United States v. Damitz

Citation495 F.2d 50
Decision Date08 April 1974
Docket Number73-2902.,No. 73-2945,73-2945
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dwight Edward DAMITZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry Louis VARVIL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Murray B. Guterson (argued), Culp, Dwyer, Guterson & Grader, Seattle, Wash., for defendants-appellants.

Charles Pinnell, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before DUNIWAY and CHOY, Circuit Judges, and TAYLOR,* District Judge.

OPINION

DUNIWAY, Circuit Judge:

Varvil and Damitz appeal from their convictions at a non-jury trial of conspiracy to possess with intent to distribute and possession with intent to distribute quantities of marijuana, in violation of 21 U.S.C. § 841(a) (1) and (b)(1)(B). We affirm.

Appellants' arguments on appeal concern the validity of a search warrant, the validity of the seizure of a notebook, and the sufficiency of the evidence.

I. Validity of the Search Warrant

The search warrant was issued on the basis of an affidavit sworn to by one Larry Dean Annas on November 21, 1972. Annas had been arrested at approximately 9:00 p. m. on November 20 on charges of illegally selling heroin. He agreed to cooperate with the arresting agents, saying that he would take them to a cabin in North Bend, Washington, which he believed to contain approximately 500 pounds of marijuana. He told the agents that he had seen marijuana in the cabin previously, that he had recently transported for Varvil in a 1965 Cadillac a trunkful of marijuana bricks, and that he believed the marijuana was being stored in the cabin. He also gave the agents two marijuana bricks which he said that he had taken from the Cadillac and kept for himself. Annas then accompanied six or seven agents to the cabin, which would have been hard to find if the way were not known. The agents approached to within thirty yards of the cabin and saw a white 1965 Cadillac, matching Annas' description, parked in front of it. Two agents thereupon drove Annas to Seattle, where he met with Assistant United States Attorney Pinnell from 2:00 a. m. until about 6.30 a. m. on November 21.

Mr. Pinnell prepared the following affidavit for a search warrant based upon Annas' story:

1. On approximately November 13, 1972, Harry Lewis sic Varvil gave me a 1965 Cadillac bearing California license plates and directed me to drive to San Diego, California, to pick up approximately 500 bricks of marijuana. He told me there was $35,000 in cash in the back of the car. Following his directions, I drove to San Diego, arriving on approximately November 15, 1972, and called him for further directions. Varvil told me to leave the car in front of my motel with the keys under the mat. He stated that the car would be returned to me in several days, filled with marijuana. On November 16, 1972, I picked the car up in El Centro, California. I examined the trunk and found that it was full of marijuana wrapped in white and green paper.
2. On November 17, 1972, or 18, 1972, I arrived in Tacoma, Washington, and turned the car with the marijuana over to Varvil. When he picked up the car Varvil stated he was going to keep the marijuana in his cabin in North Bend, Washington. I kept three of the bricks of marijuana and have turned the two remaining bricks over to Special Agent Vance Huffman on November 20, 1072.
3. On the morning of November 21, 1972, I went to the cabin described in the warrant with Agents of the Office for Drug Abuse Law Enforcement. While there I noted that the car I drove to California was in front of the cabin.
4. I know that Varvil uses the cabin as a stash because approximately one week ago I was in the cabin with Varvil and saw a large amount of marijuana. Varvil stated he had about 250 to 300 bricks of marijuana in the cabin at that time.

At 6:30 a. m. the agents, Pinnell and Annas drove to the home of United States Magistrate Froelich. Annas swore that the affidavit was true and signed it in Froelich's presence; Froelich questioned him briefly and then issued a search warrant, which was executed about one hour later.

