31 F.3d 831 (9th Cir. 1994), 93-30093, United States v. Clark

Docket Nº:93-30093.
Citation:31 F.3d 831
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrence Wayne CLARK, Defendant-Appellant.
Case Date:July 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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31 F.3d 831 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terrence Wayne CLARK, Defendant-Appellant.

No. 93-30093.

United States Court of Appeals, Ninth Circuit

July 29, 1994

Argued and Submitted Dec. 14, 1993.

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[Copyrighted Material Omitted]

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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.

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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...

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