F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

M A R T I N C A N T U R U I Z , Defendant-Appellant

. N o. 13-30003

D.C. No. 1:11-cr-00240- B L W -1

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho B . L y nn W inmill, Chief District J udg e, Presiding

Arg ued and Submitted F ebruary 6, 2014—Seattle, W ashing ton

F iled J uly 11, 2014

B efore: Ray

mond C. F isher, Ronald M. Gould, and Morg an Christen, Circuit J udg es.

Opinion by

J u d g e Christen; Dissent by

J udg e GouldU N I T E D S T A T E S V

. R

U I Z 2

SUMMARY *

Crim inal Law

The panel affirmed the district court’s denial of a motion
to suppress a shotg un seiz ed d uring the e x ecution of a search
warrant in a case in which the defendant arg ued that reckless omissions by the search warrant affiant fatally undermin e d the mag istrate judg e’s finding of probable cause.

The panel wrote that the failure to discl o s e t o the
mag istrate judg e at the time of the war rant hearing drug

related information that raises s e ri o us concerns about a witness’s credibility is a serious breach of the duty the officer owed to the c ourt. The panel also assumed, without deciding

, that two witness’s ey ewitness statements, s t anding alone,

were not sufficient to support p robable caus e

. T h e panel affirmed because there was corroboration that the crime being investig ated had actually occurred, as well as so m e s p ecific indication that the identification of the de f e n d a n t from a photo lineup was sufficiently reliable.

Dissenting

, J udg e Gould could not a gr e e t hat there was independent corroboration of a witness’s identification of the defendant, sufficient to overcome serious concerns about the witness’s credibility

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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U I Z 3

COUNSEL

Randall S. B arnum (arg

ued), B arnum L aw, PL L C, B o ise, I daho, for Defendant-Appellant.

W e n d y J

. O lson and Christian S. Nafz g e r (arg ued), Office o f the Un i ted States Attorney
, B oise, I daho, for PlaintiffAppellee.

OP INION

CHRI STEN, Circuit J udg e:

An early -morning shooting

, a my sterious alias, a nd a problematic ey ewitness 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 F irearm in violation o f 18 U.S.C. § 922(g )(1), contending that the district court erred by deny ing h is motion
to suppress a shotg un seiz ed d uring the e x ecution of a search
warrant at his residence. Ruiz arg u es that reckless omissions by the sea rch warrant affiant fatally undermined the
mag istrate judg e’s finding of proba b l e c a u se. W e have jurisdiction under 28 U.S.C. § 1291, and affirm the district court’s denial of Ruiz ’s motion to suppress.

BACK G ROUND AND P RIOR P ROCEEDING S

Early on March 21, 2011, police responded to a c all from

a trailer home in Pay ette, I daho. W h en officers arrived, they found that a man who lived th e r e, E m m ett Mills, had been shot in the knee. Detective J oh n P l a z a spoke with Mills briefly before he was taken to the hospital.U N I T E D S T A T E S V

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U I Z 4

Mills told the d e t e c tive h e was at home with his
g irlfriend, Charlene S cales, when he heard a knock o n the door at around 4:20 in the morn i n g. T he person at the door id e n t ified h imself as “McDog

. ” 1 Mills opened the door a nd

“ M cDog ” asked for J e ssica, b ut Mills said J essica was n ’ t there. Mills described “McDog ” as a larg er Hispanic male in his thirties with short hair and a black sweatshirt. Mills also

saw an o t h er , smaller man standing nearby wearing a white clown mask and holding an a ssault r if l e

. M i l ls said the g un looked similar to an A K-47. A n e ig hbor 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 i nside the trailer, and a strug g le ensued between Mill s a n d “McDog .” Scales was seated at a computer, where she could observe the confrontation throug h a crack between the trailer door and the w all where the door’s h i n ge s were attached. L ike Mills, Scales spoke with Detectiv e Plaz a immediately after the shooting

. She told the d etective that she w i tnessed the scuffle, h eard the intruder ident i f y h i mself as “McDog
, ”

an d s a w him try to force h is w ay inside. She described “McDog ” as a Hispanic male wearing dark clothes. S c ales also reported hearing t h e p o p ping o f the assault rifle as it fired twice. Mills, Scales, and the neig hbor all ag reed that there had been two shots. A fter Mills was hit in the left knee by one o f the bullets, the assailants fled. Poli c e l a t e r f ound
tw o s p ent casing s outside the front door of the trailer that

were consist e n t with a semiautomatic pistol, not an assault rifle. W hile searching the area near the front door, Detective Plaz a noted that a r a iling near the door to the home was

1 T h e s p ellin g is u n certai n, a nd at least o n e p o lice o f f icer w ro te d o w n

“ Mick

- Do g .”U N I T E D S T A T E S V

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U I Z 5

“pulled away from the house” where it looked like someone had been “pushed.”

