Is a misstatements of fact in a search warrant affidavit legal insufficient as to probable cause to search the house on 94th Street?

Appellant argues that the misstatements of fact in the warrant affidavit were material and therefore that the affidavit was legally insufficient as to probable cause to search the house on 94th Street. The district court's ruling on probable cause is reviewed de novo; the findings of fact underlying the decision to suppress the evidence are accepted unless clearly erroneous. United States v. Elliot, 893 F.2d 220, 222 (9th Cir.1990), cert. denied, 498 U.S. 904 (1990).

A district court upholds a magistrate's finding of probable cause for a search warrant unless it is clearly erroneous. Id. Probable cause for a search warrant exists if "given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1982). When the affidavit contains intentional or reckless misstatements, the reviewing court shall set aside those false assertions and then determine whether the remaining testimony is sufficient to establish probable cause. Elliot, 893 F.2d at 222-23.