United States v. Martin Ruiz , 758 F.3d 1144 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30003
Plaintiff-Appellee,
D.C. No.
v. 1:11-cr-00240-
BLW-1
MARTIN CANTU RUIZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
February 6, 2014—Seattle, Washington
Filed July 11, 2014
Before: Raymond C. Fisher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen;
Dissent by Judge Gould
2 UNITED STATES V. RUIZ
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a motion
to suppress a shotgun seized during the execution of a search
warrant in a case in which the defendant argued that reckless
omissions by the search warrant affiant fatally undermined
the magistrate judge’s finding of probable cause.
The panel wrote that the failure to disclose to the
magistrate judge at the time of the warrant hearing drug-
related information that raises serious concerns about a
witness’s credibility is a serious breach of the duty the officer
owed to the court. The panel also assumed, without deciding,
that two witness’s eyewitness statements, standing alone,
were not sufficient to support probable cause. The panel
affirmed because there was corroboration that the crime being
investigated had actually occurred, as well as some specific
indication that the identification of the defendant from a
photo lineup was sufficiently reliable.
Dissenting, Judge Gould could not agree that there was
independent corroboration of a witness’s identification of the
defendant, sufficient to overcome serious concerns about the
witness’s credibility.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RUIZ 3
COUNSEL
Randall S. Barnum (argued), Barnum Law, PLLC, Boise,
Idaho, for Defendant-Appellant.
Wendy J. Olson and Christian S. Nafzger (argued), Office of
the United States Attorney, Boise, Idaho, for Plaintiff-
Appellee.
OPINION
CHRISTEN, Circuit Judge:
An early-morning shooting, a mysterious alias, and a
problematic eyewitness identification led police to the home
of Martin Cantu Ruiz, where they found a gun he wasn’t
supposed to have. Ruiz appeals his conviction for Unlawful
Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1),
contending that the district court erred by denying his motion
to suppress a shotgun seized during the execution of a search
warrant at his residence. Ruiz argues that reckless omissions
by the search warrant affiant fatally undermined the
magistrate judge’s finding of probable cause. We have
jurisdiction under 28 U.S.C. § 1291, and affirm the district
court’s denial of Ruiz’s motion to suppress.
BACKGROUND AND PRIOR PROCEEDINGS
Early on March 21, 2011, police responded to a call from
a trailer home in Payette, Idaho. When officers arrived, they
found that a man who lived there, Emmett Mills, had been
shot in the knee. Detective John Plaza spoke with Mills
briefly before he was taken to the hospital.
4 UNITED STATES V. RUIZ
Mills told the detective he was at home with his
girlfriend, Charlene Scales, when he heard a knock on the
door at around 4:20 in the morning. The person at the door
identified himself as “McDog.”1 Mills opened the door and
“McDog” asked for Jessica, but Mills said Jessica wasn’t
there. Mills described “McDog” as a larger Hispanic male in
his thirties with short hair and a black sweatshirt. Mills also
saw another, smaller man standing nearby wearing a white
clown mask and holding an assault rifle. Mills said the gun
looked similar to an AK-47. A neighbor watching from her
window also saw a man in a white “Halloween” mask
standing near the trailer.
The man who knocked, “McDog,” tried to force his way
inside the trailer, and a struggle ensued between Mills and
“McDog.” Scales was seated at a computer, where she could
observe the confrontation through a crack between the trailer
door and the wall where the door’s hinges were attached.
Like Mills, Scales spoke with Detective Plaza immediately
after the shooting. She told the detective that she witnessed
the scuffle, heard the intruder identify himself as “McDog,”
and saw him try to force his way inside. She described
“McDog” as a Hispanic male wearing dark clothes. Scales
also reported hearing the popping of the assault rifle as it
fired twice. Mills, Scales, and the neighbor all agreed that
there had been two shots. After Mills was hit in the left knee
by one of the bullets, the assailants fled. Police later found
two spent casings outside the front door of the trailer that
were consistent with a semiautomatic pistol, not an assault
rifle. While searching the area near the front door, Detective
Plaza noted that a railing near the door to the home was
1
The spelling is uncertain, and at least one police officer wrote down
“Mick-Dog.”
UNITED STATES V. RUIZ 5
“pulled away from the house” where it looked like someone
had been “pushed.”
Detective Plaza sensed that Scales was evasive when she
spoke with police that morning, as if she were hiding
something. The police officers obtained consent to search the
trailer2 and found a handgun as well as methamphetamine and
a pipe with burnt residue, suggesting that one or more of the
home’s occupants used drugs. Detective Plaza later testified
that Scales and others led him to believe that the items
belonged to two other people who had stayed in the back
bedroom the previous evening.
