*1 of a exercise on defendant’s duction based accep- manifested a defendant whether evidence). right suppress who to A defendant constitutional responsibility.. of tance govern- to merits of put opinion in order on the express trial no went We satisfy every could to its burden of re- acceptance ment for an request Cortes’s listed. consideration sponsibility reduction. us, unclear is before it record theOn CONCLUSION court, like the district the district n an assumed Ochoar-Gaytan, court inter- substantially affects Carjacking reduction responsibility of acceptance thus, commerce, and the district state he went to to Cortes because
unavailable Congress correctly determined court related factual an issue to contest trial it to its Commerce may regulate pursuant court’s the district of Reminiscent guilt. is va- Cortes’s authority. sentence Clause the district Ochoa-Gaytan, statements can cоnsider the district court cated so stated: court accep- related to factors appropriate responsibility, of acceptance In terms of responsibility reduction. tance of issue, legal find I also that’s VACATED, and in part, AFFIRMED question, into putting the defendant REMANDED. jury, the issue by the and determination intent, an issue it did specific put of ... crime, a constitu-
of element does this Court And [sic]. issue
tional to award appropriate is
not believe it respon- of acceptance for any points
him
sibility. word nary spoke another court
The district America, STATES UNITED responsibility. acceptance Cortes’s about concerning Plaintiff-Appellee, findings specific made It contrition, it did remorse Cortes’s applicable the record the not consider Jensen; HUGGINS; Vicki Jo G. Steven the district appears It factors. Guideline Taylor, Whip Hagen; Rhonda Dahcota believed, matter of as a may have court Defendants-Appellants. for the re- ineligible law, that Cortes se^ type per Employing duction. 01-30110, 01-30065, Nos. re- responsibility the acceptance bar 01-30111, 01-30112. penal- impermissibly would have duction Appeals, his exercising 'constitution- Court States ized Cortes course, possible, It also rights. is al Ninth Circuit. appro- sub court silentio the district 7, 2002. March Argued Submitted factors the relevant all balanced priately re- requested denied Cortes Aug.
and still Filed however, record, this On duction. re- lacking, thus entirely
analysis is the district to allow appropriate
mand in the first fully the issue explicate
court Sitton, 968 See United
instance. Cir.1992) (remanding
F.2d court if the district it was unclear
where re- responsibility acceptance
denied *2 McCrea, McCrea, P.C.,
Shaun S. Eu- OR, gene, argued the cause and filed appellant briefs for Huggins.
Marc LLP, A. Spence, Spence Sabitt, & OR, Eugene, filed a brief for appellant Jensen. Weinerman,
Craig E. Assistant Federal Defender, OR, Public Eugene, argued the cause and filed briefs for appellant Hagen. Michael, David M. Law Offices of David Michael, Francisco, M. CA, San filed a appellant Taylor. brief for Kent, Jeffrey J. Assistant United States Attorney, OR, Eugene,. argued the cause registration on a still-current vehicle dress of America. appellee United Mosman, Attor- license that had Oregon United States driver’s and on W. Michael before; on the brief. ney, Huggins expired six months driver’s license listed on his previously (near Eugenе); an address Veneta *3 the Mowetza Taylor owned a Rhonda a personal and maintained property Drive address, address, telephone and a business FLETCHER, B. Before: there; Rhonda and that service BERZON, O’SCANNLAIN, Circuit and Jewell and the names Rhonda also used Judges. A of DEA files Huggins. Rhonda check Jensen, that a Rhonda also indicated O’SCANNLAIN; by Judge Opinion Jewell, had the who known Rhonda B. as BETTY by Judge Concurrence Taylor, as Rhonda had of birth FLETCHER. same date in with in Mexico been arrested OPINION marijuana. of kilograms O’SCANNLAIN, Judge. Circuit Drive by the Mowetza Wright drove the Fourth must decide We it a that was five- and determined property of suppression compels ranch single-story with a parcel acre in searches a set series the results barns, ring. He house, riding and a two private a to scan an application motion records for that the electrical also obtained a ther- with outbuildings and its residence proper- neighboring the two and propеrty imaging device. mal Those Light. Pacific Power and ties from combined elec- that the indicated records I in two meters service at tricity for the bills agent special DEA October averaged had $455.87 Drive 199 Mowetza Kurt special agent and IRS Wright Ronald (with averaging use power total per month prisoner incarcer- interviewed Charlton month) the thirteen over per 7784 kWh seeking in- charges, drug on federal ated had been the electric service in months that activity trafficking drug formation on By comparison, name. gave Taylor’s The informant in Rhonda Oregon. southern variously adjacent prop- individual tipa that