MEMORANDUM*

The Government appeals from a court order of February 16, 1990, suppressing evidence obtained in a search of defendant Patrick Gray's house. The Government alleges that the district court erred (1) by incorrectly applying the law of Franks v. Delaware, 438 U.S. 154 (1978), to deliberate and reckless omissions from affidavits, (2) by finding a Franks violation and editing the warrant affidavit, and (3) by ruling that the redacted affidavit did not provide sufficient probable cause to issue a search warrant.

Assuming, arguendo, that the district court ruled correctly on issues one and two, we find that the redacted affidavit provided probable cause sufficient to support the Government's search warrant. We therefore REVERSE the district court's suppression order.

Issue three, a district court's probable cause determination, based on a redacted affidavit, is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927 (1988) (citing United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir.), cert. denied, 484 U.S. 837 (1987)).

REDACTED WARRANT AFFIDAVIT DID ESTABLISH PROBABLE CAUSE

A. Five factors established probable cause for search.

Osborne's redacted affidavit established probable cause for the issue of a search warrant. Five key factors supported a finding of probable cause. First, the Gray house was isolated. Second, it contained suspicious chemicals and lab equipment which could be used to manufacture methamphetamine. Third, police videotaped one of the brothers in the act of possessing and using methamphetamine. Fourth, police received a tip from informant Kelly Roberts about a strong chemical smell emanating from within the Gray house. This tip was corroborated by forestry agent Steve Sobell, who was with Roberts at the time. Fifth, police received one uncorroborated tip from informant Joseph Filippazzo who, in the middle of winter, reported seeing a fan in an open window of the Gray house and smelling a strong chemical odor coming from the Gray house.

The district court ruled that factor two, the initial purchase, was sufficient to focus suspicion on the Gray house. However, the possible innocent use of the chemicals and the three month delay between the purchase and the issuance of the warrant persuaded the court that factor two, by itself, was not sufficient to establish probable cause. We disagree that the delay made the evidence stale.

B. Evidence of ongoing methamphetamine production was not stale.

Under the circumstances, the three-month delay in issuance of the search warrant did not make the evidence stale. Informants reported chemical smells from the Gray house as late as February 1 and February 24, 1989. On February 25, the police obtained their search warrant. The chemical smells constituted independent evidence that the equipment and chemicals that the Grays had purchased three months previously were still in the house up until the day before the warrant was issued. For this reason, the Grays' purchase of that material was properly used to support a finding of probable cause.

C. The Government established probable cause for its search warrant under the totality of the circumstances.

Applying practical common sense as the Supreme Court did in Illinois v. Gates, 462 U.S. 213, 230 (1983), the Grays' purchase of $1,748.17 in precursor chemicals and laboratory equipment was extremely suspicious. Although it is conceivable that they purchased the isolated ski cabin merely to pursue science as an exciting new hobby, it seems much more likely that their goal was to produce and distribute the illegal drug methamphetamine. These facts become even more suspicious given Patrick Gray's possession and use of methamphetamine, the very drug which the brothers were suspected of manufacturing.

The fruits of the independent police investigation, standing alone, were sufficient to establish probable cause for a search warrant. To the extent that the informants' observations supported probable cause, they were merely cumulative. We apply the Gates totality-of-the-circumstances test to weigh the credibility, reliability, and basis of knowledge of each informant. In applying Gates, we observe that Osborne did not rely exclusively on informants to establish probable cause. Nor did he rely on the word of anonymous tipsters. The informants' identities were known to the police.

Several factors detract from the credibility and reliability of the informants' tips. First, both informants were paid by the police to live in the stakeout house and to observe the Grays. This economic incentive to fabricate evidence detracts from their credibility as informants. Second, the affiant incorrectly stated that informant Filippazzo was familiar with smells associated with the L-ephedrine reduction synthesis of methamphetamine. Although the affiant's false statement was negligent or even reckless, this does not prove that the informant lied or was mistaken about detecting a chemical smell. It merely weakens, but does not defeat, a reasonable suspicion that the smells were related to methamphetamine production. Third, Osborne provided little or no information about the informants' previous backgrounds or their records for veracity.