Detective Plaza soon learned that the narcotics division of
the Payette Police Department was investigating Scales for
suspected involvement in drug sales from the trailer. Later on
the day of the shooting, an undercover officer associated with
the narcotics investigation contacted Scales and made a
controlled buy of methamphetamine at the trailer. Caught in
the act, Scales and police officers discussed arranging
“consideration for her [criminal] charges” if she assisted with
future narcotics investigations as a confidential informant.
The officers told her that she would not receive extra
consideration for providing information about the shooting.
Scales seemed interested in the arrangement. The police also
noted that she believed the shooting had been related to drugs
and money.
The Payette Police Department sought the assistance of
nearby law enforcement to locate an individual with the alias
“McDog.” In response, they received a copy of Ruiz’s
2
It is unclear from the record on appeal who consented to the search, but
there is no indication that Scales objected to the search.
6 UNITED STATES V. RUIZ
criminal history, which included the alias “McDog,” from the
police department in Ontario, Oregon, just over the Snake
River. Officers learned that Ruiz had been booked in the
Payette County Jail earlier that month for a separate incident.
His address was listed in Nampa, Idaho, south of Payette.
Police assembled a photo lineup that included Ruiz,
which they showed to Mills and Scales two days after the
shooting.3 Mills could not identify anyone from the lineup,
but Scales zeroed in on two of the photos and eventually
settled on Ruiz’s photo because she recognized a “thing on
his face.” She stated she was ninety percent sure Ruiz was
the intruder. On the day Scales identified Ruiz, neither she
nor the officers conducting the lineup mentioned the
previously discussed informant arrangement.
Payette police officers sought a warrant to search Ruiz’s
residence. At the warrant hearing, Detective Plaza told the
state magistrate judge most of the factual background
described here, but he omitted what police officers knew
about Scales’s drug-related activity, including: (1) her prior
sales of methamphetamine from the trailer; (2) her apparent
dishonesty about the presence of drug-related paraphernalia
in the trailer; (3) her interest in serving as a confidential
informant in the future in exchange for consideration of her
drug charges; and (4) her statement to police that the trailer
shooting was related to drugs and money. Detective Plaza
also failed to explain that Scales had initially focused on two
photographs in the lineup, and that she distinguished between
them by a mark on Ruiz’s face.
3
From the record it appears the lineup included at least six photographs.
UNITED STATES V. RUIZ 7
The magistrate judge concluded that there was probable
cause to search Ruiz’s residence based on the detective’s oral
testimony. A search conducted at Ruiz’s residence pursuant
to the warrant turned up a shotgun with an obliterated serial
number. The government indicted Ruiz on federal charges of
possession of an unregistered firearm, in violation of
26 U.S.C. § 5861(d), and unlawful possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Ruiz moved to exclude
evidence from the search, and the district court held a Franks
hearing to consider Ruiz’s challenge to the probable cause
showing for the warrant. See Franks v. Delaware, 438 U.S.
154 (1978).
At the Franks hearing, the district court found that
Detective Plaza recklessly omitted material information about
Scales’s involvement with drugs and her agreement to act as
a confidential narcotics informant in the future. See United
States v. Martinez-Garcia, 397 F.3d 1205, 1214–15 (9th Cir.
2005) (citing Franks, 438 U.S. at 155–56). The district court
rejected Ruiz’s claims as to other allegedly reckless
omissions by the affiant. Taking into account the full record,
including the omissions it found, the district court concluded
the magistrate judge was not misled. Ruiz appeals.
DISCUSSION
We review for clear error the district court’s finding that
a fact was not recklessly omitted from an affidavit supporting
probable cause. Martinez-Garcia, 397 F.3d at 1215 n.5. We
review de novo the district court’s conclusion that reckless
omissions by a search warrant affiant did not fatally
undermine a finding of probable cause. United States v.
Elliott, 322 F.3d 710, 714 (9th Cir. 2003).
8 UNITED STATES V. RUIZ
The probable cause standard for a search warrant is
whether, based on common sense considerations, there was
“a fair probability that contraband or evidence of a crime
[would] be found in a particular place.” United States v.
DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (citing Illinois v.
Gates, 462 U.S. 213, 238 (1983)). The magistrate judge need
not determine “that the evidence is more likely than not to be
found where the search takes place. . . . The magistrate need
only conclude that it would be reasonable to seek the
evidence in the place indicated in the affidavit.” United
States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991)
(alteration in original) (citation and internal quotation marks
omitted).
