FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10249 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Donald Thomas Bergerson, San Francisco, California, for the

defendant-appellant. 

Kenneth J. Melikian, United States Attorney’s Office, Sacramento, 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 confidential informant. Napier argues that by sealing the attachment 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 evidentiary hearing to test the validity of a search warrant affidavit. 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 competing 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

1404 UNITED STATES v. NAPIER
day, Napier failed to make the requisite substantial preliminary 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 attachment 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 informant, 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

UNITED STATES v. NAPIER 1405
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 twocount 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 purchases. 

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 confirmed 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 confidential remained. After receiving supplemental briefing and

hearing legal argument, the district court denied reconsideration 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 particularized 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

1406 UNITED STATES v. NAPIER
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 protect 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 intentionally, 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 recognized a defendant’s right to challenge the truthfulness of warUNITED STATES v. NAPIER 1407
rant affidavits, it necessarily means that any interference with

the defendant’s ability to mount that challenge is impermissible.

[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 furnish 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 privilege 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

1408 UNITED STATES v. NAPIER
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 weakened 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] privilege. 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 constitutional security of all of us under the Fourth Amendment. 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

UNITED STATES v. NAPIER 1409
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 substantial showing requirements of Franks and the government’s interest in keeping the identity of the informant

confidential, we must determine under the “the particular circumstances 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 circumstances.” 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 anyone 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 executed 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 question.

[6] A review of the district court’s rulings and hearing transcripts shows that the district court correctly followed procedures and methods established by the Ninth Circuit to balance

the interests at issue. These procedural steps are, by themselves, evidence that the district court properly considered

1410 UNITED STATES v. NAPIER
Napier’s interests and made efforts to reconcile those interests

with the government’s interests in protecting the confidentiality 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 complied with this order. Napier asserted to the district court that

the redacted version failed to provide him with enough information to meet the initial burden required for a Franks hearing. 

[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 hearing, the district court took the extra precaution—to which the

government consented—of asking Napier if he wanted an in

UNITED STATES v. NAPIER 1411
camera hearing where the judge would question the confidential 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 reason for the court to contemplate any kind of in camera proceeding. 

Counsel for Napier: I can see no value in an in camera 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 confidential 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 hearing to evaluate the defendant’s claims and to determine

whether the defendant “is entitled to an open evidentiary hearing on his Franks claim.” Id. To quote the Kiser majority,

The in camera procedure provides an equallyacceptable accommodation of the competing interests of the Government and the accused in the situation presented here, wherein the question is whether

a law enforcement officer has lied. Through disclosure 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 necessary secrecy, yet the defendant can be saved from

what could be serious police misconduct. 

1412 UNITED STATES v. NAPIER
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 interests 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 hearing 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 presumption is bolstered, where as here, the incriminating results

UNITED STATES v. NAPIER 1413
of the search and the in court testimony of the affiant substantially 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 informant on that score; and he offered no other evidence to support 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 showing 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 warrant. 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 warrant affidavit. AFFIRMED.

1414 UNITED STATES v. NAPIER