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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-30158
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-97-60069-AA
JERRY BOBBY REEVES,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

Argued and Submitted
March 10, 2000--Portland, Oregon

Filed May 1, 2000

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

Opinion by Judge Fisher

_________________________________________________________________



SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________

Criminal Law and Procedure/Search and Seizure

The court of appeals affirmed a judgment of conviction.
The court held that for purposes of establishing probable
cause for the issuance of a search warrant, unreliability result-
ing from an informant's history of giving false information to
police may be outweighed by information that the informant
had previously provided truthful information leading to suc-
cessful law-enforcement activities.

                               4703


Detective Ray Leach applied for a warrant to search the
residence of appellant Jerry Reeves. In a supporting affidavit,
Leach stated that based on information from a confidential
reliable informant (CRI), he believed that there was evidence
of drug-trafficking on Reeves' property. Leach stated that the
CRI had observed drugs packaged for sale at Reeves' resi-
dence in the previous 72 hours; Reeves had more than 20
prior charges for controlled-substance offenses; and Reeves
had taken extreme measures to fortify the residence.

Leach's affidavit stated that the CRI had provided informa-
tion that led to three search warrants resulting in narcotics sei-
zures and arrests, and had made three controlled drug
purchases under Leach's direction. Leach left out any refer-
ence to a previous conviction of the CRI for providing false
information to a law-enforcement officer.

A magistrate judge (MJ) issued the search warrant. Execut-
ing officers found methamphetamine and related parapherna-
lia at Reeves' residence. The evidence led police to a storage
locker containing more paraphernalia and a handgun.

Reeves was charged with controlled-substance crimes. He
moved to suppress the evidence on the grounds that the affi-
davit intentionally or recklessly omitted material evidence
negating probable cause; even with the CRI's information the
officers lacked probable cause; and the warrant was overbroad
because it used catchall terms to describe what could be
seized. Reeves also requested a Franks hearing to determine
the validity of the affidavit.

The district court conducted an in camera hearing on
Reeves' Franks motion. Leach revealed that he had intention-
ally omitted any reference to the CRI's conviction because it
was his department's policy not to include background infor-
mation as a means to protect informants from being identified.

The district court denied Reeves' motions for a Franks
hearing and to suppress the evidence, ruling that the affidavit

                               4704


supported probable cause, and that the warrant was not over-
broad. Reeves appealed.

[1] 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 showing that the affidavit
contains intentionally or recklessly false statements or mis-
leading omissions, and cannot support a finding of probable
cause without that information. 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.

[2] When a defendant challenges the validity of a warrant
by questioning the reliability of a confidential informant, the
proper procedure is for the trial court to conduct an ex parte,
in camera hearing to determine whether the defendant has
made a threshold showing of falsehood. [3] Once the defen-
dant makes the initial showing, the hearing must be extended
to determine if the defendant is entitled to an open evidentiary
hearing on his Franks claim. If inclusion of the omitted facts
would not have affected the probable cause determination, no
Franks hearing is required.

[4] Any crime involving dishonesty necessarily has an
adverse effect on an informant's credibility. In the absence of
countervailing evidence to bolster 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.

[5] There was countervailing evidence that diminished the
adverse effect of the CRI's prior criminal history involving
dishonesty. The informant had previously provided informa-
tion that led to investigations and arrests, which bolstered
his/her credibility and the reliability of the information. This
was sufficient to outweigh doubts about the informant's credi-
bility raised by the history of criminal conduct involving dis-

                               4705


honesty. [6] The district court did not err in denying Reeves'
request for a Franks hearing because, even if Leach had
informed the MJ of the CRI's criminal history, it would not
have affected the probable cause inquiry.

[7] Probable cause exists when the MJ finds that there is a
fair probability that contraband or evidence of a crime will be
found. Leach's affidavit supported probable cause.

[8] A search warrant must allege with reasonable particu-
larity the types of evidence that may be seized. [9] The catch-
all phrases, which Reeves existed in the context of
authorization for a search for evidence of the possession,
manufacture, and delivery of methamphetamine, adequately
limited the scope of the search and prevented it from being
overbroad. [10] Because the search warrant was proper, the
post-arrest statements and evidence derived from the storage
locker were properly admitted.

_________________________________________________________________

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.

_________________________________________________________________

OPINION

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 Proce-

                               4706


dure. 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 cus-
tody 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 Nar-
cotics 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 evi-
dence sought was predicated on (1) information from a Confi-
dential 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 crimi-
nal 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 sup-
porting 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.

                               4707


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 evi-
dence 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 stor-
age 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 pre-
viously 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 his-
tory, X's credibility -- and thus the reliability of the informa-
tion 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 char-
acteristics 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, Detec-
tive 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 depart-
ment's policy was not to include background information on

                               4708


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 sup-
ported 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 determi-
nation 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. _______, 2000 WL 38203
(U.S. Feb. 22, 2000) (No. 99-7708). 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).

[1] 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 state-
ments 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, 780-
81 (9th Cir. 1985), amended by, 769 F.2d 1410 (9th Cir.
1985). If an informant's history of criminal acts involving dis-
honesty renders his/her statements unworthy of belief, proba-
ble cause must be analyzed without those statements. See
United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997).

[2] 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

                               4709


a defendant challenges the validity of a warrant by question-
ing the reliability of a confidential informant, the proper pro-
cedure, 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 dis-
trict 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 dis-
closed to the magistrate judge who issued the search warrant.

[3] Once the defendant makes the proper initial showing,
"the ex parte, in camera hearing must be extended. Its pur-
pose should be to determine if [the defendant ] is entitled to an
open evidentiary hearing on his Franks claim." Id. If inclu-
sion 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

                               4710


than his crimes carrying higher penalties, suggested the possi-
bility that he would lie to the police to frame an innocent
man." Id. at 160.

