933 F2d 1017 United States v. C Rodriguez

933 F.2d 1017

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Edward C. RODRIGUEZ, Defendant-Appellant.

No. 90-10293.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1991.
Decided May 24, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.

MEMORANDUM

1

Rodriguez appeals from the district court's denial of his motion to suppress evidence seized pursuant to a search warrant. He alleges that the district judge erred by denying him an evidentiary hearing to challenge the accuracy of the warrant affidavit. The district judge had jurisdiction over the criminal proceeding under 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

2

A defendant may challenge a facially valid warrant affidavit by making a preliminary showing that the affidavit contains intentionally or recklessly false statements, and that the affidavit purged of its falsities would not be sufficient to support probable cause. Franks v. Delaware, 438 U.S. 154 (1978); United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.) (Lefkowitz ), cert. denied, 449 U.S. 824 (1980). When the defendant makes such a showing, a hearing must be held to investigate the allegations. United States v. Stanert, 762 F.2d 775, 780 (9th Cir.) (Stanert ), amended 769 F.2d 1410 (9th Cir.1985). We review de novo the district judge's decision to deny the defendant's request for a hearing. United States v. Dozier, 844 F.2d 701, 704 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

3

After considering Rodriguez's request for a Franks hearing, the district judge ordered the government to produce the investigatory file. The judge reviewed these documents, and concluded that "no material facts were falsified to obtain the search warrant." The judge further found that his review of the file constituted a Franks hearing.

4

We need not decide whether the judge's review amounted to a Franks hearing, because we conclude that a hearing was not required. Although Rodriguez made a preliminary showing that the warrant affidavit contained intentional or reckless misrepresentations, he has not carried his burden of proving that the alleged false statements were material to the finding of probable cause. See Stanert, 762 F.2d at 782.

5

Probable cuase exists when, considering the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir.1989) (Rodriguez ), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). The probable cause standard does not require a finding that it is more likely than not that evidence will be found at a particular location, only a finding that it is reasonable to seek evidence in the place indicated in the affidavit. United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847 (1985). Furthermore, "[d]irect evidence that contraband or evidence is at a particular location is not essential to establish probable cause," United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); probable cause may be based on "inferences about where the evidence is likely to be kept." Id.

6

Applying this common sense standard, we believe that the following undisputed facts support a finding of probable cause: Mantarro, an individual reportedly involved in drug trafficking and money laundering, negotiated with an undercover agent to purchase three kilograms of heroin and three kilograms of cocaine. Mantarro stated that he was purchasing the heroin for a person named "Chuck Rodriguez" from Stockton, California, who was a major drug dealer and money launderer. Telephone records reveal numerous phone calls between the residence of Edward Charles Rodriguez, in Sonora, California, and the phone of Mantarro, as well as frequent phone contact between the residences of Mantarro, Edward Charles Rodriguez, and Podesto, another reported drug dealer.

7

The frequency of phone calls between Mantarro and the residence of Edward Charles Rodriguez gave the agents reasonable grounds to believe Edward Charles Rodriguez was the person Mantarro had identified as the drug dealer and money launderer. Mantarro's information, coupled with the phone calls between Rodriguez and alleged drug dealer Podesto, was sufficient to establish "a fair probability" that contraband would be found at Rodriguez's residence. Rodriguez, 869 F.2d at 484. Because the undisputed evidence supported a finding of probable cause, a Franks hearing was not required. Lefkowitz, 618 F.2d at 1317.

8

AFFIRMED.