United States v. Davis , 535 F. Supp. 552 ( 1982 )

HAUK, Chief Judge.

An evidentiary hearing was held today, March 22, 1982, pursuant to the decision and mandate of the Court of Appeals, Ninth Circuit, 663 F.2d 824 (9th Cir. 1981), wherein witnesses were called and exhibits were marked and admitted into evidence. Thereupon, the Court being fully informed of all the facts and advised as to the applicable law, and good cause appearing, the Court makes and enters the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Officer Thompson had knowledge of all of the facts contained in his affidavit of March 28, 1977 which supported the “Blue Lagoon” warrant, (Court’s exhibit # 2), prior to signing said affidavit.

2. Officer Thompson’s knowledge was gained either from his subordinate officers, or through his presence when various informants’ statements were made to those officers.

3. Officer Thompson believed the information contained in his affidavit to be true.

4. Officer Thompson believed that the “Blue Lagoon” warrant was merely an extension of the “PDI” warrant, the affidavit for which had been signed by Officer Epstein who in fact had spoken to each of the informants, and which had been issued in the context of the same investigation.

5. Officer Thompson’s indication in the affidavit that he personally had spoken with all of the informants was the result of mere inadvertence, and was in no way intended to mislead the judge who signed the warrant.

6. Because both warrants were signed on the same day by the same judge, and both pertained to the same ongoing investigation, there is no possibility that the judge could have been mislead by Officer Thompson inadvertently indicating that he had personally spoken to each of the informants.

7. These findings of fact are in addition to those made in open court during the hearing of March 22, 1982, and to the extent that they contain conclusions of law, they shall be deemed to be incorporated with the conclusions of law.

CONCLUSIONS OF LAW

Based on the aforesaid findings of fact, this Court now concludes as a matter of law:

1. The evidence is clear that the errors in Officer Thompson’s affidavit were the result of mere inadvertence, and do not rise to the level of deliberate falsehood or reckless disregard for the truth.

2. Defendant Davis has failed to establish, by a preponderance of the evidence, that there was any deliberate falsehood or reckless disregard for the truth in the affidavit supporting the “Blue Lagoon” warrant.

3. The defendant having failed to meet this burden of proof, this Court must reinstate the original judgment and conviction of February 25, 1980.

4. Even if defendant Davis had met his burden of proof, thereby requiring the informant information to be excised from the Thompson affidavit, this Court concludes that under United States v. Fogarty, 663 F.2d 928 (9th Cir. 1981), the judge approving the “Blue Lagoon” and “PDI” warrants, having signed both on the same day, was not required “to read either affidavit with tunnel vision,” and would therefore have been justified in considering both the “PDI” and “Blue Lagoon” affidavits together, thereby clearly establishing probable cause.

5. Having found the “Blue Lagoon” warrant valid, the evidence secured by it is therefore admissible. No error having been committed at trial through introduction of inadmissible evidence, this Court must reinstate the judgment and conviction of defendant Davis of February 25, 1980.

6. These conclusions of law are in addition to those made in open court during the hearing of March 22, 1982, and to the extent that they contain findings of fact, they shall be deemed to be incorporated with the findings of fact. ■

Let Order and Judgment be entered accordingly.