NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30124
Plaintiff-Appellee, D.C. No. 2:21-cr-00054-WFN-1 v.
GORDON LEE MCVAY, AKA Gordy, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding
Submitted July 13, 2023** Seattle, Washington
Before: GRABER, GOULD, and PAEZ, Circuit Judges. Partial Dissent by Judge PAEZ.
Following a jury trial, Defendant Gordon McVay was convicted of one
count of simple possession of actual (pure) methamphetamine, in violation of 21
U.S.C. § 844(a). McVay appeals the district court’s denial of his pre-trial motion
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). to suppress evidence seized during the execution of two search warrants. He
argues that the district court erred by: (1) denying his request for a hearing under
Franks v. Delaware, 438 U.S. 154 (1978); (2) ruling that a search warrant affidavit
established probable cause to search his fifth wheel trailer and camper; and (3)
ruling that a second search warrant affidavit established probable cause to search
his motorcycle and fanny pack. We have jurisdiction under 28 U.S.C. § 1291 and
affirm.
1. Franks Hearing. Under Franks, a defendant has the right to challenge the
veracity of statements made in an affidavit supporting a warrant application. 438
U.S. at 155–56. To do so, the defendant must first make “a substantial preliminary
showing that (1) the affidavit contains intentionally or recklessly false statements
or misleading omissions, and (2) the affidavit cannot support a finding of probable
cause without the allegedly false information.” United States v. Reeves, 210 F.3d
1041, 1044 (9th Cir. 2000). We review de novo the district court’s denial of a
Franks hearing. Id.
McVay first argues that the affidavit failed to disclose that the confidential
informant (CI) initially lied to police officers about her own activity selling drugs.
Even assuming that omission of this information was intentionally or recklessly
misleading, McVay has not shown that the omitted facts were material. To
establish materiality, McVay must show that the omitted information was
2 “necessary to the finding of probable cause.” United States v. Perkins, 850 F.3d
1109, 1119 (9th Cir. 2017) (citing Franks, 438 U.S. at 156). The CI’s initial lies
about her own wrongdoing were not material to whether McVay was selling drugs.
Cf. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), amended by 769
F.2d 1410 (9th Cir. 1985).
Second, McVay argues that the affidavit’s use of the term “confidential
informant,” as opposed to “cooperating defendant,” bolstered the CI’s reliability
and created the false impression that she had provided reliable tips in the past.
McVay has not shown that it was intentionally or recklessly false to refer to the CI
as a “confidential informant.” In fact, the CI was not a “defendant” in this case
because she was never charged with a crime. Because McVay has not met the first
prong of Franks with respect to this claim, we do not consider whether the alleged
misstatement was material. See United States v. Martinez-Garcia, 397 F.3d 1205,
1215 (9th Cir. 2005).
Third, McVay claims that the affidavit recklessly misrepresented the facts
regarding the living situation at his residence. He points to two alleged
misrepresentations: (1) the affidavit repeats the CI’s statement that McVay lived on
S. Western Ave., without providing the house number; and (2) it repeats the CI’s
statement that McVay lived with his mother and sister, without specifying that
there were several living spaces on the property or that McVay’s mother owned the
3 home. McVay has failed to show that these statements were recklessly false or
misleading. The affidavit explains that officers had been to McVay’s home before
and already knew the exact address. Furthermore, the affidavit accurately
describes the property and refers to McVay’s activity selling drugs “out of his
mother’s residence.”
McVay also claims that two Franks violations undermine the warrant to
search his motorcycle and fanny pack: (1) the affidavit for the first warrant states
that McVay keeps his fanny pack in the “fifth wheel” trailer, while the affidavit for
the second warrant states that McVay keeps the fanny pack on his person; and (2)
the second warrant declaration misstates how officers found a gun inside his home.
With respect to both claims, McVay has not made a substantial preliminary
showing that the declarations contained intentionally or recklessly false statements
or misleading omissions.
