U.S. v. Flores

• Citation: 679 F.2d 173
• Decision Date: 08 June 1982
• Docket Number: No. 80-1705,80-1705
• Parties: 10 Fed. R. Evid. Serv. 1070 UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Jiminez FLORES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 173

679 F.2d 173

10 Fed. R. Evid. Serv. 1070

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Jiminez FLORES, Defendant-Appellant.

No. 80-1705.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1981.

Decided June 8, 1982.

Daniel F. Cook, Asst. Fed. Public Defender, San Jose, Cal., for defendant-appellant.

William G. Otis, Washington, D. C., argued, for plaintiff-appellee; Jo-Lynne Lee, Asst. U. S. Atty., San Jose, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before FARRIS and REINHARDT, Circuit Judges, and STEPHENS, ^* District Judge.

FARRIS, Circuit Judge:

Alfredo Flores appeals his conviction for possessing a firearm as a convicted felon, a violation of 18 U.S.C. App. § 1202(a)(1) (1976).

The firearm was discovered during a search of Flores' apartment for evidence that another convicted felon, Douglas Bontempi, was committing the same crime. Flores' primary contention is that there was insufficient evidence to support the search warrant which sought evidence that Bontempi illegally possessed firearms. Flores also contests the admissibility of a letter in which his attorney admitted Flores' ownership of the gun. We affirm.

I. VALIDITY OF THE SEARCH WARRANT

A. PROBABLE CAUSE FOR THE SEARCH WARRANT

On April 17, 1978 Police Officer Michael Miceli applied to a federal magistrate for a warrant to search an apartment and adjoining storage area located on Luz Avenue in San Jose, California. The search sought evidence that Bontempi illegally possessed firearms, and evidence that would help "establish the identity of persons in control of said premises." Miceli's affidavit in support of the warrant stated that 1) Douglas Bontempi had been convicted of a felony and had been arrested in the apartment on April 3, 1978 on a murder conspiracy charge; 2) Officer Miceli had helped make the arrest; 3) during the arrest, Officer Miceli had observed in the apartment firearms paraphernalia and "photographs depicting Mr. Bontempi and other individuals holding rifles and other firearms;" 4) Officer Miceli had observed a storage area connected by a door to the back patio of the apartment; 5) the building superintendent had stated he permitted the tenants to use this storage area; 6) an anonymous caller had told the FBI that he and a coworker, while refurbishing the apartment building on April 10, had entered the storage area wherein the co-worker had observed a box of guns; and 7) gunshots were heard in the neighborhood on April 11. The warrant was issued and executed on April 17, 1978. The search revealed several firearms, including a carbine weapon belonging to Flores.

To sustain the warrant here, there must be a sufficient relationship connecting the crime, the thing to be seized, and the place to be searched. See United States v. Bowers, 534 F.2d 186, 192 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311 (1976); United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).

The affidavit contained sufficient evidence to support an inference that weapons might be found in the apartment. In determining whether there is probable cause to support a search warrant "(i)t is only necessary that the affidavit enable the magistrate to conclude that it would be reasonable to seek the evidence in the place indicated by the affidavit." United States v. Hendershot, 614 F.2d 648, 654 (9th Cir. 1980). The affidavit stated that during Bontempi's previous arrest in the apartment, Officer Miceli had observed in plain view a significant amount of weapons paraphernalia, including "numerous empty gun holsters, quantities of various caliber ammunition, including ammunition clips from automatic pistols.... gun cleaning equipment (and) a detachable wooden stock from a rifle or automatic weapon." This was corroborated by the informant's statement that his coworker had seen a box of guns in the adjoining storage area which the building superintendent permitted the residents to use.

The question is whether there was a nexus between Bontempi and either the apartment or the weapons. The validity of the warrant does not turn on the existence of probable cause to believe that Bontempi resided at or possessed the apartment. The warrant authorized a search for evidence that Bontempi was in actual or constructive possession of firearms which were believed to be in the apartment. If Bontempi resided at the apartment, there would be a strong inference that firearms found in the apartment were his. But, the affidavit did not state that Bontempi resided at the apartment. The validity of the search warrant turns on whether there were sufficient facts for the magistrate to determine that Bontempi's relationship with the searched apartment was significant enough to justify a belief that at least one of the firearms, if found, belonged to him.

Standing alone, a suspect's mere presence or arrest at a residence is too insignificant a connection with that residence to establish that relationship. In United States v. Bailey, 458 F.2d 408 (9th Cir. 1972), we found an insufficient relationship between a house to be searched and two bank robbery suspects, because the affidavit stated only that one suspect was seen in the house and that the other was arrested there. In the absence of other facts we found no reasonable basis to infer that the house contained any fruits of the robbery.

No facts are recited from which it could be inferred that (the suspects) were other than casual social guests at the residence.... In short, there is nothing but conjecture to sustain the conclusion that the house contained the objects of the search.

Id. at 412. Here, the affidavit contains additional allegations of Bontempi's relationship with the searched apartment. As in Bailey, the suspect had previously been arrested at the searched premises. But whereas the Bailey affidavit contained no additional information linking the suspect to the residence, the apartment here contained photographs of Bontempi and other persons. The inference, if any, to be drawn from this additional fact was properly for the magistrate.

The standard of review on appeal from a magistrate's finding of probable cause to support a search warrant is narrow. We review the affidavit as a whole in a common sense and realistic fashion, United States v. Traylor, 656 F.2d 1326, 1330 (9th Cir. 1981), and give substantial deference to the magistrate's finding of probable cause, Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); United States v. Bowers, 534 F.2d 186, 188-89 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311 (1976). In doubtful or marginal cases, preference should be given to the validity of the warrant. United States v. Ventresca, 380 U.S. 102, 106, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). We cannot find, upon this record, that the magistrate erred in issuing the search warrant.

B. INFORMATION OMITTED FROM THE AFFIDAVIT

Flores challenges the validity of the search warrant on the ground that the affiant intentionally or recklessly omitted from his affidavit the material facts that 1) the apartment superintendent had stated that he considered the storage area to be his, and 2) Bontempi had been in police custody from April 3-17, 1978. Flores argues that the former omission weakens the inference that the guns observed in the storage area were Bontempi's. He argues that the latter omission weakens the inferences that the gunshots heard in the neighborhood were connected to Bontempi or that Bontempi possessed the guns found in the apartment. Flores contends that these facts would vitiate a finding of probable cause to search the apartment, and that the district court erred by not holding an evidentiary hearing to permit a challenge to the truthfulness of the affidavit.

The Supreme Court has addressed this issue:

(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). See also United States v. Maher, 645 F.2d 780, 782 (9th Cir. 1981) (omissions).

Assuming these allegations constitute a sufficient preliminary showing that the affiant deliberately or recklessly omitted certain information from his affidavit, "(e)ven a deliberate falsehood must be material in order to justify invalidating a warrant." Maher, 645 F.2d at 782. See United States v. Lefkowitz, 618 F.2d 1313, 1317 & n.3 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). ¹ We have carefully reviewed the affidavit. The omissions were not material. The affidavit stated that the apartment superintendent had allowed the residents to use "his" storage area. Bontempi's custody on April 17, 1978, when the search warrant was executed, is a relevant but not controlling fact concerning his possession of the guns. Possession need not be actual, but can be constructive. United States v. Kalama, 549 F.2d 594, 596 (9th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977); United States v. LaGue, 472 F.2d 151, 152 (9th Cir. 1973). Further, Bontempi could have been indicted for possessing firearms prior to...