboration vitiated any concern that the information was too stale to establish probable cause. See United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3237 (1990) (where recent events confirm the ongoing nature of a crime, "staleness arguments lose much of their force").

Evidence bearing on the veracity of the informant and the informant's basis of knowledge is considered together with other relevant evidence in making the probable cause determination based on the totality of the circumstances. Angulo-Lopez, 791 F.2d at 1396. In Beslanowitch's case, the magistrate properly relied not only on apparently trustworthy information from the confidential informant, but also on other relevant evidence. Goesch's affidavit reported surveillance of the recent purchase of chemicals commonly used in methamphetamine manufacture, their transport in a vehicle identified by the informant and owned by Beslanowitch, and the unloading of these chemicals at Beslanowitch's house. This evidence, in conjunction with the informant's charge that "Craig" operated a methamphetamine laboratory in that particular house, combined to establish a totality of circumstances supporting the magistrate's probable cause determination.

Beslanowitch argues that a Franks hearing would have revealed reckless omissions from the affidavit supporting the warrant. These omissions, Beslanowitch argues, undermine the probable cause determination for the warrant. Beslanowitch made an offer of proof to the district court detailing several alleged material omissions. The district court treated all of Beslanowitch's allegations in the offer as true, thus obviating the purpose of a Franks hearing. See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927 (1988). Even if the alleged omissions were true, the district court held, the alleged omissions do not weaken the magistrate's probable cause determination. We agree.

On appeal, Beslanowitch focuses on only one alleged material omission from Goesch's affidavit. That is, the confidential informant was Beslanowitch's competitor in drug manufacturing, he was a friend of someone who bore Beslanowitch a grudge, and he had a record of violent, vindictive conduct. Beslanowitch argues that because the law enforcement officers reporting to Goesch were investigating the informant, they should have known the informant's motivation to harm Beslanowitch. Beslanowitch concludes that Goesch should have included the informant's motivation in the affidavit.

The informant's motivation to supply information against Beslanowitch, however, is either immaterial or supportive of the probable cause determination. "Far from finding this circumstance a negative factor," an informant's grudge may heighten veracity "by providing a motivation for the tip." United States v. Elliott, 893 F.2d 220, 224, as amended, 904 F.2d 25 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 268 (1990). Goesch's failure to explain to the magistrate the informant's likely motive in informing on Beslanowitch, therefore, does not weaken the magistrate's probable cause determination.

We note, finally, Beslanowitch's objection to inclusion in Goesch's affidavit of the discovery of acetone cans near Beslanowitch's home. We can agree with the district court's finding that this discovery did not support any inference about drug manufacturing at Beslanowitch's house. Goesch omitted to explain in his affidavit the insignificance of this discovery, permitting perhaps an unwarranted inference by the magistrate. We also agree with the district court, however, that ample other information supported the probable cause determination. Therefore, even a redacted affidavit omitting the discovery of acetone cans or explaining their insignificance still would have supported the magistrate's issuance of the warrant. See Dozier, 844 F.2d at 706-707 (redacted affidavit may support probable cause determination).

CONCLUSION

The magistrate properly determined from Goesch's affidavit that probable cause justified search of Beslanowitch's house. No material omission or other defect undermined the magistrate's probable cause determination. The district court's rulings and Beslanowitch's conviction are, therefore,

AFFIRMED.