U.S. v. Barajas-Avalos
| Decision Date | 10 March 2004 |
| Docket Number | No. 02-30301.,02-30301. |
| Citation | 359 F.3d 1204 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Piedad BARAJAS-AVALOS, aka Opinion Piedad Barajas-Avaslos, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James G. Rice, Portland, OR, Oregon, for the defendant-appellant.
Fred N. Weinhouse and Michael J. Brown, Assistant United States Attorneys, Portland, OR, Oregon, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CR-00-00537-JAR.
Before: Arthur L. ALARCÓN, Warren J. FERGUSON, and Johnnie B. RAWLINSON, Circuit Judges.
Opinion by Judge Alarcón; Partial Concurrence and Partial Dissent by Judge Ferguson
Piedad Barajas-Avalos was convicted of conspiracy to manufacture methamphetamine and attempting to manufacture and manufacturing methamphetamine in violation of federal law. He was sentenced to serve concurrent sentences of imprisonment for 360 months.
He seeks reversal of the judgment of conviction on the ground that the court erred in denying his motion to suppress the evidence seized pursuant to a search warrant. Mr. Barajas-Avalos contends that the facts relied upon by the magistrate judge in issuing the warrant were derived from earlier observations made by law enforcement officers by means of an unwarranted trespass onto his thirty-acre parcel of rural land and the natural clearing surrounding his travel trailer.
Mr. Barajas-Avalos also challenges the district court's sentencing decision. He contends that the court erred in denying his motion for a downward departure. He also asserts that the sentence imposed by the court is cruel and unusual punishment because he is not a recidivist felon.
We affirm the judgment of conviction because we conclude that probable cause existed for the issuance of the search warrant. We dismiss the portion of the appeal from the district court's denial of a downward departure for want of appellate jurisdiction to review the order. We affirm the sentence of 360 months because we conclude it was not grossly disproportionate to the crimes committed by Mr. Barajas-Avalos.
Detective Lenard C. Olsen of the Oregon State Police filed an affidavit in support of his request to search Mr. Barajas-Avalos's two-story single-family dwelling located at 14280 Northwest Tradewinds Street in Portland, Oregon, a thirty-acre parcel of land located southeast of the intersection of Soda Springs Road and Potts Road, Gales Creek, Oregon (the "Willow Tree Farm"), and a twelve-foot travel trailer and a Quonset style metal-framed structure located on the thirty-acre parcel.
Detective Olsen's affidavit set forth the following facts. He had been employed continuously with the narcotics division of the Oregon State Police since August 1988. During that time, he participated in more than 300 cases involving the manufacture, possession, and distribution of controlled substances. He also worked in an undercover capacity to infiltrate organizations involved in the possession, distribution, and manufacture of methamphetamine to gain information. He attended a Drug Enforcement Administration ("DEA") forty-hour basic clandestine laboratory investigator school in 1986 and 1995. He also attended the DEA forty-hour lab site safety officer's school in Quantico, Virginia. He has attended numerous classes and seminars designed to acquaint and train law enforcement officers with the methods used by organizations to manufacture controlled substances illegally.
Beginning in April 1999, Detective Olsen and DEA Special Agent Jeffrey Poikey ("Special Agent Poikey") initiated an investigation of an organization ("the Organization") believed to be manufacturing large quantities of methamphetamine in the Portland, Oregon area. The Organization consisted of Hispanic individuals who operated large "Mexican National" style methamphetamine laboratories. These laboratories consist of multiple large reaction vessels capable of producing fifty or more pounds of finished methamphetamine in one process. The process involves the use of pseudoephedrine, iodine, and red phosphorous. Methyl-Sulfonyl-Methane ("MSM") is used as a cutting agent.
On June 29, 1999, DEA agents working in conjunction with the Westside Inter-agency Narcotics Team seized twenty-two pounds of methamphetamine at a large laboratory in a residence in Hillsboro, Oregon. This laboratory was identified as belonging to the Organization through cell phone toll records, fingerprints, and statements from persons in custody.
Mr. Barajas-Avalos was identified by "cooperating defendants" as being a member of the Organization. His involvement was confirmed by DEA agents through analysis of phone records establishing that Mr. Barajas-Avalos communicated with individuals under investigation by telephone.
On January 24, 2000, law enforcement officers seized thirteen pounds of methamphetamine at a large laboratory located in a residence in Tillamook, Oregon. This laboratory was also identified as belonging to the Organization through cell phone records, fingerprints and information from arrestees.