Detective Plaz a sensed that Scales was evasive when she spoke with p olice that morning

, as i f she were hiding something

. The police o fficers obtained c onsent to search the trailer

2 and found a handg un a s well as methamphetamine a nd

a pipe w ith burnt residue, sug g esting that one or more of the home’s occupants used drug s. Detective Plaz a later testified that Scales a n d others led him to b elieve that the items belong ed to two other people who had stay ed in the back bedroom the previous evening

.

Detective Plaz a soon learned that the narcotics division o f the Pay ette Police Department was investig a ting Scales for suspected involvement in drug sales f rom the trailer. L ater on the day of the shooting

, an u ndercover officer a ssociated with the narcotics investig ation contacted S c ales and made a controlled buy of methamphetamine at the trailer. Caug ht in the act, Scales and police officers d iscussed arrang ing “consideration for h er [ criminal] charg es” if she assisted with future narcotics investig ations a s a confidential informant. The officers told her t h a t she would not receive ex tra consideration for providing i n formation about the shooting

. Scales seemed interested in the a rrang ement. The police also noted that she believed the shooting had been related to drug s and money

.

The Pay e t t e Police Department soug ht the assistance o f nearby law e nforcement to locate a n individual with the alias “Mc Dog .” I n r esponse, they received a copy of Ruiz ’s

2 It is u n clear f

ro m th e reco rd o n ap p eal w h o co n sen ted to th e search

, b u t th ere is n o in d icatio n

th at Scales o bj ected to th e search

.U N I T E D S T A T E S V

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U I Z 6

criminal history

, which included the alias “McDog
, ” from the police department in Ontario, Oreg on, just over the Snake River. Officers learn e d t h a t Ruiz had been booked in the Pay ette County J ail earlier that month for a separate incident. His address was listed in Nampa, I daho, south of Pay ette.

Police assembled a p h o to lineup that included Ruiz

, which t h e y s h o wed to Mills and Scales two day s after the shooting

. 3 Mills could not i dentify a n y one from the lineup, but Scales z e r o ed in on two o f the photos and eventually settled o n Ruiz ’s photo b ecause she recog niz ed a “thing on his f a c e

. ” She stated she was ninety percent sure Ruiz was the intruder. On the day Scales id e n t i f i e d Ruiz

, neither she

nor the o f

f i c ers conducting the lineup mentioned the previously

discussed informant arrang ement.

Pay e tte police officers soug ht a warrant to search Ruiz ’s residence. At the warrant hearing

, Detective Plaz a t o ld the

s t a t e mag istrate judg e most of the factual backg r ound described here, but he omitted what p olice officers knew about Scales’s drug -related a ctivity

, includi n g: (1) her prior sales of methamphetamine from the trailer; (2) her apparent dishonesty about the presence o f d rug -related paraphernalia in the trailer; (3) her interest in serving as a confidential informant in the f

u t u r e in ex chang e for consideration o f her d r u g charg es; and (4) h er statement to police that the trailer shooting was r elated to d rug s and money

. Dete ct i v e Plaz a also failed to ex plain that Scales had initially focused on two photog raphs in the lineup, and that she disting uished b etween them by a mark on Ruiz ’s face.

3 Fro m th e reco rd it ap p ears th e lin eu p in clu d ed at least six p h o to g rap h s.U N I T E D S T A T E S V

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U I Z 7

The mag istrate judg e concluded that there w as 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 shotg un wi t h a n obliterated serial number. The g overnment indicted Ruiz o n federal charg es o f possession o f a n u nreg istered firearm, in violation o f 26 U.S.C. § 5861(d), and unlawful possession of a firearm, in violation of 1 8 U.S.C. § 922(g )(1). Ruiz moved to e x clude evidence from the search, and the district court held a Franks hearing to consider Ruiz ’s challeng e to the prob a ble cause showing for the warrant. S ee Franks v. Delaware

, 438 U.S. 154 (1978).

