U.S. v. Clark

• Decision Date: 29 July 1994
• Docket Number: No. 93-30093,93-30093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrence Wayne CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 831

31 F.3d 831

UNITED STATES of America, Plaintiff-Appellee, v. Terrence Wayne CLARK, Defendant-Appellant.

No. 93-30093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 14, 1993.

Decided July 29, 1994.

Mark R. Davis, Anchorage, AK, for defendant-appellant.

Stephan A. Collins, Asst. U.S. Atty., Anchorage, AK, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before: GOODWIN, CANBY, and KOZINSKI, Circuit Judges.

CANBY, Circuit Judge:

During a search of Terrence Wayne Clark's home, law enforcement agents discovered several firearms and numerous marijuana plants. After the district court denied his motions to suppress evidence, Clark pleaded guilty to two marijuana-related offenses. The written plea agreement preserved his right to appeal the district court's denial of the suppression motions.

Clark argues that the district court erred in finding that probable cause supported the issuance of the search warrant. Clark contends also that the search warrant was overbroad and, thus, failed to provide the executing officers the necessary guidance to execute a constitutional search. Finally, Clark alleges that participation by Alaska National Guard troops in executing the warrant was unlawful. Because we agree that the search warrant was overbroad, we remand to the district court to suppress those items seized pursuant to the invalid portion of the warrant. With regard to the remaining items, we conclude that the district court did not err in denying suppression.

Background and Procedural History

On May 22, 1992, DEA agent Robert Cayford sought a warrant to search Clark's residence in Alaska. His affidavit stated that an anonymous source had mailed two letters to law enforcement officials alleging that Clark formerly lived in Missouri, where he was closely acquainted with John Yarbro, a Missouri fugitive wanted for marijuana offenses and believed to be living in Alaska. ¹ Cayford corroborated the statements of the anonymous source only to the extent of discovering that Clark had surrendered a Missouri driver's license and obtained an Alaska license. Aside from the inference to be drawn from the alleged relationship between Clark and Yarbro, the anonymous tip contained no information regarding a marijuana cultivation operation or any other illegal drug activity.

The anonymous tip was not, however, the sole alleged basis for probable cause. Cayford's affidavit in support of the application also contained numerous general assertions about the characteristics of marijuana cultivators. Of primary relevance was the assertion that marijuana cultivators often have high electricity usage because of the need to provide light to growing plants. The affidavit then set out Clark's electrical consumption, carefully reporting Clark's electrical usage in kilowatt-hours for each month of the previous fourteen-month period. Although varying considerably from month to month, Clark's bills ranged upward to almost $400 and did not decline during the summer months when normal residential usage falls. The affidavit reported that Clark's property contained alternative heat sources, such as propane and fuel oil tanks, implying that electricity was being used for some purpose other than household heating.

On the basis of the allegations in the affidavit, a federal magistrate judge issued a search warrant for Clark's residence, authorizing law enforcement agents to seize "narcotic controlled substances, drug paraphernalia, marijuana cultivation equipment, instructions, notes, cultivation magazines, currency, documents, and records and fruits and instrumentalities of [a] violation of Title 21, U.S.C. Sec. 841(a)(1)." The Cayford affidavit was neither attached nor incorporated into the warrant.

Agent Cayford was not present when law enforcement agents executed the warrant. The search team included Anchorage police officers, Alaska State Troopers, a DEA agent, and four members of the Alaska National Guard. The team leader, an Alaska State Trooper, directed the National Guard troops to secure the perimeter of the property and to provide cover at the front and the rear entrances of the home. When the home was secure, the National Guard troops assisted police officers in assembling and documenting evidence found during the search. The team seized numerous marijuana plants that were growing in the basement, several rifles and handguns, radio equipment, notes and other documents, a wallet and a cellular telephone.