To prevail on a claim that the police procured a warrant
through deception, the party challenging the warrant must
show that the affiant deliberately or recklessly made false
statements or omissions that were material to the finding of
probable cause. See Ewing v. City of Stockton, 588 F.3d
1218, 1223 (9th Cir. 2009). Our evaluation of materiality
requires that we consider the effect of any false statements or
omissions. “If an officer submitted false statements, the court
purges those statements and determines whether what is left
justifies issuance of the warrant.” Id. at 1224. “If the officer
omitted facts required to prevent technically true statements
in the affidavit from being misleading, the court determines
whether the affidavit, once corrected and supplemented,
establishes probable cause.” Id. “If probable cause remains
after amendment, then no constitutional error has occurred.”
Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir.
2011).
Assessing whether probable cause exists is “a common
sense determination.” United States v. Hall, 113 F.3d 157,
UNITED STATES V. RUIZ 9
159 (9th Cir. 1997). We are mindful that “[b]y reporting less
than the total story, an affiant can manipulate the inferences
a magistrate will draw,” and that “[t]o allow a magistrate to
be misled in such a manner could denude the probable cause
requirement of all real meaning.” United States v. Stanert,
762 F.2d 775, 781 (9th Cir. 1985), amended by 769 F.2d 1410
(9th Cir. 1985).
First, Ruiz contends that, in addition to the omissions
found by the district court, Detective Plaza deliberately or
recklessly omitted material information regarding Scales’s
ability to observe the intruder at the doorway to the house.
We disagree. Enough facts were presented about the layout
of the trailer and Scales’s position inside it for the magistrate
judge to inquire further if there was doubt about Scales’s
ability to see the intruder clearly enough to make an
identification. The district court did not clearly err in this
part of its ruling.
Second, we reject Ruiz’s argument that Detective Plaza
also deliberately or recklessly omitted information regarding
a potential discrepancy between the neighbor’s observations
and Mill’s and Scales’s descriptions of the location of the
masked man relative to the home. From the record on appeal,
it appears that Detective Plaza accurately described the
neighbor’s account. We cannot say that the district court’s
finding on this point was clearly erroneous.
Third, the district court assumed it was reckless to fail to
inform the magistrate judge that Scales: (1) initially focused
on two of the lineup photos as potentially depicting the
intruder, and (2) distinguished between them by a mark on
Ruiz’s face. We make the same assumption on de novo
review, and we agree with the district court that this failure
10 UNITED STATES V. RUIZ
was not misleading. Scales stated she was ninety percent
confident in the identification, indicating some degree of
uncertainty but also a high degree of confidence, and the
magistrate judge had this statement before him to weigh. The
magistrate judge could have inquired about why Scales was
not absolutely sure of her identification, if this was a
potentially determinative source of doubt.
Fourth, the drug-related information the district court
determined was recklessly omitted does raise serious
concerns about Scales’s credibility and, to a lesser extent,
Mills’s credibility. The magistrate judge knew nothing of
Scales’s history of drug sales, her evasiveness concerning the
drug paraphernalia at the scene of the shooting, her
suggestion to police officers that the shooting was related to
drugs and money, or her sale of methamphetamine to an
undercover officer on the very afternoon of the shooting that
led to discussion of her potential role as a narcotics
informant. These are serious omissions. Scales, a drug
dealer who continued to operate the afternoon of the shooting,
could have been an interested party to a shooting related to
drugs and money with a motive to lie about the identity of the
intruder. The failure to disclose this information to the
magistrate at the time of the warrant hearing is a serious
breach of the duty Officer Plaza owed to the court. We fully
agree with the district court that “Officer Plaza took a
substantial risk in failing to reveal these facts.” The question
we must decide is “whether probable cause remains once the
[evidence presented to the magistrate judge] is supplemented
with the challenged omission[s].” Bravo, 665 F.3d at 1084;
see also Ewing, 588 F.3d at 1224.
In United States v. Hall, we considered whether probable
cause supported a search warrant where the government
UNITED STATES V. RUIZ 11
recklessly failed to disclose all of an informant’s prior
convictions during a warrant hearing. 113 F.3d at 159. The
informant had recently been arrested for involvement in
cocaine dealing, and he was the sole source of crucial
information leading to the warrant. Id. at 157–59. The
government did not disclose several of the informant’s
convictions, particularly one for making a false report to
police. Id. at 158. Nor did it disclose a “probation violation
involving death threats to a wounded police officer.” Id. We
held that probable cause to search the defendant’s trailer for
drugs was lacking because, first, the conviction for making a
false report to the police seriously undermined the
informant’s credibility and, second, there was no independent
evidence to corroborate the informant’s claim that narcotics
would be found in the defendant’s trailer. See id. at 159–61.
