United States v. Alfredo Jiminez Flores
679 F.2d 173
9th Cir.
1982
Check Treatment

*2 REINHARDT, and Cir Before FARRIS STEPHENS,* and District Judges, cuit Judge.

FARRIS, Judge: Circuit his conviction for appeals Alfredo Flores felon, convicted possessing a firearm as a 1202(a)(1) App. violation of 18 U.S.C. § during The was discovered firearm for evidence search of Flores’ felon, Douglas Bon- that another convicted committing the same crime. tempi, was primary Flores’ contention is that there was insufficient evidence to evidence that sought warrant which Bon- firearms. illegally possessed admissibility also contests the letter in Flores’ attorney admitted owner- of the We ship gun. affirm. THE WAR-

I. VALIDITY OF SEARCH RANT

A. FOR THE PROBABLE CAUSE WARRANT SEARCH Michael On 1978 Police Officer Miceli for a applied to a federal adjoin- to search an and located on Luz Avenue in ing storage area Jose, sought The search San California. Bontempi possessed illegally evidence that firearms, help evidence that would “es- identity persons in control of tablish the sup- Miceli’s affidavit premises.” said 1) port Douglas of the warrant stated felony convicted of a Bontempi had been in the and had been arrested conspiracy 1978 on murder Cook, 2) helped Daniel F. Asst. Fed. Public Miceli had make charge; Defend- Officer er, Jose, Cal., arrest; arrest, defendant-appellant. San Officer * California, sitting by designation. Jr., Stephens, The District Honorable Albert Lee Senior Judge United States District for the Central a nex- is whether there was question fire- The Miceli had observed “photographs apart- de- and either paraphernalia arms us between individuals Mr. and other picting weapons. The ment or the firearms;” 4) holding rifles and other Offi- existence of not turn on the warrant does storage area con- cer Miceli had observed a cause to believe patio to the back nected a door possessed at or resided *3 apartment; building superintendent the a search for evidence authorized to stated he the tenants use permitted had was in actual or constructive area; 6) caller storage anonymous this of firearms which were believed coworker, and a had told the FBI that he If resid- apartment. in the to be building refurbishing while the there would be a apartment, ed at storage area April entered the had found in the that firearms strong inference a box co-worker had observed wherein the But, the affidavit did were his. in the guns; 7) gunshots of were heard and Bontempi resided at state that The warrant neighborhood war- The of the search apartment. 17, 1978. was issued and executed on there were sufficient on whether rant turns firearms, in- The search revealed several to determine that facts to cluding weapon belonging a carbine relationship with the searched Bontempi’s Flores. enough justify significant here, there To sustain the warrant firearms, if that at least one belief relationship connecting must a sufficient be found, him. belonged to seized, crime, and the thing to be place to be searched. United States alone, mere Standing suspect’s Bowers, (9th Cir.), cert. is too a residence presence or arrest at that resi a connection with insignificant (1976); v. Lu United States In relationship. dence to establish that carz, 1970). Cir. Bailey, 458 F.2d 408 sufficient The affidavit contained rela 1972), we found an insufficient weap support an inference that to be searched and tionship between a house In found in the might ons the af robbery suspects, two bank probable is determining whether there suspect that one only fidavit stated is a search warrant cause to “[i]t in the house and that the other was seen the affidavit enable the only necessary that there. In the absence of other arrested it would be magistrate to conclude that to infer facts we found no reasonable basis place seek the evidence in the reasonable to the house contained fruits of the indicated the affidavit.” United States robbery. Hendershot, from which it could No facts are recited stated that The affidavit were other suspects] inferred that [the Bontempi’s previous apart in the resi- guests than casual social ment, plain Miceli had observed in Officer short, nothing there