United States v. Martinez-Garcia ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30532
Plaintiff-Appellee, D.C. No.
v.  CR-03-30024-1-
SALVADOR MARTINEZ-GARCIA, MRH
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, Chief District Judge, Presiding
Argued and Submitted
September 17, 2004—Portland, Oregon
Filed February 11, 2005
Before: J. Clifford Wallace, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
1743
UNITED STATES v. MARTINEZ-GARCIA 1747
COUNSEL
Tonia L. Moro, Assistant Federal Public Defender, for the
defendant-appellant.
Karin J. Immergut, United States Attorney, Douglas W. Fong,
Assistant United States Attorney, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Salvador Martinez-Garcia appeals his conviction for pos-
sessing a firearm as an illegal alien, in violation of 18 U.S.C.
§ 922(g)(5) (2000). Martinez-Garcia argues that the firearm,
seized pursuant to a search warrant for his home, should have
been suppressed due to alleged violations of the Fourth
Amendment and Federal Rule of Criminal Procedure 41. Both
arguments turn on the fact that state police officers began
their search while waiting for a Spanish-speaking federal offi-
cer to arrive before serving Martinez-Garcia, who does not
speak English, with the search warrant. Martinez-Garcia fur-
ther contends that the district court erred in providing him
with only a limited hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978), and that, in light of allegedly misleading
statements and omissions in the affidavit submitted to obtain
the search warrant, the warrant was not supported by probable
cause. We have jurisdiction pursuant to 28 U.S.C. § 1291(2000), and we affirm the district court.
1748 UNITED STATES v. MARTINEZ-GARCIA
I
On March 21, 2003, Josephine County Circuit Court Judge
Gerald Neufeld issued a search warrant based upon the affida-
vit of Grants Pass Department of Public Safety Officer Peter
J. Jenista, who also served as a detective on the Josephine
County Interagency Narcotics Team (“JOINT”). The warrant
authorized the police to search for evidence relating to the
manufacture, delivery, and possession of methamphetamine at
a white house with pink trim and a detached carport located
at 12579 North Applegate Road. This house on North Apple-
gate Road was occupied by Salvador Martinez-Garcia and his
wife, Edelmira Perez-Zepeda. It was located on the Noble
Dairy, which contained other buildings, including a house
occupied by Martinez-Garcia’s brother, Daniel Martinez-
Garcia.
In the affidavit supporting the warrant, Jenista detailed the
JOINT investigation into alleged methamphetamine distribu-
tion by Juan Diego Contreras, Ignacio Hernandez-Salazar and
another Martinez-Garcia brother, Juan Carlos. The investiga-
tion included, in part, three controlled methamphetamine
buys.
In the first buy on November 20, 2002, JOINT arranged for
a named informant, Brian Doland, to purchase methamphet-
amine from Juan Carlos through an unwitting third party,
Chandler Scott. Doland wore a wire, but JOINT officers were
unable to hear his conversations because of static interference.
Officers gave Doland $350, which he in turn gave to Scott,
who agreed to buy methamphetamine from Juan Carlos. Scott
took the money and went alone to 12579 North Applegate
Road, where JOINT officers observed his car. The buy was
unsuccessful: Scott returned and told Doland that Juan Carlos
had refused to give him methamphetamine; instead, Juan Car-
los took the money in repayment of a debt. Doland and Scott
returned together to 12579 North Applegate Road, under the
UNITED STATES v. MARTINEZ-GARCIA 1749
observation of JOINT officers, in an attempt to get drugs or
return of the money, but they were unsuccessful.
JOINT conducted two more controlled buys and observed
both of the buys from outside the locations where the drug
transactions occurred. On January 10, 2003, Doland arranged
to buy methamphetamine from Hernandez-Salazar at the deal-
er’s home on Fruitdale Drive. JOINT officers gave Doland
$300 to buy the drugs. Doland reported that when he arrived,
Hernandez-Salazar did not have methamphetamine at the
house and left Doland with Juan Carlos while he went out.
