Flake

MEMORANDUM *

Roger Lester Flake appeals from the district court’s denial of his motion to suppress evidence gathered pursuant to a search warrant which was issued following an ex parte hearing in which a police officer provided erroneous testimony. We affirm.

Flake entered a conditional guilty plea to one count of possession of child pornography in violation of 18 U.S.C. § 2252 (a)(4)(B). Prior to pleading guilty, Flake sought to suppress evidence collected at his home, contending that the search warrant issued by a California state judge was invalid because it was issued based upon false statements. The motion was denied by the district court without a hearing. On appeal, this Court previously held that Flake had made a sufficiently substantial preliminary showing that required remanding the case for a hearing under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). United States v. Flake, 30 Fed.Appx. 736 (9th Cir .2002).

Under Franks , Flake bears the burden of proving by a preponderance of the evidence that false statements were made knowingly or with reckless disregard for the truth. See 438 U.S. at 156-57 , 98 S.Ct. 2674 . At issue was Officer…