OpenJurist

917 F2d 29 United States v. One Trans-Am Pontiac License No 1mzj383 2n32687 $20170

917 F.2d 29

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellant,
v.
ONE 1983 TRANS-AM PONTIAC, LICENSE NO. 1MZJ383, 1984 Nissan
Truck, License No. 2N32687, and $20,170 in United
States Currency, Defendants,
David Glen Poulter, Claimant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

No. 88-15499.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 1990.
Decided Oct. 24, 1990.

Before SCHROEDER and CANBY, Circuit Judges, and LEW, District Judge.*

MEMORANDUM**

The federal government filed a complaint for a civil forfeiture of a 1983 Pontiac Trans Am, a 1984 Nissan truck, and $20,170 cash on October 2, 1986. David Poulter, appellee in the present matter and claimant of the property, filed an answer requesting the return of said property on November 6. The property that is the subject of the federal government's complaint had been seized by the City of Concord, California in a warranted search of Poulter's residence on July 27, 1985 for illegal drugs and other contraband. This property was subsequently turned over to the federal authorities as instrumentalities of illegal drug sales.

Poulter was charged with possession of methamphetamine for sale. He attempted to suppress pursuant to Penal Code Sec. 1538.5 materials that were seized during the July 27 search and which the state intended to introduce as evidence. A hearing in accordance with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) was held in the superior court, and the defendant's suppression motion was denied. Poulter then pleaded guilty to the charge, but appealed the judgment entered on his plea.

On November 3, 1986, the parties in the federal litigation agreed to await the result of the state appellate proceedings before moving forward with the forfeiture action. On March 17, 1988, the state appellate court, in an unpublished opinion, reversed the conviction on the basis that a material part of the affidavit used to garner the search warrant was defective and thus the court found no probable cause. The federal parties subsequently filed cross-motions for summary judgment, and on August 19, 1988 the Honorable Alfonso J. Zirpoli of the Northern District of California denied the government's motion and granted Poulter's motion. A judgment in accordance with the disposition of the motions was entered the same day. The plaintiff/federal government timely filed an appeal. We affirm the denial of the government's motion, but reverse the granting of claimant's motion.

FACTUAL BACKGROUND

In order to obtain the information necessary to establish probable cause, the Concord police had executed a "controlled buy" of illegal drugs at Poulter's residence. Detective Gary Norvell provided the affidavit that supported the issuance of the July 27 search warrant for Poulter's residence at 4150 Treat Boulevard. In the affidavit Norvell described the "controlled buy" as follows:

The CI [confidential informant] was thoroughly searched, finding no contraband or money. The CI was then given a sum of pre-recorded City of Concord funds. The CI's vehicle was thoroughly searched, also finding no contraband or money.

As the CI drove to 4150 Treat Boulevard, I followed. I lost view of the CI as he/she entered 4150 Treat Boulevard. After a few minutes the CI left 4150 Treat Boulevard. I followed the CI back to the police department.

Once we arrived at the police department, the CI gave me a quantity of white powder, suspected Methamphetamine. The CI's person and vehicle were again thoroughly searched after the purchase and no contraband or money was found.

From the initial search to the post purchase search, the CI was under constant observation with the exception of the time spent within the residence of 4150 Treat Boulevard, Concord. (emphasis added).

In granting summary judgment for Poulter the district court specifically focused on the portions of Norvell's statements that are underlined above. The two questioned portions will be referred to hereafter as "the entrance statement" and "the observation statement," respectively.

During the Franks hearing, Norvell had testified that he had only seen the CI drive on to the lot at 4150 Treats Boulevard. Another officer, Sgt. Ken de Lapp, who was also involved in the surveillance, had seen the CI enter into and leave from the garage at Poulter's address. Thus, Norvell, the affiant, had not seen the CI enter or leave Poulter's residence, nor had he observed the CI constantly from the initial search to the post purchase search.

The federal district court initially followed United States v. One (1) 1984 Mercedes Benz, 673 F.Supp. 387, 391 (D.Hawaii 1987) and found that collateral estoppel did not apply since the federal government was not a party in the state court proceedings. Pursuant to Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1469 (1960), the district court determined that it was required to make a separate inquiry of the constitutionality of the search.

