United States v. Curran

• Citation: 498 F.2d 30
• Decision Date: 28 May 1974
• Docket Number: No. 72-3180.,72-3180.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Terry CURRAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

498 F.2d 30 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Michael Terry CURRAN, Defendant-Appellant.

No. 72-3180.

United States Court of Appeals, Ninth Circuit.

May 28, 1974.

J. David Franklin (argued), Odorico, Franklin & Herring, San Diego, Cal., for defendant-appellant.

Thomas M. Coffin, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and TRASK, Circuit Judges, and LUCAS,^* District Judge.

OPINION

LUCAS, District Judge:

Two men, Garcia and Lovio, drove across the United States border in a Ford Pinto about 5:55 p. m. on June 1, 1972. Because this car was listed as a possible stolen car on a computer printout, it was stopped at the Calexico, California, Port of Entry. A customs agent, Wilburn Sears, searched the vehicle and found marijuana debris beneath the back of the front seat. Sears let the vehicle and its occupants go; but he and another agent, Louis Richenberger, followed it at a distance. They kept the car under surveillance as the men traveled to El Centro, California.

The Pinto first stopped at 302 Holton Road, El Centro, where customs agents had made a purchase of narcotics some time previously. Agent Sears saw the men leave the car, but he could not see whether they entered the house. After fifteen minutes the car departed.

The car went to 1916 Cooley Road, El Centro, and the occupants stayed there from five to ten minutes. Then they drove around El Centro for fifteen to twenty minutes and stopped at a hospital, where they stayed an hour. After that they went back to the Cooley Road address.

From Cooley Road they traveled to Kaibab Apartments in El Centro. A suspected smuggler parked near them, but the surveillance agents had no reason to believe that he and the car's occupants were then engaged in smuggling.

After leaving the Kaibab Apartments, the men drove the Pinto onto Interstate 8 and proceeded west. The trailing officers followed them about 35 miles. Near Jacumba, California, the officers stopped the car because they had heard over the radio that a load of contraband drugs had been delivered to 1916 Cooley Road, where the Pinto had stopped twice. The Pinto's occupants were identified as Garcia and Lovio together with a third person, Garcia's brother. A cursory examination of the car revealed nothing. Letting the Garcias and Lovio go, the agents went back to the Cooley Road area.

When they arrived, they joined a team of officers who had gone to the Cooley Road area because of the information about the contraband drugs. The information itself had come from an informer's tip. At 9:30 that evening the confidential informant had told Delbert Polish, an agent of the Bureau of Narcotics and Dangerous Drugs, that 50 to 60 kilograms of marijuana had been brought to 1916 Cooley Road. The informant had described the delivery car, a white Dodge, and its driver. He also told Polish that the marijuana would be shipped out of Cooley Road in small quantities. Polish had reason to believe in the informant's reliability because the informant had provided accurate information on three prior occasions. After the tip, agents from the Bureau of Narcotics and Dangerous Drugs, the Customs Agency Service, and the Imperial County Sheriff's Office kept watch over the house at 1916 Cooley Road.

Between 10:00 p. m. and midnight¹ three cars left the house and the agents stopped them. In the first car, driven by Carlos Bowker, agent Robert C. Walker of the Bureau of Customs found one marijuana seed. The second one, driven by Robert E. Gross, Jr., was not searched, according to Agent Guillermo Ortiz of the Bureau of Narcotics and Dangerous Drugs. But the third car, driven by Stanley H. Lewis, contained three kilograms of marijuana, which was found by a customs agent named Cavitt.

At some time before midnight, the surveillance crew decided to raid the Cooley Road house. Shortly after midnight the officers moved. While other agents covered the exits, Wilburn Sears and Robert Walker approached the front door, which was opened by Ronald J. Greenlee and the defendant, Michael Terry Curran. After the agents had obtained identification from Greenlee and Curran, Agent Sears smelled a faint odor of warm, unburnt marijuana. Sears walked past Greenlee and Curran and into the house. He went through one room, containing a bed, and into a second one. There he saw a table containing marijuana debris and a paper bag. As Sears got close to the bag, he observed marijuana in it.

Arresting Greenlee and Curran, the agents proceeded to search through the house. In a cupboard they found about 50 kilograms of marijuana, and in a tire they found some more marijuana.

