UNITED STATES v. MARTINEZ (2017)

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Michael MARTINEZ, Defendant-Appellant.

No. 16-10370

Decided: September 18, 2017

Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,** District Judge.

Susan B. Gray, J. Douglas Wilson, Assistant U.S. Attorney, DOJ-USAO, San Francisco, CA, for Plaintiff-Appellee Geoffrey A. Hansen, Chief Assistant Federal Public Defender, FPDCA—Federal Public Defenders Office (San Francisco), San Francisco, CA, for Defendant-Appellant

MEMORANDUM ***

“To be entitled to a Franks hearing ․, [Martinez] must first make a substantial preliminary showing that the affidavit contained a misleading omission and that the omission resulted from a deliberate or reckless disregard of the truth. Second, he must demonstrate that had there been no omission, the affidavit would have been insufficient to establish probable cause.” United States v. Kyllo, 37 F.3d 526, 529 (9th Cir. 1994). Martinez failed to show that Officer Ichige’s omission—that the IP address was dynamically assigned—was misleading or done in deliberate or reckless disregard of the truth. Moreover, had the affidavit included this fact, it would have still supported probable cause in light of the information that had been obtained from the internet service provider. The district court committed no error in denying Martinez a Franks hearing.

AFFIRMED

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