an at the consumption them electric Maxwell, Courtney Max- as Galen per known 1377 kWh 1583 and averaged erties (“Huggins”) well, Huggins and Steve aver- month, their bills and respectively, distributing producing involved the thir- During aged $71.84. $92.83 The informant added marijuana and LSD. took Jensen before Rhonda teen months three Huggins spoken last that he had at 199 Mowetza electric service over the lived before, had then Huggins years property Drive, bills for combined have since might but Eugene area in the $133.69, usage average averaged had Ashland, time that at the moved of 2309 kWh/month. named girlfriend had a had Huggins an affidavit before out Wright swore “Rhonda.” reciting the above judge, U.S. some to corroborate proceeded Wright with no (although about established tip. He details background identity or details about Mow- listed 199 Huggins Steve caveat with the Ashland, tipster,1 ad- Drive, as his Oregon, etza the details subsequently obtained dants inadvertently revealed government later 1. The identity it turned over tipster’s when The defen- document. inadequately redacted “untested”); tipster’s “reliability” was bought property Veneta in sold Huggins’s corroborated details of move property bought Veneta Ashland and of his associa- Mowetza the same month. tion with Rhonda Taylor; the information properties Both subject to mоrtgag- arrest; Taylor’s past about and the elec- Huggins es. had never filed a federal tricity consumption Wright data. stated return; income tax Taylor had filed re- past experience, based on his he turns, but they showed income insufficient thought this information indicated that only barely sufficient to cover her mort- Huggins engaged marijuana pro- gage interest payments, and they gave no In particular, duction. he stated that indication of got money where she “large indoor cultivation opera- the two payments. down typically large tions consume quantities *4 Wright affidavit, swore aout second re- electricity primarily 1,000 to power large peating the averments of the first affidavit watt lamps grow with the oper- associated and adding the details of the thermal im- requested ation.” He therefore a warrant aging scan and review Huggins and to examine 199 using Mowetza Drive a Taylor’s finances. requested He a warrant device,2 thermal imaging as well as to col- to search 199 Mowetza Drive for evidence lect discarded trash from property. marijuana cultivation and related of- magistrate The judge issued the war- fenses. The judge granted the rant, and the search was conducted over- warrant. night by Sgt. Hauge Ken Oregon The search up turned 474 growing mari- Guard, National a operator trained of ther- juana plants barn, in the eastern plus as- mal imaging equipment. Wright As later sorted growing paraphernalia, some dried reported, the scan that indicated the south marijuana, documents, and cash. It did side of the eastern barn “showed an exces- not, however, up any turn drying sive signature” equip- heat-loss “greater ment. Among than the heat loss on the north documents seized side of the were some relating same barn” and that to a “continued at property after 1:00 16000 North a.m., Applegate which is a during time which Road Ruch. Specifically, loading solar heat agents that would have oc- found a bill made out to Rhonda during curred daylight hours would have for water at testing the North Ap- dissipated.” The other barn also showed plegate Road property; receipts pay- an signature excessive heat-loss on one ments to a company, title which bore wall. The signatures, heat-loss Hauge name Hagen; D.W. and a power bill for concluded, were signa- “consistent with the the North Applegate Road property ad- he ha[d] tures seen from other thermal dressed to Whip Hagen. They also found images of structures from which indoor an envelope “receipts labeled Apple- marijuana ‘grows’ were subsequently gate,” which contained a number of re- seized.” ceipts from a hardware store for several Meanwhile, items, investigated Hug- Charlton including timer, a water heater gins’s Taylor’s and finances. Taylor had temperature gauge, humidity and gauge, informant's plеa agree- cool, and hot, incarceration tive warmth —black white is ment. differences; gray shades of connote relative respect, operates it somewhat like a video radiation, imagers "Thermal detect infrared showing images.” Kyllo camera heat v. Unit virtually which objects all emit but which is States, 2038, 2041, ed eye. visible to the imager naked The 94(2001). 150 L.Ed.2d images converts radiation into based on rela- Highway up her as caretaker indoor set an operating be used that can addition, property. they seized In marijuana grow. relating to Sheet” Inspection “Property indicted were All four defendants3 in Grants Highway 238 at 15333 culti- possession, charged with Steve listed document Pass. except Taylor All vation, and distribution. tenants. Huggins as
Rhonda
com-
to
charged
conspiracy
also
laundering.
