concluding that “misstatements or omissions of government officials [who are not the affiant] which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is 25 not the affiant”
How later courts described this case
- concluding that “misstatements or omissions of government officials [who are not the affiant] which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is 25 not the affiant”
- applying Franks where the affiant was present during the non-affiant investigator’s telephone interviews and based same-day affidavit on those interviews
- search invalid where application, stated that witnesses reportedly had seen marijuana growing on defendant’s property, when police knew that witnesses denied seeing marijuana, and only remaining support for warrant was statement of one witness who claimed to have “smelled” the growing marijuana
- persons qualified to know an odor that is distinctive may offer an opinion, but “a warrant cannot be based on the claim of an untrained or inexperienced person to have smelled growing plants which have no commonly recognized odor.”
Written by the judges who cited it.
The opinion
HUG, Circuit Judge,
dissenting:
The issue before us on this appeal is not whether the affidavit that was submitted *766 to Judge Sperline, with its incorporated attachments, was adequate to establish probable cause for the search warrant. As the district court noted, DeLeon did not contest this point. (RE 40.) Rather, the issue is whether a more complete description of Agent Jurovich’s conversation with Charles Linedecker should have been included with the affidavit and, if so, whether the content of the affidavit, together with the omitted statements of Charles Linedecker, was sufficient to establish probable cause.
Agent Shay’s statement in the affidavit was:
On 02-22-89 Investigator Jurovich called Chuck Linedecker at his residence. Mr. Linedecker advised that they were there, but that Jurovich would have to talk with Loren Brown. Jurovich did talk with Loren Brown and a taped statement was taken from Mr. Brown over the phone.
This was an incomplete description of Agent Jurovich’s conversation with Line-decker. The district judge found that, in addition to simply referring Agent Jurovich to Loren Brown, Linedecker had said he did not see anything, did not smell anything, and did not want to talk about it.
The district court concluded that even though the statement was made to Agent Jurovich and it was Agent Shay who signed the affidavit, Linedecker’s statement should have been included. With this we all agree. The question then becomes the effect the inclusion of the omitted statement would have had on the determination of probable cause.
The district court in the Franks hearing heard the oral testimony of Frank Sharp, who he found to be credible. He also reviewed the transcribed tapes, submitted with the affidavit, and considered any impact the omitted Charles Linedecker statement would have had on Judge Sperline’s determination to issue the search warrant. The district judge concluded
While it is a close question, I do not feel that the Linedecker denial, had it been contained in there, would have been such that it would deter a reasonable magistrate in issuing a search warrant in the case for this reason: Mr. Brown, who was one of the three, said that Linedecker did say this, and that’s confirmed by Mr. Sharp’s testimony. So I think a reasonable magistrate could conclude that there was probable cause to believe in that the three boys were quoted by Mr. Sharp as saying they smelled- and saw marijuana on the premises, and one of the three boys stated in his statement that the other two told him that they had seen and smelled marijuana. The fact that one of them thereafter denied seeing anything would not be the basis in my opinion for withholding the granting of the motion for the search warrant.
I wholeheartedly agree with the district judge, and I believe the majority opinion results from a misunderstanding of the facts before Judge Sperline when he issued the search warrant. In the transcribed conversation of Frank Sharp, attached to the affidavit, Sharp described how the three boys came by to look at some equipment he had on his farm and looked next door and saw a green hay loader on De-Leon’s property. The transcript proceeded:
JUROVICH: Okay and did you know these individuals at all?
SHARP: No, I did not know them at all, they came from Sunnyside, Washington up here to Roy Fode’s sale and then they had gotten a sale bill that showed that I had a couple of grain bins for sale and they came over to look at those.
JUROVICH: Okay, so very good, then they are asking you about this equipment and go ahead from there.
SHARP: Right, and then I told them, the guy, Mr. DeLeon lived up there, and you know I didn’t know if he was home or not, but they could go up and see if he was there. And the three boys went up in their car and then I was going up to do my chores and they came back down the road and they hailed me down, and stopped me and said yeah, he says, we went in the building, the man wasn’t there, but he ' said, yeah you were right, that they were growing marijuana. He says I have seen some plants, and it, the *767 smell, he says you could get high just walking in the door. .
JUROVICH: Now, can you describe the guy that said that to you?
SHARP: All three of the young boys were, young men were, all three of them were talking about the same time, they were really excited about it, they had never seen anything like it, or smelled anything like it, or- anything like that and they were just, you know they were real excited about what it was.
JUROVICH: I see.
SHARP: And that is, so then I went right up then to Frank DeTrolio’s and relayed the message what I had just been told by the boys, what was there and they were just utterly shocked, the door would be open that they could just walk inside the shop and they could see what they could see.