At the F r anks h earing

, the district court found that Detective Plaz a reckl e s s l y o m i t t e d material information about Scales’s involvement with drug s and her ag reement to act a s

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 R u iz ’s claims as to other alleg edly reckless omissions by the affiant. Taking into a ccount the full record, including the omissions it found, the district court concluded the mag istrate judg e was not misled. Ruiz appeals.

D ISCUSSION

W e review for clear error the district court’s finding that

a fact was not recklessly omitted f rom a n affidavit supporting probable cause. Martinez-Garcia
, 397 F .3d at 1215 n.5. W e review de novo the district court’s c onclusion that r e ck l ess omi s s i ons by a search warrant affiant did not fatally undermine a finding of p r o bable cause. United States v

. Elliott

, 322 F .3d 710, 714 (9th Cir. 2003).U N I T E D S T A T E S V

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U I Z 8

The probable cause standard for a search war r ant is whether, based on common sense consideration s , there was “a fair p robability that contraband or evidence of a cr i m e [ would] be found in a particular place.” United State s v

. DeLeon
, 979 F .2d 761, 764 (9th Cir. 1 992) (citing Illinois v

. Gates
, 462 U.S. 213, 238 (1983)). The mag istrate judg e need
not determine “that the evidence is more likely than not to be found where the search takes place.

. . . The mag istrate need only conclude tha t i t wo uld be reasonable to seek the evidence in the place indicated in the affidavit

. ” United States v

. Ocampo
, 937 F. 2 d 485, 490 (9th Cir. 1 991) (alteration in orig inal) ( citation a nd internal q

uotation marks omitted).

To prevail on a c laim that t h e p o l ice procured a warrant throug h deception, the p arty challe n g ing the warrant must show that the affiant deliberately or recklessly made false
statements or omissions that were material to the fi nding o f probable cause. See E

wing v

. City of S t o c k t o n , 5 88 F .3d 1218, 1223 ( 9th Cir. 2009). Our evalu a t i on of materiality requires that we consider the effect of a ny false statements o r omissions. “I f an officer submitted false statements, the court purg e s those statements and determines whether w h at is left justifies issuance of the warrant.” I d. a t 1224. “I f the officer omitted f act s required to prevent technically true statements in the affid a v it from being misleading

, the c ourt determines whether the affidavit, once corrected and supplemented, establishes probable c a

use.” Id. “I f 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 ex ists is “a common

sense determination.” United States v

. Hall

, 113 F

. 3d 1 5 7,U N I T E D S T A T E S V

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U I Z 9

159 (9th Cir. 1997). W e are mindful that “[ b] y reporting less than the total story , an affia n t can manipulate the inferences

a mag istrate will draw,” and that “ [ t] o allo w a mag istrate to be misled in such a manner could denude the probable cause requirement of all r eal meaning .” United States v. Stane rt , 762 F

. 2d 775, 781 (9th Cir. 1985), a mended by 769 F .2d 1410 (9th Cir. 1985).

F irst, Ruiz contends that, in a ddition to the o m i ssions found by the district court, D et e ctive Plaz a deliberately o r recklessly omitted material information reg ardi n g Scales’s ability to o bserve the i ntruder at the doorway to the house. W e disag ree. Enoug h facts were presented abo u t t h e lay out of the trailer and Scales’s position inside it for the mag istrate judg e to inquire further if there was doubt a b o u t Scales’s ability to see the intruder cl e a rly enoug h to make an identification. The district cou r t d i d not clearly err in this part of its ruling

.

S e c o nd, we r eject Ruiz ’s arg ument that Detective Plaz a also deliberately or recklessly o mitted information reg arding a potential discrepancy b e tween the neig hbor’s observations and Mill’s and Scales’s descri ptions of the location of the masked man relative to the home. F rom the record on appeal, i t appears that Detective Plaz a accurately described the neig hbor’s a c c o u n t

. W e c annot 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 mag istrate judg e that Scales: (1) initially focused

on two of the lineu p p hotos as potentially depicting the intruder, a

nd (2) disting u ished between them by a mark on Ruiz ’s fa c e

. W e make the same assumption on de novo review, and we ag ree with the district court that th i s failureU N I T E D S T A T E S V

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was not misleading

. S c a les stated she was ninety percent confident in the identification, indicating some deg ree o f uncertainty but also a hig h deg ree of c onfidence, and the
mag istrate judg e had this statement before him to weig h. The
mag istrate judg e could h av e inquired about why Scales was

n o t a bsolutely sure of her identification, if this was a potentially

determinative source of doubt.