Hernandez-Salazar returned and handed Juan Carlos 16.1
grams of methamphetamine, which Juan Carlos gave to
Doland in exchange for the money. JOINT again arranged for
Doland to purchase methamphetamine on February 3, 2003 at
Hernandez-Salazar’s home. Hernandez-Salazar had changed
residences to 1248 Darneille Lane, and both Juan Carlos and
Hernandez-Salazar told Doland of the move. Doland pur-
chased 14.7 grams of methamphetamine from Hernandez-
Salazar and Juan Diego Contreras. Juan Carlos was not pres-
ent during this third buy.
Doland described the Martinez-Garcia residence at 12579
North Applegate Road in detail and told JOINT officers that
Juan Carlos lived in the area that would normally serve as the
living room. He informed Jenista that he had been to the
North Applegate Road property five times since the failed
drug buy in November, including on one occasion when Juan
Carlos sold methamphetamine to Scott. Jenista verified with
the Oregon Department of Motor Vehicles that Juan Carlos
Martinez-Garcia registered his address as 12579 North Apple-
gate Road.
In addition to describing the controlled drug buys, the affi-
davit specified details about informant Doland, including that
he had provided information for monetary consideration. The
affidavit also said that Doland had provided information for
at least thirty criminal investigations, had not failed any of the
1750 UNITED STATES v. MARTINEZ-GARCIA
polygraph examinations given in connection with many of
these investigations, and had provided information that was
accurate and subsequently corroborated. Jenista’s affidavit
reported that he had run a criminal history on Doland and
located no convictions, and that he had advised Doland that
giving false information in support of a search warrant is a
crime. The affidavit contained corroborating statements from
two confidential citizen informants who had purchased
methamphetamine at the Darneille Lane and Fruitdale Drive
addresses. One of the confidential informants was given and
passed a polygraph test regarding the veracity of this informa-
tion.
The affidavit did not state that Doland had drug charges
pending against him in federal district court and that JOINT
had agreed to give a favorable recommendation to prosecutors
in exchange for Doland’s information. The affidavit did not
mention Doland’s conviction for writing a bad check because
the criminal history report run by Jenista had not revealed it.
The affidavit did not tell the judge that Juan Carlos and Salva-
dor Martinez-Garcia were brothers, that a third brother, Dan-
iel Martinez-Garcia, also lived in a house on the dairy, or that
Juan Carlos had been employed at the facility in November
2002. Jenista showed the affidavit to the district attorney’s
office before presenting it to the judge.
On March 21, 2003, state law enforcement arrived at 12579
North Applegate Road with a search warrant for the house
occupied by Salvador Martinez-Garcia and his family. The
officers knocked, announced their presence, and entered.
David Raymond, an officer of the Josephine County Sheriff’s
office and a detective on JOINT, advised Martinez-Garcia
that he had a search warrant and showed him some “paper-
work.” Martinez-Garcia responded by indicating that he did
not speak English, and the testimony conflicts as to whether
he asked the officer “what was happening” in English. Ray-
mond then stated “orden de registro,” which his police manual
stated means “search warrant” in Spanish, and telephoned to
UNITED STATES v. MARTINEZ-GARCIA 1751
Bureau of Immigration and Customs Enforcement (“BICE”)
agent Fernando Lozano requesting that he come to the house
to serve as a translator. Officers removed Martinez-Garcia, his
wife, his son, and his sister, Alicia Garcia, from the residence.
While waiting for Lozano to arrive and translate, the state
officers began to search the house. They soon discovered a
handgun in the master bedroom.
Lozano arrived at 12579 North Applegate Road about forty
minutes to one hour after the search began, and he read the
warrant to Martinez-Garcia, Perez-Zepeda, and Garcia in
Spanish. He gave each warnings in compliance with Miranda
v. Arizona, 384 U.S. 436 (1966). He interviewed each of the
adults and asked Martinez-Garcia whether the residence con-
tained any firearms. Martinez-Garcia replied that there was a
.22 caliber handgun in the master bedroom. Lozano relayed
this information to the searching officers, who said that they
had already found the firearm.