defendants
money
mit
including ques-
investigation,
Further
(with various cross-
various motions
filed
the scene
Taylor at
tioning
from
the evidence
joinders)
suppress
Hagen
Whip
Dahcota
search,
verified
particular,
In
of searches.
series
the North
son, that he owned
Taylor’s
fail-
challenged the affidavits’
there
defendants
property,
Road
Applegate
proper-
the Mowetza
ure to describe
calls from
phone
a number
had been
adequate
an
basis
provide
July
ty
Hagen’s
line to
phone
Taylor’s
fail-
electricity usage;
evaluating
addition,
state
Oregon
August.
the tip-
about
provide
ure
informant’s
anonymous
relayed an
trooper
lie; and
and motive
plea bargain
ster’s
marijuana grow
had seen
that he
imager,
(and
efficacy of
had the
Road
Applegate
North
imager during
operation of
Hauge’s
he said was
a leaf
provided
*5
Mowetza,
Wright’s
of 199
the
the scan
across
working
a contractor
grow),
results.
of the scan
report
Whip Hagen’s
had seen
he
said that
road
Hagen’s
in and out
going
“parents”
limited Franks
held a
judge
The district
Finally,
week.
previous
the
over
property
affiants
whether the
examine
hearing to
electrical
the
discovered
agents
the
or misstate-
omissions
material
had made
was
property
238
Highway
the
at
service
war-
the several search
obtaining
ments
Hug-
name and
Huggins’s
in Steve
sides,
testimony from
After
both
rants.
the
than
higher
was
electricity usage
gins’s
opera-
testimony on the
including expert
had been.
tenant’s
previous
imaging
the thermal
accuracy
tion
the mo-
denied
device,
district court
information, a
foregoing
on the
Based
court concluded
The
suppress.
tions
working with
officer
police
Medford
exist[ed,]
by a
but not
cause
“probable
sought
obtained
agents
DEA and IRS
had
the defendants
margin,” and
wide
Ap-
the North
warrant for
search
a state
establishing
their burden
carried
not
properties.
238
Highway
Road
plegate
in the affidavit.
dishonesty or recklessness
day
searched
were
properties
Both
Drive search.
after
the Mowetza
subsequently
All
four
defendants
found
was
property
Road
Applegate
North
under
agreements
plea
conditional
reached
100
grow
over
with
contain
to chal-
right
their
they reserved
which
238
Highway
and the
marijuana plants,
various
constitutionality of the
lenge the
marijuana plants
over 300
yielded
instant
timely filed the
They
searches.
marijuana.
bagged
and some
consolidated.
which we
appeals,
Apple-
at the North
was arrested
Hagen
II
Jensen, who
and Vicki
property,
Road
gate
de
recently
Supreme
Court
sister,
at
was arrested
Taylor’s
is
imaging
use of thermal
termined
told
Jensen
property.
238
Highway
general
“not
devices
or other
equipment
Huggins and
authorities
voluntarily
Jensen,
dismissed
government
later
daughter,
Sol
Selicia
3. Vicki Jensen’s
Highway
charges.
her mother at
was found
indicted, but
also
property and was
public
Delaware,
use”
discern “details of the
154,
home
2674,
U.S.
98 S.Ct.
(1978)).
that would previously have been unknow- L.Ed.2d 667
In evaluating wheth-
able
er
physical
without
intrusion” is
the officers
reasonably
could
rely on the
search,
magistrate judge’s
unreasonable
under
Fourth
cause determi-
nation,
supported by
unless
we are mindful
that although a
and,
presumptively,
authorized
search is
by a
less intrusive
States,
physical search,
than a
Kyllo
warrant.
degree
prob-
533 U.S.
2038, 2046,
required
able cause
is
S.Ct.
not
L.Ed.2d
diminished
(2001).
merely
case,
by virtue
In this
of that
Wright
fact.5
obtained a
facially valid warrant4 before performing
A comparison with the warrant we
scan,
initially
so we
only
ask
Clark,
considered in United
he conducted the search
good
faith reli-
(9th Cir.1994),
F.3d 831
is instructive.
ance on
judge’s determina-
case,
we held that an anonymous tip,
tion that probable cause existed. The which did
specifically
link Clark to
“good
exception”
faith
applies, and sup-
activity
criminal
and which
only
was
par
pression
unwarranted,
unless
tially corroborated, and an assertiоn that
searching officers’ reliance on the warrant
target’s
electricity usage
“high,”
reasonable,”
was not “objectively
United which offered the issuing magistrate no
Leon,
States v.
