United States v. Napier ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10249
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00529-GEB
ARTHUR NAPIER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
December 8, 2005—San Francisco, California
Filed February 7, 2006
Before: Stephen S. Trott, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Trott
1401
1404 UNITED STATES v. NAPIER
COUNSEL
Donald Thomas Bergerson, San Francisco, California, for the
defendant-appellant.
Kenneth J. Melikian, United States Attorney’s Office, Sacra-
mento, California, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
Appellant, Arthur Napier, contends that the district court
erred by refusing to unseal a sealed attachment to the search
warrant affidavit that ultimately paved the way to his arrest
and conviction. The attachment detailed activity by a confi-
dential informant. Napier argues that by sealing the attach-
ment and by keeping it sealed, the government prevented him
from making the substantial preliminary showing required by
Franks v. Delaware, 438 U.S. 154, 155-56 (1978), for an evi-
dentiary hearing to test the validity of a search warrant affida-
vit. Napier asserts that this situation violated his due process
rights. We disagree. Napier’s interest in testing the validity of
the warrant through a Franks hearing is not absolute and must
be balanced with other competing interests. The district court
properly balanced Napier’s rights with the government’s com-
peting interests in determining that the sealed portions of the
search warrant affidavit should remain sealed. Furthermore,
the district court correctly concluded that, at the end of the
UNITED STATES v. NAPIER 1405
day, Napier failed to make the requisite substantial prelimi-
nary showing to be entitled to a Franks hearing.
We have jurisdiction over this timely appeal pursuant to 28
U.S.C. § 1291, and we affirm.
I
BACKGROUND
On October 11, 2001, a California superior court judge
signed a warrant that authorized a search of Napier’s person,
three of his vehicles, and Napier’s residence. The officers
seeking the warrant requested that the court seal an attach-
ment to the affidavit—Attachment A—filed in support of the
warrant. The attachment described two police-supervised and
surveilled drug purchases during September and October of
that year by a confidential informant from Napier. Based on
Napier’s criminal record of drug trafficking and violence, the
police officer affiant stated that this part of the affidavit must
be sealed to (1) protect the safety of the confidential infor-
mant, and (2) to protect the confidential informant’s identity
in other ongoing investigations. The superior court judge,
finding that the details of the two sales would allow Napier
to ascertain the identity of the confidential informant, sealed
that discrete part of the affidavit.
Later that day, the affiant and the sheriff’s deputies arrived
at Napier’s residence to execute the search warrant. Before
executing the warrant, the deputies observed Napier driving
off in one of the vehicles identified in the search warrant. The
affiant recognized Napier as the person who had sold drugs to
his confidential informant as referenced in Attachment A.
They stopped Napier, executed the search warrant on the
vehicle and on Napier’s person, and found small quantities of
cocaine powder and cocaine base. Deputies then executed the
search warrant at Napier’s home, where they discovered
approximately 450 grams of powder cocaine, a little over 28
1406 UNITED STATES v. NAPIER
grams of rock cocaine, a scale, and equipment used to convert
powder cocaine into rock cocaine.
On December 6, 2001, the federal government filed a two-
count indictment charging Napier with (1) possessing cocaine
base with the intent to distribute, and (2) possessing cocaine
with the intent to distribute. Napier was not charged with the
two sales to the confidential informant.
On December 14, 2001, after being released on bond,
Napier pled not guilty. He subsequently filed a motion to
unseal Attachment A. On September 6, 2002, the motion was
conditionally denied pending a filing by the government of a
redacted version of the sealed attachment. On October 2,
2002, the government submitted the redacted version, which
Napier asserted fell short of what he needed to challenge the
warrant in an adversary proceeding. The redacted attachment
gave no specifics about details, times, or locations of the pur-
chases.
Napier moved for reconsideration of his denied motion. On
May 2, 2003, the district court held an evidentiary hearing on
the issue of sealing. The search warrant affiant, the detective
who had supervised the two sales between the confidential
informant and Napier, was questioned. The detective con-
firmed that the justification for sealing presented to the state
superior court judge and the district court judge had not
changed, and that the need for keeping the information confi-
dential remained. After receiving supplemental briefing and
hearing legal argument, the district court denied reconsidera-
tion of its earlier ruling on the unsealing motion.
