U.S. v. Alexander

• Citation: 761 F.2d 1294
• Decision Date: 18 March 1985
• Docket Number: Nos. 83-5279,s. 83-5279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Ryan ALEXANDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Helmur Alfonso Lazarte VIZCARRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis Felipe Pino SOLARI, Defendant-Appellant. to 83-5281.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1294

761 F.2d 1294

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Ryan ALEXANDER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Helmur Alfonso Lazarte VIZCARRA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Luis Felipe Pino SOLARI, Defendant-Appellant.

Nos. 83-5279 to 83-5281.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 6, 1984.

Decided March 18, 1985.

Ralph C. Hofer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Michael D. Nasatir, Nasatir & Hirsch, Los Angeles, Cal., for Alexander.

Joseph F. Walsh, Los Angeles, Cal., for Vizcarra.

Yolanda Orozco, Deputy Federal Public Defender, Thomas J. Lannen, Federal Public Defender, Los Angeles, Cal., for Solari.

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

Before WALLACE, FLETCHER, and REINHARDT, Circuit Judges.

WALLACE, Circuit Judge:

Alexander, Lazarte-Vizcarra (Lazarte), and Solari were indicted for conspiracy to distribute cocaine and conspiracy to possess cocaine with intent to distribute, possession of cocaine with intent to distribute, and the manufacture of cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. Initially, Alexander, Lazarte, and Solari entered pleas of not guilty. After the district court denied motions to suppress evidence and for discovery of investigative information and informants' identities, however, they entered conditional pleas of guilty under Fed.R.Crim.P. 11(a)(2), and were convicted. Pursuant to that rule, "the adverse determination of any specified pretrial motion" may be preserved by agreement for review on appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm.

I

On January 18, 1983, Los Angeles police officers noticed the odor of ether, a chemical used in the manufacture of cocaine, emanating from a rental truck. The driver was identified as Marchetti, whom the officers believed was involved in narcotics trafficking in 1978. The police followed the truck to Marchetti's house in Westlake Village. They continued their surveillance, and the next day followed Marchetti as he drove the truck to a remote area of Nipomo, California, where the truck disappeared through a gate into a ranch surrounded by a fence and a grove of eucalyptus trees. The officers could not observe activities on the ranch through the trees. From January 19, 1983 to March 13, 1983, the police conducted periodic overflights with unidentified aircraft of the ranch. The aerial surveillance revealed in great detail the construction of what the officers believed to be a cocaine manufacturing facility.

On January 25, 1983, officers smelled the odor of acetone, another chemical used in cocaine manufacturing, emanating from the same truck while it was parked in Marchetti's driveway. On January 29, Marchetti made a second trip to the ranch in the truck. The officers also observed Marchetti obtain cardboard containers from a supply company that had supplied equipment to illegal laboratories in the past. The officers learned that Marchetti purchased a 60-ton jet hydraulic press of a kind used in illegal laboratories, and observed him loading a heavy object with the same markings as the press onto another truck. On February 8, the officers followed Marchetti as he drove this truck with the crate to the Nipomo ranch.

The police observed Marchetti meet at his home with two men identified with smuggling and cocaine manufacture. One of the men was Jaime Echegoyen, a codefendant in this case. He and his brother Rodolfo, also a codefendant, were connected with cocaine trafficking and had outstanding felony warrants for their arrest at the time the police observed the meetings. The police also received tips from three informants about the construction of an illegal cocaine manufacturing plant on the ranch near Nipomo. Two of the informants had provided reliable information to police in the past.

Armed with this information and other allegations, Los Angeles Detective Bitterolf executed a thirty-page affidavit in support of an application for a search warrant of the Nipomo ranch. On March 15, 1983, a California municipal judge in San Luis Obispo County issued search warrant # 1325. On March 16, 1983, police officers served and executed the warrant. The officers searched the ranch, and discovered approximately 70 pounds of cocaine and a cocaine processing plant. The officers discovered Lazarte in a mobile home approximately 220 yards from the processing sheds. They discovered Alexander in a small trailer some twenty yards from the mobile home, and found Solari sleeping in an abandoned automobile parked near the processing sheds. The police seized numerous items used in cocaine manufacturing from the processing sheds, and seized other items, including empty beer cans, wine bottles, and glasses. Alexander, Lazarte, and Solari were arrested on the ranch. On March 18, 1983, a magistrate issued search warrant # 1326 to inspect the clothing of the arrestees. The clothing contained cocaine residue.