is dence .... significant weapons para view a amount of conjecture to sustain the conclusion empty gun phernalia, including “numerous objects the house contained holsters, caliber am quantities of various search. munition, including clips ammunition from Here, the affidavit contains Id. at 412. pistols.... gun cleaning equip automatic Bontempi’s of rela- allegations additional stock from ment a detachable wooden [and] As the searched tionship with weapon.” This was a rifle or automatic been suspect previously statement corroborated the informant’s But premises. arrested at the searched his coworker had seen a box of contained no Bailey affidavit whereas which the build adjoining storage area suspect linking additional information the residents ing permitted superintendent residence, here con- to the to use. of to the truthfulness challenge and other tained inference, the affidavit. any, to be drawn persons. The properly this additional fact was from has addressed Supreme Court magistrate. issue: appeal review on The standard of a substan- the defendant makes [W]here finding probable magistrate’s from a a false showing tial is nar cause to a search warrant intentionally, statement knowingly a whole affidavit as row. We review the truth, or with reckless disregard fashion, Unit a common sense and realistic war- included the affiant 1326, 1330 Traylor, ed affidavit, false allegedly and if the rant defer give substantial finding necessary is probable finding magistrate’s ence to the cause, the Fourth Amendment Texas, cause, Aguilar hearing be held at requires event that at request. In the defendant’s *4 Bowers, 186, 534 F.2d United States v. or allegation perjury hearing that denied, 942, (9th Cir.), 429 97 cert. U.S. is established disregard reckless 360, (1976). In doubt 50 L.Ed.2d 311 S.Ct. of the evi- by preponderance defendant cases, marginal preference ful or should ma- dence, and, false with the affidavit’s the warrant. Unit given validity to the side, re- the affidavit’s set to one terial Ventresca, ed v. 380 U.S. States to estab- maining content is insufficient 741, 746,13 (1965). 109, L.Ed.2d 684 cause, probable lish find, record, upon We cannot fruits of the and the must be voided issuing erred in the search war magistrate as if the same extent search excluded to rant. the face of lacking cause was on probable the affidavit. FROM B. INFORMATION OMITTED 154, 155-56, Delaware, 438 U.S. Franks v. THE AFFIDAVIT (1978). L.Ed.2d 667 98 57 S.Ct. challenges Maher, 645 F.2d v. also United States See ground search warrant on the 780, 1981) (omissions). 782 from intentionally recklessly ant or omitted consti Assuming allegations these his affidavit the material facts that showing that tute a sufficient superintendent had stated that recklessly omit deliberately or the affiant his, storage he considered the area to be affidavit, from his information ted certain 2) Bontempi police custody had been must be ma falsehood 3-17, a deliberate argues from 1978. Flores “[e]ven invalidating a war justify weakens the terial in order the former omission Maher, at 782. United guns storage observed in the area rant.” Lefkowitz, 1313, 1317 & Bontempi’s. were He the latter States denied, 824, 101 449 Cir.), the inferences that cert. U.S. omission weakens n.3 (1980).1 have 86, We 66 gunshots neighborhood heard in the were S.Ct. the affidavit. The omis reviewed carefully or that Bontempi connected The affidavit stat not material. were possessed found in sions superintendent Flores contends that these facts would viti- ed storage “his” the residents to use finding probable ate a cause to search allowed 17,1978, custody April Bontempi’s apartment, and that the district court area. executed, is a the search warrant evidentiary holding hearing erred not an false, deliberate, misleading, partial misleading with or her 1. We have condemned facts. We do of the relevant filed to omissions an affidavit position, inval- but we will not from this issuance of a search warrant. A retreat the omissions adequately warrant unless idate a search cannot determine the existence of requisite judicial were material. cause with the neu- trality independence police provide

