What is the test for obtaining a hearing on a finding of probable cause under a search warrant?

To be entitled to a Franks hearing, appellant must make a substantial showing that the affidavit supporting the search warrant contained false statements and that those statements are necessary to support a finding of probable cause. United States v. Putney, 906 F.2d 477, 478 (9th Cir.1990). In United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1986), our Circuit laid out a five-part test for determining when a defendant is entitled to a Franks hearing. Defendant must allege portions of the affidavit are false. Id. The false statements must be deliberately or recklessly made. Id. Defendant must make an offer of proof of the statement's falsity. Id. The veracity of only the affidavit must be challenged. Id. The challenged statements must also be necessary to establish probable cause. Id.

Regarding the sodium thiosulphate smell, what is important is not that the officer identify the correct chemical, but that he identify it as a chemical associated with the manufacture of methamphetamine. See United States v. Calabrese, 825 F.2d 1342, 1349 (chemical odor associated with manufacture of methamphetamine supported finding of probable cause). Moreover, this fact was not crucial to the establishment of probable cause. The district court did not err in denying a Franks hearing based on this immaterial misidentification.

Although it would have been preferable for the officers to have mentioned that they scaled the perimeter fence to gain access to the property, this omission was not material. Appellant had a full evidentiary hearing on the issue of the admission of evidence gathered from the search of his property. He is not entitled to relitigate it in the guise of a Franks hearing. United States v. Whitworth, 856 F.2d 1268, 1282 (9th Cir.1988), cert. deniedz, 489 U.S. 1084 (1989) (no Franks hearing required where no evidentiary conflict to be resolved). Additionally, none of the evidence gathered from the search of appellant's property was crucial to the establishment of probable cause, so he was not entitled to a Franks hearing on this evidence.