U.S. v. Smith, 78-1962

• Decision Date: 27 December 1978
• Docket Number: No. 78-1962,78-1962
• Citation: 588 F.2d 737
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Everette Clarence SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 737

588 F.2d 737

UNITED STATES of America, Plaintiff-Appellee, v. Everette Clarence SMITH, Defendant-Appellant.

No. 78-1962.

United States Court of Appeals, Ninth Circuit.

Dec. 27, 1978.

Certiorari Denied Feb. 26, 1979.

See 99 S.Ct. 1287.

Carl E. Larson, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant.

Harry E. Hull, Jr., Asst. U. S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before DUNIWAY and SNEED, Circuit Judges, and KELLEHER, ^* District Judge.

SNEED, Circuit Judge:

Smith appeals his conviction for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). The single issue on appeal is the validity of a search warrant that appellant contends was obtained in reliance on an affidavit containing material misstatements made intentionally or recklessly which, when excised, deprived the affidavit of content sufficient to establish probable cause. The district court denied appellant's motion to suppress after a pretrial evidentiary hearing. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

FACTS.

On July 19, 1977, Special Agent Ohlson of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department obtained a search warrant for the residence located at 1538 E. Oak Street, Stockton, California. In framing his affidavit, Agent Ohlson relied upon information supplied to him by Detective Sergeant Wagner of the San Joaquin Sheriff's Office, as well as upon information which Agent Ohlson gathered. Upon execution of the warrant, an unregistered firearm was found and seized. Appellant was indicted for possession of an unregistered firearm on October 26, 1977. At a pretrial hearing on the motion to suppress the weapon, appellant charged that the affidavit submitted by Agent Ohlson contained material misstatements that were intentionally or recklessly made which, when excised, deprived the affidavit of content sufficient to establish probable cause.

It was undisputed that Ohlson's affidavit was inaccurate in several respects. ¹ First, the affidavit stated that Wagner told Ohlson that a confidential informant "observed Spencer Scott Connely in possession of three sawed-off shotguns at 1538 E. Oak St. Stockton, California." In fact, the informant had identified the man only by the name "Scott." Further investigation and discussions between Ohlson and Wagner led them to believe that the name "Scott" referred to Spencer Scott Connely, appellant's half-brother.

Second, the affidavit stated that "(t)he informant told Detective Wagner that Connely told him (the informant) that 1538 E. Oak St. was his (Connely's) residence." The informant never made such a statement nor did Wagner report him as having done so. What Wagner had reported to Ohlson was that a check with the Stockton Police Department revealed that Spencer Scott Connely was believed to live at the Oak Street address and that appellant Smith was Connely's half-brother. Moreover, Ohlson had run a check of utility company records and learned that the utilities at 1538 E. Oak Street were registered in the name of appellant Smith.

Third, the affidavit stated that Wagner had informed Ohlson that Connely had "listed his address as 1538 E. Oak St., Stockton, Ca when he was arrested on narcotics charges in that city. Stockton P.D. # 114196. June 1977." This is not quite the way it was. Wagner, in fact, had determined that Connely lived at the Oak Street address from information supplied by the Stockton Police Department, not from any such listing by Connely. Also, although Wagner had reported that Connely had a prior narcotics arrest, he did not state when or where the arrest occurred. Wagner, however, had reported to Ohlson that Connely had a Stockton Police Department number and was the subject of a June 1977 investigation. Ohlson called the Stockton Police Department to verify Connely's police number but did not check the details of the arrest. In fact, Connely had been arrested on narcotics charges in San Diego and had received the Stockton Police number when he moved to Stockton and registered there as a narcotics offender.

Ohlson acknowledged that he had inaccurately recorded some of the information received from Wagner. He emphasized, however, that at the time he prepared the affidavit he believed that he was accurately reporting the information and that he only learned of the inaccuracies subsequent to preparation of the affidavit. The district court denied the motion to suppress, holding both that the misrepresentations by Ohlson were not made intentionally or recklessly, but instead were made in good faith and with the honest belief that the statements were true, and that the affidavit stated probable cause for the search even if the inaccuracies were excised. After denial of the motion to suppress, Smith waived jury trial, stipulated to possession of an unregistered firearm, and was found guilty. Smith received a suspended sentence and was placed on probation for three years.

II.

VALIDITY OF THE SEARCH WARRANT.

The Supreme Court's recent decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) discussed in some detail the issue whether, and in what circumstances, a false statement by a governmental affiant might invalidate a search warrant. Franks held that a defendant is entitled to a hearing on its motion to suppress only after a substantial preliminary showing that a governmental agent intentionally or recklessly made false statements necessary to the finding of probable cause. The search warrant must be voided and the fruits of the search suppressed only when the defendant proves his allegations of intentional or reckless falsity by a preponderance of the evidence and the false statements prove necessary to the finding of probable cause. The Court explicitly recognized that its "reluctance . . . to...