NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 28 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-30079

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00068-BMM-1
 v.

BRANDON CORDELL BENNETT,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Brian M. Morris, District Judge, Presiding

                             Submitted May 14, 2020**
                                Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District
Judge.

      After reserving his right to appeal from the denial of his motion to suppress,

Brandon Bennett pleaded guilty to receipt of child pornography in violation of 18


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. § 2252(a)(2). We have jurisdiction over his appeal under 28 U.S.C. § 1291.

       Bennett contends that Detective Price violated the Fourth Amendment by

omitting several material facts from the warrant application to search Bennett’s

phone. See Franks v. Delaware, 

, 155–56 (1978); United States v.

Stanert, 

, 780–81 (9th Cir. 1985). After conducting an evidentiary

hearing, the district court found that Detective Price intentionally omitted only that

Bennett had recently been acquitted of incest in state court. The district court

denied the motion to suppress, reasoning that the warrant would have been

supported by probable cause even had Detective Price included the acquittal in his

affidavit.

       We review for clear error the district court’s findings as to whether the

omissions were purposeful or reckless. See United States v. Perkins, 

, 1115 (9th Cir. 2017). Although the district court’s conclusion that Detective

Price himself did not omit the remaining information intentionally or with reckless

disregard for the truth was not clearly erroneous, the question whether the district

court committed clear error at the first step of Franks is complicated by the fact

that the attorney assisting Detective Price with the affidavit was the lead counsel in

the prior trial and had independent knowledge of the facts. See United States v.

DeLeon, 

, 764 (9th Cir. 1992) (“A deliberate or reckless omission by

a government official who is not the affiant can be the basis for a Franks


                                          2                                    19-30079
suppression.”).

      We affirm the denial of the motion to suppress on the alternative ground that

probable cause would have existed to search Bennett’s phone even if all the

omissions identified by Bennett had been included in the warrant application. See

Ewing v. City of Stockton, 

, 1224 (9th Cir. 2009). True, the omitted

facts could support an inference that Jane Doe’s mother coaxed Jane into accusing

Bennett of taking the photos so that law enforcement would have justification for

accessing Bennett’s phone. But this does not negate any of the “facts necessary to

the finding of probable cause.” Cameron v. Craig, 

, 1020 (9th Cir.

2013) (internal quotation marks omitted). Considering the totality of the facts—

including Jane’s prior reports of molestation and the fact that Jane provided a

consistent account of Bennett taking the photos to both her counselor and the

forensic interviewer—a fair probability existed that Jane was telling the truth and

that evidence of the crime would be found on Bennett’s phone. Cf. 

; Stoot v. City of Everett, 

, 919–21 (9th Cir. 2009).

      AFFIRMED.




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