U.S. v. Dozier

• Decision Date: 06 July 1988
• Docket Number: No. 86-1249,86-1249
• Citation: 844 F.2d 701
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lance DOZIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 701

844 F.2d 701

UNITED STATES of America, Plaintiff-Appellee, v. Lance DOZIER, Defendant-Appellant.

No. 86-1249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 1987.

Decided April 19, 1988.

As Amended July 6, 1988.

Dale A. Drozd, Sacramento, Cal., for defendant-appellant.

Richard J. Bender, Sacramento, Cal., for plaintiff-appellee.

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

Before MERRILL, and TANG, Circuit Judges, and STEPHENS, ^* District Judge.

TANG, Circuit Judge:

Lance Dozier appeals his conviction upon his conditional guilty plea to one count of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). He contends the Franks v. Delaware hearing afforded by the district court was inadequate because he was not permitted to call as a witness the county sheriff who supplied information to the DEA agent. He also contends that his suppression motion was improperly denied because: (1) the false statements and material omissions in the affidavit supporting the warrant were the result of intentional or reckless conduct; (2) the redacted affidavit did not support a finding of probable cause because the informant's statements were unreliable; (3) the affidavit did not support a finding of probable cause because the facts were five months old; and (4) the warrant was so facially defective in its overbreadth that the agents could not have relied on it in good faith. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

Dozier was arrested at his residence on November 21, 1985. A search by federal drug enforcement agents pursuant to a warrant issued November 20, 1985 produced the evidence which led to Dozier's conviction. The warrant was based on the affidavit of DEA agent Daniel Offield, executed on November 20, 1985 and based largely on information obtained from Sergeant Barr of the San Joaquin County Sheriff's Office. Sergeant Barr had gathered the information between May 13 and June 5, 1985, during an investigation initiated because of an anonymous tip about a marijuana siting.

According to Offield's affidavit, Barr told Offield that Barr first saw 60 marijuana plants at the site on May 13 and that on June 5 he and another officer arrested Giacchero and Mejia in a clearing next to the marijuana growing equipment. The officers seized 306 marijuana plants at the time of the arrests. Mejia told Barr that Lance Dozier and Paul Fuhrman were "responsible" for the marijuana garden and that he had been hired by Dozier, lived at the Dozier residence, and had been paid in cash for cultivating the marijuana plants. According to Offield's affidavit, Mejia also told Barr that Dozier brought marijuana plants to the site in Dozier's yellow Dodge pickup and that the irrigation equipment at the site belonged to Dozier. Barr went to Dozier's residence the day he arrested Mejia, but Dozier refused to answer questions. Barr saw two automobiles at Dozier's residence Agent Offield made additional inquiries and added the following information to his affidavit: that Dozier owned a late model Dodge pickup and had a record detailing convictions for drug violations; that Fuhrman and two unidentified men were stopped near the marijuana site in the summer of 1984 for trespassing and that after they were released a burlap sack containing a saw, hoe, shears and black plastic pipe was found nearby; that marijuana growers tend to keep records for their operations and equipment for cultivating marijuana at their residences.

which were registered to Giacchero and Mejia.

On November 20, 1985 Offield gave a draft of a search warrant and his affidavit to a U.S. Attorney, who approved them for submission to a magistrate. The magistrate directed Offield to add a sentence detailing his recent observations of Dozier at his residence then approved the warrant authorizing a search of Dozier's residence for:

written records, financial statements, address books, United States Currency, telephone books and bills; controlled substances, including marijuana and residue of marijuana; equipment used in the cultivation of marijuana, including saws, hoes, shears, and black, plastic pipe; and records, documents, papers, and indicia of residency/ownership of premises.

Dozier requested an evidentiary hearing to establish the insufficiency of the warrant under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court held a hearing at which Agent Offield testified about the numerous errors and omissions in his affidavit. The court refused to allow Dozier to call Sergeant Barr as a witness and denied Dozier's motion to suppress the evidence. Dozier timely appeals.

