United States v. Rychener

144 F. App'x 589

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2005
• Docket: No. 04-10414; D.C. No. CR-03-00225-DAE
• Status: Published

Opinion

MEMORANDUM

**

Defendant Douglas Ryehener (“Rychener”) appeals the district court’s refusal to conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We affirm.

The alleged uncorroborated statements do not attack the search warrant affiant’s veracity and Ryehener offers no proof that the affiant recklessly excluded such information from the affidavit. See United States v. DiCesare, 765 F.2d 890, 894-95, amended by, 777 F.2d 543 (9th Cir.1985) (only the veracity of the affiant may be challenged). The affiant’s use of the terms “constant surveillance” and “obtained” were neither false, misleading, nor reckless. Ryehener offers no proof that the specifics of the controlled buy, including the time and date, that no money was provided by law enforcement, and the amount of methamphetamine recovered, were recklessly omitted from the affidavit. Ryehener makes no showing that the affiant knew or should have known of the informant’s alleged crush on Rychener’s wife, which precludes finding that such information was recklessly omitted from the affidavit.

Even if we were to determine that the informant’s recent arrest and deal to “work off’ the charge to be a reckless omission, United States v. Martinez-Garcia, 397 F.3d 1205, 1216 (9th Cir.2005), the arrest does not undermine a probable cause finding in light of all the other information in the affidavit. See id. at 1208-09, 1217.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.