United States v. Ortiz

• Decision Date: 02 August 1971
• Docket Number: No. 466-70.,466-70.
• Citation: 445 F.2d 1100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter Reuben ORTIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

445 F.2d 1100 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Peter Reuben ORTIZ, Defendant-Appellant.

No. 466-70.

United States Court of Appeals, Tenth Circuit.

August 2, 1971.

Harry J. Atwell, Englewood, Colo., for defendant-appellant.

Gordon Allott, Jr., Asst. U. S. Atty., James L. Treece, U. S. Atty., and Richard J. Spelts, Asst. U. S. Atty., Denver, Colo., on the brief, for plaintiff-appellee.

Before HILL, SETH and COFFIN,^* United States Circuit Judges.

HILL, Circuit Judge.

On a trial to the court, after a jury had been waived, appellant Ortiz was convicted on two counts of violating the federal drug laws. Count one charged Ortiz with manufacturing, compounding and processing a depressant or stimulant drug in violation of 21 U.S.C. § 331(q) (1); count two charged possession of a depressant or stimulant drug for sale, delivery or other disposal to another in violation of 21 U.S.C. § 331(q) (3).¹ On this direct appeal from his conviction, Ortiz primarily challenges the sufficiency of the evidence, and in addition challenges a search and seizure which produced most of the government's evidence used to convict Ortiz.

The evidence, taken in the light most favorable to the government, as we must on appeal, has its root beginning in October, 1969, when an undercover agent of the Federal Bureau of Narcotics and Dangerous Drugs came into contact with Ortiz's cohort Scott Noland. After at least one meeting and pursuant to Noland's request, the federal agent journeyed to a mountain cabin in Colorado on October 26, 1969, and there delivered to Noland a quantity of ether, phenyl-2-propanol, and several large calibrated beakers. The chemicals are precursors in the manufacture of methamphetamine, known colloquially as "meth" or "speed".

After October 26 and until November 2, 1969, the cabin was kept under constant surveillance by federal agents. No one besides Noland and Ortiz was seen at the cabin during that period. On November 1, 1969, at 3:30 a. m., Noland and Ortiz were observed through a cabin window and appeared to be passing substances from one container to another. Later that day, at 7:30 p. m., Noland was seen pouring something from one container to another while Ortiz was stirring the contents. Then at 9:45 p. m., the agent conducting the watch saw a flash of light in the cabin and what appeared to be a puff or cloud of smoke coming from the cabin.

Having seen enough, the federal agents procured a warrant to search the cabin, and at 6:45 a. m., November 2, 1969, the agents executed the warrant. One of the agents knocked at the door, identified himself, and announced that he had a search warrant. Noland and Ortiz were asleep and testified that they heard no knock. The agents testified that having obtained no immediate response at the door, they proceeded to force the door open, enter the cabin, subdue the occupants, and initiate their search.

The search produced, among other items, a glass jar containing a small quantity of dl-methamphetamine hydrochloride and a small cardboard box on the kitchen window sill which contained traces of the same chemical. The agents also found splashes of a substance on the ceiling and walls of the living room and on the ceiling, walls, refrigerator and cupboards of the kitchen area. The substance was found to be dl-methamphetamine hydrochloride, and scrapings of the splashes were offered and received into evidence at the trial. The agent who previously had been in the cabin on October 26 testified that the splashes of the chemical had not been on the walls and ceilings at that earlier date. The agent also testified that glass calibrated beakers, tinfoil cut in strips, pH paper, and hydrochloric acid were found in the cabin. A government chemist testified that the items seized were useful in the manufacture of methamphetamine.

