Unpublished Disposition, 935 F.2d 276 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Lawrence E. BOGER, Defendant-Appellant.

No. 90-30309.

United States Court of Appeals, Ninth Circuit.

Submitted June 3, 1991.* Decided June 13, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

A jury found Lawrence E. Boger guilty of manufacturing marijuana in violation of 21 U.S.C. § 841(a) (1) and manufacturing marijuana within a thousand feet of a school in violation of 21 U.S.C. § 845(a). In this appeal, Boger argues the district court should have suppressed evidence seized under a warrant which Boger contends contained deliberate and reckless misrepresentations of material facts. Boger also argues the evidence was insufficient to support the jury's verdict.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

DISCUSSION

We review the district court's ruling as to probable cause de novo. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.), cert. denied, 111 S. Ct. 268 (1990); United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927 (1988). We must accept the district court's findings of fact relating to its review of the motion to suppress unless clearly erroneous. Id.

Although affidavits supporting search warrants are presumed to be valid, a defendant may challenge an affidavit by showing that it contains intentionally reckless or false statements and that the affidavit, purged of its false statements, would be insufficient to establish probable cause. Franks v. Delaware, 438 U.S. 154, 171 (1978).

Here, the district court granted Boger a Franks evidentiary hearing. After the hearing the district court concluded that Boger "failed to prove that the officers recklessly or intentionally made false statements in the underlying affidavit." Memorandum Opinion and Order Re Suppression Motion and Excludable Time, August 21, 1990, at 3. In reaching that conclusion the district court found that "the affidavit contained adequate information concerning [the officers'] experience with marijuana to establish their ability to recognize its smell ... [and that] the officers' testimony concerning the marijuana odor they smelled [was] credible." Id.

Although Boger presented interesting evidence at the Franks hearing regarding the direction of the wind and the construction of the house as these factors related to whether a passerby could smell marijuana when and where the officers claimed, the district court made an explicit credibility finding crediting the officers' testimony. We cannot overturn this finding unless it is clearly erroneous. See United States v. Calaway, 524 F.2d 609, 613 (9th Cir. 1975) ("Except in unusual or extreme cases, the credibility of testimony is for the fact finder not for ... [the reviewing] court"), cert. denied, 424 U.S. 967 (1976). We conclude the finding is not clearly erroneous, and we further conclude the district court did not err in its ruling on the suppression motion.

Boger contends there was insufficient evidence to support his convictions. We disagree.

In reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed from the light most favorable to the government, sustain the verdict.

United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990) (quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.), amended, 793 F.2d 217 (9th Cir. 1986), cert. denied, 484 U.S. 833 (1987).

The government presented evidence that (1) Boger entered the uninhabited house on 18th Avenue at 5:50 a.m. on June 7, 1990 and remained there until 6:20 a.m.; (2) when Boger was stopped after leaving the house the police could smell the strong odor of fresh marijuana on his person; (3) a search of Boger's vehicle upon his arrest produced an electronic garage door opener which operated the garage door of the 18th Avenue home; (4) a search of the home uncovered substantial amounts of marijuana and marijuana plants located throughout the house; and (5) a key which unlocked the main basement marijuana grow room was confiscated from Boger's personal belongings at the Spokane County Jail pursuant to a separate search warrant.

This evidence, when viewed in the light most favorable to the government could lead a rational juror to conclude beyond a reasonable doubt that Boger is guilty of the crimes with which he was charged and of which he was convicted.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 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