937 F2d 614 United States v. Bean

937 F.2d 614

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-30328.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.*
Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.

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James Lee Bean appeals his conviction following a conditional quilty plea to manufacture of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Bean contends the district court erred by failing to suppress evidence resulting from the execution of a defective search warrant. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.


Bean argues that evidence of marijuana manufacture must be suppressed because the search warrant used to obtain that evidence was based upon an affidavit containing intentional or reckless misrepresentations upon which the magistrate relied to find probable cause.1 Bean contends the district court erred by: (1) determining that Richard Couturier was not a credible witness; (2) determining that marijuana was grown on Bean's property in Canyonville, Oregon and that this added to probable cause to search Bean's property in Deschutes County; (3) determining that Bean's property in Deschutes County was difficult to surveil, that power records demonstrated a marked increase in power, and in determining that no farm implements or animals were observed at the property; and (4) determining that no portion of the warrant affidavit need be deleted. The district court, after conducting a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), found the warrant affidavit did not contain intentional or reckless misrepresentations, and thus was sufficient to establish probable cause.2


We review for clear error the district court's determination following a Franks hearing that the defendant has failed to demonstrate recklessness or deliberate falsity in the preparation of the affidavit underlying the search warrant. United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir.1988).


During the Franks hearing, Detective Roshak testified that (1) Richard Couturier voluntarily provided Detectives Roshak, Hein, and Perski with the information contained within the warrant affidavit connecting Bean to marijuana growing operations in the Bend, Oregon area, and (2) Bob Nelson, an employee of Pacific Power and Light in Bend, Oregon, told Detective Roshak that power usage at each of the properties under investigation was high and that he could think of no legitimate purpose for such high power usage. Detective Perski testified that Detective Roshak accurately depicted Richard Couturier's statements in the affidavit in support of the search warrant. Although the testimony of Richard Couturier and Bob Nelson contradicted that of Detective Roshak, the district court specifically found Detective Roshak's testimony credible on all issues, including the question of power consumption, and rejected Couturier's testimony as unpersuasive.


The district court, in making its factual findings as to the credibility of witnesses at a Franks hearing, "[is] in the unique position to observe the demeanor of [the witnesses] while we have only the cold record, which is sterile in comparison." United States v. Vasquez, 858 F.2d 1387, 1391 (9th Cir.1988) (quoting United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852 (1974)), cert. denied, 488 U.S. 1034 (1989). Nothing in the record before us demonstrates that the district court's finding that Detective Roshak was a credible witness is clearly erroneous. See Castillo, 866 F.2d at 1078.


Bean also contends certain other misstatements by Detective Roshak prejudicially flawed the affidavit. First, despite the admission in his brief on appeal that "[i]t is true that marijuana was grown on property co-owned by Mr. Bean in Canyonville, Oregon," Bean denies that he knew anything about such activity. Appellant's Opening Brief at 12. Bean also contends, and the district court agreed, that there was in fact farm equipment and a few head of cattle on Bean's property even though Detective Roshak stated that he saw none. Nonetheless, even if the magistrate had known of Bean's protestations of innocence regarding the Canyonville marijuana growing operations and of the existence of some farm equipment and cattle on Bean's Deschutes County property, the magistrate could reasonably have determined that there was probable cause to search Bean's property. See, e.g., United States v. Foster, 711 F.2d 871, 879 (9th Cir.1983) (non-prejudicial omissions in affidavit not fatal to magistrate's determination of probable cause).

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Therefore, the search warrant was not rendered invalid because of intentional misrepresentations or omissions in the underlying affidavit. See Castillo, 866 F.2d at 1078; Foster, 711 F.2d at 879.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The search warrant in question was issued based upon information contained in the affidavit of Drug Enforcement Administration Special Agent Roger Miles. Agent Miles' affidavit was primarily a summary and incorporation of the affidavit of Oregon State Police Detective George Roshak. It is Detective Roshak's affidavit that is alleged to contain the intentional or reckless misrepresentations


Under Franks, "an otherwise valid search warrant can be rendered invalid if the defendant shows that an affiant deliberately, or with reckless disregard for the truth, included false statements in his application for a warrant." United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir.1988) (citation omitted). "If the defendant's contention is established by a preponderance of evidence, and after deletion of the false material the affidavit is insufficient to establish probable cause, the search warrant must be set aside and the fruits of the search suppressed." United States v. Foster, 711 F.2d 871, 879 (9th Cir.1983)