623 F.2d 551 (9th Cir. 1979), 78-3033, United States v. Bernard

Docket Nº:78-3033.
Citation:623 F.2d 551
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Howard Dale BERNARD, Gordon Rae Childress, Sammy Brice Brock, Roger Lee Bard, Russell Richard Cochran, Defendants-Appellees.
Case Date:September 27, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 551

623 F.2d 551 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellant,

v.

Howard Dale BERNARD, Gordon Rae Childress, Sammy Brice

Brock, Roger Lee Bard, Russell Richard Cochran,

Defendants-Appellees.

No. 78-3033.

United States Court of Appeals, Ninth Circuit

September 27, 1979

Rehearing Denied Nov. 28, 1979.

Revised April 28, 1980.

Page 552

Walter E. Schroeder, Crim. Div., Washington, D.C., for plaintiff-appellant.

John S. Ransom, Portland, Or. (argued), for defendant-appellees; Michael R. Shinn, Frank Noonan, and Gerald R. Pullen, Portland, Or., on brief.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY and ANDERSON, Circuit Judges, and JAMESON, [*] District Judge.

JAMESON, District Judge:

The defendants-appellees are charged with conspiracy to manufacture methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 846, and with two substantive counts relating to the manufacture and possession of methamphetamine, in violation of 21 U.S.C. §§ 812 and 841(a) (1) and 18 U.S.C. § 2. The Government, pursuant to 18 U.S.C. § 3731, has appealed from an order of the district court granting defendants' motions to suppress evidence seized at the time of their arrests.

Page 553

Factual Background

In October, 1977, Michael Brown, who was under arrest for manufacturing methamphetamine, told Drug Enforcement Administration (DEA) agent Michael Fredericks that he and defendant Howard Bernard had been involved in manufacturing methamphetamine during 1977. Brown further informed Fredericks that Bernard and two other persons currently operated a clandestine methamphetamine laboratory in Umatilla County, Oregon, and that through a legitimate "front" business, 1 they would be purchasing and stockpiling chemical ingredients for the manufacturing of methamphetamine sometime around March, 1978. Subsequent DEA investigation and surveillance activities corroborated much of this information.

The information that Bernard was stockpiling chemicals was reinforced by his purchase of chemicals used in the production of methamphetamine on at least four occasions. 2 DEA agents learned that Bernard, using a pickup truck registered to defendant Sammy Brock, had recently purchased a large quantity of chemicals in Portland, Oregon. 3 They also observed him make purchases from a supply house in Spokane, Washington in December, 1977 and later in March, 1978. On the latter occasion, the agents, through use of an electronic beeper attached to a canister of chemicals, tracked the chemicals to a suspected drug trafficker's residence in Clarkston, Washington and later picked the signal up in Meacham, Oregon at defendant Brock's residence. The final purchase occurred on April 6, 1978, the day before the agents made their arrests. DEA agents observed defendants Childress and Bard pick up an order placed by Bernard at the Spokane supply house. 4 After purchasing the chemicals, the defendants flew to Hermiston, Oregon, where they ultimately drove to 456 Madrona Street, defendant Childress' residence.

Other events fostered suspicion that Bernard and his associates were engaging in illegal activities. When they picked up the chemical ingredients from the Spokane supply house, the defendants conducted what appeared to be counter-surveillance in an attempt to determine whether law enforcement officers were watching them. 5 Informer Brown's estimate that methamphetamine production would begin around March, 1978 was partially corroborated by other informer tips in early April that methamphetamine would be manufactured in the Clarkstown area soon and then be made available in the Hermiston-Pendleton area.

On April 7, the date they arrested the defendants, the DEA agents were conducting surveillance at defendant Brock's Meacham, Oregon residence where they were still receiving a signal from the beeper, and defendant Childress' residence in Hermiston, Oregon, where Bard and Childress had driven with the April 6 purchase of chemicals. During the early part of the day, the agents encountered defendant Bard at a restaurant in Hermiston and followed his jeep to a mobile home camper parked at a mobile home park. Waiting with the mobile home were a green jeep, owned by defendant Cochran, which had earlier that day been seen at Brock's Meacham residence,

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and a rented Toyota. At approximately 2:00 P.M. the vehicles drove north to a recreational area, Hat Rock State Park, bordering the Columbia River.