[4] 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 counter-
vailing 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 infor-
mation, 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 the
criminal justice system, mostly for crimes involving dishones-
ty" and had "a documented history of harming his family
through dishonesty," id. at 1554, the government's deliberate
failure to include this information in a wiretap application
"would not completely undermine [the informant's] credibil-
ity, and thus would not require that the information he pro-
vided be completely disregarded." Id. at 1555. Specifically,
we concluded that the convictions involving dishonesty were
"stale" and that the informant had come forward despite
threats of retaliation from family members and gave informa-
tion that firmly established the basis of his knowledge of the
suspect's crimes. Id. Moreover, the untruths and omissions in
the wiretap application related to the informant's credibility
and not to his information, and there was "considerable inde-
pendent evidence" supporting his information. Id.

[5] In this case, as the district court correctly found, there
is also important countervailing evidence which diminishes

                               4711


the adverse effect of the CRI's prior criminal history involv-
ing dishonesty: "this affidavit had more than a mere reliance
on the informant's word. There was also the factor that in the
affidavit the affiant indicated that this informant had previ-
ously provided information that led to three other investiga-
tions and arrests." That the CRI had previously provided
truthful and reliable information to police that led to three
other search warrants, narcotics arrests and convictions signif-
icantly bolsters his/her credibility and the reliability of the
information provided. We hold that these facts are sufficient
to outweigh the doubts about the informant's credibility raised
by the history of criminal conduct involving dishonesty. See
United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th
Cir.1986) ("If the informant has provided accurate informa-
tion on past occasions, he may be presumed trustworthy on
subsequent occasions. When the information provided in the
past involved the same type of criminal activity as the current
information, the inference of trustworthiness is even strong-
er." (citations omitted) (emphasis added)). The facts are also
sufficient to distinguish this case from Hall , in which there
was no other evidence to salvage the informant's credibility
or bolster the reliability of his information.

[6] Accordingly, the district court did not err in denying
Reeves' request for a Franks hearing because, even if Detec-
tive Leach had informed the magistrate judge of the CRI's
prior criminal history, it would not have affected the probable
cause inquiry.

Although we recognize the importance of maintaining the
confidentiality of police informants, we do not approve of the
practice of excluding altogether an informant's relevant crimi-
nal history from an affidavit used to support a search warrant
request, particularly when lesser measures will suffice. In
some cases, for example, an informant's criminal history may
be "sanitized" by replacing clearly identifying details with a
more general description of the relevant facts, so long as the

                               4712


material essence remains.1 In many cases, such as this one, a
CRI with some criminal background involving dishonesty
may nonetheless be considered reliable enough to support
probable cause based on the existence of other facts support-
ing his/her credibility or other extrinsic evidence supporting
the reliability of the tip. See Meling, 47 F.3d at 1555. None-
theless, courts should have access to all available relevant
information to aid them in their determination of probable
cause.

2. Denial of the Motion to Suppress

[7] We must next consider whether the affidavit provides
sufficient probable cause to support the search warrant. "A
magistrate judge's finding of probable cause is entitled to
great deference and this court will not find a search warrant
invalid if the magistrate judge had a `substantial basis' for
concluding that the supporting affidavit established probable
cause." United States v. Clark, 31 F.3d 831, 834 (9th Cir.
1994). Probable cause exists when the magistrate judge finds
that, "[c]onsidering the totality of the circumstances," there is
" `a fair probability that contraband or evidence of a crime
will be found.' " United States v. Gil, 58 F.3d 1414, 1419 (9th
Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). Using this standard, we hold that Detective Leach's
affidavit supported probable cause. The affidavit states that
the CRI had observed "one quarter, to one half of an ounce
of methamphetamine . . . packaged up in several small plastic
packages for sale" at Reeves' residence in the past 72 hours.
Detective Leach discussed the appearance and packaging of
methamphetamine with the CRI and stated his confidence that
the CRI "has the ability to recognize methamphetamine when
observed." Under these circumstances, there was a "fair prob-
_________________________________________________________________
1 We are encouraged by the government's representation that the law
enforcement office involved in this case has discontinued its practice of
not including a CRI's criminal history in affidavits.

                               4713


ability that contraband or evidence of a crime [would] be
found" at Reeves' residence.

3. Scope of the Warrant

[8] Appellant argues that the inclusion of the words "may
include, but is not limited to" and "other items" in the search
warrant rendered it impermissibly overbroad. Whether a
search warrant describes items to be seized with sufficient
specificity is reviewed de novo. See United States v. Noush-
tar, 78 F.3d 1442, 1447 (9th Cir. 1996). "A search warrant
must allege with reasonable particularity the types of items
that may be seized. Otherwise, it cannot provide meaningful
guidance to the officer charged with its execution. " See
United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994) (cita-
tion omitted).

[9] In this case, the catch-all phrases of which Reeves com-
plains exist in the context of authorization for a search for
"evidence of the possession, manufacture, and delivery of the
controlled substance methamphetamine." This context ade-
quately limits the scope of the search and thus prevents it
from being overbroad. See United States v. Washington, 797
F.2d 1461, 1472 (9th Cir. 1986) (finding that a warrant autho-
rizing seizure of "records, notes, [and] documents indicating
[the defendant's] involvement and control of prostitution
activity including but not limited to, photographs, handwritten
notes, ledger books," was not overbroad, because the warrant
"effectively tells the officers to seize only items indicating
prostitution activity") (emphasis in original).

[10] Because the search warrant was proper, the post-arrest
statements and evidence derived from the search of the stor-
age locker were also properly admitted.

AFFIRMED.

                               4714



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