USA v. Reeves

• Decision Date: 01 May 2000
• Docket Number: No. 99-30158,99-30158
• Citation: 210 F.3d 1041
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. JERRY BOBBY REEVES, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1041

210 F.3d 1041 (9th Cir. 2000)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. JERRY BOBBY REEVES, Defendant-Appellant.

No. 99-30158

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 10, 2000

Filed May 1, 2000

COUNSEL: Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant.

Jeffrey J. Kent, Assistant United States Attorney, Eugene, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-97-60069-AA

Before: John T. Noonan, Susan P. Graber and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:

Appellant Jerry Bobby Reeves was convicted of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. S 841(a)(1), following a conditional guilty plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure. He appeals the district court's denials of his motion to suppress and his request for a Franks hearing. See Franks v. Delaware, 438 U.S. 154 (1978). Reeves is currently in custody serving the 156-month sentence imposed in this case. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.

Factual and Procedural Background

On July 10, 1997, detectives from the Jackson County Narcotics Enforcement Team (JACNET), with the assistance of other law enforcement entities, executed a search warrant on Reeves' residence. The warrant permitted officers to search for "evidence of the possession, manufacture, and delivery of the controlled substance methamphetamine." The warrant stated that "[t]he evidence may include, but is not limited to the following: methamphetamine, a controlled substance, packaging materials, scales, . . . and other items related to the manufacturing and distribution of controlled substances, in particular, methamphetamine."

A magistrate judge issued the search warrant based on the July 10, 1999 affidavit of Detective Ray G. Leach, a Medford Police Department detective assigned to JACNET. Detective Leach's belief that Reeves' property would contain the evidence sought was predicated on (1) information from a Confidential Reliable Informant (CRI) that the CRI had observed methamphetamine contained in several small plastic packages for sale at Reeves' residence in the past 72 hours, (2) a criminal history check of Reeves that revealed more than 20 prior charges for controlled substance offenses and (3) the "extreme steps" Reeves had taken to "fortify his residence."

Detective Leach's affidavit also contained information supporting the CRI's credibility. Most importantly, Detective Leach stated that "[t]he CRI ha[d] provided information which . . . led to three search warrants, with narcotic seizures each time, and three arrests." In addition, the CRI had made three controlled buys under Detective Leach's direction.

The search of Reeves' residence produced approximately one and one-half pounds of methamphetamine and evidence related to its manufacture and distribution. Reeves later admitted to having control of the drugs. The evidence obtained also led officers to a storage locker, not located on the premises, which contained a handgun and additional evidence of methamphetamine manufacturing.

Reeves moved to suppress all of the evidence on the grounds that (1) the affidavit in support of the search warrant intentionally or recklessly omitted material evidence negating probable cause, (2) the affidavit lacked probable cause even considering the CRI's information and (3) the warrant was overbroad. Reeves also sought suppression of his post-arrest statements and evidence derived from the search of the storage locker as fruits of the allegedly unlawful search of Reeves' home.

In addition, Reeves requested a Franks evidentiary hearing on the validity of the affidavit underlying the warrant. Reeves specifically suggested that the informant was X, who had previously been convicted of giving false information about his address to the police. Reeves contended that if Detective Leach had included this information about X's criminal history, X's credibility -and thus the reliability of the information he provided -would have been destroyed, leaving the affidavit with insufficient information to support probable cause. We do not confirm Reeves' guess but address the characteristics of the CRI before the trial court.

Because of the need to protect the identity of the CRI, the district court conducted an in camera hearing regarding Reeves' right to a Franks hearing. During the hearing, Detective Leach revealed that the actual CRI in fact had a previous criminal charge of providing false information to a law enforcement officer. Detective Leach stated that his department's policy was not to include background information on a CRI so as "to maintain a vagueness," i.e., to protect his/her identity.

Following the in camera hearing, the district court denied Reeves' motion to suppress, concluding that the affidavit supported probable cause and that the warrant was not overbroad.