ANALYSIS

I. Franks Hearing

Whether a defendant is entitled to a Franks hearing is a mixed question of law and fact subject to de novo review. United States v. Dicesare, 765 F.2d 890, 895 (9th Cir.), amended, 777 F.2d 543 (9th Cir.1985); United States v. Ritter, 752 F.2d 435 (9th Cir.1985).

The scope of the evidentiary hearing provided is reviewed de novo as well because the decision to limit the hearing to investigation of certain portions of the affidavit or to the testimony of particular officers involves a determination of which challenged portions of an affidavit are material to the determination of probable cause. See Ritter, 752 F.2d at 439.

Dozier argues that the limitation of the hearing to Offield had the effect of insulating Offield from the knowledge of the investigating officer, Sergeant Barr. Dozier contends this was erroneous because in Franks the Court said that an attack on a search warrant includes evidence that an affiant was ignorant of true facts and insulated therefrom by other officers. 438 U.S. at 163, 98 S.Ct. at 2680.

A Franks hearing is held to investigate the veracity of the affiant. United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983). Offield's testimony established that he made several untruthful statements and omitted certain relevant facts. The Government stipulated to the only two facts Dozier planned to establish through questioning of Sergeant Barr, namely that Sergeant Barr (1) did not tell Offield that a car registered to Mejia was at Dozier's residence and (2) had several times unsuccessfully sought search warrants from the state district attorney.

Agent Offield admitted to false statements and omissions. The hearing to test the sufficiency of the warrant would not have brought any other relevant facts to light if Sergeant Barr had also been questioned. The district court believed there were material omissions and false statements but did not think Offield made them intentionally or with a reckless disregard of the truth. Questioning Barr would not have added any evidence to aid in analysis of Offield's mental state. Thus, the district court did not err in refusing to allow examination of Barr.

II. False Statements and Omissions

Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard. United States v. McQuisten, 795 F.2d 858, 863 (9th Cir.1986); Ritter, 752 F.2d at 439. Whether misstatements and omissions are material to a finding of probable cause is subject to de novo review. McQuisten, 795 F.2d at 863.

A district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Ninth Circuit has likewise held that a defendant may challenge a facially valid warrant when it contains deliberate or reckless omissions of facts that tend to mislead. United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended, 769 F.2d 1410 (9th Cir.1985).

The defendant must prove by a preponderance of the evidence that there was a knowing and intentional falsehood or a reckless disregard for the truth, and that the challenged statement was essential to the finding of probable cause. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684.

The determination of whether misstatements or omissions are knowing or reckless or merely negligent is a factual inquiry but it is guided by cases in which this court has found reckless disregard by an affiant. See, e.g., United States v. Davis, 714 F.2d 896 (9th Cir.1983) (affiant signed statement written in the first person knowing that it would mislead the magistrate into believing the affiant had first-hand knowledge of the facts therein); Stanert, 762 F.2d 775 (reckless false statement that suspect had been arrested without mentioning there had been no conviction and reckless omission in stating the affiant investigated a lab blowup at the suspect's residence a year before without mentioning the suspect had purchased and moved into the residence after the explosion); United States v. Chesher, 678 F.2d 1353 (9th Cir.1982) (reckless disregard in saying a suspect was a current member of the Hell's Angels when affiant had been conducting an investigation for some time which should have apprised him that was untrue).

The district court decided that Offield was negligent in preparing the affidavit but that there was no evidence that his conduct was intentional or reckless. The court added:

In spite of that, there are two areas that give me cause even with this explanation, that is, the fact the rap sheet information--the fact that he misread it and maybe even the fact that he didn't bring to the Magistrate's attention the fact that the one conviction shown there was about fifteen years old. The other piece of information in the warrant that gives me cause is the registration, putting in the affidavit that he had information that a car registered to Mejia was seen at the Doziers' property.

Those things are hard to reconcile. But I'll stand by my findings that there is insufficient findings to find that he lied intentionally or with a...