United States v. Flake

RICHARD C. TALLMAN, Circuit Judge,

concurring in part, dissenting in part.

I concur in parts B and C of the majority’s opinion, but respectfully dissent from the court’s remand for a Franks hearing. The unchallenged testimony and evidence presented in December 1999 by both Officer Daniel McGrew and Detective Michael McGrew is still sufficient, in my judgment, to support issuance of a search warrant for child pornography in the defendant’s home. The false statements were not “necessary to the finding of probable cause.” See Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

First, Flake had recently driven by and conversed with a 12-year-old girl on her way home from school in Santa Barbara, twice asking for directions and once offering her money. Second, Flake matched the suspect description and was the registered owner of a car bearing the same license plate number of a man who exposed his penis and offered money to two small children in National City, California, one day after the last Santa Barbara approach. Third, Flake had previously been convicted in 1991 of forced oral copulation in his car with a 19-year-old female hitchhiker. Finally, Flake had closed his laptop quickly when police announced their presence at his home to arrest him for the Santa Barbara incidents before the search warrant was sought.

We do not know how Detective McGrew, a sex crimes specialist who has investigated over 50 cases of crimes against children, would have testified had he known that Flake was never convicted of child molestation and had not forced a child into his car in the 1991 sex crime. It is clear from the record, however, that Detective McGrew also relied upon this other evidence, which indicated that shortly before the search warrant was issued Flake approached three children in two days, exposed himself to two minors, and offered all three children money to lure them into his car. Based upon these facts, an experienced police detective could properly deduce that he possessed, and a neutral judge could properly find sufficient the evidence to establish, probable cause to believe that Flake was attempting to entice underage children into his car for unlawful purposes.

Detective McGrew concluded, based on his experience, that this activity fit the modus operandi of a child molester and it was likely that Flake would also possess child pornography in his home. See United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1991) (“if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class”); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995) (“[Wjhen interpreting seemingly innocent conduct, the court issuing the warrant is entitled to rely on the training and experience of police officers.”). See also United States v. Hay, 231 F.3d 630, 635 (9th Cir.2000) (“[i]t is well established that a location can be searched for evidence of a crime even if there is no probable cause to arrest the person at that location.”).

Flake has not made the substantial showing required to entitle him to a hearing that Officer McGrew’s false statements, and Detective McGrew’s reliance on them, was necessary or material to the finding of probable cause to search Flake’s home for evidence of child pornography. See Franks, 438 U.S. at 172 & n. 8, 98 S.Ct. 2674 (“[I]f what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant,” and no hearing is required.). The testimony of Detective McGrew, once corrected, provides enough *741reliable information to support a common sense judgment that Flake fit the profile of a person who sexually desires children and who might reasonably be expected to possess child pornography in his home. See Weber, 923 F.2d at 1345.

I would affirm the district court’s decision to deny Flake a Franks hearing.