104 S.Ct. basis for comparison,
together
inade
(1984),
1047 Ill faith reliance in good imaging search mal warrant, and that the facially valid on Next, whether we must examine not re does therefore Fourth justify physi cause existed recov images of the suppression quire light Drive. of 199 Mowetza cal search Therefore, we search. during that ered conclusion the fruits our of whether need not decide admissible, search were imaging thermal was cause determination judge’s probable affidavit the second warrant consider we erroneous, opin express clearly including report entirety, its 924-25, id. at question. See on ion results. scan reviewing (indicating 3405 discretion, into inquire may, in their courts faith or vice good A cause before accord, v. Cava
versa); e.g., United States re- imaging data served to The thermal (5th Cir.2002); zos, 706, F.3d for the explanations some innocent move 874, F.3d Lindsey, 284 v. States United usage at 199 high electricity comparatively Cir.2002); (8th v. United States 877-78 war- Accordingly, the second Mowetza. (1st 739, Owens, Cir. 744-45 167 F.3d estab- dependent much rant was less Chaar, 137 F.3d 1999); v. States United proper- to the lishing Huggins’s connection (6th Cir.1998); v. 359, United States there, the longer if he no lived ty; even (2d Cir.1995); Cancelmo, 64 F.3d data, consumption electricity Clutchette, 24 F.3d v. scan, Taylor’s recent association (4th Cir.1994); v. United States n. 4 partially corroborated Huggins, (10th Cir. 1453-54 McKneely, 6 F.3d marijuana Huggins involved 1993). ex good faith “Applicаtion cultivation, ability to apparent and her in the appropriate particularly is ception only a small Mowetza Drive on purchase legal question case because instant support- all factors income9 reported a close existed is probable cause might be herself Taylor the notion that ing one,” objective reasonableness while marijuana grow on maintaining a the warrant reliance on the officers’ in- Huggins’s with or without Cancelmo, premises, 64 F.3d straightforward. more volvement.10 at 808. Taylor's past urges sure, government conceivably live be could 10. To trafficking be considered arrest paying income tax—for quite well without support of this con evidence in gifts, as additional were from example, entire if her income interest, our cases some of It is true that I.R.C. clusion. see bequests, and tax-free may be arrests 103(a) (1994), previous that relevant 102(a), if she subsisted §§ indicate analysis even (albeit gener- savings considered existing savings interest). See United States conviction ensued. if no And the difference no taxable ated $83,310.78, $135,000 Currency, 851 F.2d U.S. realized on the sale she between the Cir.1988) $170,000 (9th (considering a 1973 con down previous of her home and arrest); conviction, viction, a 1984 jaw-drop- a 1983 payment on 199 Mowetza County Bernardi San reported see also Greenstreet ping. she Cir.1994) ("[T]he no, $12,100, F.3d gross of about adjusted income can be prior convictions use of arrests and payments totaled mortgage alone interest her cause, espe establishing probable $11,445. helpful in significant assets presence conviction previous arrest or cially where the means apparent together with the absence *9 general nature same a crime of the involves may be included support plausibly at least See, seeking to uncover as the one warrant probable cause determination. in the added)). 1325, three other Robinson, At least (emphasis ....” 62 F.3d e.g., v. United States v. States United Cir.1995). held as much. (11th circuits have 1331
1048 issue,
In considering this
we
guided
are
eating that
power-intensive
whatever
activ-
by pre-Kyllo
discussing
caselaw
the weight
ity is occurring on
premises
under
that thermal imaging results
in prob-
bear
surveillance is also
generates
one that
sig-
able
analysis.11
cause
Several of our sister
heat;
nificant
this information rules out
multiple
circuits and
other courts have not-
some,
all,
albeit not
explanations
innocent
ed that
thermal
although
imaging does not
for
target
location’s relatively high
reveal
crime,
direct evidence of
it can
power bills.13 The thermal
per-
scan
serve as a means of corroborating direct
formed both functions in this
Sgt.
