MEMORANDUM*

Randall Burnside appeals from his conviction for manufacturing methamphetamine. Burnside claims that the district court erred in 1) denying him an evidentiary hearing under Franks v. Delaware, 2) denying his motion to suppress, and 3) refusing to give a jury instruction on the separate crime of establishing manufacturing operations. We affirm.

On December 29, 1986, Burnside rented a single family home at 10698 East Alder Creek Road in Truckee, California.

At about 1:00 p.m. on April 24, 1987, Beverly Johnson, an employee of Sierra Pacific Power, went to the home at East Alder Creek Road to disconnect the power. She noticed a strong odor when she approached the house, became nauseous and had difficulty breathing. She also noticed whitish-grey smoke with the same odor coming out of a house vent next to the power meter. Johnson contacted the police and Drug Enforcement Administration agent, Lew Thomas. Thomas was a DEA special agent for over fifteen years and was experienced in the investigation of clandestine laboratories.

Thomas spoke to a DEA chemist Arthur Davidson. Davidson stated that Johnson's reaction was "consistent to being exposed to the vapors of either hydriodic acid or hydrochloric acid." Thomas knew that hydriodic acid is used in one method of manufacturing methamphetamine. Also, Thomas knew that Burnside had been the subject of methamphetamine investigations in Las Vegas and Idaho.

At about 7:00 p.m. the same day, Thomas went to the residence described by Johnson. The residence was the last residence on a dead end street with a dirt road continuing behind the house. He watched the house for about an hour and did not discover any unusual odors or activity.

Thomas obtained a search warrant from the magistrate at South Lake Tahoe. He "noted that all the windows appeared to be boarded up on the inside with cardboard." Thomas attached copies of the affidavit, search warrant and return of search warrant from the 1985 Las Vegas investigation. The magistrate issued the warrant and Thomas executed it the same evening. He discovered a fully operational methamphetamine laboratory in a crawl space under the house. Thomas also found chemicals in a boat and car on the property, later identified as Burnside's. Burnside, the sole occupant of the house, was arrested.

Burnside filed a motion to suppress May 29, 1987, alleging that the search warrant lacked probable cause. On July 10, 1987, Burnside filed a motion to suppress pursuant to Franks v. Delaware, 438 U.S. 154 (1978) and requested an evidentiary hearing. The court denied both motions July 30, 1987.

A jury convicted Burnside September 16, 1987 of one count of manufacturing methamphetamine, in violation of 21 U.S.C. Sec. 841. This timely appeal followed.

This court reviews de novo the denial of a Franks hearing. United States v. Perdomo, 800 F.2d 916, 920 (9th Cir.1986). A magistrate's determination that probable cause exists is reviewed under a clearly erroneous standard. United States v. McQuisten, 795 F.2d 858, 861 (9th Cir.1986).

Whether one offense is a lesser included offense of another is a mixed question of law and fact, reviewed de novo. United States v. Brown, 761 F.2d 1272, 1278 (9th Cir.1985). The trial court's determination of whether the evidence supports a lesser included offense instruction will not be reversed on appeal absent an abuse of discretion. United States v. Steel, 759 F.2d 706, 711 (9th Cir.1985).

Burnside argues that agent Thomas' affidavit in support of the warrant contained a material falsehood and therefore, under Franks v. Delaware, 438 U.S. 154 (1978), Burnside was entitled to an evidentiary hearing.

In Franks, the Supreme Court ruled that a defendant is entitled to a hearing where he makes a substantial preliminary showing that the affiant knowingly made a false statement that was necessary to the magistrate's finding of probable cause. Id. at 155-56. This court has listed five requirements for a Franks hearing: 1) the defendant must allege specifically the false portions of the warrant affidavit, 2) the defendant must claim that the false statements were deliberately or recklessly made, 3) a detailed offer of proof must accompany the allegations, 4) the defendant must challenge only the affiant's veracity, and 5) the challenged statements must be necessary to probable cause. United States v. DiCesare, 765 F.2d 890, 894-95, amended, 777 F.2d 543 (9th Cir.1985).

Burnside contended that agent Thomas' statement that "all of the windows appeared to be boarded up on the inside with cardboard" was false. Burnside did not meet the second requirement of sufficiently showing that Thomas knew the false statement was deliberately or recklessly made. Burnside's Franks motion and the accompanying affidavits established that only one sliding glass door was covered with cardboard, that the house had many large, visible windows, and that no cardboard was found when the search warrant was executed.

Thomas, however, never stated that he knew the windows were covered, only that they appeared to be covered. In his declaration in response to the Franks motion, Thomas stated that he viewed the house in the evening, and that the windows were covered by tan curtains that appeared to him at the time to be cardboard. Thomas conveyed only his perceptions to the magistrate. Although he was partially incorrect, this does not show that he intentionally or recklessly lied. At most Thomas was negligent in failing to investigate further. Such negligence does not warrant a Franks hearing. See United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir.1987).