Before the execution of the search warrant, Lozano had
participated in JOINT briefings with state officers that cov-
ered the two sites to be searched, Martinez-Garcia’s home on
North Applegate Road and Hernandez-Salazar’s home on
Darneille Road. On March 21, 2003, Lozano initially went to
the Hernandez-Salazar residence on Darneille Road and
planned to go to the North Applegate Road property even if
Raymond had not called him when the need for an interpreter
arose. Lozano had participated in the briefing and the investi-
gation in part because he believed that he would have the
opportunity to arrest Mexican nationals for immigration viola-
tions.
After challenging the search that yielded his firearm in an
unsuccessful motion to suppress, Salvador Martinez-Garcia
entered a conditional plea of guilty pursuant to Federal Rule
of Criminal Procedure 11(a)(2) to one count of possessing a
firearm as an illegal alien in violation of 18 U.S.C.
§ 922(g)(5). On this appeal, he argues that the firearm used in
1752 UNITED STATES v. MARTINEZ-GARCIA
securing his plea should have been suppressed pursuant to the
Fourth Amendment, Federal Rule of Criminal Procedure 41,
and Franks v. Delaware, 438 U.S. 154 (1978).
II
We first consider the Fourth Amendment issue.
[1] Martinez-Garcia contends that JOINT officers violated
the Fourth Amendment by not serving the warrant at the out-
set of the search and that the handgun should be suppressed
as the fruit of an unlawful search. See Wong Sun v. United
States, 371 U.S. 471, 484 85 (1963).1 The warrant require-
ment of the Fourth Amendment serves important purposes. It
requires that any determination of probable cause be reviewed
by a neutral and detached member of the judiciary before the
warrant issues. It also “assures the individual whose property
is searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to
search.” United States v. Chadwick, 433 U.S. 1, 9 (1977),
abrogated on other grounds, California v. Acevedo, 500 U.S.
565 (1991); see also Groh v. Ramirez, 124 S. Ct. 1284, 1292
(2004); Michigan v. Tyler, 436 U.S. 499, 508 (1978) (“[A]
major function of the warrant is to provide the property owner
with sufficient information to reassure him of the entry’s
legality.”).
The notice requirement is not absolute and has not been
fully defined by the United States Supreme Court. Most
recently in Groh, the Court stated that “neither the Fourth
Amendment nor Rule 41 of the Federal Rules of Criminal
Procedure requires the executing officer to serve the warrant
on the owner before commencing the search” under all cir-
cumstances. Groh, 124 S. Ct. at 1292 n.5; see also Katz v.
1
We review de novo a district court’s decision not to suppress evidence,
and review for clear error the district court’s underlying factual findings.
United States v. Celestine, 324 F.3d 1095, 1100 (9th Cir. 2003).
UNITED STATES v. MARTINEZ-GARCIA 1753
United States, 389 U.S. 347, 355 n.16 (1967) (“[O]fficers
need not announce their purpose before conducting an other-
wise authorized search if such an announcement would pro-
voke the escape of the suspect or the destruction of critical
evidence.”); Ker v. California, 374 U.S. 23, 37-42 (1963)
(holding that officers need not give prior notice of their search
when it might allow suspects to destroy evidence). In deter-
mining the contours of a reasonable search, courts have bal-
anced the need to give notice to occupants with a sometimes
competing need for flexibility that allows police to do their
job effectively. Striking the appropriate balance requires a
high order of practical wisdom and an open-ended inquiry on
the circumstances of the search.
[2] “The Fourth Amendment says nothing specific about
formalities in exercising a warrant’s authorization . . . .”
