Court: Court of Appeals for the Ninth Circuit; July 3, 1995; Federal Appellate Court
Appellants Lewis De Payne and Bonnie Vitello appeal the district court's denial of their Rule 41(e) motion for the return of property, arguing that the search warrants executed against them lacked probable cause. Under Rule 41(e) of the Federal Rules of Criminal Procedure, a person may request the return of property if they were aggrieved by an unlawful search and seizure. The court evaluates probable cause based on the totality of circumstances, requiring a fair probability of finding evidence of a crime.
The district court identified several undisputed facts supporting the magistrate judge's probable cause determination: (1) multiple calls were made from De Payne's residence to a voicemail box associated with Pacific Bell Telephone Company (PBTC), (2) De Payne's phone had unique calling features only accessible through PBTC's systems, (3) phone lines at De Payne's workplace, IMPAC, accessed a modem for PBTC's internal systems, and (4) IMPAC phones were used to access the same voicemail box. These facts collectively indicated probable cause for believing that evidence of illegal computer hacking would be found at both De Payne’s residence and workplace.
The court stated that a lack of evidence directly linking De Payne to the alleged crimes does not negate the existence of probable cause for the warrants. Appellants also sought a Franks hearing to contest the truthfulness of the search warrant affidavit. To obtain such a hearing, a defendant must show that the affidavit contained intentionally or recklessly false statements or misleading omissions that significantly impacted the probable cause determination. The cumulative effect of any alleged misrepresentations or omissions must be assessed to determine if probable cause still exists after corrections.
Appellants allege falsehoods in an affidavit, specifically claiming that De Payne engaged in criminal conduct under 18 U.S.C. Secs. 1030 and 2511, and that only PBTC employees access 811-prefixed phone numbers. Even if these statements were excluded, the evidence still supports the magistrate judge's finding of probable cause, as De Payne's residence had services exclusive to PBTC computers, and calls were forwarded to a voicemail box associated with PBTC. The appellants also argue that material evidence was omitted, including PBTC's inaccurate computer entries, the presence of additional IMPAC phones in semi-public areas, access by other individuals to IMPAC phones, and general public access to 811 prefixes. However, these omissions do not diminish probable cause, as they suggest alternative perpetrators rather than negate De Payne's involvement. De Payne's assertion that services on his phone resulted from PBTC errors lacks supporting evidence beyond his testimony, failing to demonstrate a misleading omission necessary for a Franks hearing. The court affirms the decision, noting that the appellants waived their challenge regarding the search's scope by raising it only in reply briefs. This ruling is not for publication and cannot be cited in this circuit except as permitted by Ninth Circuit R. 36-3.