By contrast, in United States v. Reeves, we held that the
failure to disclose a confidential informant’s prior criminal
history involving dishonest statements to the police did not
mislead a magistrate judge into granting a search warrant.
210 F.3d 1041, 1043, 1045–46 (9th Cir. 2000). We
distinguished Hall because of the presence in Reeves of
“countervailing evidence which diminishe[d] the adverse
effect of the [informant’s] prior criminal history.” Id. at
1045. Specifically, the informant had “previously provided
truthful and reliable information to police that led to three
other search warrants, narcotics arrests and convictions,” and
this history rehabilitated and bolstered the informant’s
credibility. Id.
In United States v. Patayan Soriano, we again considered
the credibility of an informant whose information provided
the sole basis for probable cause. 361 F.3d 494, 505 (9th Cir.
2003). After being arrested for forgery, a crime of
12 UNITED STATES V. RUIZ
dishonesty, the informant proceeded to implicate another
person in illegal activity, leading to the issuance of a search
warrant. Id. at 505–07. Concluding that the informant’s
statements were sufficiently reliable to support probable
cause, we noted that his statements were self-inculpatory, that
he provided detailed observations, and that he had no
apparent motive to lie, even assuming his primary motive was
to get “more lenient treatment for himself by the authorities.”
Id. We reasoned that “there is no indication that [the
informant] had a prior criminal record, or any history of
unreliability in reporting criminal acts suggesting the
possibility that he would lie to the police to frame an innocent
man.” Id. at 507 (citation and internal quotation marks
omitted).
Finally, in Ewing v. City of Stockton, we considered
whether an eyewitness’s description of a stabbing incident
and identification of a suspect were sufficient to establish
probable cause where the search warrant affidavit deceptively
represented that the suspect had an arrest record and
exaggerated the witness’s certainty about a particular detail
supporting probable cause. 588 F.3d at 1223–24. We held
that the magistrate judge was not misled because the witness
provided “ample evidence” in the form of first-hand
observations implicating the suspect. Id. at 1224. We
reasoned that the individual was “a citizen witness, not an
informant, and such witnesses are generally presumed
reliable.” Id. We relied upon our prior case law holding that
“‘[a] detailed eyewitness report of a crime is self-
corroborating; it supplies its own indicia of reliability.’” Id.
at 1224–25 (quoting United States v. Banks, 539 F.2d 14, 17
(9th Cir. 1976)).
UNITED STATES V. RUIZ 13
Although Charlene Scales ostensibly was a citizen
witness, under the circumstances of this case her eyewitness
identification of Ruiz may not be self-corroborating. Her
dishonesty about the drug-related items in the trailer on the
morning of the shooting, her personal involvement in the drug
trade from which the shooting apparently arose, and her
interest in serving as a confidential informant all undermine
her credibility. Mills’s credibility is likewise lessened, to
some extent, by the open presence of drug paraphernalia in
the trailer immediately after the shooting. It appears Mills at
least tolerated the use of illegal drugs in his home, and he
may have known about and tolerated Scales’s drug
transactions. In light of these circumstances, we assume,
without deciding, that Mills’s and Scales’s eyewitness
statements, standing alone, were not sufficient to support
probable cause. But because there was corroboration that the
crime being investigated had actually occurred, as well as
some specific indication that Scales’s identification of Ruiz
from the photo lineup was sufficiently reliable, we affirm the
district court’s ruling.
First, there is no evidence that Mills and Scales knew
Ruiz, or his “McDog” alias, before the March 21 shooting.
This undermines any inference that Mills and Scales
conspired to frame Ruiz for the shooting.
Second, the record corroborates that the shooting occurred
generally as Mills and Scales described it. Mills, Scales, and
the neighbor all observed the two strangers at the trailer that
morning, and Mills and the neighbor stated that one of the
men wore a white costume mask. All of the witnesses
reported that a physical struggle took place around the
entrance to the home, and Detective Plaza observed that a
railing had been “pulled away” near the door where it looked
14 UNITED STATES V. RUIZ
like someone had been pushed. All of the eyewitnesses told
police officers they heard two shots fired, and police found
two spent casings near the door of the trailer. Mills, of
course, was actually shot in the knee. Therefore, this case is
unlike Hall, where the only detailed description of the facts
underlying the search warrant came from an informant, and
there was no significant physical evidence to corroborate his
tip. See Hall, 113 F.3d at 157.