2. Motion to Suppress–Fifth Wheel and Camper. McVay argues that evidence
seized from the fifth wheel and camper should be suppressed because the search
warrant lacked probable cause. We review de novo the denial of a motion to
suppress, United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004), and we
review de novo the determination of probable cause, Ornelas v. United States, 517
U.S. 690, 699 (1996).
Where, as here, a search warrant is based on an informant’s tip, we must
4 consider the “totality of the circumstances” to determine whether the tip gives rise
to probable cause. Reeves, 210 F.3d at 1044 (citing Illinois v. Gates, 462 U.S. 213,
238 (1983)). We consider several factors, including whether: (1) the informant is
known or anonymous; (2) the informant has a proven track record of reliability; (3)
the informant discloses the basis for her knowledge of the tip; and (4) the tip
contains predictive information that is corroborated by police observation. United
States v. Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006). Because the CI in this
case had a history of crimes of dishonesty, the affidavit also was required to set
forth “additional evidence” that “bolster[ed] the informant’s credibility or the
reliability of the tip.” United States v. Elliott, 322 F.3d 710, 716 (9th Cir. 2003)
(citation omitted).
Sufficient factors support a finding of probable cause based on the CI’s tip.
First, the CI was a known person and could “be held accountable for providing
false information in violation of the law.” Rowland, 464 F.3d at 907–08. The CI
also adequately revealed the basis for her knowledge of McVay’s activities. She
explained that she had known McVay her “whole life,” and she provided detailed
information about McVay’s property and where he stored his drugs. See United
States v. Patayan Soriano, 361 F.3d 494, 507 (9th Cir. 2004). Finally, there was
corroboration of the CI’s statement that “several people come and go from
[McVay’s] property at all times of the day.” The affidavit explains that officers
5 had seen “a large increase in vehicle and foot traffic at [McVay’s] residence.”
While the CI has a criminal history that includes various drug related crimes,
theft, identity theft, and obstruction of law enforcement, there was nothing in her
criminal record that demonstrates “any history of unreliability in reporting criminal
acts suggesting the possibility that [she] would lie to the police to frame an
innocent man.” United States v. Ruiz, 758 F.3d 1144, 1152 (9th Cir. 2014)
(quoting Patayan Soriano, 361 F.3d at 507 (citation omitted)). While her
statements may have been motivated by a desire for “more lenient treatment for
[herself] by the authorities,” she also made “self-inculpatory” statements against
her penal interest as she admitted to purchasing meth from McVay that morning.
Id.
Because the CI’s tip was sufficiently reliable to establish probable cause, the
district court did not err in denying McVay’s motion to suppress evidence seized
from the fifth wheel and camper.
3. Motion to Suppress – Motorcycle and Fanny Pack. McVay argues that
evidence seized from his motorcycle and fanny pack should be excluded because
officers lacked probable cause to seize them.1 Officers seized McVay’s
1 McVay also argues that officers illegally extended the traffic stop before seizing his motorcycle and fanny pack. This argument is unpersuasive. Officers had probable cause to pull McVay over for running a red light, and they arrested him on a bench warrant. Therefore, any subsequent investigation was incident to the arrest and not a part or prolongation of the traffic stop.
6 motorcycle and fanny pack without a warrant after they stopped him for a traffic
offense and arrested him on an unrelated warrant. “Because warrantless searches
and seizures are per se unreasonable, the government bears the burden of showing
that a warrantless search or seizure falls within an exception to the Fourth
Amendment’s warrant requirement.” United States v. Cervantes, 703 F.3d 1135,
1141 (9th Cir. 2012).
The automobile exception applies, so we do not address the other exceptions
argued by the government. Under this exception, police may seize a vehicle
without a warrant if there is probable cause to believe that the vehicle contains
evidence of a crime. United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985).
Officers had probable cause to believe that McVay was storing drugs in the fanny
pack that was on the motorcycle’s handlebars, based on information that the CI
provided. Notably, the CI told officers that McVay kept methamphetamine in a
black fanny pack that he kept on his person. The seizure of the fanny pack and
motorcycle were therefore justified under this exception.2
AFFIRMED.