United States v. Banks, 124 S. Ct. 521, 524-25 (2003). The
Supreme Court has made clear that federal courts are to treat
reasonableness in executing a warrant “as a function of the
facts of cases so various that no template is likely to produce
sounder results than examining the totality of the circum-
stances in a given case.” Id. at 525. To assess the reasonable-
ness of the execution of a search made pursuant to a warrant,
we must consider factors that bear on protecting the privacy
due to the public, see, e.g., United States v. Barajas-Avalos,
377 F.3d 1040, 1055 (9th Cir. 2004) (“The right of a person
to privacy within the enclosed interior of a dwelling house is
expressly protected from governmental intrusion by the
Fourth Amendment.”); the needs of law enforcement, see,
e.g., United States v. Peterson, 353 F.3d 1045, 1049 (9th Cir.
2003) (“The Constitution does not require police officers to
expose themselves to unnecessary and considerable personal
risk and potential loss of evidence when carrying out a court-
ordered search.”); the reasonable expectations of an informed
public, see, e.g., Kyllo v. United States, 533 U.S. 27, 33-34
(2001) (“It would be foolish to contend that the degree of pri-
vacy secured to citizens by the Fourth Amendment has been
entirely unaffected by the advance of technology.”); and any
1754 UNITED STATES v. MARTINEZ-GARCIA
other matters appropriately considered as part of the “totality
of the circumstances.”
Martinez-Garcia argues that delayed service during the
March 21, 2003 search of his residence fails this totality of the
circumstances test and that JOINT officers conducted an
unreasonable search for Fourth Amendment purposes. He
contends that if officers are unprepared to describe the war-
rant in the language of the occupants, they should at least
serve the occupants with the English-language copy because
the mere presentation of documentation will provide some
notice of authority.
[3] We disagree and hold that the law enforcement officers
did not act unreasonably in delaying service in light of the
totality of the circumstances facing them on March 21, 2003.
See Banks, 124 S. Ct. at 525.2 The officers tried to serve the
warrant in good faith, were unable to do so on account of a
language barrier, and promptly called for interpretive assis-
tance. They served the warrant as soon as was practicable —
while the search was ongoing and forty minutes to an hour
after it began.3
2
We do not hold that an officer never violates the Fourth Amendment
by not serving a warrant at the outset of a search; the totality of the cir-
cumstances in a different case might make delayed delivery of the warrant
unreasonable. See Groh, 124 S. Ct. at 1292 n.5 (“Whether it would be
unreasonable to refuse a request to furnish the warrant at the outset of the
search when . . . an occupant of the premises is present and poses no threat
to the officers’ safe and effective performance of their mission, is a ques-
tion that this case does not present.”).
3
Of course, it may be presumptively unreasonable if officers fail
entirely to serve a sufficient warrant at any time before, during or immedi-
ately after a search of a home. See United States v. Grubbs, 377 F.3d
1072, 1079 & n.9 (9th Cir. 2004) (holding that officers violated the Fourth
Amendment when they did not serve a sufficient warrant at any point “be-
fore, during or after the search” and declining to “decide whether the war-
rant and curative material must be shown to the persons whose property
is being searched prior to the officers’ entry into the home”); United
States v. McGrew, 122 F.3d 847, 849-50 (9th Cir. 1997) (holding that offi-
cers violated the Fourth Amendment when they did not serve the suspect
with a copy of a sufficient warrant during the search of her home or at any
time thereafter).
UNITED STATES v. MARTINEZ-GARCIA 1755
[4] We decline to give dispositive weight to the contention
that a warrant had to be served at the outset when Martinez-
Garcia explicitly advised the officers, who attempted to serve
the warrant, that he did not speak English. The Fourth
Amendment does not require futile and gratuitous actions that
serve no purpose. Richards v. Wisconsin, 520 U.S. 385, 394
(1997) (holding that the police need not knock and announce
their presence before serving a warrant if it “would be danger-
ous or futile” to do so); Peterson, 353 F.3d at 1049 (holding
that a “no-knock” entry was reasonable because requiring
officers to announce their presence “would amount to mandat-
ing a meaningless act. Announcement would have been futile.
. . . The Fourth Amendment’s ‘touchstone of reasonableness’
simply does not mandate the redundant formalism that [the
defendant] urges upon us here.”) (internal citations omitted).