It also developed that while the agents were descending on the cabin to execute the search warrant, they passed an outdoor toilet behind the cabin. There were tracks leading to the outbuilding from the cabin. One agent looked in the window of the outbuilding to assure himself that there was no one in there who would jeopardize the agents' lives or mission. Upon looking in, the agent observed a glass jar containing a substance which appeared to him as methamphetamine. After a search of the cabin, a search warrant was procured for the outhouse. That search produced a gallon jar, the contents of which was 89% dl-methamphetamine suspended in a liquid solution of ether, commonly used as a final process for purifying speed. The contents of the jar weighed approximately 6½ pounds. Also found was a plastic cold pack container holding some five pounds of the same solution, 59% of which was dl-methamphetamine. Both items were admitted as evidence against Ortiz. Three empty cans of ether, empty bottles of phenyl-2-propanol, and assorted other broken bottles and materials were also found in the outbuilding, according to the testimony of the federal agents.

Ortiz moved the trial court to suppress the evidence seized in the searches for the reason that the searches were conducted illegally. After an evidentiary hearing, the motion to suppress was denied on all grounds. United States v. Ortiz, 311 F.Supp. 880 (D.C.Colo.1970). On appeal, Ortiz continues to contend that the initial search and seizure was illegal on the ground that the agents used force to gain entrance into the cabin and failed to comply with 18 U.S.C. § 3109. We will treat that issue first.

18 U.S.C. § 3109 allows a forcible entry to execute a warrant, but only after the executing officer has given notice of his authority and purpose and is refused admittance.² The undisputed evidence was and the trial court found that when the agents approached the cabin, one agent knocked on the door, identified himself, and announced that he had a search warrant. Furthermore, ample opportunity was given to the known occupants, Ortiz and Noland, to respond to the knocking and voluntarily admit the agents. However, no response was forthcoming, and the agents proceeded to force the door open to gain entry. Under these circumstances, the trial court concluded that § 3109 authorized the agents to use force to gain entrance into the cabin. Appellant seeks to undermine these hard facts as found by the trial court by arguing that the knocking and announcement made by the agent was merely a matter of form, not calculated to arouse the occupants. In sum, appellant views the evidence as showing that the agents did no more than perfunctorily comply with § 3109 before breaking into the cabin.

To substantiate his contention regarding the search, appellant looks solely to the testimony of Noland and Ortiz where both individuals said that one of the agents, whom neither could identify, told them that the raid was timed for when Noland and Ortiz would be sleeping so that the approach of the agents would go undetected. The evidence in counterweight to appellants' contention was the agents' testimony that they did not know whether the occupants of the cabin would be sleeping, and in fact on the previous morning at 3:30 a. m. the occupants were observed at work in the cabin. Moreover, at the evidentiary hearing, the trial court heard a demonstration by the agent as to how loud the knocking was, and the court was satisfied. The agent also testified that the announcement of identification and purpose was so loud in the still mountain atmosphere that he thought it would waken everybody for miles around. On this state of the evidence, we are satisfied that the trial court was correct and not clearly erroneous in finding that the conduct of the agents was lawful and in conformity with § 3109.

Resolving the issue of the search brings us to the question of the sufficiency of the evidence to sustain Ortiz's conviction on both counts. The standard of evidentiary review in criminal cases is well settled in this circuit. The evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — is sufficient if, when taken in the light most favorable to the government, the fact finder may find the defendant guilty beyond a reasonable doubt. To be sufficient, the evidence must be substantial; that is, it must do more than raise a mere suspicion of guilt.³ A conviction cannot be based upon evidence which is consistent with both innocence and guilt.⁴ Our criteria thus established, we proceed to a review of the evidence.

Regarding the manufacturing charge in count one, appellant seems to contend that proof of his guilt was arrived at only by an impermissible pyramiding of inferences from the circumstantial evidence. We find no merit in that contention.⁵

Our examination of the evidence shows that the government's evidence was basically uncontested and established three important particulars: (1) the chemicals and materials which are precursors to the manufacture of methamphetamine were delivered to the cabin; (2) a short time later Ortiz and Noland were observed several times hard at work mixing some substances; (3) shortly...