2 After seizing McVay’s fanny pack and motorcycle, officers obtained a valid warrant to search those items. That warrant and the ensuing search were supported by probable cause. See United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993) (“A canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog’s reliability.”).
7 United States v. Gordon McVay, No. 22-30124 FILED AUG 28 2023 PAEZ, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Crimes of dishonesty have an adverse effect on the credibility of confidential
informants. See United States v. Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000). In
fact, “[i]n the absence of countervailing evidence to bolster the informant’s
credibility or the reliability of the tip, an informant’s criminal past involving
dishonesty is fatal to the reliability of the informant’s information, and his/her
testimony cannot support probable cause.” Id. (emphasis added). No such
“countervailing evidence” is present in this case. Because the majority ignores our
clear caselaw on this point, I respectfully dissent from the decision to affirm the
denial of McVay’s motion to suppress evidence seized from the fifth wheel and
camper.
From the outset, the confidential informant (CI) had multiple convictions
for crimes of dishonesty, including theft, identify theft, and possession of stolen
property. Yet the affidavit is devoid of facts that enhance her credibility or the
reliability of the information she provided. In prior cases, we have excused a
history of crimes of dishonesty only because the informant had a track record of
providing reliable information to law enforcement. See United States v. Elliott,
322 F.3d 710, 716 (9th Cir. 2003) (finding informant credible because he had
1 provided “six reliable drug-related tips”); Reeves, 210 F.3d at 1045 (finding
informant credible because he “had previously provided information that led to
three other investigations and arrests”). In other cases, we have treated informants
as credible because they voluntarily admitted to criminal activity beyond what the
police already knew. United States v. Patayan Soriano, 361 F.3d 494, 506 (9th
Cir. 2004). None of those circumstances are present here. The CI had never
provided reliable information to law enforcement, and she did not admit to any
criminal conduct beyond what she was caught “red-handed” doing. See United
States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997). Her admission “of what [s]he
knew the police already knew did not make what [s]he said more credible.” Id. In
short, there is no countervailing evidence in the affidavit “sufficient to outweigh
the doubts about the informant’s credibility raised by the history of criminal
conduct involving dishonesty.” Reeves, 210 F.3d at 1045.
Putting aside the CI’s criminal past, which should be fatal to her credibility,
there are additional factors that weigh against crediting the CI’s tip. The CI did not
offer predictive information that was later corroborated by police investigation.
See United States v. Rowland, 464 F.3d 899, 908 (9th Cir. 2006). Officers
attempted to conduct a controlled buy using the CI, but that buy went awry, and the
district court correctly found that it “could not be used to support reliability.”
2 Apart from the failed controlled buy, officers made no other attempts to obtain
predictive information from the CI prior to submitting the affidavit.
Likewise, the vast majority of the CI’s tip was completely uncorroborated by
other sources. We have repeatedly emphasized that a statement’s credibility is
“‘enhanced’ when [it] gives a detailed account of events that is corroborated by the
statements of other confidential informants.” United States v. Alvarez, 358 F.3d
1194, 1203 (9th Cir. 2004) (citation omitted); see also United States v. Martinez-
Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005) (emphasizing the importance of
corroboration). Here, the affidavit does not contain statements from anyone other
than the CI. The affidavit recounts a few vague, anonymous rumors about McVay,
stating that an officer heard from “several sources” that McVay “is selling drugs
out of his mother’s residence.” But the affidavit never reveals who those sources
are or the basis of their knowledge. At bottom, it appears officers submitted the
affidavit without conducting any independent investigation to corroborate the CI’s
statements.
In my view, the facts in this case are essentially identical to Hall, where we
rejected a search warrant based on the unreliability of an informant’s tip. 113 F.3d
at 157. The informant in Hall had been arrested for selling drugs and had a history
of crimes of dishonesty. Id. at 157–58. The informant told police that his supplier
was a man named “Ron” who lived in trailer space 56, stored cocaine in cereal 3 boxes and cut-out books, and drove a red and white pickup truck. Id. at 159. We
held that the informant’s tip did not give rise to probable cause because there was
no evidence that Ron had drugs in his trailer “except the word of a man who[] . . .
had a substantial criminal record, including a conviction for making a false report
to police.” Id. at 161. Here, a CI with a history of crimes of dishonesty told
police that McVay was her drug supplier after she was arrested for selling drugs.
