U.S. v. Johns, s. 87-1031

• Decision Date: 15 July 1988
• Docket Number: Nos. 87-1031,87-1069,s. 87-1031
• Citation: 851 F.2d 1131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Vernon JOHNS, Albert William Haberkorn, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1131

851 F.2d 1131

UNITED STATES of America, Plaintiff-Appellee, v. George Vernon JOHNS, Albert William Haberkorn, Defendants-Appellants.

Nos. 87-1031, 87-1069.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 1988.

Memorandum May 23, 1988.

Order and Opinion July 15, 1988.

Roger Hanson, Santa Ana, Cal., Paul B. Meltzer, Lisa M. Martin, Santa Cruz, Cal., for defendants-appellants.

John K. Vincent, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

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

Before SNEED, HALL and NOONAN, Circuit Judges.

ORDER

The memorandum disposition filed May 23, 1988, is hereby redesignated a per curiam opinion as attached.

OPINION

PER CURIAM:

Appellants George Johns and Albert Haberkorn appeal the district court's refusal to grant a Franks hearing on the validity of a search warrant and its refusal to grant an evidentiary hearing under United States v. Freitas, 800 F.2d 1451 (9th Cir.1986). Haberkorn also appeals the district court's refusal to grant him standing to assert his rights to these hearings. We reverse on all three grounds and remand to the district court.

I. FACTS AND PROCEEDINGS BELOW

On January 13, 1985, FBI agent John White applied for a search warrant for Unit 39 of the Kernville Mini-Storage in Kernville, California. An affidavit accompanying the request for a search warrant included the following averments: (1) that on January 10, 1985, federal agents "went to Unit 39 and detected no unusual odors emitting from the front of Unit 39," E.R. at 43; (2) that a reserve deputy of the Kern County Sheriff's Office was renting Units 10 and 11 at the Kernville Mini-Storage; (3) that on January 12, 1985, the reserve deputy, Bray, and an investigator of the Kern County Sheriff's Office, Myers, had visited Units 10 and 11 of the Kernville Mini-Storage; (4) that Units 10 and 11 were directly behind Unit 39 and separated from it only by a sheet of plywood; (5) that the men smelled a strong odor coming from Unit 39, "which they both associated with the illicit manufacture of methamphetamine," E.R. at 44; (6) that the smell was strongest at the rear of Unit 10, "which is also directly at the rear of Unit 39," E.R. at 44-45; and (7) that White, the affiant, "in speaking to other narcotic investigators, has determined that invariably, those who manufacture methamphetamine often utilize a mini storage warehouse to store excess chemicals, glassware and other items utilized in the illicit manufacture of methamphetamine until the next time that they engage in the illicit methamphetamine production," E.R. at 45.

Based on this affidavit, a search warrant was issued for White to surreptitiously enter Unit 39 to examine the contents without taking anything. Inside the unit, agents found chemicals and glassware commonly used in the manufacturing of methamphetamine. As a result of this discovery, on April 5, 1985 an indictment was entered against Johns and Haberkorn (as well as several other defendants who are not part of this appeal). E.R. at 5-13.

On April 2, 1986, Johns and Haberkorn moved to suppress this evidence and for an evidentiary hearing on the validity of the search warrant. E.R. at 14; see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). They argued that the warrant included statements that were either willfully or recklessly false, and that when those statements were deleted the warrant no longer averred probable cause to search Unit 39. E.R. at 13. In particular, they argued that (1) the chemicals found inside the unit have many uses, therefore the affiant could not truthfully say that the odor emanated from "chemicals used in the synthesis of methamphetamine, such chemicals/compounds having no other purpose," E.R. at 15; and (2) the chemicals in the unit were not synthesized in any way, therefore the affiant could not truthfully say that the odor was also or alternatively "the smell of intermediate steps in the process, or the end process itself." Id. The defendants also presented the affidavits of two chemistry professors who swore that given the description and photographs of the contents of the storage unit it was impossible for the officer to smell an odor associated with methamphetamine or its manufacturing process. As a result, defendants argued, the only truthful ground for the warrant was that the officers had smelled chemicals that had legitimate uses. As this averment alone could not support a finding of probable cause, the warrant could not stand. E.R. at 21.

