641 F.2d 652 (9th Cir. 1980), 79-1358, United States v. Johnson

Docket Nº:79-1358.
Citation:641 F.2d 652
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ellis JOHNSON, Defendant-Appellant.
Case Date:July 14, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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641 F.2d 652 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,


Douglas Ellis JOHNSON, Defendant-Appellant.

No. 79-1358.

United States Court of Appeals, Ninth Circuit

July 14, 1980

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1981.

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Michael D. Stein, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter, Asst. U. S. Atty., Michael H. Walsh, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CHOY, ANDERSON and PREGERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Johnson appeals his conviction on one count of conspiracy to possess a controlled substance, in violation of 21 U.S.C. § 846, and on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The sole error which Johnson raises on appeal is the trial court's denial of his motion to suppress certain items seized at his home. We affirm.


On September 13, 1978, Special Agent Terry Lucchesi, a San Diego police officer who was assigned to the San Diego Narcotic

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Task Force, contacted Assistant United States Attorney Stephen Peterson and asked permission to obtain a federal search warrant to search a residence located at 2405 Old Colony Road, Vista, California. Mr. Peterson then contacted United States Magistrate Edward A. Infante to request a telephonic search warrant. Magistrate Infante asked Mr. Peterson where he could get in touch with Agent Lucchesi, and then called Agent Lucchesi at a public telephone. Agent Lucchesi recited the facts which he felt gave rise to probable cause to search the residence, and was sworn immediately after giving the oral affidavit. Agent Lucchesi filled out the duplicate original warrant and signed Magistrate Infante's name, as instructed. The house described in the warrant was the residence of Johnson.

We set out Agent Lucchesi's oral affidavit in its entirety in the margin. 1 The

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pertinent facts may be summarized as follows: Agent Lucchesi had been in contact with an unnamed confidential informant who had spoken with a person named Candy Bates. On September 2, the informant had gone to Bates' Bellflower, California, residence, where she had told the informant that two pounds of cocaine could be obtained from Linda Sue Spiking. According to Bates, Spiking lived somewhere near San Juan Capistrano, and had kept as many as five pounds of cocaine in a safe at her residence. The next evening, the informant met with Bates and Spiking again at Bates' Bellflower residence, where the informant observed what appeared to be two one-ounce packages of cocaine on her dresser. During that meeting, Spiking gave the informant a sample of cocaine, and told him to go through Bates for any immediate purchases. On September 11, the informant, accompanied by an undercover agent posing as a buyer, met with Bates at the informant's residence and discussed the proposed transaction. Bates then left the informant's residence under surveillance and met with Spiking and an unidentified couple at a restaurant. After a short conversation, Bates and Spiking took their purses and went to the women's restroom. After they returned to the booth, they and the unidentified couple left the restaurant and entered a car. The car drove a short distance, parked, and surveilling agents saw the dome light come on. The agents "surmised" that a drug transaction took place. Bates returned to the informant's residence with one ounce of cocaine, which the undercover agent purchased. Spiking was followed by agents to her residence in Vista. On September 13, the informant again met with Bates at the informant's residence. The undercover agent arrived, and attempted to negotiate further for two ounces. Bates made several telephone calls, including one in which she asked, "Doug, is Sue there?" Negotiations between the agent-buyer and Bates finally broke off. Independent surveillance of Spiking's residence at 2405 Old Colony Road in Vista established that Spiking's car had been parked in the driveway at the time that Bates was making the telephone calls. Johnson's car was also parked at the Vista residence at the same time. Johnson was apparently residing with Spiking at the time.

The subsequent search of the Vista residence uncovered cocaine and various pieces of drug paraphernalia. Both Johnson and Spiking were convicted following a bench trial on stipulated facts.


Johnson argues on appeal that the warrant authorizing the search of the 2405 Old Colony Road residence was defective in two respects:

(1) The circumstances of the issuance of the warrant violated Fed.R.Crim.P. 41;

(2) The affidavit did not establish probable cause to search the residence.


Fed.R.Crim.P. 41 outlines the procedure to be followed in the issuance and execution of federal search warrants. Johnson argues in essence that Rule 41 was twice violated in this case. The first alleged error arose when Agent Lucchesi, a state officer, was allowed to apply for the warrant. The second occurred when the magistrate did not administer an oath to Agent Lucchesi until after he had given the oral affidavit.

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Rule 41(a) specifies that a search warrant may be issued "upon request of a federal law enforcement officer or an attorney for the government." Johnson contends that Agent Lucchesi was not a person authorized to "request" a warrant under Rule 41. The government does not contend that Agent Lucchesi's status as a member of the San Diego Narcotics Task Force, a joint force composed of Drug Enforcement Administration agents and members of San Diego's local police department, conferred upon him the status of a "federal law enforcement officer." Therefore, if we find that Agent Lucchesi was, as a matter of law, the person who "requested" the warrant, then we must find that Rule 41 was violated.

We are not persuaded, however, that Agent Lucchesi was the "requestor" in this instance. According to the affidavit of Assistant United States Attorney...

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