F ourth, the d

rug -related information the d istri c t court determined w as r e cklessly omitted does raise serious

concerns about Scales’s cre d i b i lity and, to a lesser e x tent, Mills’s c redibility

. The mag istrate judg e knew nothing o f Scales’s history o f drug sales, her e vasiveness c oncerning the drug paraphernalia at the scene o f the shooting

, her
sug g estion to police o fficers that the shooting was related to drug s a nd money , or her sal e o f methamphetamine to an undercover officer on the very afternoon of the shooting that led to discussion o f her potential role a s a narcotics informant. These are serious omissions

. Scales, a d rug dealer who continued to operate the afternoon of the shooting

, could have b een an interested party t o a shooting related to drug s and money with a motive to lie about the identity of the intruder. The failure to disclose t h i s information to the
mag istrate at the time of the warr ant hearing is a serious breach of the duty Officer Plaz a owed to the court. W e f ully
ag re e wi t h the district court that “Officer Plaz a took a substantial risk in failing to reveal these facts.” The question

we must decide is “ whether p robable cause remains once the [ evidence presented to the mag istrate judg e] is supplemented with the challeng ed o mission[ s]

. ” Bravo , 665 F .3d at 1084; see also Ewing , 588 F .3d at 1224.

I n United S

tates v. Hall

, w e considered whether probable

cause supported a search warra n t w h ere the g overnmentU N I T E D S T A T E S V

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U I Z 11

recklessly failed to disclose all of an informant’s prior convictions during a warrant hearing . 113 F .3d at 159. The informant had rec en t ly been arrested for involvement in cocaine dealing

, and he was the sole source of cru cial i n f ormation leading to the warrant. Id. at 1 57–59. T h e g overnment did not d isclose several of the informant’s convictions, p articularly one for making a false re p o r t to police. Id. at 1 58. Nor did it disclose a “probation violation involving death threats to a wounded police officer.” Id. W e held that probable c ause to search the defendant’s trailer for drug s was lacking because, first, the conviction for making a false report to the police serious l y u n dermined the informant’s c redibility 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. a t 159–61.

B y contrast, in United States v. Ree v e s , w e held that the f ailure to disclose a c o nfidential informant’s prior criminal history involving dishonest statements to the p o lice did not mislead a mag istrate judg e into g ranti n g a s earch warrant. 210 F .3d 1 041, 1043, 1045–46 ( 9th Cir. 2000). W e disting uished Hall b ecause of the presence in R e eves o f “counte r v ailing evidence which d iminishe[ d] the adverse effect of the [informa n t ’ s ] prior criminal history .” Id. at 1045. Specifically

, the informant had “previously provided truth f u l an d reliable information to police that led to three other search warrants, n arcotics arrests and convictions,” a nd this histo r y r ehabilitated and bolstered the informant’s credibility

. Id.

I n United States v. Patayan Soriano
, we ag ain 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 f or forg e ry , a crime o fU N I T E D S T A T E S V

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dishonesty

, the informant proceeded to implicate another
person in i lleg al activity

, leading to the issuance of a search
warrant. Id. a t 505–0 7

. Concluding that the informant’s
statements were suffici ently 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, e ven assuming his primary motive was to g et “more lenient treatment for h imself by the authorities.” Id. W e reasoned that “there is no indication t h a t [ the informant] had a prior criminal record, or any history o f

un re l iability in reporting criminal acts sug g esting the possibility that he would lie to the police to frame an innocent man.” Id. at 507 (ci t ation and internal quotation marks omitted).

