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United States v. Shiver

filed*fn*: December 10, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSEPH W. SHIVER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. DC No. CR-90-0074-AHS-01. Alicemarie H. Stotler, District Judge, Presiding

Before: Canby, Boochever And Thompson, Circuit Judges.

MEMORANDUM

Joseph Shiver appeals his convictions upon his conditional guilty plea to possession of unregistered firearms, 26 U.S.C. § 5861(d), possession of firearms not identified by serial number, id. § 5861(i), and possession of firearms subject to forfeiture, id. § 5872. Shiver argues that firearms seized from a warranted search of his storage locker should have been suppressed because police learned of his locker number only by conducting a warrantless and illegal search of his home. Shiver also contends that no probable cause existed to search the locker because an officer's affidavit failed to establish the reliability and knowledge of a confidential informant. We affirm.

I

We review de novo a motion to suppress. United States v. Homick, 964 F.2d 899, 902 (9th Cir. 1992). However, we will overturn a district court's findings of fact only if they are clearly erroneous. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992).

Whether police obtained Shiver's locker number from an illegal search, or from an employee of the self-storage facility, is a pure question of fact that turns on the relative credibility of witnesses who testified at the suppression hearing. The district court found the officer's version of events persuasive. The district court's credibility determination is entitled to substantial deference. Cf. United States v. Bishop, 959 F.2d 820, 826-27 (9th Cir. 1992) (involving prosecutor's alleged use of preemptory challenges on the basis of race). We find no clear error in the district court's ruling that the warrant contained no material misstatements or omissions.

II

Shiver waived his opportunity to challenge the facial validity of the search warrant because he failed to raise the issue in the district court. United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per curiam). He offers no reason why we should disregard the waiver. Therefore, we leave undisturbed the district court's finding that probable cause existed for the warrant.

III.

The district court did not abuse its discretion in denying Shiver's motion to reconsider its denial of the motion to suppress. Shiver offered no reason sufficient to justify his delay in presenting evidence that was earlier available to him. See U.S. Dist. Ct. C.D. Cal. Local Rule 7.16. Moreover, the district court indicated that the proferred testimony would not change its ruling. We find no error.

AFFIRMED.

Disposition

AFFIRME ...


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