FILED
NOT FOR PUBLICATION JUL 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30182
Plaintiff - Appellee, DC No. CR 10-0322 TSZ
v.
MEMORANDUM*
JAMES DAVID ALLEN, II,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted July 7, 2014
Seattle, Washington
Before: KLEINFELD, TASHIMA, and MURGUIA, Circuit Judges.
Appellant James David Allen appeals the district court’s denial of his motion
to suppress evidence seized during a warrant-supported search of his home. He
argues that police officers intentionally or recklessly omitted from the warrant
affidavit information that would have negated probable cause. See Franks v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Delaware, 438 U.S. 154 (1978). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
1. The district court did not clearly err in finding that the investigating
officers did not intentionally or recklessly omit the challenged facts from the
warrant affidavit. The district court heard testimony from the investigating officers
at two Franks hearings. The district court credited the officers’ testimony, and
those credibility findings were not clearly erroneous. See Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear
error.”).
2. We further conclude that the omitted information was not material to
probable cause. First, information that Jessikah Ramsey had an outstanding
warrant, in addition to an outstanding charge for making a false statement, would
not have undermined probable cause because the outstanding warrant was
cumulative evidence of Ramsey’s credibility. Second, that Ramsey’s false
statement charge was about Allen would not have changed the probable cause
determination because the affidavit included the false statement charge, and the
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additional details about the charge would not have materially changed the impact
on Ramsey’s credibility. Third, the neighbors’ statements that they had not heard
gunshots that day would not have undermined probable cause because the warrant
affidavit did not rely on Allen having fired a firearm that day. Finally, information
about Ramsey’s backpack would not have undermined probable cause because the
affidavit already indicated that Ramsey had a felony methamphetamine possession
conviction and that Ramsey had used methamphetamine with Allen the day before.
Accordingly, none of the challenged, omitted facts was material.
The judgment of the district court is AFFIRMED.
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