On March 23, 2000, near a fence on Soda Springs Road, on the southwest corner of the Willow Tree Farm, Washington County Sheriff's Office deputies recovered 2,322 empty pseudoephedrine bottles with the bottoms cut open. This property was subsequently determined to belong to Mr. Barajas-Avalos.
Detective Olsen alleged that pseudoephedrine is a precursor chemical used in the production of methamphetamine. He also stated in his affidavit that it is common practice that persons who are involved with manufacturing methamphetamine often use a utility knife to cut open the bottoms of the bottles. The empty bottles were processed for latent fingerprints by the Washington County Forensic Laboratory. Two fingerprints were identified as belonging to members of the Organization.
On April 24, 2000, Mr. Barajas-Avalos was observed by DEA surveillance purchasing sixteen pounds of MSM, a cutting agent for methamphetamine. Laboratory tests of the methamphetamine seized on January 24, 2000 at the Organization's Tillamook, Oregon, methamphetamine laboratory showed that MSM was used as the cutting agent.
On June 12, 2000, Mr. Barajas-Avalos was observed by a DEA surveillance team purchasing twenty-five pounds of MSM.
In July 2000, a "cooperating defendant" informed Special Agent Poikey that Mr. Barajas-Avalos owned a ranch located west of Forest Grove, Oregon. The informer stated that the ranch was used by the Organization as a cook location for methamphetamine. Special Agent Poikey was told that the Organization paid Mr. Barajas-Avalos $15,000 for allowing them to use the ranch for the manufacture of methamphetamine.
On July 7, 2000, DEA agents determined that Mr. Barajas-Avalos was a part owner of the Willow Tree Farm on Soda Springs Road. The 2,322 empty pseudoephedrine bottles found on March 23, 2000 had been found next to the fence in the southwest corner of the Willow Tree Farm.
On September 11, 2000, Mr. Barajas-Avalos was observed by a DEA surveillance team purchasing another twenty-five pounds of MSM.
Also in September 2000, Detective Olsen and DEA Agent Poikey began conducting a surveillance of the Willow Tree Farm. On September 19, 2000, they observed a black Ford pickup truck without a vehicle license plate parked on the Willow Tree Farm grounds. The officers followed the pickup truck to Forest Grove, Oregon. The vehicle was stopped by Forest Grove Police Officer Anthony Silva.
Officer Silva informed Special Agent Poikey that he stopped the pickup truck for failing to display a vehicle license plate. Mr. Barajas-Avalos was a passenger in the Ford pickup truck. He told Officer Silva that he resided at 14280 Northwest Trade-winds, Portland, Oregon. Mr. Barajas-Avalos stated that he was the owner of the truck.
On September 21, 2000, Detective Olsen and Special Agent Poikey entered the Willow Tree Farm without a warrant or consent from Mr. Barajas-Avalos or the other co-owners. On the southeast corner of the Willow Tree Farm, they observed a twelve-foot travel trailer and a Quonset style metal-framed structure ("Quonset hut") covered with a silver vinyl covering, and a pickup truck with a canopy. Detective Olsen observed, through a window in the canopy, two large plastic trash containers, two blender boxes, a can of acetone, a propane burner, discarded plastic gloves, paper towels, duct tape, and a twenty-five pound pail labeled MSM in the bed of the pickup truck. Detective Olsen knew from his training and experience that these items were used in the manufacture of methamphetamine. Next to the pickup truck, the officers saw two "separatory vessels" with valves, lengths of rubber tubing, and containers of sodium hypochloride solution. After walking into the Quonset hut, the agents saw a three-foot stick with a red stain on one end. Detective Olsen knew from his experience that red phosphorus was an ingredient used in the manufacture of methamphetamine.
Detective Olsen observed four discarded glass lids that were approximately eight inches in diameter next to the travel trailer. These lids were similar to lids he had seized from the Tillamook and Hillsboro laboratories. Detective Olsen learned that such lids were used to cover electric deep fryers. Electric deep fryers are used to evaporate a liquid pseudoephedrine mixture into solid pseudoephedrine hydrochloride, a necessary ingredient in the manufacture of methamphetamine.
On October 10, 2000, Detective Olsen and Special Agent Poikey observed Mr. Barajas-Avalos's black pickup truck parked on the Willow Tree Farm. This same pickup truck had been observed by Special Agent Poikey at Mr. Barajas-Avalos's residence at 14280 Northwest Tradewinds, Portland, Oregon.
As Detective Olsen...
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