The trial court held that Johns, but not Haberkorn, had standing to challenge the search warrant. It then denied his request for a Franks hearing. The court, however, deleted some of the averments in the warrant in response to his challenge. It "[l]eft in to be considered in judging the adequacy of the search warrant ... statements of Investigator Bray based on the actual field experience contained in the White affidavit, and Bray's statement as to his opinions as to what he smelled." E.R. at 206. Noting that Bray had allegedly detected the smell of an illegal substance, E.R. at 209, the court held that after the deletions there was still probable cause to issue the search warrant. E.R. at 210.

On April 28, 1986, both defendants entered a conditional plea of guilty to conspiring to manufacture and distribute methamphetamine. After he pleaded guilty, Johns moved for a reconsideration of the denial of his motion for an evidentiary hearing, based on the district court's decision in United States v. Freitas, 610 F.Supp. 1560 (N.D.Cal.1985). He argued that the covert nature of the warrant caused it to violate the Fourth Amendment and Fed.R.Crim.P. 41. E.R. at 183. The district court denied the motion. E.R. at 243. On January 12, 1987, Johns was sentenced to ten years; on March 9, 1987, Haberkorn was sentenced to five years. Appellee's Brief at 2-3. Both defendants timely appealed. On June 10, 1987, their motion to consolidate their appeals was granted. E.R. at 242.

II. JURISDICTION

The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1982). This court's jurisdiction rests on 28 U.S.C. Sec. 1291 (1982).

III. DISCUSSION

A. Appellants' Request for a Franks Hearing.

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), held that a criminal defendant has a right under the Fourth and Fourteenth Amendments, after ex parte issuance of a search warrant, to challenge the truthfulness of statements made in affidavits supporting the warrant. To obtain an evidentiary hearing, however,

the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false, and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.... Finally, if these requirements are met, and if, when material that is subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

Id. at 171-72, 98 S.Ct. at 2684. "[T]his court has recognized that where a substantial preliminary showing is made, the court must hold a hearing to determine if any false statements deliberately or recklessly included in the affidavit were material to the magistrate's finding of probable cause." United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir.1987); see United States v. Stanert, 762 F.2d 775, 780, modified, 769 F.2d 1410 (9th Cir.1985). A district court's decision not to hold a Franks hearing is reviewed de novo. United States v. Burnes, 816 F.2d 1354, 1356 (9th Cir.1987); United States v. Perdomo, 800 F.2d 916, 920 (9th Cir.1986).

We hold that the district court should have granted a Franks hearing. Quite clearly, the defendant made a "substantial preliminary showing" that Agent White's ¹ affidavit was deliberately false or at least in reckless disregard of the truth. As required by Franks, the defendants allege that the observations made by the officers could not have been true. They allege that they never engaged in any activities at the storage unit that could have produced the odors the officers allegedly smelled. They bolster this contention with expert witnesses who swore the officer's affidavit was necessarily false because it is scientifically impossible to smell what the officers claimed to have smelled given the contents of the storage space searched under the warrant. This amounts to a "substantial preliminary showing" that the affidavit supporting the warrant included false statements.

It is also clear that the affidavit purged of those falsities will not support a finding of probable cause. When references to the odor associated with the presence or manufacturing of methamphetamine are removed from the warrant all that is left is a description of the location and rental ownership of the storage unit in question. This is not enough.

It is not clear whether the judge below believed that Johns had established a substantial preliminary showing of falsity or omission. He did partially redact the warrant to exclude some of the challenged averments, but found probable cause still existed in the redacted warrant. However, the warrant, as he redacted it, still contained references to the smell of methamphetamine. Again, whether the officers could have smelled what they claimed is what a Franks hearing should determine. The defendants, in challenging all of the averments as to smell, made a sufficient showing to require a Franks hearing. And without those...