At the suppression hearing and trial Annas admitted that his affidavit contained numerous false statements. The statement in paragraph #1 that Varvil "told me there was $35,000 in cash in the back of the car" was false. In paragraph #2, the statement that Varvil said that he was going to keep the marijuana in the cabin at North Bend was false. He "stated that they was going to take the car up to the cabin, and I had been up to the cabin before, so I figured that the cabin would be in North Bend where it was before when I had been up there." Concerning paragraph #4, Annas had been at the cabin about ten days earlier, but, in his own words, "I didn't see a real large amount of marijuana, I saw a boxful of marijuana sitting on a desk. . . ." Moreover, although Varvil did state that he had used the cabin as a "stash place for . . . a couple hundred pounds of bricks," he did not state that the bricks were "in the cabin at that time." Rather, he had stored the bricks there at an earlier time.

Despite Annas' false statements in the affidavit, the trial court denied appellants' pre-trial motion to suppress, finding that the government agents were unaware of the false statements when the search warrant was executed:

THE COURT: I do have some problems with the credibility of Mr. Annas. It is difficult to sort out his story. However, I do find from listening to the government agent witnesses, particularly Agent Huffman, and reading the affidavit and hearing the testimony of Mr. Annas as to his explanations, that the government agents were unaware of the falsity, that sic—of? the affidavit, when it was executed, and they had no cause to be suspicious of any statement in it, he supplied them apparently with two portions of the two bricks of the marijuana, he took them to the cabin, and there is the Cadillac. Of course, the most serious matter in connection with the affidavit is this business about seeing a large amount of marijuana and we come to find out from his testimony here that it was a very small amount, remnants. But I don\'t think that that discrepancy is material enough to void the affidavit.
As to this $35,000.00 in cash, his explanation here is that he obtained that information when he was in San Diego, apparently, and not when he was assigned the mission before the trip started. I think that is a small discrepancy.
What I am finding is that there is no evidence that the false portions of the affidavit invalidated the showing of probable cause. I am denying the motion.

a. May the veracity of the affidavit be challenged?

Appellants argue that because the search warrant was issued on the basis of a materially false affidavit, the affidavit was therefore defective as a showing of probable cause and the fruits of the search must be suppressed. Some circuit courts have held that if the allegations in an affidavit contain a prima facie showing of probable cause, the defendant may not challenge the underlying validity of the affidavit.1 More recent decisions, however, have permitted such a challenge.2 The Supreme Court has extensively examined the sufficiency of the allegations contained in affidavits to show probable cause,3 but it has not squarely decided whether a defendant may go behind the face of an affidavit to challenge the veracity of the allegations. The Court last faced this issue in Rugendorf v. United States, 1964, 376 U.S. 528, 531-532, 84 S.Ct. 825, 827-828, 11 L.Ed.2d 887, where it stated:

Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish "probable cause"; However, assuming, for the purposes of this decision, that such attacks may be made, we are of the opinion that the search warrant here is valid.

The major reason advanced for not allowing a defendant to challenge the veracity of an affidavit is that to do so would reduce the function of the magistrate to a mere formality. See, e. g., Rosencranz v. United States, 1 Cir., 1966, 356 F.2d 310, 317. This rationale seems to disappear, however, in the light of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, which authorize state and federal courts, respectively, to second-guess the magistrate and review the sufficiency of the affidavit. A review of the veracity of the affidavit may also be dictated by the exclusionary rule. A warrant is issued in an ex parte proceeding, in which there is no effective way for the magistrate to determine the veracity of the allegations; the most he can do is question the affiant and examine the affidavit for internal consistency. We therefore hold that it was proper for the trial court here to allow a challenge to the veracity of the affidavit.4

b. May false statements in the affidavit be disregarded if those that are true support a finding of probable cause?

In determining whether there is probable cause to support the issuance of a search warrant, we are limited to the allegations contained within the four corners of Annas' affidavit. United States v. Anderson, 9 Cir. 1971, 453 F. 2d 174.5 Probable cause is shown when the affidavit sets forth facts and circumstances sufficient to warrant a man of reasonable caution to believe that the items to be searched for are located at the premises to be searched.6 The affidavit must also meet the test of Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, further explicated in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The affidavit must reveal the "underlying circumstances"7 from which Annas concluded that there...

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