United States v. Welch

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2025
• Docket: 24-6874
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-6874 D.C. No. Plaintiff - Appellee, 4:24-cr-00004-BMM-1 v. MEMORANDUM* DERIC RON WELCH,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted August 12, 2025 Seattle, Washington

Before: HAWKINS, McKEOWN, and WARDLAW, Circuit Judges.

Deric Welch appeals the denial of his motion to suppress evidence following

a Franks1 hearing in which the district court struck several statements that formed

the basis of the search warrant. We review a district court’s finding that an affidavit

contained purposefully or recklessly false statements or omissions for clear error,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Franks v. Delaware, 438 U.S. 154 (1978). United States v. Perkins, 850 F.3d 1109, 1115 (9th Cir. 2017), and we review de

novo a “probable cause determination in a case with a redacted affidavit,” United

States v. Dozier, 844 F.2d 701, 706 (9th Cir. 1988). We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

Welch successfully challenged five statements in the search warrant affidavit,

and the district court did not clearly err in rejecting his challenge to several additional

statements. Having found that Welch made the necessary showing with respect to

the five statements, the district court should have set the false or misleading material

aside and then determined whether the remaining content was sufficient to establish

probable cause. Franks, 438 U.S. at 156. The government concedes the district

court erred by “correcting” the affidavit with accurate information, as opposed to

simply excising the false material. However, we conclude this error is harmless

because we review the probable cause determination de novo, Dozier, 844 F.2d at

706, and find, excising the false and misleading information from the affidavit, there

remained probable cause to issue the warrant.

Probable cause to search a location exists if, based on the totality of the

circumstances, there is a fair probability that evidence of a crime may be found there.

Perkins, 850 F.3d at 1119; see also United States v. Chavez-Miranda, 306 F.3d 973,

978 (9th Cir. 2002) (magistrate must find nexus between contraband sought and

residence). If there is an informant, we consider “the credibility of the informant,

2 24-6874 including his history of providing reliable information in previous investigations and

any prior criminal convictions for crimes of dishonesty.” United States v. Martinez-

Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005). In this case, the information provided

was not an anonymous tip—the informant was present in the home, had a

relationship with Welch, and thus was likely in a position to have information about

drug dealings that occurred at that location. See United States v. Rowland, 464 F.3d

899, 907‒08 (9th Cir. 2006) (listing factors that determine the reliability of an

informant’s tip). The informant provided specific information about the type of

drugs and the location of such drugs in the home. Moreover, she had provided

information to the officer in the past which had led to drug arrests. See id. at 908

(“[A]n informant with a proven track record of reliability is considered more reliable

than an unproven informant.”). Thus, even though there was little corroboration of

the details of the domestic dispute that led to the 911 call in the first place, there was

still sufficient information from which a magistrate could find a fair probability that

contraband would be found in the home.

AFFIRMED.

3 24-6874