U.S. v. Johnson, s. 80-1728

• Decision Date: 18 January 1982
• Docket Number: 80-1738,80-1801 and 81-1096,Nos. 80-1728,s. 80-1728
• Citation: 660 F.2d 749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Gene JOHNSON, Patricia Stern Maggs, Allen Eugene Vanecek, Vickie Lynette Winter, Whose True Name Is, Dawn A. Goodhead, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 749

660 F.2d 749

UNITED STATES of America, Plaintiff-Appellee, v. Richard Gene JOHNSON, Patricia Stern Maggs, Allen Eugene Vanecek, Vickie Lynette Winter, Whose True Name Is, Dawn A. Goodhead, Defendants-Appellants.

Nos. 80-1728, 80-1738, 80-1801 and 81-1096.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 4, 1981.

Decided Nov. 6, 1981.

Rehearing Denied Dec. 18, 1981.

Certiorari Denied Jan. 18, 1982.

See 102 S.Ct. 1263.

H. Dean Steward, San Diego, Cal., for Maggs and Goodhead.

Stuart L. Smits, San Diego, Cal., for Vanecek and Johnson.

Judith S. Feigin, Asst. U.S. Atty., argued; M. James Lorenz, U.S. Atty., Judith S. Feigin, Asst. U. S. Atty., on the brief, San Diego, Cal., for United States.

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

Before CHAMBERS and ANDERSON, Circuit Judges, and WHELAN, ^* district judge.

CHAMBERS, Circuit Judge:

Appellants were convicted, on stipulated facts, of conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. § 846, and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). They now appeal denial of pretrial motions to suppress evidence. Additionally, Goodhead claims the trial court erroneously considered evidence which was not incriminating, and that such consideration was prejudicial. We find no merit in any of the points appealed.

On May 7, 1980, a Drug Enforcement Administration, (DEA), officer in Oregon notified agent Meisner of the San Diego County Integrated Narcotics Task Force, (NTF), that Richard Johnson, a suspected dealer of cocaine in Eugene, Oregon, and a companion were traveling to San Diego. The DEA agent suspected the purpose of the trip was to purchase cocaine. He advised Meisner that Johnson had a history of violent crime and had been involved in the shooting of a police officer, and the pistol-whipping death of another person.

Meisner and four other NTF agents followed the suspects upon their arrival in San Diego. The suspects took a taxi to the area of 2169 Pine Street. The suspects left the taxi and walked the remaining distance to the residence. Upon their knocking, an inhabitant responded that they had been waiting for them. Johnson's companion was Vanecek.

Meisner was able to observe activities inside the house through an open window while standing on public property. He observed Johnson counting objects on the dining room table. Vanecek picked up two bundles, pulled a bill from one, and rolled it into a straw. Vanecek placed one end of the straw to his nose and the other to the table. Meisner, a ten year veteran of narcotics enforcement, believed Vanecek was inhaling cocaine or some other controlled substance. Vanecek then picked up a bag of white powder and took it into the kitchen where he mixed it with baking soda. He returned to the dining room where Maggs and Johnson joined him. Johnson went into the kitchen and returned with a bag of white powder. Vanecek put bundles of money into a bag on the table. Meisner's surveillance took about 15 minutes between 10 p. m. and 10:30 p. m.

While Meisner was observing the activities in the Pine Street house, other neighborhood residents became aware of unusual activities in the neighborhood. One neighbor telephoned Mr. Alvin Ray, who lived directly across from the suspects' house. Ray contacted the police concerning the "prowlers." He then stood on his porch to intimidate them.

At approximately 10:27 p. m., a man and a woman arrived at the house by auto. The man carried a brown paper bag into the house. Johnson, Vanecek and Maggs, along with the newcomers, Goodhead and Lopez, sat around the dining room table. Lopez drew five large plastic bags of white powder from the bag. Each plastic bag appeared to contain between a pound and a kilo of substance suspected to be cocaine.

At this point Meisner notified the other agents that he believed a narcotics transaction was taking place, and that he thought the participants would be departing shortly. Meisner suggested securing of the residence to insure that evidence not be destroyed and that the suspects not escape. Meisner and his party consisted of five officers. He knew there were at least five suspects, and four exits from the house. Only two of the exits could be seen from public property. Additionally, Meisner believed the suspects had three cars available to aid in escape.

Meisner radioed the back-up support from local authorities before approaching the house. A local television news team arrived, and the police support arrived shortly thereafter. When the television news crew arrived, Meisner determined that the exigencies required action. He sought and gained entry to the house.

At 11:10 p. m., after entering and securing the house, evidence and suspects, Meisner proceeded to obtain a search warrant. At 12:42 a. m., he participated in a conference call with a municipal judge and a deputy district attorney. Meisner recited all the information justifying a warrant, and at 1:03 a. m., the search warrant issued.

The search of the house revealed 11 pounds of cocaine, about $75,000 cash, a gun, cocaine sales records, and other drug related paraphernalia. Everyone in the house was arrested. While arresting the suspects, the agents discovered that one of the suspects was a Colombian citizen. Meisner then determined to turn the case over to federal authorities because of its international and interstate implications.

An additional warrant was issued for the search of another house where evidence against Goodhead was found. The warrant issued based on an affidavit from William Flores, a NTF agent. The affidavit recited the facts of the surveillance and subsequent arrests, and additionally, included information connecting both Goodhead and Lopez to the second (Ingraham Street) house.

Among the monies discovered on the suspects and at the Pine Street house, was an amount of approximately $1,800 found on Goodhead's person. This sum was from a nondrug related transaction.

In response to defendants' various pretrial suppression motions, the Federal Magistrate personally inspected the Pine Street location. He found, inter alia, 1) the five surveillance agents were an inadequate number to properly surveil the four exits of the Pine Street residence or the five known suspects if they attempted to leave, 2) that at least one suspect had a history of violence, 3) not all the exits to the house were visible from public areas, 4) a large narcotics transaction had taken place, 5) narcotics traffickers usually leave shortly after a transaction, 6) some or all of the evidence would be lost if the suspects left the house, 7) suspects whose identity was unknown were likely to escape if they decided to leave, 8) securing the residence avoided safety problems for the agents and the community, 9) a warrant to search could not be obtained for about two hours, 10) neighbors were aware of unusual police activity, and 11) a television news crew had arrived at the scene. The magistrate concluded that these facts showed exigent circumstances justifying warrantless entry into the Pine Street residence.

On appeal appellants contend the magistrate erred in concluding that exigent circumstances existed to...