Clark moved the district court to suppress the evidence found during the search. His first motion challenged the sufficiency of the warrant, alleging that the warrant was not supported by probable cause because the anonymous tip was stale and uncorroborated. He also alleged that the warrant was overbroad. A magistrate judge agreed with the latter argument and recommended suppression of the evidence obtained under the overbroad portion of the warrant. The district court, however, rejected the recommendation and denied Clark's motion.

Clark filed a second suppression motion, arguing that the use of the National Guard troops in executing the search was not authorized by law. The district court denied this motion also. Clark has appealed the denials of each of the two suppression motions.

Analysis

We review de novo each of the district court's decisions to deny Clark's motions to suppress. See United States v. Ramos, 923 F.2d 1346, 1350 (9th Cir.1991).

I. Probable Cause

A magistrate judge's finding of probable cause is entitled to great deference and this court will not find a search warrant invalid if the magistrate judge had a "substantial basis" for concluding that the supporting affidavit established probable cause. Id. at 1351. A magistrate judge may issue a search warrant if, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular location. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

The Cayford affidavit offers two possible bases for a finding of probable cause: first, the anonymous tip concerning Clark's previous relationship with Yarbro, a fugitive who was wanted on marijuana-related charges in Missouri and, second, Clark's allegedly high consumption of electricity.

A. The anonymous tip

Because hearsay from an unknown informant is highly suspect, officers must provide some basis to believe that the tip is true. Although hearsay may be used to establish probable cause in some circumstances, an anonymous tip is insufficient to establish probable cause absent independent corroboration through police investigation or some other indication of reliability. Id. at 241-45, 103 S.Ct. at 2333-36. In United States v. Laurins, 857 F.2d 529, 540 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989), we ruled that an anonymous informant's statements were corroborated and "therefore could be considered" together with other evidence in issuing a search warrant. The negative implication of Laurins is that an anonymous tip is entitled to little or no weight in a probable cause evaluation if it is entirely uncorroborated and lacks any indication of reliability. Mere confirmation of innocent static details in an anonymous tip does not constitute corroboration. United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993). Consequently, in Mendonsa, we ruled that the verification of a suspect's address in an anonymous statement is insufficient corroboration. Id.

The anonymous tip in the Cayford affidavit contains no information regarding marijuana cultivation, the activity for which Clark was indicted. It suggests only that Clark and Yarbro knew each other and speculates that they moved together to Alaska. For purposes of establishing probable cause, the tip alone is deficient. Moreover, the Cayford affidavit is devoid of any indication that the anonymous tip is reliable. It fails to divulge the basis for the tipster's knowledge or what steps law enforcement agents took to corroborate the information. Although Cayford determined that Clark had surrendered a Missouri driver's license for an Alaska license, this information is insufficient, under Mendonsa, to corroborate the tip. Because the affidavit fails to establish any basis for concluding that the tip is reliable, this hearsay should have been given little or no consideration by the magistrate judge in evaluating probable cause.

B. Electrical consumption

According to the affidavit, marijuana cultivators often consume excessive quantities of electricity because of the need to provide light and heat to growing plants. The affidavit detailed Clark's monthly electrical consumption and asserted that it was unusually high. It is barren, however, of any information about the average residential electric consumption of homes in rural Alaska or other homes in the vicinity. In short, it provides no basis for a magistrate judge or this court to evaluate whether the usage was high.

Even assuming, however, that Clark's electrical consumption was "high," such consumption is consistent with numerous entirely legal activities. This evidence, which is equally consistent with both legal or illegal activity, coupled with an entirely uncorroborated anonymous tip, is simply not sufficient to establish probable cause for searching a home. We conclude that the affidavit was insufficient to support the magistrate judge's finding of probable cause. We next must decide whether Clark is entitled to suppression of the evidence obtained under the warrant.

C. Suppression

We have refused to suppress evidence obtained under an invalid warrant if the officers obtaining the warrant and performing the search relied in good faith on the warrant's validity. United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993). Although we state the rule in terms of "good faith," the Supreme Court h...