Similarly, under the circumstances of this case, we see no
valid reason to engraft upon Fourth Amendment reasonable-
ness analysis a requirement that a document in English be
given to a suspect who is unable to understand that language.
It was reasonable for police at once to advise Martinez-Garcia
in Spanish that the document was a search warrant. It was rea-
sonable for police at once to call for an interpreter who would
help Martinez-Garcia understand the specifics of the warrant.
It was reasonable for Lozano, as soon as he could be brought
to the site, to interpret the warrant for Martinez-Garcia. After
considering the totality of the circumstances, we cannot say
that the police in executing the search acted unreasonably.
The officers did not violate the Fourth Amendment, and sup-
pression of the firearm is not required.
III
We next consider the challenge to the search asserted under
Federal Rule of Criminal Procedure 41.
Martinez-Garcia contends that the district court erred in
denying his motion to suppress the firearm because officers
failed to serve the warrant at the outset of the search pursuant
1756 UNITED STATES v. MARTINEZ-GARCIA
to Federal Rule of Criminal Procedure 41(f)(3). Rule 41(f)(3)
requires that officers conducting a search “(A) give a copy of
the warrant and a receipt for the property taken to the person
from whom, or from whose premises, the property was taken;
or (B) leave a copy of the warrant and receipt at the place
where the officer took the property.” An inquiry into whether
a case warrants suppression consists of three parts: 1) whether
the search of Martinez-Garcia’s home was “federal in charac-
ter,” and therefore subject to the provisions of Rule 41; 2) if
Rule 41 applies, whether the officers violated Rule 41(f)(3) by
not serving a warrant at the outset of the search on an occu-
pant who did not speak English; 3) if the officers violated
Rule 41(f)(3), whether they acted in intentional and deliberate
disregard of Rule 41, or whether the defendant was prejudiced
as a result, thereby warranting suppression of the firearm.
The Federal Rules of Criminal Procedure do not apply to
a search conducted by state officials pursuant to a state war-
rant merely because the evidence seized is used in a federal
prosecution. United States v. Crawford, 657 F.2d 1041, 1046
(9th Cir. 1981). In the Ninth Circuit, Rule 41 applies to a
search conducted by state officers pursuant to a state warrant
only if the search is “federal in character.” United States v.
Palmer, 3 F.3d 300, 303 (9th Cir. 1993) (quoting Crawford,
657 F.2d at 1046). Martinez-Garcia argues that the involve-
ment of BICE Agent Lozano in the search and the subsequent
prosecution for a federal offense rendered the search “federal
in character.” Martinez-Garcia also contends that the language
of Rule 41 and our interpretation of it in United States v.
Gantt compel the conclusion that the officers conducting the
search of his residence violated Rule 41(f)(3) by not serving
the warrant at the outset of their search. 194 F.3d 987, 990
(9th Cir. 1999); see also United States v. Mann, 389 F.3d 869,
874-76 (9th Cir. 2004).
[5] We determine that we need not resolve whether Rule
41(f)(3) applied to the search of the Martinez-Garcia home
and, assuming the Rule applied, whether it was violated
UNITED STATES v. MARTINEZ-GARCIA 1757
because, even if we assume that the search at 12579 North
Applegate Road violated Rule 41(f)(3), suppression of the
firearm would not be required by law. Suppression of evi-
dence obtained through a search that violates Federal Rule of
Criminal Procedure 41 is required only if: 1) the violation
rises to a “constitutional magnitude;” 2) the defendant was
prejudiced, in the sense that the search would not have
occurred or would not have been so abrasive if law enforce-
ment had followed the Rule; or 3) officers acted in “inten-
tional and deliberate disregard” of a provision in the Rule.
Crawford, 657 F.2d at 1047; United States v. Johnson, 660
F.2d 749, 753 (9th Cir. 1981); see also United States v.
Calandra, 414 U.S. 338, 348 n.6 (1974) (holding that Rule 41
provisions governing suppression do “not constitute a statu-
tory expansion of the exclusionary rule”).4
[6] We have already held that the search did not violate the
Fourth Amendment; there is not a constitutional violation.
