NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KENDRA DAVIDSON, Defendant - Appellant. No. 12-10670D.C. No. 3:12-cr-00019-RCJWGC-1
MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding Argued and Submitted December 6, 2013 San Francisco, California Before: TROTT and MURGUIA, Circuit Judges, and EZRA, District Judge. ** Appellant Davidson pleaded guilty to Possession of Counterfeit Obligations of the United States in violation of 18 U.S.C. § 472. She reserved the right to 

# FILED
JAN 15 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David A. Ezra, District Judge for the U.S. District Court for the Western District of Texas, sitting by designation.appeal the denial of her motion to suppr ess evidence seized during the execution of a state search warrant for marijuana. The sole issue in this timely appeal is whether or not after conducting a preliminary hearing the district court e rred in denying appellant Davidson a formal hearing pursuant to Franks v. Delaware , 438 U.S. 154 (1978). Davidson bases her claim of error on the search warrant affiant’s omission from his statement of probable cause the fact that her boyfrie nd held a valid medical marijuana card under Nevada law, a fact which she told the affiant before the warrant was procured. Under Nevada law, this car d permitted Davidson’s boyfriend to possess marijuana legally. We must decide whethe r the inclusion in the warrant’s affidavit of this fact would have negated a finding of probable cause to search her residence. See United States v. Medina Casteneda , 511 F.3d 1246, 1250 (9th Cir. 2008) (no hearing was required because, even cons idering the omitted information, the warrant demonstrated probable cause to s earch the residence for drug activity); see also Franks , 438 U.S. at 171-72. We affirm. I We review the district court’s findings of historical facts for clear error, and we review de novo the court’s denial of a Franks hearing. United States v. Jordan , 291 F.3d 1091, 1099 (9th Cir. 2002). The question of whether or not any
-2-omissions were material is a mixed ques tion of law and fact which we review de

novo . United States v. Elliott , 322 F.3d 710, 714 (9th Cir. 2003). II The search warrant at issue was for marijuana allegedly possessed by Davidson in her house and car in viola tion of Nevada Revised Statute 453.336. The nucleus of facts on which the governme nt relies for probable cause to believe she possessed marijuana as alleged in the warrant began with a “tip” from an informant that Davidson was selling marijuana from her residence, which the informant identified by its address. The affiant then encountered Davidson at that residence driving a Volkswagen Jetta bearing licence plates and registration belonging to another car. She acknowledge d the “fictitious” nature of the plates and registration. According to the affi davit, when asked about marijuana, “she admitted to having marijuana both in her vehicle and in her residence . . . .” During the court’s hearing, the court also considered the affiant’s police report, which Davidson offered in support of her motion. In his police report, the affiant stated that “[w]hen asked, DAVIDSON admitted to possessing 1/8 ounce Marijuana in her vehicle. DAVIDSON also admitted to possessing a small amount of Marijuana in her residence.” The affi ant reported that he asked her if she also was a marijuana patient, and she said “no.” -3-III The district court concluded on the basis of its findings of facts that Davidson’s boyfriend’s legal medical marijuana card was not material because “Davidson herself admitted that she had marijuana in the car and in her residence.” (Emphasis in original). Thus, “even if [the affiant] had stated that Defendant’s boyfriend had a medical marijuana card, [D avidson] herself admitted to [Detective Charles] Bluth that she possessed the mar ijuana.” Moreover, she denied having a valid medical card permitting her to possess it. The district court’s findings are fully supported by the evidentiary record. In applying [the clear error] standard, we, like any reviewing court, will not re verse a lower court’s finding of fact simply because we ‘would have decided the case differently.’ Rather, a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’ Easley v. Cromartie , 532 U.S. 234, 242 (2001) (citation omitted). This “clearly erroneous” standard derives from Federal Rule of Civil Procedure 52(a)(6), which provides that “findings of fact [in an action tried without a jury] must not be set aside unless clearly erroneous . . . .” See Sawyer v. Whitley , 505 U.S. 333, 346 n.14 (1992).

-4-Davidson did not say they possessed the marijuana or anything to that effect. She did not say her boyfriend possessed the marijuana. The district court found as a fact that she said “she ” did. During the hearing she did not submit any evidence to the district court that contradicted the affiant’s recitation of her statement to him. The court heard and considered -- but re jected -- her factual argument that her admissions should have been interpreted by the affiant to mean only that marijuana was in the house, not that it was hers. The court rejected counsel’s fact-based argument that what Davidson said suggested only that she was in constructive possession of, or in the presence or vicin ity of, marijuana possessed by a registered user. Moreover, during the hearing, Davi dson’s counsel conceded that her client had marijuana in her car, and that there wa s probable cause to search it. As the court mused, that admitted possession itself confirmed inculpatory information from the informant that she personally possessed marijuana; and if her admission and the information from the informant concededly created probable cause to search the car, we fail to see how, when considered with the rest of the information, it did not create sufficient probable cause also to search the house. As the district court correctly said, Basically what the Nevada law does is it protects the person who has the medical card. If another person is

-5-found in the presence of it, it, of course, protects them as well but not if they’re in possession of it. If they are in possession of marijuana, the medical card does nothing under Nevada law to protect them from prosecution. In summary, because Davidson saidshe possessed marijuana, her boyfriend’s card was not material. This being the case, no formal Franks hearing was required. AFFIRMED.

-6-