There was also sufficient corroboration of Scales’s
identification of Ruiz from the photo lineup. Mills and Scales
agreed on the central details of the shooting as well as some
more minor details, such as the dark color of the intruder’s
clothing. Mills described the intruder as a larger Hispanic
male in his thirties, which is generally consistent with Ruiz’s
physical characteristics at the time of the shooting—he was
around six feet tall and twenty-nine years old. Both Mills and
Scales heard the intruder identify himself as “McDog.” Even
if Mills and Scales had been motivated to invent details in
order to set up Ruiz, it seems unlikely that, in the brief time
before police and paramedics arrived, they would have been
able to agree on so many details after Mills had already
sustained a painful gunshot wound to the knee.
Mills’s and Scales’s statements that the intruder identified
himself as “McDog” are crucial to the probable cause inquiry.
Even without Scales’s identification of Ruiz from the lineup,
the connection between Ruiz and the “McDog” alias is
evidence supporting the probable cause finding. When police
officers from nearby Ontario provided Ruiz’s criminal history
listing “McDog” as an alias, there was already a booking
record for him at the Payette County Jail from earlier that
month. This indicated his presence in the general area and
possible involvement in local crime. Ruiz lived in Nampa,
UNITED STATES V. RUIZ 15
not far away. There is no suggestion in the record that police
officers knew of any other individual in the area using this
alias.
The dissent focuses on reasons to presumptively doubt the
credibility of Scales’s statements to police immediately after
the shooting—a point with which we agree. But even if no
statement had been taken from Scales after the shooting,
police would still have been led to suspect Ruiz because the
shooting victim, Mills, reported a physical description and
that he heard the shooter identify himself as “McDog.” The
police had a record of a person using that alias in the area, the
description for that person matched the physical description
provided by Mills, and both the neighbor’s statement and the
physical evidence from the crime scene were consistent with,
and supported, Mills’s account of the incident. These facts
bolster the credibility of Mill’s and Scales’s statements about
hearing the nickname “McDog,” and also the credibility of
Scales’s identification of Ruiz from the photo lineup.
The record in this case does not show that either witness
had “any history of unreliability in reporting criminal acts
suggesting the possibility that [they] would lie to the police
to frame an innocent man.” Patayan Soriano, 361 F.3d at
507 (citation and internal quotation marks omitted). To the
contrary, common sense suggests that a man who was just
shot in the leg (and his girlfriend) would be very interested in
assisting police officers to catch the actual perpetrator.
Therefore, though Mills’s and Scales’s credibility was
diminished, it was not entirely undermined. Mills, in
particular, was a gunshot victim who did not mislead police
officers about the shooting and did not have any criminal
record of dishonesty. Mills reported hearing the intruder
identify himself as “McDog,” and his credibility was only
16 UNITED STATES V. RUIZ
slightly impaired by the presence of illicit drugs at the
residence he shared with Scales.
Finally, there was no indication Mills or Scales
exaggerated or fabricated evidence related to the shooting.
Both individuals had several opportunities to identify Ruiz
more conclusively as the perpetrator, but they failed to do so.
If they were interested in framing Ruiz, they could have
identified him by name when police arrived at the scene that
morning, or at any point afterward. Mills could have picked
him out from the photo lineup, but instead he claimed not to
recognize any of the individuals in the photos. Scales could
have identified Ruiz outright from the lineup, rather than
focusing on two photos and then claiming to be ninety
percent certain—rather than one-hundred percent—that
Ruiz’s photo was the right one. In fact, there is no evidence
that either individual knew Ruiz prior to the shooting. If, for
whatever reason, Mills and Scales intended to leave just
enough clues to lead police to Ruiz without arousing the
suspicion of law enforcement as to their designs, then it was
a trail of bread crumbs worthy of the Brothers Grimm.
We share the district court’s concern about the police
conduct in this case, but we conclude there is enough
evidence in the record corroborating Mills’s and Scales’s
statements to “diminish[] the adverse effect” of their
credibility issues in the context of the probable cause inquiry.
Reeves, 210 F.3d at 1045. In light of the full record, there
was a “fair probability” that evidence of the shooting would
be discovered at Ruiz’s residence. See DeLeon, 979 F.2d at
764; Ewing, 588 F.3d at 1225. The district court properly
UNITED STATES V. RUIZ 17
denied Ruiz’s motion to suppress evidence obtained as a
result of the search warrant.