In September 2003, Napier filed a motion to suppress. He
argued that the court’s adverse ruling on the content of
Attachment A made it impossible for him to make a particu-
larized argument, but asked the court to conduct its own
Franks review. The court denied the motion. Napier then
changed his plea and entered a plea of guilty to count two of
UNITED STATES v. NAPIER 1407
the indictment. This plea agreement provided for dismissal of
count one of the indictment and preserved Napier’s right to
appeal the district court’s rulings regarding the sealed portions
of the affidavit. On April 16, 2004, Napier was sentenced to
135 months imprisonment, followed by a term of supervised
release, and a $100 fine. On April 19, 2004, Napier timely
filed his Notice of Appeal.
II
STANDARD OF REVIEW
We review de novo a district court’s decision regarding the
scope of a constitutional right. See Buono v. Norton, 371 F.3d
543, 548 (9th Cir. 2004). The district court’s decision to pro-
tect the identity of a confidential informant is reviewed for an
abuse of discretion. United States v. Sanchez, 908 F.2d 1443,
1451 (9th Cir. 1990). We review de novo a district court’s
decision not to conduct a Franks hearing. See United States
v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).
III
DISCUSSION
A. Competing Rights And Privileges
[1] In Franks, the Supreme Court held that the Fourth
Amendment entitles a defendant to challenge the validity of
a search warrant affidavit if the defendant makes a substantial
preliminary showing that the affiant “knowingly and inten-
tionally, or with reckless disregard for the truth” inserted a
false statement in the warrant affidavit. 438 U.S. at 155-56.
Here, because Napier was not permitted to examine the sealed
portions of the search warrant, he asserts that he was wrongly
thwarted from making the “substantial preliminary showing”
required by Franks. Napier argues that because Franks recog-
nized a defendant’s right to challenge the truthfulness of war-
1408 UNITED STATES v. NAPIER
rant affidavits, it necessarily means that any interference with
the defendant’s ability to mount that challenge is impermissi-
ble.
[2] We find this argument untenable. Although we agree
that Franks identifies an important right—testing the validity
of a search warrant—we disagree that Franks creates an
unlimited right to access all information possibly needed to
meet the preliminary showing requirement. Napier’s interest,
although significant, must be balanced against other values.
Here, that value is the government’s interest in maintaining
integrity of ongoing criminal investigations and ensuring the
safety of the informant. See Roviaro v. United States, 353
U.S. 53, 60-64 (1957) (recognizing “Government’s privilege
to withhold from disclosure the identity of persons who fur-
nish information of violations of law to officers charged with
enforcement of that law”).
[3] Napier argues that Roviaro is not applicable because he
was not asking for the identity of the informant. We disagree.
The privilege identified in Roviaro protects more than just the
name of the informant and extends to information that would
tend to reveal the identity of the informant. Id. at 59-60. As
articulated in Roviaro, the scope of the government’s privi-
lege is as great as the “underlying purpose” of the privilege.
Id. The purpose of the privilege is to protect the anonymity of
the confidential source. Id. at 59. Thus, the information
regarding the drug sales sought by Napier, which would tend
to reveal the informant’s identity, is protected to the same
extent as the confidential informant’s name. Consequently,
Napier’s assertion that the privilege identified in Roviaro is
inapplicable to this case is incorrect.
As we recognized in United States v. Kiser, courts must
balance two important considerations: the right announced in
Franks, on one hand, and the competing interest in keeping
confidential the identity of an informant, on the other. 716
F.2d 1268, 1273 (9th Cir. 1983) (“We must reconcile the right
UNITED STATES v. NAPIER 1409
announced in Franks with the informer’s privilege recognized
in Roviaro . . . .”) (internal citations and quotation marks
omitted). Therefore, because it is axiomatic that a right that
must be balanced against other rights cannot be absolute,
Napier’s assertion is unsupported.
[4] Napier’s argument for an absolute right is further weak-
ened by the Supreme Court’s determination that due process
requirements at suppression hearings are less elaborate and
demanding than those at trial. United States v. Raddatz, 447
U.S. 667, 679 (1980). As set forth by the Supreme Court, in
a suppression hearing:
[w]e are not dealing with the trial of the criminal
charge itself. There the need for a truthful verdict
outweighs society’s need for the [confidential] privi-
lege. Here, however, the accused seeks to avoid the
truth. The very purpose of a motion to suppress is to
escape the inculpatory thrust of evidence in hand,
not because its probative force is diluted in the least
by the mode of seizure, but rather as a sanction to
compel enforcement officers to respect the constitu-
tional security of all of us under the Fourth Amend-
ment. If the motion to suppress is denied, defendant
will still be judged upon the untarnished truth.
