U.S. v. Park
| Decision Date | 14 May 1976 |
| Docket Number | No. 75--2623,75--2623 |
| Citation | 531 F.2d 754 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Harvey PARK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Al Horn, Mary Joyce Johnson, Atlanta, Ga., for defendant-appellant.
John W. Stokes, U.S. Atty., Dorothy T. Beasley, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.
Harvey Park was tried on consolidated indictments, one charging manufacture of phencyclidine (PCP), a Schedule III controlled substance, 21 U.S.C. § 841(a) (1), and the other charging receipt by a convicted felon of a rifle and a shotgun, 18 U.S.C.App. § 1202(a)(1). Park unsuccessfully objected to the consolidation. The jury found him guilty of the drug charge and acquitted him of the gun charge. He was sentenced to five years imprisonment, followed by three years special parole.
Park assigns four grounds for reversal: (1) the sufficiency of the search warrant authorizing the search of his home; (2) trial of the gun and drug cases together was error; (3) the evidence was insufficient for a jury determination that any controlled substance was manufactured; and (4) the District Court should have held a hearing on the claim that there had been illegal electronic surveillance.
Upon an intensive consideration of the briefs, record, and oral arguments, we are of the view that the assignments of error are lacking in merit. The judgment of the District Court is affirmed.
On September 20, 1973, the appellant, an automotive research mechanic, went to a chemical supply house in Atlanta, Georgia, where he purchased $329 worth of various chemicals and supplies for which he paid cash, but signed the receipt with the name of Glen Evans, a former business associate. After making the purchase Park returned to his place of business, remained there for some period of time, made a trip to a small store to purchase some ice and then drove home.
Previously, Drug Enforcement Administration (DEA) agents, in checking the chemical supply house's records, had noticed what they considered large sum cash purchases on several occasions by a particular individual. The supply house was requested to notify DEA if it should be contacted by this individual. On September 20th an order was placed for this account, so the supply company notified DEA. DEA agents observed the purchase by the appellant Park, followed him to his place of business, and, after losing contact with him for awhile, followed him home, whereupon they placed his house under surveillance.
Through the kitchen window the agents observed Park and his wife, while both appeared to be mixing something. There is some testimony that this surveillance was accomplished with the aid of binoculars. At 2:15 on the morning of September 21st, DEA agents (with the assistance of a U.S. Attorney and a local officer) swore out a search warrant before a state court judge. Armed with the warrant thus obtained, the agents searched Park's house, confiscating beakers, glass tubing, bowls, filters and similar equipment, along with various chemicals, a paper containing a list of chemicals, a recipe that could possibly produce PCP, and residue of a substance which the government's expert identified as phencyclidine.
Based on alleged invalidity of the search warrant, Park filed a motion to suppress the evidence and also moved for discovery of any electronic surveillance. Both motions were denied.
The affidavit to the search warrant alleged the following facts as grounds for issuance of the warrant:
1. William Harvey Park has a prior conviction for violation of the Georgia Drug Abuse Control Act. In addition he has been associated and involved with another person who has been convicted of the illegal manufacture of drugs.
2. During the past eight months Park has purchased approximately 11 gallons of toluene spectro, 159 pounds of ethyl ether, 10 pints of piperdine, 3 gallons of cyclohexanone, two 115 volt ac-dc heating mantels, 1 transformer, 4 packages of beakers, 2000 ml. flasks, 4 packages of 11 cm filter paper, 12 grams of para-toluene sulfonic acid. Of these chemicals Park on September 20, 1973, at approximately 4:30 p.m. picked up and paid $329 cash to Fisher Scientific, in Atlanta, for 12 grams of para-toluene sulfonic acid, 124 pounds of anhydrous ethyl ether, five 2000 ml. flasks, 4 packages of 11 cm filter paper. These items were ordered in the name of Glen Evans for EPT, Inc. of 1532 Curtis Road, Atlanta, Ga. On past orders an address of 2419 Bucknell, Lexington, Kentucky, has been used for EPT, Inc. On September 20, 1973, when these items were picked up Park used the name of Glen Evans. This was observed by agents of the Drug Enforcement Administration. William Harvey Park's only known occupation is as a mechanic.
3. Since Park picked up the chemicals and items on the afternoon of September 20, 1973, agents of DEA have maintained a continual surveillance of Park. He was followed to 4036 Green Hawk Trail, DeKalb County, Georgia, where he has remained since approximately 8:30 p.m. DEA agents have walked and driven past this house on several occasions and have smelled the strong odor of ether. From a surveillance point DEA agents have observed Park and a female standing at the kitchen window, apparently over the sink, measuring and mixing what are believed to be chemicals.
4. At 12:15 a.m., September 21, 1973, S/A P. W. Perry talked with Stanley Schreiber, a chemist with the DEA Regional Laboratory in Miami, Florida. Mr. Schreiber was given all the above details and information regarding the chemicals and equipment in Park's possession. Mr. Schreiber stated it would be his opinion that these chemicals could be used to manufacture PCP, Phencyclidinehydrochloride, a drug controlled under the Georgia Drug Abuse Control Act and the Federal Controlled Substances Act.
