United States v. Larry Dean Kiser

716 F.2d 1268 UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean KISER, Defendant-Appellant. No. 82-1487. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 18, 1983. Decided Sept. 26, 1983. Phillip Cronin, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee. Stevan Noxon, Asst. Fed. Public Defender, Fresno, Cal., for defendant-appellant. Appeal from the United States District Court for the Eastern District of California. Before FAIRCHILD * , HUG, and FARRIS, Circuit Judges. HUG, Circuit Judge: 1 This case presents a question expressly reserved by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 170 , 98 S.Ct. 2674, 2683 , 57 L.Ed.2d 667 (1978): Under what circumstances is a defendant entitled to disclosure of the identity of a confidential informant in order to challenge the veracity of a search warrant affidavit? 2 * In November 1981, a United States Magistrate issued a warrant permitting agents of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") to search Larry Dean Kiser's residence in Keyes, California. The warrant authorized seizure of "a .380 caliber, blue steel semi-automatic pistol and evidence of receipt of said firearm." In…

This case presents a question expressly reserved by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 170 , 98 S.Ct. 2674, 2683 , 57 L.Ed.2d 667 (1978): Under what circumstances is a defendant entitled to disclosure of the identity of a confidential informant in order to challenge the veracity of a search warrant affidavit?

I

In November 1981, a United States Magistrate issued a warrant permitting agents of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) to search Larry Dean Kiser’s residence in Keyes, California. The warrant authorized seizure of “a .380 caliber, blue steel semi-automatic pistol and evidence of receipt of said firearm.” In his affidavit in support of the warrant, ATF agent Jerry Miller stated he believed Kiser had possession of the described weapon at his home in violation of 18 U.S.C.App. § 1202(a)(1). This was based on information from an informant who had been in Kiser’s residence “within the past 10 days” and had “observed a .380 caliber, blue steel semi-automatic pistol.” The informant had seen the same gun in Kiser’s residence “on several occasions during the past two years.” Miller said he had shown the informant a photocopy of a driver’s…

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…