817 F.2d 1379 (9th Cir. 1987), 86-1118, United States v. Fannin

Docket Nº:86-1118.
Citation:817 F.2d 1379
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John FANNIN, Defendant-Appellant.
Case Date:May 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1379

817 F.2d 1379 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


John FANNIN, Defendant-Appellant.

No. 86-1118.

United States Court of Appeals, Ninth Circuit

May 21, 1987

        Argued and Submitted April 15, 1987.

Page 1380

        Dennis P. Riordan, Harold J. Rosenthal, San Francisco, Cal., for the defendant-appellant.

        Sanford Svetcov, San Francisco, Cal., for the plaintiff-appellee.

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

        Before HUG, NELSON and NOONAN, Circuit Judges.

        NELSON, Circuit Judge:

        John Fannin appeals from the district court's denial of his motion to suppress evidence admitted at his trial. Fannin was convicted in the district court on nineteen counts of attempted drug importation and distribution, illegal transport of money, conspiracy to import drugs, and related offenses. He contends that evidence seized from his home and introduced at trial was obtained pursuant to an invalid warrant and thus should have been suppressed. We affirm.


        On August 9, 1984, agents of the Drug Enforcement Agency ("DEA") and the Internal Revenue Service ("IRS") conducted a search, pursuant to a warrant, of the residence of defendant John Fannin. The search warrant had been issued by a magistrate earlier the same day, based on an affidavit submitted by DEA Agent Lowrey Leong. Agent Leong's affidavit recounted the following.

        In July 1984, Agent Leong was informed by a Special Agent of the U.S. Customs Service that a shipping container filled with hashish had arrived at the American Presidents Line's ("APL") terminal in Oakland, California. The container was kept under surveillance by DEA and Customs agents, but no one claimed it. In early August, Agent Leong met a confidential informant who put Leong in touch with a woman, Patricia Tillman, who was trying to steal the shipment of hashish out of the APL terminal. Agent Leong, acting undercover, offered to get the container out of the APL terminal for a fee of $30,000. Tillman told Agent Leong that he would have to meet with two or three of her associates in order to finalize the deal.

        Agent Leong met on August 8, 1984 with two men, Vince and Stewart, as arranged by Tillman. The men discussed the scheme to steal the hashish shipment and Agent Leong continued to negotiate his fee for doing the job. At this point a man named Johnny, later identified by Agent Leong as defendant John Fannin, arrived carrying a brown paper bag. Fannin said that he understood that Leong wanted $30,000 and that he had brought the money with him. Leong then demanded $100,000 to remove the container of hashish from the APL terminal. The three men eventually agreed to pay Leong $100,000 and to meet the next day at a restaurant to give Leong the money.

        On August 9, 1984, Agent Leong met again with Vince and Stewart. Fannin did not appear for the meeting. The two men told Leong that they had $100,000 in their car. Vince left the restaurant and returned with a canvas sack containing the money. DEA agents arrested Vince and Stewart immediately.

        The affidavit also stated that Agent Leong had been a Special Agent for the DEA for approximately fourteen years and had participated in more than 500 investigations of federal narcotics and financial investigations and more than 100 searches of premises owned or used by traffickers in narcotics. Leong stated that, based on his experience and training, he believed it typical for narcotics traffickers to maintain in their residences books and records of illegal transactions, address and telephone books showing the identities of their customers

Page 1381

and suppliers, as well as cash, narcotics, and narcotics paraphernalia. Agent Leong also relied on the opinion of IRS Special Agent Jack McMenimen, who had worked closely with DEA, FBI, and U.S. Customs Agents over the course of eleven years. Special Agent McMenimen confirmed Leong's conclusion that drug traffickers typically keep in their residences the records and items described in the affidavit.

        Based on the information provided in Agent Leong's affidavit, a magistrate issued a search warrant for Fannin's residence. The affidavit was attached to the search warrant and incorporated by reference therein. The warrant authorized the seizure of a variety of items, including correspondence, bank records, photographs, telephone answering devices, currency, ledgers, and other items providing evidence of illegal trafficking in controlled substances, profits derived from such trafficking, and the identities of persons engaged in such trafficking; hashish and other controlled substances and drug paraphernalia; documents and items tending to establish ownership and control of the premises and the property therein; and

other evidence, at this time unknown, of the specific crimes and fruits of the crimes described in the supporting affidavit, namely the commission of, conspiracy to commit, and the aiding and abetting and causing of the following: offenses pertaining to the unlawful importation, possession, and distribution of controlled substances ... and Interstate and Foreign Travel and Transportation in Aid of Racketeering.... The above described items are the fruits, instrumentalities, and evidence of violations of the above offenses.

        On August 9, 1984, DEA and IRS agents executed the search of defendant Fannin's residence. They...

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