The federal district court then went on to find that Norvell "deliberately, or with reckless disregard, misled the magistrate by stating in his affidavit that he observed the informant enter and leave the residence" based on Norvell's testimony in the state court suppression hearing. Accordingly, the district court struck each of the sentences underlined above from the affidavit and found that, in its redacted form, the affidavit did not evidence probable cause for the issuance of the search warrant. The district court further found that evidence seized pursuant to the search and defendant's confession subsequent to the search were "fruit of the poisonous tree" and thus could not be used in the government's forfeiture action. Without this evidence, the district court ruled that no evidence to support the government's claims to the property existed, and granted summary judgment in favor of the claimant.

STANDARD OF REVIEW

The federal government has appealed from the district court's denial of its motion for summary judgment and its granting Poulter's motion for summary judgment. Thus, this panel must review de novo the decision of the court below. U.S. v. U.S. Currency $83,310.78, 851 F.2d 1231, 1235 (9th Cir.1988).

As the district court was considering summary judgment motions, it was to view the evidence in the light most favorable to the non-moving party. United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983). Furthermore, no genuine issues of material fact can exist in order for the district court's granting of a summary judgment motion to be proper. Id. at 1280.

DISCUSSION

In its August 19 order, the district court noted that Norvell had testified that he had not actually observed the CI enter and leave the residence, but that another officer had seen the CI enter the garage to the residence. The court concluded that Detective Norvell "deliberately, or with reckless disregard, misled the magistrate by stating in his affidavit that he observed the informant enter and leave the residence." The district court provided no further analysis of its determination that the affidavit was false. Since the district court did not hold its own Franks hearing, it had to rely on the transcript of the suppression hearing held in superior court.

A defendant is entitled to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead. United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended, 769 F.2d 1410 (9th Cir.1985). During that hearing, the defendant must prove by a preponderance of the evidence that there was a knowing and intentional falsehood or a reckless disregard for the truth, and that the challenged statement was essential to the finding of probable cause. Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988). If inaccurate portions of the affidavit were found to have been negligently made or the result of innocent mistakes, the district court cannot strike portions of the affidavit. Franks, 438 U.S. at 171, 98 S.Ct. at 2684.

The government contends that the district court should not have granted summary judgment to the claimant when intent of the affiant is a material issue and is genuinely in dispute.

Generally, a Franks hearing determination about whether false statements or omissions are intentional or reckless is a "factual finding and reviewed under the clearly erroneous standard (cites omitted)." Dozier, 844 F.2d at 705 (9th Cir.1988). However, a significant portion of why the deference of a clearly erroneous standard is applied to a finding of fact is the trial judge's advantage of being able to view live testimony. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The parties have not provided, nor has independent research revealed a case where summary judgment has been granted in favor of the criminal defendant on the basis of a Franks determination. The Ninth Circuit has upheld the district court's ability to deny holding a Franks hearing because the defendant failed to make a preliminary showing of intentional or material misstatements. United States v. Ritter, 752 F.2d 435, 440 (9th Cir.1985). However, to rule that a Franks determination needs to be made, and then to make that determination without benefit of hearing has not previously occurred.

Evidence of an affiant's truthfulness and intent in selecting the wording of the affidavit is not typically available without a live hearing. Thus, Dozier 's holding that a Franks determination should be reviewed under the clearly erroneous standard may be applicable in the context of a criminal case where a hearing has been held, but is misplaced in the context of a civil summary judgment determination.

In the present case, the district court had as evidence transcripts of two hearings regarding the drafting of the affidavit, one held in municipal court and the other in superior court. Viewing this evidence in the light most favorable to the non-moving party--the government--the district court could not properly have granted summary judgment on the issue of the affiant's intent. Detective Norvell testified in the municipal court hearing that he "didn't purposely mislead the magistrate" and that he believed his statements in the affidavit were true. A finding that the affiant intentionally or with reckless disregard for the truth made misrepresentations to mislead the magistrate would have to be based on giving no credence to these portions of the evidence. In addition, the trial court judge that heard Norvell's testimony had ruled in the government's favor. Properly giving this evidence consideration results in a finding that a genuine issue of a material fact still existed for trial. Without holding its own live hearing, the district court could not make a conclusive determination of this material issue.

Therefore, we REVERSE the district court's granting claimant's motion for summary judgment, and REMAND the matter to the district court for further proceedings in the forfeiture action in conformance with this opinion.

REVERSED AND REMANDED.

*

Honorable Ronald S.W. Lew, United States District Judge for the Central District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3