At the state park, the motor home parked approximately 20 yards from the river. The other vehicles criss-crossed throughout the area conducting what DEA agents thought was counter-surveillance. From aerial surveillance DEA agents observed the defendants carrying boxes of unknown contents from the vehicles to the motor home.

During the course of the afternoon DEA agents and police officers, both on foot and in vehicles around the park, observed the activities at the mobile home. Agent James Nielsen testified that he observed that the defendants had all of the vents and the door on the mobile home open, but kept the curtains drawn. One curtain facing the road where vehicles might approach, however, was partially opened in a V-shape. Nielsen also testified that he observed two significant events at approximately 5:30 P.M. First, he saw two persons, whom he identified as Childress and Bard, leave in the Toyota and return approximately ten minutes later. He then heard persons whom he believed to be Bard and Childress, telling their companions that DEA agents were still staking out the park. At about the same time, Nielsen observed a person, whom he identified as defendant Brock, rush out of the mobile home "gasping, breathing deep," and "shaking his head" in an apparent effort to get some fresh air. 6

About ten minutes after observing Brock gasping for air, agent Nielsen conferred with agent Lackey, who was also watching the mobile home. From what they had observed, they concluded that the suspects were using the mobile home as a laboratory to produce methamphetamine. Slightly after 6:45 P.M., agent Fredericks arrived and conferred with Lackey, but not with Nielsen. Lackey told Fredericks that he concluded that the suspects were manufacturing methamphetamine, but he failed to inform Fredericks of the two incidents which Nielsen observed at 5:30 P.M. 7

Based upon the information gathered during the investigation, the observations Lackey related to him, and Lackey's conclusion that the suspects were producing methamphetamine in the mobile home, Fredericks authorized the warrantless arrests. At about 7:00 P.M. the agents surrounded the motor home and arrested Bernard, Childress, Brock, Bard, and Cochran. 8 The agents then searched the mobile home, discovering that the suspects were apparently producing methamphetamine.

District Court Proceedings

Following a pretrial suppression hearing, United States Magistrate George Juba recommended that the court deny the defendants' motions to suppress all evidence as fruits of an arrest unsupported by probable cause. 9 On the date set for trial, District

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Judge Otto Skopil, at the Government's request, conducted a de novo evidentiary hearing on defendants' suppression motions. After taking additional testimony and reviewing the record before the magistrate, Judge Skopil held that the Government lacked probable cause to arrest and granted defendants' motions to suppress derivative evidence. 10 In reaching this conclusion, the court ruled that (1) the Jencks Act required suppression of all testimony given by agent Nielsen at the suppression hearing since Nielsen had destroyed observation notes he made at the scene of the arrest, and (2) the court could not consider the alleged incident where Brock exited the mobile home gasping for air as part of agent Fredericks' factual foundation for a probable cause determination since Fredericks was unaware of this incident at the time that he authorized the arrests. The court also found that even if Nielsen's testimony was considered, the DEA agents still lacked sufficient information to form a foundation for probable cause. 11

Issues on Appeal

This appeal raises two issues: (1) did the district court err in excluding Agent Nielsen's testimony under the Jencks Act because the agent destroyed his rough observation notes after incorporating them into a final report; and (2) did the district court err in determining that the Government lacked probable cause to arrest?

Suppression of Agent Nielsen's Testimony

During the suppression hearing, it was discovered that Agent Nielsen had made rough observation notes of the events which occurred at Hat Rock State Park prior to the arrests. He later lost or destroyed these notes after completing a typed report of the events leading to the defendants' arrests. The district court held that the Jencks Act 12 required the exclusion of Agent Nielsen's testimony at the suppression hearing because he failed to preserve his notes. 13 The decision was based on the court's interpretation of United States v.

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Harris, 543 F.2d 1247 (9 Cir. 1976) where this court held that rough notes taken by the FBI during the course of an investigation were potentially discoverable material and, therefore, subject to production under the Jencks Act. 14

Under the Jencks Act, however, the Government is not required to produce "statements and reports" until the witness "has testified on direct examination in the trial of the case". It is well established in this circuit that the statutory language "trial of the case" does not include pretrial suppression hearings. United States v. Curran, 498 F.2d 30 (9 Cir. 1974); United States v. Spagnuolo, 515 F.2d 818 (9 Cir. 1975). 15

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