Discussion

1. Denial of a Franks hearing

We review de novo a district court's denial of a Franks hearing. See United States v. Motz, 936 F.2d 1021, 1024 (9th Cir. 1991). We also review de novo a district court's determination that probable cause existed for the issuance of a search warrant. See United States v. McIver, 186 F.3d 1119, 1128 (9th Cir. 1999), cert. denied, S. Ct. , 120 S.Ct. 1210, 145 L.Ed.2d 1111 (2000). Whether probable cause is lacking because of alleged misstatements or omissions in the supporting affidavit is also reviewed de novo. See United States v. Brady, 993 F.2d 177, 179 (9th Cir. 1993).

A defendant is entitled to an evidentiary hearing on the validity of the affidavit underlying a search warrant if the defendant can make a substantial preliminary showing that (1) the affidavit contains intentionally or recklessly false statements or misleading omissions, and (2) the affidavit cannot support a finding of probable cause without the allegedly false information. See United States v. Stanert, 762 F.2d 775, 78081 (9th Cir. 1985), amended by, 769 F.2d 1410 (9th Cir. 1985). If an informant's history of criminal acts involving dishonesty renders his/her statements unworthy of belief, probable cause must be analyzed without those statements. See United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997).

We have recognized the importance of confidential informants to the criminal justice system. See, e.g., United States v. Kiser, 716 F.2d 1268, 1270-71 (9th Cir. 1983). When a defendant challenges the validity of a warrant by questioning the reliability of a confidential informant, the proper procedure, followed here, is for the trial court to conduct an ex parte, in camera hearing to determine whether the defendant "has made a `threshold substantial showing of falsehood.' " Id. at 1273 (quoting United States v. Moore , 522 F.2d 1068, 1073 (9th Cir. 1975)). During the in camera hearing, the district court's inquiry into the history and reliability of the CRI revealed that the CRI had a criminal history--containing some charges involving dishonesty--that had not been disclosed to the magistrate judge who issued the search warrant.

Once the defendant makes the proper initial showing, "the ex parte, in camera hearing must be extended. Its purpose should be to determine if [the defendant ] is entitled to an open evidentiary hearing on his Franks claim." Id. If inclusion of the omitted facts would not have affected the probable cause determination, no Franks hearing is required. See United States v. Fisher, 137 F.3d 1158, 1164 (9th Cir. 1998). The determination of whether information provided by an informant establishes probable cause is based on the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238 (1983).

In Hall, 113 F.3d at 161, we affirmed the district court's grant of a motion to suppress evidence when a police officer failed fully to disclose the criminal history of an informant who testified at a search warrant hearing. The government had revealed a substantial part of its informant's criminal history to the magistrate judge, but had failed to disclose that the informant had been convicted of falsely reporting a crime. See id. at 158. We presumed that this conviction was for the crime under Alaska Stat. S 11.56.800 for giving" `false information to a peace officer with the intent of implicating another in a crime,' " id. (quoting Alaska Stat.S 11.56.800(a)(1)), and concluded that the informant's testimony could not be used to support the search warrant: "What most impeached Dang's credibility was his false report to the police. That crime, more than his crimes carrying higher penalties, suggested the possibility that he would lie to the police to frame an innocent man." Id. at 160.

In the present case, the district court found that the CRI's crimes were of a sufficiently different character from those of the informant in Hall so as to distinguish that case: "Any indication in the criminal history of the informant here, of which the affiant was aware, was of a different and less significant nature." We do not agree with that determination. Any crime involving dishonesty necessarily has an adverse effect on an informant's credibility. In the absence of countervailing evidence to bolster the informant's credibility or the reliability of the tip, an informant's criminal past involving dishonesty is fatal to the reliability of the informant's information, and his/her testimony cannot support probable cause. See United States v. Meling, 47 F.3d 1546, 1554-55 (9th Cir. 1995).

In Meling, we held that, despite the fact that the informant had "spent the better part of his adult life involved with...