F inally

, in Ewing v. City of S t o c kton

, w e considered whether an ey ewitness’s d escription of a s tabbing incident and identification o f a suspect were sufficient to establish probable cause where the search w arrant affidavit d e ceptively represente d t h a t the suspect had an arrest record a nd

ex a g g erated the witness’s certainty a b out a particular detail supporting probable cause. 588 F .3d at 1223–24. W e h eld that the mag istrate judg e was not misled because the witness provided “ample evidence” in the form o f first-hand observations impl i c at ing the suspect. Id. at 1224. W e reasoned that the ind i v i d ual was “a c itiz en witness, not an informant, and such witnesses are g enerally pre s u m e d reliable.” Id. W e relied u pon our prior c ase law holding that “‘[ a] detailed ey ewitness report of a crime is selfcorroborating ; it supplies its own indicia of reliability .’” Id.
at 1224–25 ( quoting United S tates v. B anks

, 539 F .2d 14, 17 (9th Cir. 1976)).U N I T E D S T A T E S V

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U I Z 13

Althoug h Charlene Scales o stensibly was a ci t iz en witness, under the circumstances of this case her ey ewitness i d e ntification of Ruiz may not be self-corroborating

. H e r dishonesty a

bout the drug -related ite m s i n the trailer on the morning of the shooting

, her personal involvement in the d rug trade f rom which the shooting ap p a r e ntly arose, and her interest in serv i ng as a confidential informant all undermine her credibility

. Mills’s credibility i s likewise lessened, to

some ex tent, by the open p resence of drug paraphe r n alia in the trailer immediately after the shooting

. I t appears Mills at least tolerated the use of i l l egal drug s in his home, and he
may have known about and tolerated Scales’s d rug transactions. I n lig ht of these circumstance s, we assume, without deci d ing

, that Mills’s and Scales’s ey ewitness statements, standing alone, were not suffic i e n t to support probable cause. B ut because there was corroboration that the crime b eing investig ated had actually occ u r r e d

, as well a s

some specific indication that Scales’s identification of Ruiz from the photo lineup w as sufficiently reliable, we affirm the district court’s ruling

.

F irst, there i s no evidence that Mills and Scales knew Ruiz

, or his “McDog ” alias, before the Mar ch 21 shooting

. This undermines any inference that Mi lls and Scales conspired to frame Ruiz for the shooting

.
Second, the record corroborates t h a t t h e s h o o ting occurred
g enerally as Mills and Scales described it. Mills, Scales, a nd the neig hbor all observed the two strang ers at the trailer that morning

, a

nd Mills and the n ei gh b o r stated that one o f the

men wore a white costume mask. All of t h e w i t nesses

r e ported that a phy sical strug g le took place around t h e entrance to the home, and Detective Plaz a observed t h a t a railing had b een “pulled a w ay ” near the door where it lookedU N I T E D S T A T E S V

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U I Z 14

like someone had been pushed. All of the ey ewitnesses told police offic e rs they h eard two shots fired, and police f ound
t w o s p ent casing s near the door of the trailer. Mills, o f
course, was a ctually shot in the k nee. Therefore, this case is unlike Hall

, where the only d e t a iled description of the facts underly ing the search w ar ra n t came f rom an informant, a

nd there w as no sig nificant p hy sical 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
ag reed on the c entral details of the shooting as well as some

more minor detail s , s u ch as the dark color of the intruder’s clothing

. M i l l s described the intruder as a larg er Hispanic male in his thirties, which is g enerally consistent with Ruiz ’s phy sical characteristics at the time of the shootin g— h e was around six feet tall and twenty -nine y ears old. B o th Mills a nd Scales heard the intruder identify himself as “McDog

. ” Even if Mills and Scales had b een motivated to i n v e n t d etails in

o r d e r t o set up Ruiz

, it seems u nlikely that, in the brief time before police and paramedics arrived, they would have been able to a g ree on so many details after Mills had a l ready sustained a painful g

unshot wound to the knee.

Mills’s and Scale s ’ s statements that the intruder identified himself as “McDog ” a

re c rucial to the probable cause inquiry

. Even without Scales’s identification of Ruiz from the lineup, the co n nection between Ruiz and the “McDog ” alias is evidence supporting the probable cause finding

. W hen police officers from nearby Ontario provided R uiz ’s criminal history listing “McDog ” as a n a l i as, there was already a booking

rec o r d f o r him a t the Pay e tte County J ail from earlier that

m o n t h

. This indicated his presence in the g eneral area a nd possible involvement in l o c al crime. Ruiz lived in Nampa,U N I T E D S T A T E S V

. R

U I Z 15

not far away

. There is no sug g estion in the record that police officers kne w o f a n y o ther individual in the area using this alias.