5. Your affiant has talked within the past few minutes to S/A Wayne Smith, a DEA agent, and others who personally observed the activity of Park described in the paragraphs above.
Like the odor of ether emanating from Park's house, this affidavit reeked with probable cause. Nevertheless, appellant attacks it on two grounds.
First, he argues that the affidavit contained negligent and material misstatements, as well as deliberate omissions, thus vitiating the search warrant. Second, it is contended that the search warrant issued on information obtained by an unconstitutional search and seizure because the agents used binoculars to observe activities in Park's home.
Astonishing though it may be, the original hearing on the motion to suppress was conducted on a false copy of the affidavit actually used to obtain the search warrant. Appellant had attached to his motion to suppress what he mistakenly thought to be a true copy of the affidavit. At the preliminary hearing the court reporter incorporated the information contained in the affidavit. Defense counsel then made his copy from the reporter's transcript and attached it to his motion. During one of the transcriptions several errors were made. 1 Pursuant to the hearing held on the inaccurate copy the District Judge found the alleged misstatements to have been immaterial and unintentional. Appellant asked for rehearing. Prior to that rehearing, the actual affidavit was discovered. This affidavit contained only one misstatement. Appellant contended that the actual affidavit was materially false and reurged his motion to suppress. The trial judge denied the motion for reconsideration, noting that the government's position had been strengthened since the actual affidavit contained only one inaccurate statement.
The only misstatement in the affidavit was the statement that Park had been involved with and associated with another person who had been convicted of the illegal manufacture of drugs. In fact, the person had been convicted of the sale of illegal drugs.
Park complains also that the agents failed to inform the magistrate that he has a place of business called Performance Research, where he experiments on race cars and uses various chemicals. While declining to concede that the single error and the lone omission were not deliberate, the appellant makes no showing that they were intentional, designed to deceive the judge issuing the warrant. There is no evidence in the record indicating that the misstatement was anything other than an honest mistake. Hence, we need only to determine whether the mistake and the omission were material to the existence of probable cause.
If a misrepresentation in an affidavit for a search warrant is made with the intention of deceiving the magistrate it will invalidate the warrant regardless of whether the error is material to the showing of probable cause. On the other hand, if the error was unintentional, it is of no moment unless it was material to the establishment of probable cause. See United States v. Thomas, 5 Cir. 1973, 489 F.2d 664 2 (and cases there cited), cert. denied, 1975, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64.
As to the manufacturer/dealer mistake, we agree with the trial court that it was the previous relationship with controlled substances which was most important. This mistake could invalidate the warrant only if its correction, reviewed with the other legitimate allegations, presented a very close case on probable cause. See United States v. Belcufine, 1 Cir. 1974, 508 F.2d 58.
Probable cause could easily have been found had the affidavit alleged only the following: (a) Park had a prior drug conviction; (b) Park had previously associated with a convicted drug dealer; (c) Park had purchased in the previous eight months specified chemicals and equipment which could be used in the manufacture of PCP; (d) on the day in issue, Park had picked up...
To continue reading
Request your trial
-
U.S. v. Zielie
...(1979). The Fifth Circuit has stated as policy that "Rule 8 is to be broadly construed in favor of initial joinder." United States v. Park, 531 F.2d 754, 761 (5th Cir.1976). Yet, even if initial joinder is proper, severance may be granted in the discretion of the trial court under Rule 14 1......
-
U.S. v. Busic
...convictions from other counts which do not permit such proofs has received little attention in the circuits. 8 In United States v. Park, 531 F.2d 754 (5th Cir. 1976), the defendant had been charged in a two-count indictment with a substantive narcotics offense and with receiving firearms wh......
-
U.S. v. Berardi
...occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." United States v. Park, 531 F.2d 754, 761 (5th Cir. 1976) (quoting Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (1926)). In determining ......
-
U.S. v. Kopituk
...governs in cases involving multiple defendants. 19 United States v. Levine, 546 F.2d 658, 661 (5th Cir. 1977); United States v. Park, 531 F.2d 754, 760 n.4 (5th Cir. 1976); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975); United States v. Gentile, 495 F.2d 626, 628 n.2 (5t......
-
Survey of Washington Search and Seizure Law: 1988 Update
...v. Coates, 107 Wash. 2d 882, 735 P.2d 64 (1987); State v. Ludvik, 40 Wash. App. 257, 698 P.2d 1064 (1985). Cf. United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976) (if misrepresentation made with intent to deceive magistrate, then warrant void regardless of materiality). Washington h......
-
Survey of Washington Search and Seizure Law
...if in the absence of the stricken statements probable cause does not exist, then the warrant is void. Id.; cf. United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976) (if misrepresentation made with intent to deceive magistrate, then warrant void, regardless of materiality). Washington ......