Thus, the dispositive issues become whether Martinez-Garcia
was prejudiced by the assumed technical violation of Rule
41(f)(3), and whether the assumed non-compliance shows an
“intentional and deliberate disregard” for the Rule’s require-
ments.
[7] Here, Martinez-Garcia was not prejudiced by the offi-
cers’ decision to hold the warrant for service until after an
interpreter arrived, rather than serving it at the outset of the
search. Martinez-Garcia did not speak English and would
have gained nothing by being handed a document that he
could not understand. Despite the language barrier, Raymond
provided limited notice by showing Martinez-Garcia the
“paperwork” and stating that he had an “orden de registro.”
Equally important, it is unlikely that Martinez-Garcia would
have been able to prevent the discovery of the handgun, given
4
We review de novo a district court’s decision not to suppress evidence
and review for clear error the district court’s underlying factual findings.
Gantt, 194 F.3d at 1000.
1758 UNITED STATES v. MARTINEZ-GARCIA
that it was within the lawful scope of the search. Finally,
Martinez-Garcia himself admitted to Lozano that he pos-
sessed a handgun and disclosed its location in the master bed-
room. So we see no prejudice.
[8] We also conclude that the district court did not clearly
err in finding that the JOINT officers serving the warrant did
not act in intentional or deliberate disregard of Rule 41. The
officers had good faith reasons to hold the warrant in the face
of Martinez-Garcia’s claimed inability to understand English,
and the officers proceeded reasonably to gain the help of an
interpreter who could review the warrant with Martinez-
Garcia before the search was concluded. We hold that the dis-
trict court correctly denied Martinez-Garcia’s motion to sup-
press the firearm seized during the March 21, 2003 search of
his residence.
IV
We finally address Martinez-Garcia’s Franks challenge.
A hearing pursuant to Franks v. Delaware allows a defen-
dant to challenge the sufficiency of an affidavit supporting a
search warrant if he or she makes a “substantial preliminary
showing” both that law enforcement officers made a false
statement or omission “knowingly and intentionally, or with
reckless disregard for the truth,” and that the statement or
omission was “necessary to the finding of probable cause.”
438 U.S. at 155-56. Martinez-Garcia contends that Jenista
knowingly or recklessly omitted the following information,
that, if included in the warrant affidavit, would have negated
probable cause: 1) Juan Carlos Martinez-Garcia worked at the
Noble Dairy in November 2002; 2) Juan Carlos no longer
lived at 12579 North Applegate Road; 3) Juan Carlos and Sal-
vador Martinez-Garcia were brothers; 4) a third Martinez-
Garcia brother, Daniel, also lived at the Noble Dairy; 5) Sal-
vador Martinez-Garcia occupied the house that was the sub-
ject of the search warrant; 6) the named informant, Brian
UNITED STATES v. MARTINEZ-GARCIA 1759
Doland, had pending federal drug charges and expected that
JOINT officers would provide a favorable recommendation to
prosecutors in consideration for his service as an informant;
and 7) Doland had a prior criminal conviction for writing a
bad check.
Martinez-Garcia moved for a Franks hearing, and the dis-
trict court partially granted his motion and conducted a hear-
ing limited to the issue of whether Jenista knowingly omitted
Doland’s criminal conviction for writing a bad check from the
warrant affidavit. The district court concluded that affiant Jen-
ista did not act in deliberate or reckless disregard for the truth
and that, even considering the bad check conviction, infor-
mant Doland nevertheless had “overwhelming” credibility.
We first review this conclusion and then consider whether the
district court properly denied a Franks hearing on Martinez-
Garcia’s remaining claims.
A
A district court conducting a Franks hearing engages in a
two-step process. First, the district court determines whether
the affiant officer intentionally or recklessly made false or
misleading statements or omissions in support of the warrant.
