U.S. v. Stanert

• Citation: 762 F.2d 775
• Decision Date: 28 August 1985
• Docket Number: No. 84-5128,84-5128
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley Mills STANERT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 775

762 F.2d 775

UNITED STATES of America, Plaintiff-Appellee, v. Stanley Mills STANERT, Defendant-Appellant.

No. 84-5128.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1984.

Decided June 5, 1985.

As Amended Aug. 28, 1985. ^*

Roger W. Haines, Jr., Maria T. Arroryo-Tabin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Craig E. Weinerman, San Diego, Cal., for defendant-appellant.

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

Before GOODWIN, POOLE, and BOOCHEVER, Circuit Judges.

POOLE, Circuit Judge:

Stanley Mills Stanert appeals his conviction for conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 846. He contends that the district court improperly denied his pretrial motion to suppress evidence found at his residence and challenges the sufficiency and accuracy of the affidavit used to obtain the search warrant. We agree with appellant that he is entitled to an evidentiary hearing to challenge the validity of the search warrant.

I. Facts

On 7 December 1983, a California Municipal Court Judge issued a telephonic search warrant permitting police to search Stanert's residence in Cardiff-by-the-Sea, California. In her oral affidavit in support of the warrant, Agent Hanlon, a San Diego Sheriff's officer assigned to the Narcotics Task Force, stated that she believed there to be a clandestine laboratory in the residence. Her information was largely based on information received by Drug Enforcement Administration (DEA) Agent Blacklock. Blacklock was standing next to Hanlon when she delivered her oral affidavit, and the affidavit related the following facts.

The day before, an anonymous male had phoned Blacklock to inform him that the occupants of 2476 Newcastle Drive were using ether either to free-base cocaine or to manufacture some type of drug. The caller stated that he was a biochemist familiar with the smell of ether and that this smell was very strong in the evening hours throughout the neighborhood. The next day a different anonymous male phoned Blacklock also to complain of a strong ether smell emanating from the residence. The second caller stated that he had walked by the residence and observed the doors on each side of the house open as if ventilating the residence. In addition, the caller informed Blacklock that the occupant of the house drove a white Mercedes Benz automobile with California license plates ORZ 572 and had identified himself to the caller as "Stan." Blacklock checked with the California Department of Motor Vehicles and discovered that the license number was listed to a 1964 Mercedes Benz registered to defendant at the residence in question. He also checked DEA records and discovered that Stanert was suspected of being involved in marijuana and cocaine smuggling and that in 1980, Stanert had been arrested in Panama with approximately 14 pounds of cocaine.

Blacklock then contacted Agent Nielsen of the Internal Revenue Service (IRS). Nielsen informed Blacklock that as part of a continuing investigation being conducted by the IRS, a confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. Blacklock knew the informant, and from his own personal participation in several investigations, knew the informant to be reliable. Blacklock advised Hanlon that he had never known the informant to give false or misleading information.

Based on the complaints by the anonymous callers of the strong ether smell, Hanlon and another agent went to the vicinity of Stanert's residence whereupon they also detected the overwhelming odor of ether. When the agents arrived at the residence, the doors to the house were closed, and the officers observed a vehicle that appeared to be a Mercedes Benz. The previous year, Hanlon had investigated a clandestine laboratory at the residence which had blown up due to the ignition of ether fumes.

Hanlon set forth the foregoing facts in an oral affidavit to a judge of the Municipal Court of San Diego County. The judge of that court thereupon issued a search warrant for Stanert's residence. Agents executed the warrant and seized cocaine, scales, $3,650 in cash and drug paraphernalia. Neither laboratory equipment nor ether was found on the premises. Stanert was arrested, and soon after, a federal grand jury returned a one-count indictment charging him with a violation of 21 U.S.C. Sec. 841(a)(1) (possession of a controlled substance with intent to distribute).

Stanert sought suppression of all items seized during the search of the residence. He challenged both the sufficiency and veracity of Hanlon's affidavit. Stanert requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming that the affidavit contained the following material misrepresentations and omissions: (1) Hanlon misrepresented the information given by the 6 December 1983 anonymous caller because that caller never stated that the occupants of the house were using ether to manufacture some type of drug and only told Blacklock that it was the caller's opinion that the occupants were probably free-basing cocaine; (2) Hanlon's representations concerning the smell of ether were fabricated and untrue; (3) Hanlon misrepresented by omission Stanert's Panama arrest by failing to inform the judge that the government's records indicated that Stanert apparently had not been convicted of any offense; (4) Hanlon misrepresented the earlier explosion at Stanert's residence by failing to tell the judge that Stanert had purchased and moved onto the property some time after this explosion; and (5) Hanlon neglected to advise the judge that the agents had unsuccessfully sought a search warrant from another judge. Stanert also contended that the confidential informant was Louis Villar and that Villar could not have told Nielsen that defendant was involved in the manufacturing of synthetic cocaine because such a substance does not exist. Stanert asked the court to conduct an in camera hearing on the informant's identity pursuant to United States v. Kiser, 716 F.2d 1268 (9th Cir.1983).

The district court found that Stanert had not established "enough of a position in order to suppress the warrant." Thus, Stanert's motion for an evidentiary hearing was denied because Stanert had failed to present evidence sufficient to justify suppression. Stanert was convicted on stipulated facts of a new charge of violating 21 U.S.C. Sec. 846 (conspiracy to possess with intent to distribute a controlled substance) brought in a superceding information. The district court sentenced him to a three-year term. This appeal followed.

II. Sufficiency of the Affidavit.

A search warrant, to be valid, must be supported by an affidavit establishing probable cause. In reviewing the validity of a search warrant, a court is limited to the information and circumstances contained within the four corners of the underlying affidavit. United States v. Taylor, 716 F.2d 701 (9th Cir.1983). Stanert argues that the Hanlon affidavit failed to support the necessary determination of probable cause to believe that his residence housed an illicit laboratory. We disagree.

Probable cause determinations are to be made by viewing the "totality of the circumstances" set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Because probable cause is a fluid concept not readily, or even usefully, reduced to a neat set of legal rules,

[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. 462 U.S. at 238, 103 S.Ct. at 2332.

We apply a narrow standard of review to a magistrate's decision to issue a search warrant. United States v. Estrada, 733 F.2d 683, 684 (9th Cir.1984). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. We may not reverse such a conclusion unless the magistrate's decision is clearly erroneous. United States v. Estrada, 733 F.2d at 684; United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984).

The judge in this case issued the search warrant on the basis of the Hanlon oral affidavit. We find that the totality of circumstances as set forth in the affidavit provided the judge with a substantial basis for concluding that probable cause existed to search Stanert's residence.

A confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. "To credit a confidential source's information in making a probable cause determination, the affidavit should support an inference that the source was trustworthy and that the source's accusation of criminal activity was made on the basis of information obtained in a reliable way." United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984). Although the tip in this case came from an informant who had demonstrated reliability, the information reported represents a bare conclusion which fails to reveal the informant's basis of knowledge, i.e., whether the informant was relying on something more substantial than casual rumor. In addition, the statement does not purport to reveal the location of the alleged laboratory and certainly does not locate it at 2476 Newcastle Drive.

These deficiencies, however, do not foreclose a finding of probable cause. Under a totality of the circumstances analysis, "a deficiency in one [area] may be compensated for, in determining the overall reliability of a tip,...