JUROVICH: Okay, but they definitely told you then that they had seen the growing plants?
SHARP: Yes, they did.
The relevant part of the transcript of the conversation with Loren Brown is as follows:
JUROVICH: Let me have you hang on a sec you went to the door of the residence of the DeLeon house, and there was nobody there ...
BROWN: Oh no, there was a child there
JUROVICH: Oh, okay ...
BROWN: And then we drove on back to the equipment back there there’s a big shop there.
JUROVICH: Oh okay, can you describe that shop a little?
BROWN: Well it looked like there was two parts of it. There is a big front there is a big front part of it with great big old bays and then there was a back part toward the back that was kind of separate it just had doors on the one side and a couple uh stacks coming out if it ...
JUROVICH: Okay is this a metal or wood building?
BROWN: It’s a metal like tin building.
JUROVICH: And then who walked up to that building first you said his name was Frank?
BROWN: Yea. Frank.
JUROVICH: Frank?
BROWN: Linebecker.
JUROVICH: Oh, oh Linebecker, I thought his name was Charles, does he go by Frank too?
BROWN: Uh no I was with two of them they are both brothers.
JUROVICH: Oh okay, so Frank walked up to the door and he said what to you?
BROWN: Uh he come back over and yuk that thing smells like marijuana over there and he said come here so ■ we walked over that and it did.
JUROVICH: Okay, and and uh, how do you know the smell of marijuana again?
BROWN: Uh, just I’ve been around pot through school and that.
JUROVICH: How-how many times would you say you’ve been around the odor of marijuana no matter what circumstances?
BROWN: Uh, five.
JUROVICH: About five times.
BROWN: Oh yeah back in the younger days I is been quite a while but that yeah, like-like I told Frank its something growing, in .there, said if its not good to smell like fresh like it was grain like hay and that after-you chop hay and all too.
JUROVICH: Okay and you were able to tell it was marijuana not hay?
BROWN: Yeah well uh, it smelled more like yeah like the smell of that of marijuana.
JUROVICH: And again you’re not in any trouble but for us to be able to do anything with this thing and get him to quit selling the stuff and you know we all got kids but ... so you’re certain that it was marijuana then I guess is what I’m asking you.
BROWN: Uh, yeah I’d have to say yeah it sure smelled I’m sure it was.
JUROVICH: Well other-other ....
*768 BROWN: Just by the you know cause Frank he tried to open up one of the doors and it there was no lock from the outside it just wouldn’t open so it was locked from the inside.
JUROVICH: All right and- can you tell ■ me whether the room was, what the temperature was like in the room or did you go inside it?
BROWN: We didn’t-didn’t go inside.
JUROVICH: .Okay.
BROWN: I’d say it was a lot higher than marijuana, uh you should be able to put your hand against the door and feel warmth and uh,
JUROVICH: Did you hear any fans running at all?
BROWN: Uh no, not ...
JUROVICH: And was the room dark or was there any lights on?
BROWN: You really couldn’t tell.
JUROVICH: Oh I see.
BROWN: And then we (unintelligible).
JUROVICH: Okay, hand on just ... you didn’t see any plants then though?
BROWN: No we did not.
JUROVICH: Just the terrific odor that you associated with marijuana?
BROWN: Yeah. .
JUROVICH: Hang on a second. If you had to make a guess based on where the smell was coming from you said there was kind of two parts of the building, can you tell me which side of the building it would have been in?
BROWN: It would have been on the uh east side on the back side of the building.
JUROVICH: Back side, you were at the back side of the building?
BROWN: Yeah.
JUROVICH: So if you’re standing at the back side of the building facing that door would it be to your right or the left?
BROWN: Well, the door would be on the south side of the building.
JUROVICH: Okay.
BROWN: On-on that side there it kinda set back the back portion of the building set back in from the bigger portion like a shop or something, uh just the appearance it looked like two separate buildings they was kinda connected but ...
JUROVICH: When you looked inside what did you see?
BROWN: I-I didn’t look inside I was overlooking at the loader and that.
JUROVICH: Did uh Frank or Charles look in there?
BROWN: Uh, yeah they tried opened the door I guess about a foot or something, that’s about all the higher it would go.
JUROVICH: And what did they tell you they saw?
BROWN: Well, yeah he’s growing marijuana. okay.
JUROVICH: Okay was that Frank or Charles that said that?
BROWN: Well they both kinda saying it.
JUROVICH: Okay, so they had actually seen the plants then?
BROWN: Well I really couldn’t quite say, I seen them when he was lifting the door up and that he just it wasn’t even really a foot it was just barely coming up.
JUROVICH: Okay, but they did talk to .you later that he was growing marijuana there?