Franks, 438 U.S. at 155-56; United States v. Senchenko, 133
F.3d 1153, 1158 (9th Cir. 1998). If it finds by a preponder-
ance of the evidence that the officer so acted, the district court
then inquires into whether “with the affidavit’s false material
set to one side, the affidavit’s remaining content is insufficient
to establish probable cause.” Franks, 438 U.S. at 156; Sen-
chenko, 133 F.3d at 1158.5
5
We review for clear error a district court’s finding that an affidavit did
not contain purposefully or recklessly false statements or omissions and
review de novo its determination that the misleading omissions or false
information did not undermine a finding of probable cause. United States
v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003).
1760 UNITED STATES v. MARTINEZ-GARCIA
We conclude that the district court did not clearly err in
finding that Jenista did not act in deliberate or reckless disre-
gard for the truth by omitting from the affidavit a conviction
that informant Doland had for writing a bad check. At the
Franks hearing, Jenista testified that he had run a criminal
background check on Doland and located no convictions, and
the prosecution offered into evidence a copy of the erroneous
criminal background check.
[9] A law enforcement officer does not act with deliberate
or reckless disregard for the truth if he or she relies in good
faith on a flawed routine criminal history. United States v.
Meling, 47 F.3d 1546, 1554 (9th Cir. 1995). There was no
clear error in the district court’s conclusion that Jenista did
not demonstrate intentional or reckless dishonesty in omitting
the bad check conviction from the affidavit. Because
Martinez-Garcia has not met his burden with respect to the
first prong of the Franks inquiry, we do not consider whether
he has demonstrated that the omission was material to the
finding of probable cause.
B
[10] The district court denied Martinez-Garcia’s motion for
a Franks hearing with respect to all other information omitted
from the warrant affidavit. A defendant is entitled to a hearing
to determine the sufficiency of the affidavit supporting a
search warrant if he or she makes a “substantial preliminary
showing that (1) the affidavit contains intentionally or reck-
lessly false statements or misleading omissions, and (2) the
affidavit cannot support a finding of probable cause without
the allegedly false information.” United States v. Reeves, 210
F.3d 1041, 1044 (9th Cir. 2000); see also Franks, 438 U.S. at
171-72.6
6
We review de novo a district court’s denial of a Franks hearing.
Reeves, 210 F.3d at 1044; Meling, 47 F.3d at 1553.
UNITED STATES v. MARTINEZ-GARCIA 1761
[11] We first consider the information allegedly minimiz-
ing the connection between Juan Carlos and 12579 North
Applegate Road, including control over the Martinez-Garcia
residence and Juan Carlos’s familial and work relationships
with the property. Martinez-Garcia presents no evidence that
Jenista knew about or purposefully omitted any of this infor-
mation and instead argues that Jenista acted recklessly in fail-
ing to investigate further the connection between Juan Carlos
and the Noble Dairy. We disagree. In drawing a connection
between Juan Carlos, his methamphetamine distribution activ-
ities, and 12579 North Applegate Road, Jenista relied upon
information from Doland that he had seen Juan Carlos distrib-
ute methamphetamine to Scott in the house on one occasion
and had visited there five other times. Jenista also relied on
JOINT observation of Doland and Scott entering the
Martinez-Garcia house, and on the Oregon Department of
Motor Vehicles records reflecting that Juan Carlos lived at
that location. Law enforcement officers acting in reasonable
reliance on tips from a reliable informant, corroboration
through police observation and official driving records need
not track down every piece of information that might poten-
tially be relevant before filing a warrant affidavit. We hold
that Martinez-Garcia has failed to demonstrate a “substantial
preliminary showing” of intentional or reckless disregard for
the truth by Jenista regarding the relationship between Juan
Carlos and 12579 North Applegate Road. See Franks, 438
U.S. at 171. Because Martinez-Garcia has failed to satisfy the
first prong of the Franks test, we do not consider whether the
omissions were material to a finding of probable cause.
