dissenting:
I respectfully dissent. The majority concludes that the limited right of disclosure announced in Roviaro and McCray is consistent with the challenge to the warrant affidavit permitted under Franks. I disagree.
Under Franks, Kiser is entitled to a hearing to challenge the validity of the warrant affidavit only upon a substantial preliminary showing that Miller’s statements were intentionally or recklessly false. Franks left open “the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial showing of falsity has been made.” Id. 438 U.S. at 170, 98 S.Ct. at 2683. Nothing in Franks implies that the informant’s privilege recognized in McCray should give way to allow a defendant to make a preliminary showing that false statements were actually made in the warrant affidavit.
Kiser failed to show that Miller deliberately or recklessly included false statements in his affidavit. Kiser’s offer of proof, which consisted primarily of the Ericson affidavit, suggested at most that Ericson intentionally misled Miller or that Miller may have been negligent. It fell far short of showing that Miller deliberately or recklessly misled the magistrate. Without a substantial preliminary showing to this effect, Kiser is not entitled to a full evidentiary hearing. See Franks, 438 U.S. at 171, 98 S.Ct. at 2684; United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir.1982). “Omissions or misstatements resulting from negligence or good faith mistakes will not invalidate an affidavit which on its face establishes probable cause.” United States v. Smith, 588 F.2d 737, 740 (9th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1287, 59 L.Ed.2d 498 (1979).
Since Kiser failed to make the required showing under Franks, there is no basis here for finding an exception to the McCray privilege. This case presents the ordinary tipster situation in which the informant supplied information which led a magistrate to conclude that there was probable cause to issue a search warrant. Nothing in the informant’s statements could have been used to convict Kiser. All the evidence of guilt came from the search of the residence. See id. 386 U.S. at 311, 87 S.Ct. at 1062; United States v. Valenzuela, 596 F.2d 824, 827 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); United States v. King, 478 F.2d 494, 508 (9th Cir.), cert. denied, 414 U.S. 846, 94 S.Ct. Ill, 38 L.Ed.2d 94 (1973), 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). In addition, *1275the information given by the informant and Agent Miller’s basis for believing it to be reliable are recounted in the warrant affidavit. Although Kiser’s examination of Miller at the suppression hearing was limited to some extent, Kiser had the opportunity to examine Miller concerning the substance of his sworn statements in the affidavit. Specifically, Kiser questioned Miller about the circumstances of his meeting with the informant, the information given by the informant, and Miller’s reasons for relying on the information. Kiser also examined Miller about the accuracy of statements made in the warrant affidavit. Despite this opportunity to question the veracity of Miller’s sworn statements, Kiser was unable to demonstrate that Miller did not act in good faith. A warrant’s veracity can be challenged only through a showing that the affiant acted wrongfully. Franks, 438 U.S.
at 171, 98 S.Ct. at 2684. “It is not enough to show that the informant deliberately lied to an unsuspecting affiant.” United States v. Schauble, 647 F.2d 113, 117 (10th Cir. 1981) (emphasis in original); see Searing v. Hayes, 684 F.2d 694, 697 (10th Cir.1982); United States v. Luschen, 614 F.2d 1164, 1172 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980); United States v. Kim, 577 F.2d 473, 479 (9th Cir.1978). Finally, Judge Crocker ruled that the usefulness of an in camera hearing to Kiser would not outweigh the risk to the informant’s life where there was no evidence other than Erieson’s statements to indicate that Miller acted improperly. Cf. United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir.1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1976).
The decision whether to conduct an in camera examination should be left to the district judge’s discretion. Since 1) the informant’s statements were used only to establish probable cause, 2) Kiser was unable to make a preliminary showing that Miller falsely or recklessly ascribed statements in his affidavit to the informant, and 3) the threat to the informant’s safety from disclosure of his identity was real, I would hold that it was not an abuse of discretion to deny Kiser’s motion for an in camera examination.
By requiring an in camera hearing here, the majority redefines the discretion of the district judge on the question. There are those who would conclude that they have changed the standard. As I understand their ruling, in the future it will be error for a district judge to deny a motion for an in camera hearing in certain specified circumstances. Such a rigid rule is unwise. Each case presents different factual situations, and the district judge can best evaluate the specific factors of each case. It is for that reason that the district judge has, in the past, had discretion to decide when an in camera hearing is appropriate. In the absence of a showing of abuse, and in my opinion none was shown here, I would affirm.