177 motion a defendant testifies in concerning fact controlling but not relevant guns. Possession need on Fourth Amendment suppress evidence actual, constructive. not be but can be testimony may not thereafter grounds, his ” Kalama, 594, 596 him at trial. ... against be admitted 1110, cert. found an unconstitutional dilemma Court 1147, (1977); 97 S.Ct. the defendant had been LaGue, 152 privilege surrender his Fifth Amendment Further, have Bontempi could been in or- compelled self-incrimination against prior to his possessing indicted for Fourth arguably assert his valid der to Supreme claim. The Court has Amendment applied a similar rationale to situations Flores failed to establish a basis for an a Hob- imposed has challenge the affida- evidentiary hearing to thereby forcing an person, son’s choice on a accuracy. vit’s Amendment the Fifth election' between II. THE OF THE IN- ADMISSIBILITY compelled self incrimina- privilege against CRIMINATING LETTER See, e.g., right. important tion and another A. THE SIMMONS DOCTRINE Cunningham, Lefkowitz 431 97 U.S. Flores next argues constitutionally Lefkowitz (1977); 53 L.Ed.2d S.Ct. impermissible dilemma was created by per- Turley, S.Ct. mitting the government to introduce into Broderick, Gardner v. L.Ed.2d incriminating letter written 1913, 20 L.Ed.2d 1082 Flores’ attorney attempt in an to vindicate *5 Flores’ Fourth rights. Amendment Simmons should be argues Flores Flores’ attorney sent an administrative at his prevent extended to the admission City claim letter2 to the Jose which San he made in criminal trial of the statements alleged police had violated Flores’ damages a for an formal3 effort recover rights by illegally searching his of his Fourth Amendment alleged violation and wrongfully seizing guns. The letter understand, reject the ar- rights.4 We but possession admitted Flores’ of the guns gument. $10,000 demanded in damages. The district court denied Flores’ motion to exclude the Here, did not cre government letter from evidence at his being trial for a which Flores com ate the “difficult choice” in possession convicted felon of firearms. sought monetary dam plains of. The letter States, v. illegal search of Simmons United allegedly ages 390 U.S. 377, 394, necessary It was not 88 S.Ct. 19 L.Ed.2d 1247 Flores’ (1968), Supreme possession held Flores’ Court admitted “when have years 2. The letter was characterized as an fourteen since Simmons was “adminis- In the Fiores, decided, trative claim” in United States v. 628 no Circuit has ruled on whether a 521, (9th 1980). statements, F.2d prior 523 Cir. plaintiffs in a made formal rights, to vindicate his constitutional can effort purposes 3. For argument, against subsequent of this we will treat used criminal though raised, step the letter as filing it was the initial decid Similar issues were trial. complaint. Any Bacall, 1050, a formal ed, civil See n.2. in United States v. 443 F.2d wholly denied, 1004, statement made Flores in a (9th Cir.), informal 92 1062 cert. would, course, extralegal setting 565, (1971), ad- 30 L.Ed.2d 557 and Doe v. S.Ct. trial, subject only missible at a criminal 1279, (4th 1974). Boyle, 494 F.2d 1280 Cir. evidentiary applicable. normal rules otherwise surprising, defendants This is not since most incriminating during Even statements made filing probably appreciate an action the risk of prior judicial proceeding usually are admissible government against the success of subsequent proceed- as evidence in a ing. criminal proceeding require incrimina that civil could White, 1283, See United v. States 589 F.2d ting might be admitted as statements which (5th 1979); 1285 United States v. Cir. Vecchiar- prosecution. in a later criminal evidence ello, 656, (D.C.Cir.1977); 569 F.2d 664 Cecil, 1178, (8th States v. 1181 Cir. 1972). 178 See United conspiracy. time the existence of at that found in the Zemek, 1159, (9th v. 1170 States to vindi seeking before and in that manner 101 cert. rights. Cf. Cir. cate his Fourth Amendment (1981). While Dohm, 67 S.Ct. 543- United States apply preponderance circuits some other 1979) (the found no com 44 court Cir. ques to preliminary test of the evidence self-incrimination, in violation pelled fact, see, e.g., United States tions of Amendment, because the defendant’s Fifth Santiago, F.2d that he hearing his bail admission is sat requirement 1978), the Ninth Circuit necessary was not possessed cocaine of the exist isfied substantial right to Eighth of his Amendment assertion agency. fact of ence of the Further, bail). voluntarily the letter was their attorney Flores and his at