II

Alexander argued to the district court and to us that both California constitutional law and federal constitutional law apply to this action. The district court concluded that state law did not apply, but that even if it did, the result would be the same. We review the district court's decision on this issue de novo. Cf. In re McLinn, 739 F.2d 1395, 1398 (9th Cir.1984) (en banc) (district court's interpretation of state law reviewable de novo).

Alexander relies on Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), for the proposition that this court must look to California law to determine the validity of searches and seizures undertaken by California officers if no federal officers are involved. Whether state or federal standards should apply when evidence seized by state officers is offered in a federal prosecution is an issue that we have left unresolved. See United States v. Henderson, 721 F.2d 662, 665 (9th Cir.1983) (per curiam), cert. denied, --- U.S. ----, 104 S.Ct. 2665, 81 L.Ed.2d 370 (1984). Once more, we conclude that we need not reach this issue. Even if California law were to apply, it would not change any result we might reach.

In 1982, California voters enacted Proposition 8, "The Victim's Bill of Rights," which amended the California constitution and which provides in part: "relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post-conviction motions and hearings...." Cal. Const. art. 1, Sec. 28(d). The government argues that Proposition 8 eliminated the independent bases for exclusion under the California constitution for search and seizure violations, rendering California and federal law identical on these issues. We agree. The California Supreme Court recently interpreted Proposition 8, and concluded that the vicarious exclusionary rule under California law was abrogated by the amendment. In re Lance W., 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 634, 694 P.2d 744, 747 (1985). The court concluded that Proposition 8 did not affect the substantive rights granted by the California constitution, but only affected the remedy:

What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution. What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, except to the extent that exclusion remains federally compelled.

Id. at 887, 210 Cal.Rptr. at 639, 694 P.2d at 752 (emphasis in original). Accord People v. Daan, 161 Cal.App.3d 21, 22, 27-29, 207 Cal.Rptr. 228, 230-32 (1984). Thus, we conclude that whether California law applies is immaterial, since whether any evidence must be excluded is judged solely under the standards imposed by the federal Constitution.

Lance W., however, applies only to admissibility of evidence gathered in violation of the fourth amendment and its California analog. The California Supreme Court expressly declined to decide whether Proposition 8 also applied to other constitutional violations. 37 Cal.3d at 885 n. 4, 210 Cal.Rptr. at 638 n. 4, 694 P.2d at 751 n. 4. Therefore, one issue before us, the government's failure to disclose the identity of its informants, is not controlled by Lance W. However, our analysis would be the same under either California or federal law. Neither system requires disclosure when the informant is not a material figure in the conspiracy. See, e.g., People v. Wilks, 21 Cal.3d 460, 468-69, 146 Cal.Rptr. 364, 369-70, 578 P.2d 1369, 1374 (1978) (Wilks ); Theodor v. Superior Court, 8 Cal.3d 77, 87-91, 104 Cal.Rptr. 226, 233-36, 501 P.2d 234, 241-42 (1972); cf. United States v. Ordonez, 737 F.2d 793, 808 (9th Cir.1984) (authorizing disclosure when informant was central to the conspiracy). Since we conclude in Part VI infra that the informants were not central to the conspiracy, but "simply point[ed] the finger of suspicion," Wilks, 21 Cal.3d at 469, 146 Cal.Rptr. at 370, 578 P.2d at 1374, the result would be the same under either federal or California law.

The challenges in this appeal may be grouped into three general categories: (1) challenges to the sufficiency of the warrant authorizing the search of the Nipomo Ranch (# 1325); (2) challenges to the execution of that search warrant; and (3) challenges to the district court's denial of motions to discover investigative information and to compel disclosure of the identities of the government's informants.

III

A.

Alexander asserts that the warrantless overflights of the Nipomo ranch were unlawful because they violated his reasonable expectation of privacy. He argues that because the information gleaned from the overflights formed a...