716 F.2d 701 (9th Cir. 1983), 81-1769, United States v. Taylor

Docket Nº:81-1769, 81-1770 and 81-1785.
Citation:716 F.2d 701
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Donald Wesley TAYLOR, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne PRESSLER, and Donald Wesley Taylor, Defendant-Appellants.
Case Date:September 23, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 701

716 F.2d 701 (9th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellant,

v.

Donald Wesley TAYLOR, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven Wayne PRESSLER, and Donald Wesley Taylor, Defendant-Appellants.

Nos. 81-1769, 81-1770 and 81-1785.

United States Court of Appeals, Ninth Circuit

September 23, 1983

Argued and Submitted Sept. 17, 1982.

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Gary V. Scales, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellant.

George F. Klink, David M. Heller, McGroder, Pearlstein, Peppler & Tryon, Phoenix, Ariz., for defendant-appellee.

On Appeal from the United States District Court for the District of Arizona.

Before FLETCHER and BOOCHEVER, Circuit Judges, and KENYON, [*] District Judge.

BOOCHEVER, Circuit Judge:

Donald Wesley Taylor and Steven Wayne Pressler were convicted of conspiracy to manufacture amphetamines and attempt to manufacture amphetamines. The Government and both defendants appeal. Taylor contends that the search of his residence was illegal because the information contained in the affidavit offered in support of the warrant failed to establish probable cause. Pressler contends that: (1) the trial court erred in denying his motion to suppress because his arrest was based on less than probable cause, (2) his trial should have been severed from Taylor's trial, (3) the district court committed reversible error by allowing certain questions during cross-examination, and (4) the evidence was insufficient to support his convictions. Both defendants contend that: (1) the trial court erred in allowing the Government to comment on the contents of two chemical bottles that were labeled but never analyzed, and (2) under the facts of this case, the jury instruction on attempt was inadequate. The Government appeals the dismissal of the "Dangerous Special Drug Offender" notice it filed against Taylor.

FACTS

The essence of the Government's case was that Taylor was operating, or attempting to make operable, an amphetamine laboratory at his home in Camp Verde, Arizona. Taylor has a ten-year history of being involved in the illegal manufacture of amphetamines. Pressler's principal role in the scheme appears to have been to pick up previously ordered chemicals at a chemical supply store.

The Government's investigation commenced when orders were placed at a Phoenix chemical supply store for chemicals used in manufacturing amphetamines. The first two orders were placed by a woman who identified herself as Carla Delwish, the maiden name of Taylor's wife. Personnel at the chemical supply store notified the Drug Enforcement Administration ("DEA") that orders had been placed for suspect chemicals. Although the first two orders were placed by Carla Delwish, a man later identified by a store employee as Pressler picked up the chemicals. The second time Pressler came to the store to pick up the chemicals, he also picked up several chemical supply catalogues and ordered additional chemicals.

In late January of 1981, based on the information obtained from the chemical supply store, DEA agents secured a warrant authorizing them to hide a "beeper" tracking device in a box containing the chemicals ordered by Pressler. On February 2, 1981, Sharon Coley (Taylor's sister) picked up the beeper box and brought it to her home. Sometime between February 13th and 18th, the beeper box was removed from Coley's home to Taylor's home. Prior to the time the beeper box was moved, the DEA agents watching Coley's house observed Taylor transfer boxes from the house to Taylor's vehicle. Also prior to the date the beeper box was moved, Pressler visited the chemical supply store again to inquire about expensive laboratory glassware.

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On February 20, 1981, DEA and state agents executed search warrants at the residences of Coley and Taylor. The principal evidence found at Coley's home were receipts for the chemicals she and Pressler had picked up and a radio scanner tuned to a DEA channel.

Prior to executing the warrant for Taylor's home, the police and DEA agents borrowed a firetruck, disguised themselves as firemen and told residents that a propane truck had overturned nearby. They also had volunteer firemen man a roadblock while dressed as emergency medical technicians. The Government claims this was done as a safety precaution because of the explosive nature of the chemicals they suspected were being stored at the house, but testimony at trial indicates that this was done as a ruse to get Taylor to vacate his house.

