896 F2d 555 United States v. W Dobrowsky

896 F.2d 555

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Charles W. DOBROWSKY, Defendant-Appellant.

No. 87-1291.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.*
Decided Feb. 21, 1990.

Before WALLACE, ALARCON and LEAVY, Circuit Judges.

MEMORANDUM

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1

Following a plea of guilty, Dobrowsky was convicted of manufacture and possession with intent to distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1), and conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846. Dobrowsky argues that the evidence of his manufacture and possession of methamphetamine must be suppressed because the search warrants used to obtain that evidence were based upon an affidavit containing deliberate or reckless misstatements and omissions upon which the magistrate's finding of probable cause was based. The district judge, after conducting a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), found that the affidavit did not contain deliberate or reckless misstatements or omissions, and thus was sufficient to establish probable cause. Dobrowsky contends that several of the factual findings of the district judge underlying this determination are clearly erroneous.

2

The district court had jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

3

We accept the factual findings of the district court which underlie the determination of probable cause unless they are clearly erroneous. See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 109 S.Ct. 312 (1988). The district court's "determination of probable cause is not reversed unless it is clearly erroneous." Id. at 706.

4

Dobrowsky does not contest that the affidavit, as presented to the issuing magistrate, established probable cause for the search warrants. Rather, he contends that the district judge committed clear error in factual findings made pursuant to the Franks hearing, and that those findings were material to establishing probable cause.

5

We first consider whether the district court properly concluded that police officer Wall smelled phenyl acetic acid emanating from storage locker number C-74. The district court's decision to believe the testimony of Officer Wall was not clearly erroneous.

6

Although phenyl acetic acide has legitimate uses, the affidavit associated it only with the manufacture of methamphetamine. There is no showing that this omission was deliberate or reckless. Since "it is not uncommon for seemingly innocent conduct to provide the basis for probable cause," United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir.1983), it is not unreasonable to associate the odor of a precursor chemical such as phenyl acetic acid with the production of methamphetamine. See United States v. McQuisten, 795 F.2d 858, 862 (9th Cir.1986).

7

Dobrowsky contends that Agent Lax could not have smelled ether because he was 130 feet away from his residence, and that even if he did, ether has many legitimate uses. We conclude that the district court's decision to believe Agent Lax on this point rather than Dobrowsky's witnesses was not clearly erroneous. Despite its legitimate uses, under the totality of the circumstances, the smell of ether could lend support to the finding of probable cause. See United States v. Stanert, 762 F.2d 775, 779, amended and rehearing denied, 769 F.2d 1410 (9th Cir.1985).

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8

The district court's factual findings on these matters are necessarily based upon determinations of credibility which the district judge was in the best position to determine. "We have only the cold record, which is sterile in comparison." United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir.1988), cert. denied, 109 S.Ct. 847 (1989), quoting United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852 (1974).

9

We therefore conclude that the district court's determinations of witness credibility adequately support its finding that there were no deliberate or reckless falsehoods or omissions in the affidavit. Having so concluded, no further inquiry into the materiality of these statements to the determination of probable cause is either necessary or appropriate. United States v. Smith, 588 F.2d 737, 740 (9th Cir.1978), cert. denied, 440 U.S. 939 (1979). "The search warrant must be voided and the fruits of the search suppressed only when the defendant proves his allegations of intentional and reckless falsity by a preponderance of the evidence...." Id. at 739. This Dobrowsky has failed to do.

10

AFFIRMED.

11

Note: 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 Circuit Rule 36-3.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4