BROWN: Well I think they just kinda associated with the smell too.
It is evident that Sharp’s transcript conflicted somewhat with Brown’s. However, both were before Judge Sperline. There was no concealment of this fact. It is not unusual for witnesses to have varying recollections of the details of events observed; this was for Judge Sperline to evaluate. The majority seems to be revisiting, this determination rather than determining the effect the omission of the Linedecker statement would have.
It is important to recall that DeLeon did not contest the adequacy of the affidavit and the attached transcripts to establish probable cause. This is for the very good reason that such a contention would have been unsuccessful.
*769 A long line of authority in our circuit describes the substantial deference due to a magistrate in his determination of probable cause to issue a search, warrant. In United States v. McQuisten, 795 F.2d 858, 861 (9th Cir.1986), we stated:
A magistrate’s determination of probable cause to issue a warrant is treated with great deference and is not reviewed de novo. We may not reverse a magistrate’s finding of probable cause unless it is clearly erroneous. We need only find that under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed. In doubtful cases, preference should be given to the validity of the warrant.
(Citations omitted.)
We also noted in McQuisten the Supreme Court’s statement regarding the standard to be used by a reviewing court in evaluating the magistrate’s decision.
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding,]” that probable cause existed.
795 F.2d at 861 -62 (quoting New York v. P.J. Video, Inc., 475 U.S. 868, 876 , 106 S.Ct. 1610, 1615-16 , 89 L.Ed.2d 871 (1986)) (citations omitted).
In an earlier decision of our court, we stated “[t]he affidavit is to be interpreted in a common-sense and realistic fashion; a hypertechnical interpretation is not required. In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it.” United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1978) (citations omitted). .
Similarly, we stated in United States v. Taylor, 716 F.2d 701, 705-06 (9th Cir.1983):
An affidavit is sufficient if it establishes probable cause; that is, if the stated facts would reasonably allow a magistrate to believe that the evidence will be found in the stated location.... [T]he affidavit need not establish that it was “more likely than not” that evidence would be found or preclude other innocent interpretations for the activities at his house. The affidavit need only “enable the magistrate to conclude that it would be reasonable to seek the evidence in the place indicated by the affidavit.”
(Citations omitted.) The evidence supporting the warrant does not have to be admissible at trial in order to be considered. United States v. Condo, 782 F.2d 1502, 1507 (9th Cir.1986).
Thus, when the district judge is considering the effect of an omitted statement, he is concerned with whether the affidavit and its attachments, including the omission, are still sufficient to establish probable cause. Id. at 1506 . As the district court concluded, an accurate statement of Linedecker’s remarks, that he didn’t see anything or smell anything and didn’t want to talk about it, would most reasonably be interpreted as his not wanting to get involved. It is obvious he was there, and it is also obvious from both Sharp’s and Brown’s transcripts that he thought there was marijuana in the building, whether he saw it or only smelled it. It is highly unlikely that Judge Sperline would have changed his factual determination just because Linedecker wouldn’t cooperate. Thus, what we are left with is the factual discrepancy between Frank’s statements and Brown’s statements. This was fully disclosed to Judge Sperline. He found the affidavit and attachments adequate to establish probable cause, and DeLeon did not contest that determination.
Frank recalled three excited boys returning from DeLeon’s property saying there was indeed marijuana growing in there. He also thought they both saw it and smelled it and entered the building. Brown indicated that they actually did not enter the building and his statement is ambiguous about whether the Linedeckers saw the marijuana, when they raised the door one foot, or just smelled it. Brown himself did not see it. It would be a per *770 fectly reasonable conclusion from-the two statements that the Linedeckers did see it, although Brown did not. Sharp’s statement did not indicate which of the boys said they saw it as they were all talking to him as they returned. Thus, his statement does not conflict with Brown’s statement that Brown did not see the marijuana, only smelled it.
The evidence before Judge Sperline was not just that the boys smelled marijuana. There was substantial evidence from Sharp’s statement that they also saw it. In addition, there was substantial evidence that the boys recognized the smell of growing marijuana. They were farm boys, seeking farm equipment, and would reasonably know the difference between hay and marijuana growing in a shop building. Brown clearly stated he recognized the smell. At the Franks hearing, an expert, Dr.' Wofford, testified that the boys could well have recognized the smell of growing marijuana from their past experience.
The majority is second-guessing Judge Sperline’s determination, not because of Charles Linedecker’s statement, but because, under a cramped construction of the Sharp and Brown transcripts, they find none of the boys saw the marijuana and that they could not have recognized the smell of marijuana growing in a shop building. This appellate finding of fact, which has nothing to do with the omission of the Linedecker statement, does not accord the great deference due to the judge issuing the search warrant.