mailed mer- are without arguments Flores’ the com They knowingly election. created it. Nothing dictated their plained of dilemma. AFFIRMED. was not timing. choice of We find no “intol party to the election. REINHARDT, dissenting. Judge, Circuit erable tension between constitutional I believe that California, rights.” See McGautha 1972), compels the conclu- F.2d 183, 211-12, 1454, 1469-1470, U.S. in- affidavit was Miceli’s sion that Officer (1971). say 28 L.Ed.2d 711 Nor can we search issuance of a sufficient right “a constitutional has been burdened Therefore, dissent. respectfully I warrant. v. Ander Jenkins impermissibly....” inter alia son, the affidavit warrant was invalid See also United facts sufficient it did not state supporting White, 1283, 1286-87 to show that to be found might produce different facts While the affidavit he contends that Specifically, result, under the circumstances different that Bon- which showed not recite facts did here, it not error to admit the claim address. The specified at the tempi resided letter into evidence at Flores’ trial. Bontempi’s prior government asserts *6 photo- the apartment THE B. OF PROOF ON STANDARD were sufficient to displayed there graphs PRELIMINARY OF AGEN- ISSUE apartment. with the link him CY held that recitation previously We have letter should Flores also that the has been the fact that an individual of the trial not have been admitted because to is insufficient arrested at a residence stan- judge applied the substantial evidence to of a warrant search the issuance support proof determining prelim- dard of the to be in for items believed that residence of letter was an inary question whether the possession. arrested individual’s the authorized admission Fed.R.Evid. under Bailey, (D). 801(d)(2)(C) or Bailey, we stated: 1972). In Fed.R.Evid. 104(a), Under the Bailey discloses that simply The affidavit judge preliminary question decides the of that the house and seen at had been agency existed. Flores whether contends No facts arrested there. was Cochran by erred in- judge requiring that the the could be which it recited from are were oth- agency only by to show Bailey sub and Cochran ferred that the resi- evidence, than at prepon guests rather stantial casual social er than nothing but short, is disagree. the evidence. We In there derance of dence .... In conclusion that the involving conjecture the admis to sustain analogous the situation objects the statements, contained we the house coconspirator’s sibility search. independent evidence of require substantial that persons sentence one of a number of in Officer Under the statement Bailey, Bontempi photograph or depicted photographs had previ- Miceli’s that affidavit apartment any particular the has Luz interest in the Avenue ously been arrested apartment.1 apartment greater no inference permits guest” than was a “social or a that he Nor can any inference using friend were persons apart- of who apartment paraphernalia at the observed ment. that is in- Consequently, belonged to be drawn from Bontempi issuance of sufficient to fact that showed Bon- photograph(s) warrant. well number unspecified as as an of persons rifles or other fire- holding acknowledges, As majority only imagine arms. It is to bow the difficult Bailey difference between the ease be- persons fact number of unidentified fore us the instant is that affidavit showed under pictured holding were once rifles cir- that “the here photo- contained cumstances well have been may en- graphs and other persons.” gives lawful inference tirely any rise to that Without analysis further the majority then one of those is the owner individuals concludes, rather peremptorily, infer- “[t]he paraphernalia which it would specific ence, if any, to be drawn from this addition- which it unlawful him to own but would al fact is magistrate.” The facts be lawful for friends or associates to every Nevertheless, case differ somewhat. fact, In possess.2 photographs an important judicial function is to deter- paraphernalia the inference that the mine legal significance, what if any, may be maintained type which would be particular attached to the distinctions. In whoever occupants they case, an examination of the affidavit may have been. demonstrates that there is none. short, wholly the affidavit is insuffi- The vague sentence in the affidavit re- cient to reasonable garding photographs depicting Bontempi firearms which Bontempi possessed and other individuals is vague and ambigu- could be found in the Under ous at provide best and can not serve to Bailey, required the district court was facts, additional sup- grant suppress. Flores’ motion to port conclusion was in It produced would be The firearms which the search conjecture rankest to infer from that central were to Flores’ conviction. Conse- over, suggest photographs apart- suggests reading 1. I do in an a careful of the affidavit cannot, circumstances, ment under other tend strongly photo- as to the the information persons using show who the graphs purpose not for the included However, substantially are. as to more information showing any particular con- than set forth in nection with in order necessary. Miceli’saffidavit would be weapons bolster the found there. tograph contention that would us, example, davit does not tell if Mr. Bon- *7 regarding pho- The sentence tempi appeared photograph, in more than one individuals, including Bontempi, photograph photographs whether or weapons listing appears with of the the middle appeared depicted which part group he alone or as parts weapon found ammunition and, latter, group, whether large or small. The information Bontempi’sappearance regarding pho- Mr. suggestion 2. There is no or indication tograph sparse photographs or is too photograph photographs were taken or after regarding his connection with the fact, Bontempi’s felony conviction. I note that the affidavit in this case day davit states of his arrest on the Bon- generally complete full and and that the following probation conviction information competent likely is set contained therein forth in a attempted presume I theft. therefore auto professional manner. It is not vintage. that his The was not of ancient conviction that additional material information re- knowing, way garding ted due is photographs had no existed was omit- hand, photograph oversight Rather, inexperience. or not the or whether it likely carefully that the affidavit sets forth all were. photographs. that can be said about the More- admitting the error in the items quently, a reasona- beyond

seized was harmless California, Chapman

ble doubt. 824, 828, 17 L.Ed.2d Valle-Valdez, 1977). In view

F.2d conclusion, I not reach the other would

issues raised Flores. reasons, I would foregoing

For the re- judgment

verse the of conviction.

NATIONAL LABOR RELATIONS Petitioner,

BOARD, YACHTS, Respondent.

CATALINA

No. 81-7156. Appeals,

United States Court of

Ninth Circuit.

Argued and Jan. 1982. Submitted

Decided June