[12] We turn to the omission of Doland’s pending federal
drug charges and the deal JOINT made with him to provide
a favorable recommendation to prosecutors. Law enforcement
officers must ordinarily disclose information regarding
whether an informant has ulterior motivations for providing
information for a search warrant affidavit. See Meling, 47
F.3d at 1553. The record reflects a “substantial preliminary
showing” that Jenista knowingly omitted from the affidavit
1762 UNITED STATES v. MARTINEZ-GARCIA
information related to incentives he provided to Doland —
indeed, the evidence on this point appears uncontroverted. See
Franks, 438 U.S. at 171-72. We therefore hold that Martinez-
Garcia has met the first prong of the Franks test with respect
to Doland’s pending federal drug charges.
C
[13] With respect to the favorable recommendation regard-
ing the federal drug charges only, we next turn to the materi-
ality prong and determine whether, if this information is
considered, the affidavit nevertheless supports a finding of
probable cause.7 Probable cause exists if the affidavit provides
a “substantial basis” for believing that criminal activity might
have been occurring at the Martinez-Garcia residence on
12579 North Applegate Road. See Illinois v. Gates, 462 U.S.
213, 235-37 (1983); United States v. Alvarez, 358 F.3d 1194,
1202-04 (9th Cir. 2004). In making this evaluation, we con-
sider the credibility of the informant, including his history of
providing reliable information in previous investigations and
any prior criminal convictions for crimes of dishonesty.
Elliott, 322 F.3d at 715-16; Reeves, 210 F.3d at 1045. Also,
we examine whether the informant’s information was bol-
stered by independent police investigation of the tip or cor-
roboration by other confidential informants. Alvarez, 358 F.3d
at 1203; United States v. Bishop, 264 F.3d 919, 925-26 (9th
Cir. 2001).
Here, the affidavit supporting the warrant detailed the
investigation into methamphetamine distribution by Juan Car-
los, Hernandez-Salazar, and Contreras and tied their illegal
7
We review de novo whether, in light of deliberately or recklessly false
statements or omissions, probable cause nevertheless supports a warrant.
Elliott, 322 F.3d at 714. Because Martinez-Garcia failed to make a sub-
stantial preliminary showing of knowing or reckless disregard for the truth
with respect to the other information, we do not consider whether it also
would fail the materiality prong of the Franks test.
UNITED STATES v. MARTINEZ-GARCIA 1763
activities to the Martinez-Garcia residence at 12579 North
Applegate Road. Doland, a named informant who had never
failed a polygraph test and had a history of providing credible
information to law enforcement, told JOINT officers that he
and Scott met with Juan Carlos in an unsuccessful attempt to
purchase methamphetamine at the Noble Dairy. JOINT offi-
cers corroborated his story by observing Doland and Scott
arrive at, enter, and leave the Martinez-Garcia home. Doland
further told the police that he had observed Juan Carlos sell
methamphetamine to Scott at 12579 North Applegate Road on
one other occasion and had been to the house about five addi-
tional times since November 2002. In addition, Doland suc-
cessfully bought methamphetamine from Juan Carlos at the
home of Hernandez-Salazar, and JOINT officers corroborated
this through surveillance, field testing of the methamphet-
amine and tips from other confidential informants. Jenista
verified with the Oregon Department of Motor Vehicles that
Juan Carlos lived at 12579 North Applegate Road. Finally,
insofar as the affidavit indicated that Doland had provided
information for monetary consideration, it did not characterize
his motives as altogether pure. Cf. Meling, 47 F.3d at 1553.
[14] Considering this information along with the omitted
information regarding Doland’s pending federal drug charges,
we conclude that the “totality of the circumstances” still indi-
cates probable cause to search the Martinez-Garcia home. See
Gates, 462 U.S. at 238. Probable cause requires a fair proba-
bility, but not a certainty, that a search would yield evidence
of crime. Gates, 462 U.S. at 231-32. The affidavit detailed
ample evidence that criminality was afoot at the premises to
be searched. The omission of Doland’s pending federal drug
charge from the affidavit does not affect the conclusion that
there was probable cause for the search of the Martinez-
Garcia home. The district court correctly denied his motion
for a hearing.
AFFIRMED.