Greenlee, Curran, and others were brought before the United States District Court for the Southern District of California. Curran was under a charge of violating 21 U.S.C. § 841, which forbids possession of a controlled substance with intent to distribute it. Marijuana is classified as a Schedule I Controlled Substance by 21 U.S.C. § 812(c)(I)(c) (10). The offense is a felony carrying a maximum term of five years or a fine of $15,000 or both. 21 U.S.C. § 841(b)(1) (B).

The defendants moved to suppress the marijuana found at the El Centro house. The motion was the subject of an exhaustive hearing on August 9 and 10, 1972, before Judge Howard B. Turrentine. At that hearing, Sears and other members of the surveillance party testified. During the hearing, Curran requested the production of reports made by Agent Polish. The judge denied this on the ground that the Jencks Act, 18 U.S.C. § 3500, did not cover the reports. The judge granted the defendants' motion to suppress the marijuana found in the cupboard and the tire but denied it with regard to the marijuana found on the table.

Thereafter the government filed an information charging Curran with simple possession of 1½ lbs. of marijuana, the amount found on the table. This offense, a violation of 21 U.S.C. § 844, is a misdemeanor. Curran pleaded not guilty and waived a jury trial. Pursuant to a stipulation, the case was submitted on the evidence heard at the motion to suppress. The judge found Curran guilty and placed him on probation for one year under conditions which included payment of a $500 fine.

On this appeal Curran challenges the judge's decision not to suppress the 1½ lbs. of marijuana. Curran contends that all of the marijuana, including that found on the table, was obtained by an illegal search and seizure. In addition, Curran contends that the district judge erred in denying his request for production of the agent's reports at the suppression hearing.

I. The Search at 1916 Cooley Road

Under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971), the search of a home is not lawful unless the officers have probable cause and in addition have a search warrant or an excuse for not having one. Curran does not contend that the agents lack probable cause; in fact, Curran concedes its existence. He argues only that the agents lacked a warrant and lacked an adequate excuse for not obtaining one.

The government relies principally on an argument based on the plain-sight doctrine. If an officer is somewhere where he has a right to be and observes an object in plain sight, he may seize that item. The latter action is not a "search"; the restrictions on searches, such as the requirement of a warrant, do not apply. Ker v. California, 374 U. S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The government would expand this somewhat by treating the smelling of marijuana as part of the viewing of it or as the equivalent of the viewing of it. The argument has two steps, the first of which is justification for the officers' presence at the front door. According to the government, officers can go to a door to ask questions at any time and need no warrant for this. The government relies on Sears' testimony that he approached the door only to make inquiries, not to conduct a search. (R.T. 59-60). At the door, one agent smelled marijuana. The government argues that the marijuana was then in plain sight or in plain smell or that a search and seizure was justified by an exigent circumstance, the fear that Curran and Greenlee would dispose of the marijuana if the agents left to get a warrant.

A. Plain Sight.

For the seizure to qualify as an instance of plain view, the officer must be rightfully present at the place and time that he sees the goods. The government's theory would account for Sears' presence at the outside door. But Sears did not see the marijuana until he had crossed the threshold and entered other rooms. The suggested justification for presence at the door, based on the officer's avowed purpose of questioning Greenlee and Curran, could not extend to Sears' movement past Curran and Greenlee into other rooms. The government's theory fails to validate his presence in those rooms, and the plain-sight theory founders.

The government touches upon the theory sometimes advanced that the courts should acknowledge a "plain smell" concept analogous to that of plain sight. The smell of marijuana has been held to be a fact establishing probable cause. Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Fernandez v. United States, 9th Cir., 1963, 321 F.2d 283; Fumagalli v. United States, 9th Cir., 1970, 429 F.2d 1011; United States v. Martinez-Miramontes, 9th Cir., 1974, 494 F.2d 808 (April 10, 1974). However, before the officer could rely upon his smelling marijuana as probable cause, he would have to justify his presence at the place, i. e., the door of the house, where he detected the odor, just as he would have to justify his presence at the place from which he saw the contraband in order to rely on the doctrine of plain view. In either case, in addition, he would have to justify entering the house without obtaining a warrant. Johnson v. United States, supra. Here the justification must be exigent...