The d issent focuses on r easons to presumptively doubt the credibility of Scales’s statements to police immediately a fter the shooting —a point with wh i c h we ag ree. B ut even if no statem e n t had been taken from Scales after the shooting

, police w ould still have been led to suspect Ruiz because the shooting v i c t i m , Mills, reported a p hy sical description a nd that h e heard the shooter identify himself as “McDog .” The police h ad a record of a person using that alias in the a rea, the description for t hat person matched the phy sical d escription provided by Mills, and both the neig hbor’s statement and the phy sical evidence from the crime scene w ere consistent with,

an d s u pported, Mills’s account of the incident. These facts bolster the credibility of Mill’s and Scales’s statements about hearing the nickname “McDog
, ” a nd als o the credibility o f Scales’s identification of Ruiz from the photo lineup.

The record in this case does not show that either witness had “any history o f unreliability in reporting criminal acts sug g esting the possibility t h a t [ they ] w ould lie to the police
t o frame an innocent man.” P atayan Soriano
, 361 F .3d at 507 (citation and i n t ernal q uotation marks omitted). To the contrary , common sense s u gge s ts that a man who was just shot in the leg (and his g irlfriend) would be very interested in assisting police officers to ca t c h the actual perpetrator. Therefore

, t houg h Mills’s and Scales’s credibility was diminished, it was not entirely undermined. Mills, in partic u l a r , was a g unshot victim who did not mislead police officers about the shooting and did not have any cr i m i nal record of dishonesty

. Mi l l s reported hearing the intruder i dentify h imself as “McDog ,” and h is credibility w a s o n l yU N I T E D S T A T E S V

. R

U I Z 16

slig htly impaired by t he presence o f illicit drug s at the residence he shared with Scales.

F inally

, there was no indi c a tion Mills or Scales

ex a g g erated or fabricated evidence related to the shooting

. B oth individuals had several opportunities to identify Ruiz

more conclusively as the perpetrator, but they failed to do so. I f the y were interested in framing Ruiz

, they could have identified h im by name when police arrived at the scene that morning

, or a t any point afterward. Mills could have picked him out from the photo lineup, but instead he claimed not to
recog niz e any of the individuals in the photos. Scales could have identified Ruiz o utrig ht from the lineup, r ather than focusing o n t w o photos and then c laiming to be n inety percent certain—rat

her than one-hundred percent—that Ruiz ’s photo was the rig h t one. I n fact, there is no evidence that either individual knew Ruiz prior to the shooting

. I f

, for whatever reason, Mills and Scales in t ended to leave just
enoug h clues to lead police to Ruiz wit h o u t arousing the suspicion of law enforcement as to their desig ns, then it was a trail of bread crumbs worthy of the B rothers Grimm.

W e share the district court’s concern about the police conduct in this case, but we conclude there is en o u gh evidence in the record c orroborating Mills’s and Scales’s
statements to “ diminish[ ] the a dverse effe c t ” o f their credibility issues in the contex t of the probable cause inquiry

. Reeves
, 210 F

. 3d a t 1045. I n lig ht of the full reco r d, there

was a “ fair probability ” that evidence of the shooting wo u ld be discovered at Ruiz ’ s residence. See DeLeon
, 979 F .2d at 764; Ewing
, 588 F .3d at 122 5

. The district court properlyU N I T E D S T A T E S V

. R

U I Z 17

denied R u i z ’s motion to suppress evidence obtained as a result of the search warrant.

AF F IRMED.

GOUL D, Circuit J udg e , dissenting :

I ag ree with m y colleag ues that “the drug -related information the district court d e t ermined was recklessly omitted d oes raise serious concerns about Scale s ’s credibil ity .” Majority Opinion at 10. I reg ret that I cannot

a gr ee that there was independent corroboration o f Scales’s identification of Ruiz

, sufficient to overcome my s e r ious

concerns about Scales’s c redibility

. I conclude t h at the officer’s reckless omissions about Scales’s drug-related history w ere not harmless. Under a practical approach, taking into account common sense, a corrected affidavit, including the drug dealing and informant status of Scales, does n o t establish probable cause.