case:
but weak evidence of criminal activity—
Hauge’s expert interpretation of the scan
such as the
tip
informant’s
that triggered
results indicated that
surplus
electrici-
the investigation in this case.12 Thermal
ty
imaging
likely
can
being put
bolster
probative
heat-generat-
also
to a
val-
ue of comparative electrical
by
use,
ing
data
indi-
and that the
energy
thermal
thus
Jakobetz,
786,
(2d Cir.1992)
955 F.2d
803
(Ky.1996) (finding probable cause based on
("[T]he magistrate surely appreciated the dif-
imaging
infrared
results buttressed
an
ference between arrest
and conviction.
tip
anonymous
stating
that the thermal
Moreover,
that,
determining proba-
fact
imaging results alone would have been suffi
cause,
judicial
ble
may
officer
take into
support
cause);
cient
probable
Garrettson
prior
error.'');
account a
similar arrest is not
State,
1064,
428,
v.
114 Nev.
967 P.2d
431-32
McSween,
684,
accord United
v.
53 F.3d
(1998) (finding probable cause based on ther
(5th Cir.1995);
Thomas,
686
United States v.
results,
bills,”
imaging
mal
"high power
1111,
(4th Cir.1990).
913 F.2d
None-
anonymous
Norris,
an
tip); State v.
47 S.W.3d
theless, because
adequate support
there is
for
457, 469-70 (Tenn.Crim.App.2000) (finding
finding
without the fact of
no
cause where the affidavit offered
arrest,
prior
any
because in
event the
only "conclusoiy statements” about the re
age of that
reliability,
datum reduces its
we
sults of a
imaging
thermal
scan
analysis
do not
analysis.
it in
consider
our
records,
electricity
plus evidence that the
painted
defendants' windows were
black and
Robinson,
11.E.g.,
62 F.3d at
(finding
they
were arrested
growing marijua
probable cause based on
imaging
infrared
before);
na six months
see also United States
results,
purchase
the homeowner's
thirty
Pinson,
(8th
24 F.3d
1057-59
Cir.
high-pressure
lights,
sodium
comparative
his
1994) (upholding a
based
search
on infrared
ly high electricity consumption,
ap
and the
results,
imaging
comparatively high electricity
parently expensive
despite
house he owned
consumption, and
receipt
packages
having
returns);
filed
state
income tax
from a manufacturer
hydroponic
growing
Ishmael,
United States v.
48 F.3d
equipment);
Zimmer,
United States v.
14 F.3d
(5th Cir.1995) (finding probable cause based
(6th Cir.1994)
dicta,
(stating, in
high
eleсtricity consumption, a continu
results,
imaging
thermal
comparatively high
fan,
ously running
phone
exhaust
calls to hor
bills,
electric
and the
smell of
on a
and,
shops,
ticulture
"perhaps
impor
most
prior
by police
visit
enough
officer "were
tantly,”
imaging results);
thermal
cause”).
establish
Robertson,
States v.
39 F.3d
893-94
Cir.1994) (finding probable cause based on
Ishmael,
857;
12. E.g.,
Robertson,
results,
48 F.3d at
imaging
infrared
foil-covered win
894;
dows,
Siegel,
1204;
F.3d at
679 So.2d
anonymous
and a
credible
tip allegedly
Garrettson, 967 P.2d at
tipster's
based
personal
on the
knowledge);
State Siegel,
(Fla.Dist.
So.2d
Ct.App.1996) (finding probable
Clark,
13. Analogously,
cause based
although we deemed
results,
it
comparatively
insufficient to
finding
sustain
proba-
high electricity
cause,
consumption, two
ble
arrests for
approval
noted with
the search
drug
before,
manufacturing many years
warrant
attempt
"negate
affidavit's
one in-
informant’s
that was "short on
large
detail
use[of
nocent
electricity]—
amounts of
but
substantially corroborated”);
...
heating by
LaFol
noting the alternative sources of
—
Commonwealth,
lette v.
915 S.W.2d
Clark,
heat at the residence.”