Burnside has also failed to meet the fifth requirement. Even without the challenged statement, the affidavit established probable cause. Probable cause is a "practical, nontechnical conception" and is judged by the "totality-of-the-circumstances." Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Here, Thomas knew that Burnside had been previously investigated for manufacturing methamphetamine, that he had recently rented a home in a somewhat isolated location, and that a vent from the house emitted a powerful chemical odor consistent with hydriodic acid. Burnside argues, relying on United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied sub nom. Fisher v. United States, 474 U.S. 819 (1985), that the information regarding the prior investigations was stale and could not provide probable cause. Thomas is inapposite because in that case the only evidence before the magistrate was the defendant's two-year old participation in a heroin mill at a different location. Id. at 1368. Here, in contrast, the affiant did not rely solely on the prior investigations, but also on his own and the utility company employee's current observations.

Burnside also challenges the information relayed by the utility worker because she was not experienced in the recognition or identification of chemical odors and she gave nonspecific information. Burnside argues that both expertise and a distinctive smell are key to the issuance of a search warrant, citing United States v. Tate, 694 F.2d 1217 (9th Cir.1982), vacated on other grounds, 468 U.S. 1206 (1984). In Tate, this court noted that the smell of a noncontraband substance (ether), without more, does not support a finding of probable cause. Id. at 1221. Again, Burnside fails to look at the "totality of the circumstances" as required by Illinois v. Gates. The magistrate in this case did not issue the warrant solely in reliance on Johnson's inexperienced observations. Johnson's reactions were consistent with hydriodic acid, used in manufacturing methamphetamine. The necessary link was provided by the fact that Burnside had twice been investigated for manufacturing methamphetamine. Thus, even without Thomas' observation that the windows appeared to be covered, there was sufficient probable cause for the issuance of a search warrant.

In addition to the request for a Franks hearing, Burnside filed a motion to suppress the evidence seized from the Alder Creek residence on the ground that Thomas' affidavit failed to supply probable cause. The district court denied the motion, finding that the magistrate properly found probable cause and that United States v. Leon, 468 U.S. 897 (1984), provided an alternative justification for the search.

As discussed above, under a "totality of the circumstances" approach, the warrant was based on probable cause. We therefore do not reach the Leon issue.

Burnside argues that the district court erred in refusing to instruct the jury on the elements of 21 U.S.C. Sec. 856,1 establishment of a manufacturing operation, as a lesser included offense of 21 U.S.C. Sec. 841, manufacturing a controlled substance. The court found that section 856 was not a lesser included offense of section 841, and that even if it were, there was not sufficient evidence of a section 856 violation.

Under Fed.R.Crim.P. 31(c), a defendant "may be found guilty of an offense necessarily included in the offense charged." (emphasis added). To be entitled to an instruction on the lesser included offense, the defendant must satisfy a two-part test: 1) a lesser included offense must be identified, and 2) a rational trier of fact must be able to find the defendant guilty of the lesser offense, but innocent of the greater. See United States v. Martin, 783 F.2d 1449, 1451 (9th Cir.1986).

In deciding whether a defendant has met the first burden, the trial court must apply the "inherent relationship" test, requiring an examination of the facts of the case. Brown, 761 F.2d at 1277. An offense is included if "the two offenses ...' relate to protection of the same interests and [are] so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.' " United States v. Stolarz, 550 F.2d 488, 491 (9th Cir.) (quoting United States v. Whitaker, 447 F.2d 314, 319 (D.C.Cir.1971)), cert. denied, 434 U.S. 851 (1977). In other words, the lesser offense must not require an additional element not needed to constitute the greater offense. See United States v. Raborn, 575 F.2d 688, 691 (9th Cir.1978).

Both section 841 and section 856 seek to protect the public from illicit drug manufacture and distribution. Section 856 requires proof that the defendant: 1) controlled a building, 2) knowingly made it available, 3) for manufacturing a controlled substance. The elements of a section 841 offense are that the defendant 1) knowingly 2) manufactured a controlled substance. Section 856 thus requires the additional elements of control of a building and knowingly allowing someone else to use it. These elements are not necessarily shown in proving that the defendant violated section 841.

Burnside has also failed to meet the second part of the test--i.e. that a rational trier of fact could, on the evidence presented, find him guilty of section 856 and innocent of section 841. At trial, the government presented evidence that Burnside rented the Alder Creek residence, that he was the only person in the home, that the laboratory was in the crawl space and that additional chemicals were found in the defendant's car and boat. Burnside's argument at trial was that there was no direct evidence that he manufactured the methamphetamine--the police did not take any fingerprints from the manufacturing equipment and no one saw Burnside actually mix the chemicals together. Burnside, however, points to no evidence to support his theory that someone else was doing the manufacturing. Thus, a rational jury could not have found that Burnside controlled the premises used for manufacturing but did not actually do the manufacturing himself. The district court did not abuse its discretion in finding there was insufficient evidence to support the lesser included offense instruction.

Burnside's conviction is AFFIRMED.