AFFIRMED.
GOULD, Circuit Judge, dissenting:
I agree with my colleagues that “the drug-related
information the district court determined was recklessly
omitted does raise serious concerns about Scales’s
credibility.” Majority Opinion at 10. I regret that I cannot
agree that there was independent corroboration of Scales’s
identification of Ruiz, sufficient to overcome my serious
concerns about Scales’s credibility. I conclude that the
officer’s reckless omissions about Scales’s drug-related
history were not harmless. Under a practical approach, taking
into account common sense, a corrected affidavit, including
the drug dealing and informant status of Scales, does not
establish probable cause.
The record does not show sufficient corroboration that
Scales reliably identified Ruiz. Here, there is no question the
trailer shooting occurred, and I do not see Scales’s and
Mills’s recounting of the basic details of the shooting, such as
how two shots were fired or how the other assailant wore a
mask, as strong corroboration of Scales’s overall veracity.
The shooting happened, but who did it? Was there
sufficiently reliable information of Ruiz’s involvement to
justify the search warrant under the probable cause standard?
I conclude there was not.
18 UNITED STATES V. RUIZ
I do not see how Scales’s and Mills’s statements that the
assailant wore dark clothing and was “a larger Hispanic male
in his thirties” contribute to corroborate Scales’s
identification of Ruiz. See Majority Opinion at 14. This
general characterization could be true of many people and
does not significantly bolster Scales’s reliability.
I also disagree with the “crucial” import the majority
gives to Scales’s and Mills’s statements that the assailant
identified himself as “McDog” and that police subsequently
linked the “McDog” alias to Ruiz through the records of a
nearby police department. See Majority Opinion at 14–15.
The majority claims that this shows Ruiz’s “presence in the
general area and possible involvement in local crime.”
Majority Opinion at 14. This seems somewhat corroborative
until placed into the context that Scales was a known drug
dealer and was known to have lied to police when first
interviewed about her ownership of drug paraphernalia found
at the scene of the trailer shooting. Mills lived with Scales
and could not have been unaware of her drug-related
activities. There is little doubt that Scales had contact with
other people involved in local criminal activity. So if there
are serious outstanding concerns about Scales’s credibility, I
do not see how the fact that police confirmed an alias of
“McDog” in the Payette area provides the type of
corroborating evidence that makes her identification of Ruiz
more reliable. It may only show that Scales knows Ruiz by
his alias, and tried to point a finger at him, a competing drug
dealer. The majority suggests that police might have
suspected Ruiz because of statements of Mills, but that does
not mean that there would have been probable cause to search
Ruiz’s home. In my view, in this case there was not probable
cause for the search absent a credible identification of Ruiz
by Scales.
UNITED STATES V. RUIZ 19
Beyond the weakness of the corroborative evidence, the
vast majority of the additional information theoretically
supporting probable cause comes from Scales and Mills, not
from independent sources. See United States v. Meling,
47 F.3d 1546, 1555 (9th Cir. 1995). Because the
corroboration here derives from information provided by
Scales, it does not compensate for Scales’s low credibility.
See id.
The magistrate judge knew nothing of Scales’s recent
history of drug sales, Scales’s statement to police that the
shooting was related to drugs and money, and Scales’s sale of
methamphetamine to undercover police on the very afternoon
of the shooting, leading to her role as a narcotics informant.
The majority permits law enforcement to omit all of these
essential facts on a theory of harmless error, even where the
corroborating evidence is weak and largely comes from
Scales, the very interested party whose credibility is
challenged.
The Supreme Court has emphasized a “‘flexible,
common-sense standard’ of probable cause.” Florida v.
Harris, 133 S. Ct. 1050, 1053 (2013) (quoting Illinois v.
Gates, 462 U.S. 213, 239 (1983)). Under this common-sense,
totality-of-the-circumstances approach to probable cause, the
police’s reckless omission of an important witness’s possible
relationship to a past crime should be considered material and
misleading to a magistrate judge under circumstances where
the omitted information bears strongly on the credibility of
that witness and there is inadequate independent
corroborating evidence. Where there is significant doubt
about the propriety of police practice and its impact on an
important credibility determination supporting a probable
cause conclusion, we should exercise caution on the side of
20 UNITED STATES V. RUIZ
the Fourth Amendment and improved police practices, rather
than a strained theory of harmless error. I respectfully
dissent.