McCray v. Illinois, 386 U.S. 300, 307, reh’g denied, 386 U.S.
1042 (1967).
[5] It is for this reason the Supreme Court noted in Franks
that, notwithstanding the defendant’s interest in showing that
a search warrant contained a false statement, “[t]here is, of
course, a presumption of validity,” and that the presence of
“competing values . . . lead us to impose limitations.” 438
U.S. at 165, 171. Consequently, because the underlying
Franks interest that forms the basis for the right asserted by
Napier is one that has limits, it follows that any rights and
1410 UNITED STATES v. NAPIER
interests that build upon that interest must also be limited and
balanced.
B. Balancing Rights And Interests
Having recognized Napier’s interest in meeting the sub-
stantial showing requirements of Franks and the govern-
ment’s interest in keeping the identity of the informant
confidential, we must determine under the “the particular cir-
cumstances of [this] case,” Roviaro, 353 U.S. at 62, whether
the district court abused its discretion by balancing these
interests and ultimately deciding to deny Napier’s motion to
unseal. A court abuses its discretion if its decision “lies
beyond the pale of reasonable justification under the circum-
stances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir.
2000). For the reasons set forth below, we conclude that the
district court properly exercised its discretion.
The sole basis offered by Napier for his potential Franks
motion was his naked claim that he never sold drugs to any-
one in September and October of 2001. Napier further asserts
that because he never sold drugs during these months, he
could not have sold any drugs to the confidential informant as
alleged in the search warrant. Napier makes this assertion in
the face of the facts that (1) when the search warrant was exe-
cuted a short time after the two sales to the informant, law
enforcement officers found large quantities of drugs, a scale,
packaging materials, and other items typically used to make
rock cocaine, and (2) as developed in an evidentiary hearing,
he was personally identified by surveillance officers as the
person who met with the informant on the occasions in ques-
tion.
[6] A review of the district court’s rulings and hearing tran-
scripts shows that the district court correctly followed proce-
dures and methods established by the Ninth Circuit to balance
the interests at issue. These procedural steps are, by them-
selves, evidence that the district court properly considered
UNITED STATES v. NAPIER 1411
Napier’s interests and made efforts to reconcile those interests
with the government’s interests in protecting the confidential-
ity of the informant.
For instance, the district court recognized, and Napier
acknowledged at oral argument, that courts have “sanctioned
procedures where you don’t give the name of an informant,
and you redact certain, very closely identifying pieces of
information that would . . . identify an informant.” See, e.g.,
United States v. Dixon, 123 F. Supp. 2d 275, 278 (E.D. Pa.
2000) (“Information specifically identifying the confidential
informant may be redacted.”).
[7] Consistent with this acknowledgment and in an attempt
to provide Napier with as much information as possible, the
district court ordered the government to provide Napier with
a redacted version of Attachment A. The government com-
plied with this order. Napier asserted to the district court that
the redacted version failed to provide him with enough infor-
mation to meet the initial burden required for a Franks hear-
ing.
[8] However, after Napier moved for reconsideration, the
district court granted Napier an evidentiary hearing, at which
the search warrant affiant, Detective Meredith, testified and
was subject to questioning by Napier. Even though the district
court prevented Napier from asking certain questions which
would tend to reveal the identity of the confidential informant,
the hearing gave Napier an additional opportunity to gather
information and to test the validity of the affidavit as well as
the credibility of the detective. The hearing served also the
important purpose of confirming to the district court that the
reasons given to the court for sealing the affidavit continued
to exist.
In addition to the redacted attachment and evidentiary hear-
ing, the district court took the extra precaution—to which the
government consented—of asking Napier if he wanted an in
1412 UNITED STATES v. NAPIER
camera hearing where the judge would question the confiden-
tial informant to determine whether the sealed information
involving the informant was truthful, and whether Napier had
made a threshold showing of falsehood. Napier stated that he
did not want the hearing and that it would be unhelpful and
that he was entitled to Attachment A, period.
