865 F. 2d 265 - United States v. Pfenning

MEMORANDUM**

Pfenning appeals his conviction, following a conditional guilty plea to manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

Pfenning contends that the evidence seized in the search of his residence at 7236 N. Albina Avenue, Portland, Oregon ("Albina") pursuant to a search warrant should have been suppressed because of insufficient probable cause.

A magistrate's finding of probable cause is reviewed for clear error in light of the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213 (1983); United States v. Dozier, 844 F.2d 701, 106 (9th Cir.1988) and United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986).

Pfenning contends no probable cause existed because the informant was not proven trustworthy and the information was stale. Even when an informant has no record of giving information in the past, under Gates, a deficiency in the "veracity" prong may be overcome, by a strong showing as to the informant's "basis of knowledge", or by some other indicia of reliability. United States v. Fixen, 780 F.2d 1434, 1438 (9th Cir.1986) and Gates, 462 U.S. at 233.

In the instant appeal, a strong showing of the informant's basis of knowledge exists. The informant personally observed the lab at Albina. He was told by Pfenning himself that the lab manufactured methamphetamine. "It is hard to imagine a more reliable basis for information than one who had been taken into the defendant's confidence". United States v. Landis, 726 F.2d 540, 542, cert. denied, 467 U.S. 1230 (1984).

Furthermore, police corroboration of some of the details given by an informant increases the confidence in the informant's knowledge base. Angulo-Lopez, 791 F.2d at 1397 and Gates, 462 U.S. at 233. Pfenning relies upon United States v. Frietas, 716 F.2d 1216 (9th Cir.1983) to argue that the informant's basis of knowledge was not adequately corroborated because suspicious activities were not observed at Albina.

Although suspicious activities were not seen at Albina, probable cause existed to search that location because the informant's veracity was already proven by the corroboration of a lab at Mist. The police had detected suspicious activities at Mist and smelled from the residence an odor commonly associated with the manufacturing of methamphetamine. In United States v. Potter, 830 F.2d 1049, 1052 (9th Cir.1987), where an informant told police that he knew a certain individual was manufacturing methamphetamine, we held that where an individual runs a methamphetamine lab at one location, with connecting details probable cause exists to believe that he was also running a lab at another location. In Potter, a reliable informant told the police the defendant was making methamphetamine. Police observed the defendant purchasing methamphetamine chemicals and driving to residences at Loma Drive and Joaquin Way. Police also learned that unusual power consumption occurred on Loma Drive, a fact consistent with methamphetamine labs. We held that probable cause existed to search both the Loma Drive and Joaquin Way locations even though no unusual power consumption occurred at Joaquin Way and the defendant was seen there only once.

Here, an informant stated that Pfenning made methamphetamine at several locations. Police had observed signs of a lab at Mist. We conclude that police corroboration of the informant's story was adequate to prove the informant's veracity in line with Potter.

Next, Pfenning contends that the informant's information was stale. His observations were made in mid-July, about 50 days before the warrant was requested. "The mere lapse of substantial amounts of time is not controlling in a question of staleness." Dozier, 844 F.2d at 707. In fact, "[t]he continuous nature of the activity diminishes the significance of the time lag between the acts described in the affidavit and presentation of the affidavit to the magistrate." Landis, 726 F.2d at 542 (9th Cir.1984). In Landis, our court concluded that an observation of a methamphetamine lab, made two months before a warrant was issued, was not stale. The instant appeal involves nearly the same facts. We conclude that the information given was not stale.

Pfenning argues that the identity of the informant should have been produced so that the informant could testify that the lab was not in operation. Pfenning claims this testimony would disprove the charges for the manufacturing of methamphetamine.

The denial of a motion to compel disclosure of an informant's identity is reviewed for an abuse of discretion. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir.1986).

A governmental privilege exists to shield the identity of persons supplying information concerning the commission of crimes, McCray v. Illinois, 386 U.S. 300, 305 (1967). Under this privilege, an informant need not be produced if he was not a percipient witness nor an active participant in the crime.

However, "the informer's privilege must give way where the disclosure of the informant's identity is 'relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause' " Fixen, 780 F.2d at 1439, citing Rovario v. United States, 353 U.S. 53 (1957). The burden of proof is on the defendant to show need for such disclosure. United States v. Marshall, 532 F.2d 1279, 1282 (9th Cir.1976). The mere suspicion that information will prove helpful is insufficient to require disclosure. United States v. Trejo-Zambrano, 582 F.2d 460, 466 (9th Cir.), cert. denied, 439 U.S. 1005 (1978).

If nothing in the record independently satisfies the minimal elements of a defendant's charge, then a district court should order disclosure. United States v. Buffington, 815 F.2d 1292, 1299 (9th Cir.1987). In United States v. Ordonez, 737 F.2d 793, 807 (9th Cir.1984), we held that an informant should have been produced because his testimony would have helped the defendant's defense of mistaken identity.

The district court in the instant case did not abuse its discretion by refusing to disclose the informant's identity. Pfenning confessed to the manufacturing of methamphetamine at his home lab. Because of this confession, the government would have been able to prove Pfenning's crime without the testimony of the informant.

AFFIRMED.