As in Hall, the search warrant for McVay’s residence lacks probable cause because
there is “virtually no evidence at all” without the CI’s statements. Id. at 160.
The majority provides several reasons for treating the CI as credible, but none
are persuasive under our caselaw. The majority first emphasizes the CI’s knowledge
about McVay’s activities, pointing out that she provided “detailed information about
McVay’s property and where he stored his drugs.” We rejected an identical
argument in Hall. As we explained, the informant’s detailed tip about “[h]iding the
cocaine in cereal boxes and cut-out books could be a mere guess, could not be
verified until a search was conducted, and was not . . . sufficient to make truthfulness
probable.” Id. at 159. Furthermore, knowledge of “innocent details,” such as where
someone lives or what their property looks like, does not sufficiently corroborate a
tip from a person convicted of a crime of dishonesty. Id.
The majority also claims that the CI made a self-inculpatory statement to
police when she admitted to purchasing meth from McVay earlier that day. But 4 the CI only identified McVay as her supplier after she was caught selling meth to
another confidential informant. A CI does not enhance her credibility simply
because she attempts to shift blame for her own criminal activity to someone
higher “up the chain.” Id. To the contrary, “[o]nce a person believes that the
police have sufficient evidence to convict h[er], h[er] statement that another person
is more important to h[er] criminal enterprise than [s]he gains little credibility from
its inculpatory aspect.” Id. Similarly, in Hall, the court discredited the informant’s
“claim that ‘Ron’ was his supplier” because it “was more in the nature of [the
informant] trying to buy his way out of trouble by giving police someone ‘up the
chain’ than a self-inculpatory statement.” Id.
Finally, the majority attempts to minimize the CI’s criminal history by
stating that, unlike the informant in Hall, “nothing in her criminal record” indicates
that she would lie to police to frame an innocent man. But we do not distinguish
between the crime of making a false report to police and other kinds of crimes of
dishonesty for purposes of evaluating an informant’s credibility. Rather, “[a]ny
crime involving dishonesty necessarily has an adverse effect on an informant’s
credibility,” regardless of whether those crimes are of a “sufficiently different
character from those of the informant in Hall.” Reeves, 210 F.3d at 1045
(emphasis added).
5 Because the affidavit hinges entirely on the tip of a CI who had prior
convictions for dishonesty, who had never provided assistance to law enforcement,
and who failed to provide predictive information or information that could be
corroborated by other sources, I would conclude that the warrant did not establish
probable cause to search McVay’s fifth wheel trailer and camper.
As for the seizure of McVay’s fanny pack and motorcycle, I disagree with
the majority’s reasoning but concur in the result. In my view, the automobile
exception does not apply because officers did not have probable cause to seize the
fanny pack and motorcycle. See United States v. Bagley, 772 F.2d 482, 491 (9th
Cir. 1985). The government has identified many facts that it claims support the
existence of probable cause. But almost all of these facts depend, again, on the
reliability of the CI’s statements to law enforcement. Notably, the CI is the only
person who told officers that McVay stored drugs in a fanny pack. For the reasons
stated above, the district court erred in crediting the CI’s statements.
Nonetheless, I would uphold the seizure of McVay’s fanny pack and
motorcycle under the good faith exception. Under this exception, evidence is
admissible if an officer shows that he acted in “good faith” or “objectively
reasonable reliance.” Herring v. United States, 555 U.S. 135, 142–43 (2009). The
relevant question is “whether a reasonably well trained officer would have known
that the search [or seizure] was illegal.” United States v. Song Ja Cha, 597 F.3d
6 995, 1005 (9th Cir. 2010) (citation omitted). The officers ultimately searched
McVay’s motorcycle and fanny pack pursuant to a lawful warrant supported by
probable cause. In this circumstance, the good faith exception applies so that the
fruits of that search were admissible at trial.