The Court: I’m trying to figure out if there’s any rea-
son for the court to contemplate any kind of in cam-
era proceeding.
Counsel for Napier: I can see no value in an in cam-
era proceeding in settling any of the questions that
are currently pending before the court. And that’s
been my position from day one of this.
[9] In Kiser, we identified ex parte, in camera hearings as
a means by which defendants could pursue their claims of
affiant misconduct in cases involving information from confi-
dential informants. 716 F.2d at 1273. We held that where a
defendant makes a “substantial preliminary showing” of false
statements in an affidavit involving a confidential informant,
the defendant is then entitled to an ex parte, in camera hear-
ing to evaluate the defendant’s claims and to determine
whether the defendant “is entitled to an open evidentiary hear-
ing on his Franks claim.” Id. To quote the Kiser majority,
The in camera procedure provides an equally-
acceptable accommodation of the competing inter-
ests of the Government and the accused in the situa-
tion presented here, wherein the question is whether
a law enforcement officer has lied. Through disclo-
sure of the informer’s identity to the trial judge, and
such subsequent inquiries by the judge as may be
necessary, the Government can be protected from
any significant, unnecessary impairment of neces-
sary secrecy, yet the defendant can be saved from
what could be serious police misconduct.
UNITED STATES v. NAPIER 1413
Kiser, 716 F.2d at 1273 (quoting United States v. Moore, 522
F.2d 1068, 1072-73 (9th Cir. 1975)).
[10] Each of these procedures, the revelation of additional
information from the affidavit, the evidentiary hearing, and
the rejected opportunity for in camera review, establishes that
the district court was aware of the defendant’s interests and
took careful steps to protect those interests by providing
Napier with as much information as possible, and thus, an
opportunity to meet the substantial showing requirement for
a Franks hearing. On the basis of all the information then
before the district court, the court then concluded that Napier
“has not shown why that information is insufficient for him
to know whether he could raise a Franks issue.” In so doing,
the district court correctly ruled that the government’s inter-
ests remained paramount and that the sealed portions of the
affidavit—which we have reviewed- should remain sealed. In
these circumstances, the district court did not err in any
respect.
C. The District Court Correctly Denied Napier’s Motion
To Suppress
In light of our determination that Attachment A properly
remained sealed, Napier’s assertion that the district court
erred by denying his motion to suppress fails. Napier
requested the unsealing of the search warrant for one primary
reason—to make a motion to suppress evidence pursuant to
Franks.
As set forth above, a defendant is entitled to a Franks hear-
ing if he makes a substantial preliminary showing that a false
statement was deliberately or recklessly included in the search
warrant affidavit and that the statement was necessary to the
magistrate’s finding of probable cause. 438 U.S. at 155-56. In
Franks, the Supreme Court stated that a search warrant affiant
is afforded a presumption of validity. Id. at 171. This pre-
sumption is bolstered, where as here, the incriminating results
1414 UNITED STATES v. NAPIER
of the search and the in court testimony of the affiant substan-
tially undermined Napier’s offer of proof. Moreover, he
weakened his claim that he sold no drugs during the time of
the sales by declining the court’s offer to examine the infor-
mant on that score; and he offered no other evidence to sup-
port what the full record before the court demonstrates to have
been nothing more than a self-serving and doubtful denial.
Consequently, Napier made no substantial preliminary show-
ing of a entitlement to a Franks hearing.
[11] In sum, Napier has failed to articulate any substantial
reason why the additional sealed information he might have
received would have helped him meet the initial burden
required for a Franks hearing. Thus, Napier had no basis for
a Franks hearing and, therefore, had no support for his motion
to suppress. Accordingly, we conclude that the district court
properly refused Napier a Franks hearing and correctly denied
his motion to suppress.
IV
CONCLUSION
Napier’s arguments that the district court erred by refusing
to unseal the sealed portions of the search warrant affidavit
are unfounded. Napier does not have an absolute right to test
the veracity of the information contained in the search war-
rant. The district court correctly balanced the government’s
interest of keeping the informant’s identity confidential
against Napier’s interest in testing the truthfulness of the
information contained in the sealed portion of the search war-
rant affidavit. AFFIRMED.