14. For (but affirmatively in his declaration. equipment did not with infrared cross-examination 608(b)) demonstrate, that Ghi- Fed.R.Evid. see *11 C important most evidence was the envelope labeled “receipts 98 Applegate.” Because the second affidavit was suffi- The receipts in the envelope reflected the cient support finding of purchase of a number of items that could сause, and because it neither omitted nor be used in growing or drying marijuana misrepresented facts, material the district indoors. would, This course, evidence court properly denied the motion sup- mean little for Fourth Amendment pur- press the fruits of physical search of poses standing alone. as the 199 Mowetza Drive. investigators had confirmed in the search of Mowetza Drive that Huggins and Taylor IV engaged growing marijuana in- Having concluded that the evidence doors, the presence of an envelope full of from the two searches of ’199 Mowetza receipts with a label indicating that they admissible,15 Drive was we have less diffi- might growing be marijuana elsewhere culty upholding the derivative searches takes on a different cast. Additionally, the Applegate North Road and Highway search had turned up some marijua- dried properties. na at the Mowetza Drive property, but no facilities for drying the marijuana, which A further supported the conclusion Hug- gins Hagen strenuously Taylor might challenges be maintaining search oth- er sites cultivation, his property as having justified drying, been or both. a theory mother, of “like like son.” Al- In light of the discovery of the envelope though agree we that such a rationale and the marijuana, dried the documents would by not itself suffice to sustain a detailing Taylor’s involvement making search, we disagree with the contention mortgage payments paying for water that that rationale was the only reason for testing on the North Applegate Road searching the North Applegate Road prop- property also bolster the finding proba- erty. Evidence recovered from Mowetza ble cause. Absent any evidence, other directly supported the state judge’s they might plausibly have been chalked up conclusion that probable existed to to a mother’s efforts to assist her son search Hagen’s property; the affidavit did however, financially;16 in conjunction with not merely invite judge to infer from the knowledge that the mother was en- Taylor’s criminal activity that Hagen was a gaged in growing marijuana, they estab- participant. And the mere fact filiation lished that she had personal some involve- did not Hagen’s immunize property from ment in another nearby property where search in the face cause to she might be engaging in activity. similar believe that it was being put to illicit use. (They also lent some specificity to the conclusion, light o£ this it, 15. we need not asserting Taketa, United States v. decide whether Hagen or Jensen standing has (9th Cir.1991), F.2d may to challenge evidence, the admissibility of that standing assume denying when an unreason- government whether the waived that issue merits.) able-search claim on the by failing to raise it in the district court. (Standing challenge a search or seizure is a course, light Of of the financial informa- matter substantive Fоurth Amendment law tion recited in the second search warrant rather than of jurisdiction, Article III Rakas v. application, this assistance would necessarily Illinois, 128, 139-40, S.Ct. have to have come savings or nontaxa- (1978), 58 L.Ed.2d meaning gov ble income. ernment can the standing waive defense were the Huggins and dence envelope.) “Applegate” notation before ei Even property. warrant obtaining the Further, lessees before *12 investigating took the Drive searches property, of the Mowetza Hagen’s ther search veri- and property the investigated that to believe officers was evidence there place, entirely compatible in fact was that it fied marijuana in been involved had Huggins marijuana cultivation of the existence with was over cultivation; uncertainty the it contained as operations, drying or so, and, if engaged still so he was out-building. metal 1500-square-foot Drive of Mowetza The search the wherе. second Further, the cannot discount we jointly Taylor and Huggins property that the affidavit Although tip. informant’s Huggins that revealed occupied defi the of support in evidence no presented marijuana cultivation in nitely involved pur the informant credibility,17 source’s similarly involved. Taylor was that and ille knowledge of firsthand to have ported dried but discovery of recovered and the evidence activity, gal Drive also at Mowetza drying equipment that supported directly Mowetza 199 Taylor might and Huggins suggested that Angulo- States See United allegation. operations. of one base more than have Cir.1986) (9th 1394, 1397 F.2d Lopez, pair that the the revelation think We may be veracity informant’s (“A citizen months, rent had, two previous the within apparent anof the absence by established afforded nearby property another ed police independent falsify and motive had they to suspect basis reasonable by provided the details of corroboration sec to the drug operations their expanded informant.”). the See, Angulo-Lopez, e.g., property.19 ond re- of