Before execution of the search warrant, Taylor and Pressler attempted to drive away from the house, but were stopped and arrested. Taylor was arrested at gunpoint when he stepped out of his vehicle.

The parties give differing accounts of Pressler's arrest. It is clear that another officer approached the vehicle while Taylor was being arrested and told Pressler to raise his hands and step out. Pressler failed to comply until the officer repeated his order several times. The Government states in its brief that Pressler became "verbally uncooperative" when he stepped out so the agent ordered him to lie face down in a ditch and handcuffed him. The Government further states that several minutes later, a second agent approached Pressler, recognized Pressler from a description given by an employee at the chemical supply house as the person who had picked up the chemicals, and arrested him.

The record supports Pressler's contention that he did not become "verbally uncooperative", as the Government describes it, until after he was handcuffed face down in the ditch.

The agents proceeded to search Taylor's residence and seized hundreds of items, including some of the chemicals necessary to manufacture amphetamines, Taylor's handwritten formulas for producing controlled substances, and miscellaneous laboratory equipment. Agents failed to find any already-produced amphetamines or a working laboratory.

Taylor and Pressler were charged in a four count indictment with conspiring to manufacture amphetamines during two separate time periods, attempt to manufacture amphetamines (21 U.S.C. Secs. 841(a)(1), 846 (1976)), and use of a firearm during the commission of a felony (18 U.S.C. Sec. 924(c)(1) (Supp. V 1981)). After a nine-day trial, both defendants were convicted of one of the two conspiracy charges and the attempt charge and acquitted on the other two counts. Pressler was sentenced to concurrent sentences of five years on each count, of which only the first six months had to be spent in prison. Taylor received sentences of five years imprisonment on the conspiracy count, followed by five years of probation on the attempt count.

I.

Search Warrant

Taylor contends that the warrant to search his house, yard, and vehicle was based on less than probable cause because the information in the supporting affidavit was either stale or was obtained from tracking the beeper device. The argument is meritless because the information obtained from tracking the beeper was not constitutionally infirm and amply corroborated the allegedly stale information.

The validity of a search warrant depends upon the sufficiency of what is found within the four corners of the underlying affidavit. United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1978). An affidavit is sufficient if it establishes probable cause; that is, if the stated facts would reasonably allow a magistrate to believe that the evidence will be found in the stated location. Id. Thus, contrary to Taylor's contention, the affidavit need not establish that it was "more likely than not" that evidence would be found or preclude other

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innocent interpretations for the activities at his house. The affidavit need only "enable the magistrate to conclude that it would be reasonable to seek the evidence in the place indicated by the affidavit." United States v. Hendershot, 614 F.2d 648, 654 (9th Cir.1980).

Deference is accorded to a magistrate's decision to issue a warrant. Martinez, 558 F.2d at 1234. Three "types" of information were offered in support of the search warrant in this case. First, the agent gave detailed information regarding Taylor's involvement in manufacturing amphetamines over the previous ten years. Second, the agent's affidavit incorporated the previous affidavit made by the same agent to obtain the warrant to install and track the beeper device. The beeper affidavit described the suspicious transactions at the chemical supply store and included an expert chemist's opinion that the chemicals were "probably" being used to manufacture illegal drugs. Third, the agent detailed the information derived from tracking the beeper to Coley's and Taylor's homes.

The information regarding Taylor's previous drug history was relevant in that it was consistent with the agent's and police chemist's opinions regarding the suspicious activities detailed in the two affidavits. Taylor's claim that the agent's information was stale overlooks the fact that the affidavit disclosed that the beeper still signalled that the box of precursor chemicals was at Taylor's residence the day the warrant was sought.

Taylor's contention that the electronic beeper violated his privacy rights in his home has been answered by United States v. Knotts, --- U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Brock, 667 F.2d 1311 (9th Cir.1982). In Knotts, the Supreme Court held that the tracking of a warrantless beeper placed in a drum of chloroform was neither a "search" nor a "seizure" within the meaning of the fourth amendment. 103 S.Ct. at 1087. There could be no expectation of privacy where the automobile...

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