The record does not show sufficient c o r roboration that Scales reliably identified Ruiz

. Here, there is no question the trailer shooting o ccurred, and I do not see Scales’s a nd Mills’s recounting of the basic details o f the shooting

, such a s how two shots were fired or how the other assa i l ant wore a mask, as strong corroboration o f Scales’s overall veracity

. The shooting happened, but who did it? Wa s there sufficiently reliable information of Ruiz ’s involvement to justify the search warrant under the probable cause standard? I conclude there was not.U N I T E D S T A T E S V

. R

U I Z 18

I do not see how Scales’s and Mills’s statements that the assailant wore dark clothing and was “a larg er H ispanic male in his thirties” co n t r i b u t e t o c orroborate Scales’s identification of Ruiz

. S ee Majority Opinion at 14. This
g eneral characteriz a tion could b e true of many people a nd does not sig nificantly

bolster Scales’s reliability

.

I a lso disag ree with the “ c r u c ial” import the majority
g ives to Scal e s ’ s a nd Mills’s statements that the assailant identified himself as “McDog ” and that police su b s equently linked the “McDog ” alias to Ru i z throug h the records of a nearby police department. See M a j o r ity Opinion at 14–15. T h e m a jority c laims that this shows Ruiz ’s “ presence in the
g eneral area a n d possible involvement in local crime.” Majority Opinion at 1 4. This seems somewhat corroborative until p laced into the contex t that Scales w a s a known d rug dealer and was known to have lied to police when first interviewed a

bout h er ownership of d

rug paraphernalia f

ound

a t t h e s c ene of the trailer shooting

. Mills lived with Scales and could not have been unaware of h er drug -related activities. T here is little doubt that Scales had c o n t a c t with other people involved in local crimi n al a ctivity

. So if there

are serious outstanding c oncerns about Scales’s credibility

, I do n o t see how the fact that police confirm e d a n a l ias o f “McDog ” in the Pay e tte area provides the t y pe o f corroborating evidence that makes her identification of Ruiz

more reliable. I t may only sho w t h a t Scales knows Ruiz b y his alias, a

nd tried to point a fing er at him, a competing d rug dealer. The majority sug g ests that po lice mig ht have suspected Ruiz because of statements of Mills, but that does
not mean that there w ould have been probable cause to search Ruiz ’s home. I n my view, in this case there was not probable

cause for the search absent a credible identification of Ruiz by Scales.U N I T E D S T A T E S V

. R

U I Z 19

B e y ond 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. M eling

, 4 7 F .3d 1546, 1 555 (9th Cir. 1995). B ecause t h e corroboration here derives f rom i n f ormation provided b y Scales, it does not compensate f or Scales’s low credibility

. See id.

The mag istrate j u d ge knew nothing of Scales’s recent history of drug sales, Scal e s ’s statement to police that the shooting was related to drug s and money , and Scales’s sale o f methamphetamine to undercover police on the very afternoon of the shooting

, leading to her role a s a narc o t i c s informant. The majority permits law enforceme n t to omit all of these essential fact s on a theory of harmless error, even where the corroborating evidence is weak and l a r gely comes from Scales, the very interested p arty whose credibility is challeng ed.

The Supreme Court has e m p hasiz ed a “‘flex ible,

common-sense s t an dard’ of probable cause.” Florida v

. Harris
, 133 S. Ct. 1 050, 1053 (2013) (quot i n g I llinois v

. Gates
, 462 U.S. 2 13, 239 (1983)). Under this common-sense, totality -of-the-circumstances approach to probable cause, the police’s reckless omission o f an important witness’s possible relationship to a p ast crime should be considered material a nd misleading to a mag istrate judg e under circumstances where
t h e omitted information bears strong ly on the credibility o f
t h a t w i t n e s s and there is inadequate ind e p en d e n t corroborating evidence. W here there is sig nifican t d oubt abo u t t h e propriety of police practice a nd its impact on an important credibility determination supporting a pro b a ble

c a u s e conclusion, we should ex ercise caution on the side o fU N I T E D S T A T E S V

. R

U I Z 20

the F ourth Amendment a

nd improved police practices, rather than a strained theor y o f harmless error. I respectfully dissent.