Nevertheless, other factors bolster the credibility and reliability of the informants' tips. First, regarding the informants' basis of knowledge, both reports were first-hand accounts. Second, one informant's report was corroborated by the first-hand account of an undercover forestry agent. Third, the informants needed no special training to recognize strong chemical smells reminiscent of ether.

Here, the presence of chemical smells was incriminating when combined with the brothers' purchase of suspicious precursors and Patrick Gray's possession of methamphetamine. Given this additional incriminating evidence, the Government did not need to establish with certainty that the chemical smells were a byproduct of methamphetamine production. If the affidavit had relied solely upon the chemical smells to establish probable cause, then the magistrate would have needed further assurances of the informants' ability to identify smells associated with methamphetamine production.

Under the totality of the circumstances and on the basis of the redacted affidavit, a magistrate could reasonably have concluded that methamphetamine production was in progress at the Gray house and that a search of the premises was likely to uncover incriminating evidence.

We therefore REVERSE the order of the district court suppressing evidence which the Government obtained in its February 25, 1989 search of the Grays' Tahoe City home, and REMAND for further proceedings.

The government conceded that there was a Franks violation and that the district court properly reconstructed the affidavit. Because I believe that the district court correctly determined that the redacted affidavit failed to establish probable cause, I dissent.

Let us remember that we are considering the government's search of a private residence, where the protection of the fourth amendment is at its strongest. The purchase of red phosphorus and laboratory equipment was grounds for the police to focus suspicion on the house. Red phosphorus can be combined with several other precursor chemicals to produce methamphetamine by an L-ephedrine reduction synthesis. The fact that one resident of the house possessed a small personal-use quantity of the suspect drug does not elevate that reasonable suspicion into probable cause that a meth lab was operating. As the affidavit points out, an operational lab would also need to acquire L-ephedrine, hydriotic acid, and other chemicals. There was no evidence that the residents had obtained any of the other chemicals, no evidence of the origin of the small quantity Gray possessed, and no evidence that conceivably indicated any attempt to operate a lab. I cannot agree with the majority that there existed, at this early stage of the investigation, probable cause to invade the residence.

Nor do I believe that probable cause developed even when informants reported what the majority refers to as "chemical smells." The affidavit does not report the first odor as a "chemical smell." It reports that the informant smelled ether. Because ether is an ordinary and legal substance, and because the affidavit supplies no information to even suggest that ether is in any way connected to the operation of an illicit meth lab, I do not believe that the report of the ether smell has any probative value in our inquiry into whether the district court should be affirmed.

The second report of a "chemical" smell is the important one, and it is this report that the government agents regarded as the crucial evidence that provided probable cause. If the informant had merely reported, as the majority states, "a strong chemical smell," we might have a different case. But here the informant provided additional details that undermine the government's argument that probable cause existed.

The informant who reported the chemical smell on February 25 said that it smelled the same as a meth lab he had encountered several years earlier. But this informant had previously smelled a lab that used the P2P method of producing methamphetamine. The P2P method, which does not use red phosphorus, produces an odor that is radically different from the odor produced by the L-ephedrine reduction process. Thus, the informant's report that he smelled familiar odors is inconsistent with the investigators' theory, based on the evidence that launched the investigation, that the house contained a lab that was using red phosphorus in an L-ephedrine reduction synthesis. The informant's report of the February 25 "chemical smell," when considered in the light of details omitted from the majority's opinion, adds nothing to probable cause. Indeed, the informant's report is more consistent with the theory that he lied, motivated by the hope of gaining a percentage of any property, included the real estate, forfeited to the government as a result of the discovery of any contraband found on the premises.

I would affirm the district court, which thoughtfully considered this entire matter.