envelope We conclude Poland, 1399; F.2d at testing mortgage water ceipts, Cir.1981) cu (per 884, 897 F.2d and the informant’s Taylor, by payments un riam) premises of a search (upholding Huggins are, with in combination control, including “warehouse suspects’ der marijua- involvement confirmed Taylor’s them,” on “normal based space leased cultivation, support enough na be criminals would where inferences about cause.18 finding judge’s ..., into taking likely property to hide crime, B the nature type account items, opportunity conceal Highway propriety ment”). the evi- entirely on almost turned search the existence not undermine affidavit, does the affidavit According source to the 17. the other informa- based ostensibly marijuana leaf over a turned is no indication operation, there Hagen’s but tion. to its gave any clue as leaf itself provenance. out property Highway turned 19.That niece by Taylor’s sister and occupied to be skeptical if instead might more We be 18. facial sufficien- the affidavit's affect does not evidence, the the aforementioned presenting Although note supra cited cy. See sources only on six relied mother-son government had Hug- knew that demonstrating affiant period, or on over six-week phone calls occupy property not gins did "Whip's par- bare assertion contractor's recklessly omitted intentionally Hagen's property visiting ents” had been a valid might out make affidavit from the fact nothing (with to estab- frequency "unusual” claim, press do not the defendants Franks "usual”). facts those what was lish accord- and we appeal, argument such govern- detract from the certainly do not it. ingly do consider evidence, and their inclusion ment’s other Because thеse facts sufficed to justify by courts of this “good-faith exception” warrant, the affidavit’s other aver- “preclude could review of the constitution- ments about Highway ality seizure, are the search or deny needed Thus, largely immaterial. guidance courts, need not from the or freeze Fourth whether, consider Huggins as argues, state,” law in its present id. at presented affidavit about the S.Ct. the Court reasoned as jump electricity usage once follows: the service put Huggins’s name without also There is no need for courts to adopt the providing adequate comparative data by practice inflexible always deciding *13 which to evaluate information. whether the officers’ conduct manifested Whether alleged or not the spike in power objective good faith before turning to consumption can itself any bear weight question the Fourth the probable cause analysis, it does not Amendment detract from the conclusion to which the If the resolution of particular a Fourth other evidence leads us. question is necessary to guide future action by law enforcement V officers magistrates, nothing will
For the
reasons,
foregoing
we conclude
prevent reviewing courts from deciding
district
court properly denied the
that question before turning to
good-
motions to suppress the evidence from all
Indeed,
faith issue.
it frequently will be
four searches. Because the reasonable-
difficult to determine whether the offi-
ness of the searches
only
was the
issue
cers acted reasonably without resolving
the defendants’ conditional guilty
the Fourth Amendment issue.
pleas reserved, we affirm all four convic-
925, 104
Id. at
S.Ct. 3405.
tions.
Leon,
Following
which allows reviewing
AFFIRMED.
courts “to exercise an informed discretion”
in deciding whether
to apply probable
BETTY B. FLETCHER, Circuit Judge,
analysis
cause
prior to reaching
ques-
special concurrence:
faith,
good
tion of
we are left with the task
I specially concur in
majority opin-
of judging
particular
when the
facts of a
ion.
I am in agreement
the good-
provide
case
for an appropriate occasion to
faith exception applies
case,
in this
but
clarify, for
magistrates
both
and law en-
write separately because the majority errs
forcement generally, the threshold show-
in failing to make an explicit finding that
ing required to
probable
establish
cause.
no probable cause existed to issue
first
Id. at
lived used, with the she of the aliases
with one ar- was Taylor, birthday as Rhonda
same (though ap- 1983 with
rested in prosecuted). never parently ELSAYED Osman Mohamed MUKHTAR, Plaintiff- activ current criminal Nothing suggests Appellee, informant an untested ity. A statement years defendant earlier that three almost drug trade carries in the
involved UNIVERSITY, STATE CALIFORNIA analysis in the weight entity, Carlos HAYWARD, public crimi that current one to believe to cause Rees, employees Norma Navarro only because underway, not activity is nal University in State California informant since the passed years three Capaci Individual their Official information, because but learned such Defendants-Appellants. ties, as to what specificity lack of the complete 01-15565. No. he was doing where the defendant Appeals, defendant’s Court of Confirmation States doing it. identity girlfriend’s Circuit. and his Ninth whereabouts proba weight whatsoever carries no 11, 2002. April and Submitted Argued analysis. See United ble cause Aug. Filed Cir. Mendonsa, 989 F.2d 1993) of inno confirmation (finding that “cor not constitute does
cent information establishing purposes
roboration”