U.S. v. Terry

Citation911 F.2d 272
Decision Date09 November 1990
Docket NumberNo. 89-10121,89-10121
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edward TERRY, Defendant-Appellant.

Alan P. Caplan, San Francisco, Cal., for defendant-appellant.

Robert M. Twiss, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before SCHROEDER, NELSON and WIGGINS, Circuit Judges.

NELSON, Circuit Judge:

Defendant/Appellant Edward Terry was convicted for being a felon in possession of a firearm. He had been indicted on two drug related counts as well as the firearm count. There was a mistrial on the drug counts.

Terry appeals his conviction on four grounds. He argues that 1) the search of his residence where the gun was discovered was invalid; 2) the drug and firearm counts were misjoined; 3) there was not sufficient evidence to support his conviction; and 4) the trial judge erred by issuing a new instruction which redefined "constructive possession" without first affording counsel an opportunity to evaluate that instruction, formulate objections to it or to suggest a different response.

We find that there was sufficient evidence to convict and that the affidavit underlying the search warrant provided probable cause for the search. However, it was error for the district court to join all three counts and to instruct the jury in the midst of deliberations on a different and incorrect

definition of constructive possession. Therefore, we reverse the conviction and remand for retrial.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 1989, Terry intended to meet his wife and daughter at her parents' home in Pittsburg, California. That morning, however, his son David was arrested for possession of methamphetamine. After posting bond for his son, Terry took David to Terry's home. Shortly thereafter, two or three friends of David's arrived, stood in the driveway near Terry's pickup truck whose bed was covered, and spoke with David. Terry and a friend went into the house. After 15-20 minutes Terry came out and drove to Pittsburg.

Approximately 40 miles away from his residence, Terry was stopped by CHP Officer Paul Vacarezza. As he was driving behind Terry's truck, Vacarezza smelled a strong "chemical type" odor, which he suspected was methamphetamine. After following Terry's vehicle for awhile Vacarezza noticed a brownish liquid leaking from the bed of the vehicle. Vacarezza pulled the truck over.

Vacarezza and another officer first searched the cargo area of the truck under the cover. They found a gallon-size plastic milk container in a brown paper bag. Under the driver's side of the seat the police found plastic baggies containing a white powdery substance and $10,000 in U.S. currency bundled in mixed bills. The white powdery substance tested positive for methamphetamine. The brown liquid tested positive as Phenyl-2-Propanone (P-2-P), a precursor chemical for the manufacture of methamphetamine, which is itself a controlled substance under federal law. Terry was arrested and booked.

Eight days after Terry's arrest, Agent Wertman applied for a warrant to search Terry's home. Wertman's accompanying affidavit stated that in his experience methamphetamine traffickers usually keep currency and money derived from drug sales along with paraphernalia and records related to the sale of methamphetamine on their persons, in their residences or in attached structures. On the basis of this affidavit, a search warrant was issued.

Five days later, Agent Wertman and others searched Terry's home looking for methamphetamine and dangerous drugs, paraphernalia, records, articles of personal property showing the identity of persons in control of the premises, and currency. During the search the agents found nothing listed in the search warrant. However, Officer Stephen Harris found a shotgun on a shelf just inside the closet in the master bedroom.

Terry was subsequently indicted for possession of methamphetamine, distribution and possession of P-2-P with intent to manufacture methamphetamine, and being a felon in possession of a firearm. Because Terry had sustained three previous felony convictions between 1959 and 1973 the government included notice that it would seek sentence enhancement under the Armed Career Criminal Act. Before trial, Terry filed a Motion for Severance of Counts seeking to have the drug offenses tried separately from the firearm offense. The motion was denied.

At trial Agent Wertman and Officer Harris testified as to the actual seizure of the shotgun from the Terrys' bedroom closet noting that the gun was found on a shelf containing only the shotgun and men's boots. Wertman testified that the other side of the closet held only women's clothing. In addition to this testimony, the jury was read a stipulation that defendant had been convicted of a crime for which the maximum punishment included imprisonment in excess of one year and that the seized shotgun had been manufactured outside of the State of California.

One of Terry's witnesses, Mulcahy, testified that defendant had informed Mulcahy that he was not allowed to possess firearms because he was a felon. Paula Terry, appellant's wife, testified that the gun was given to her by her cousin for the purposes of protecting her family and that she knew her husband was not allowed to have guns. Paula also testified that she kept the shotgun on the shelf in the only closet which they shared. It was located on this shelf in At the end of the trial the district court agreed to use the jury instruction that both Terry and the government proposed. When the jury later expressed confusion over the language of the instruction, the judge submitted a new instruction to the jury using language substantially different from that of the first instruction. Defense counsel objected to the second set of jury instructions on constructive possession because its terms had not been defined to the jury and counsel had not been allowed to argue to the jury about how to evaluate the evidence in light of this instruction.

order to minimize their daughter's awareness of its presence and her ability to reach it. Paula Terry's cousin testified that he had given Paula the same shotgun that the government had seized.

The jury delivered a verdict of "guilty" as to Count Three, the firearms charge, and were 8-4 in favor of acquittal on the drug charges. The Court declared a mistrial as to those counts.

Terry filed a motion opposing the imposition of an enhanced sentence pursuant to 18 U.S.C. Sec. 924(e), which was denied. Terry was sentenced to the mandatory minimum term of imprisonment of 15 years without parole, a fine of $1000 and a 5-year term of supervised release. On March 9, 1989 Terry timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION
I. Probable Cause to Issue Search Warrant
A. Standard of Review

A magistrate's determination of probable cause to issue a search warrant is accorded great deference and is reversed only if that determination is clearly erroneous. United States v. Espinosa, 827 F.2d 604, 610 (9th Cir.1987), cert. denied 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). "[T]he traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1982) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987). "In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it." United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1987).

B. Legality of the Warrant

The warrant in this case was based on the Wertman affidavit. The affidavit contained two bases for probable cause: 1) the results of the search of Terry's truck; and 2) Agent Wertman's past experience that methamphetamine drug traffickers keep drugs, paraphernalia, records and money in their homes or adjoining structures.

A magistrate is permitted to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Hendricks, 743 F.2d 653, 655 (9th Cir.1984), cert. denied 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). He "need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). Moreover, "a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found." Fannin, 817 F.2d at 1382.

The Ninth Circuit has recognized that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live." Angulo-Lopez, 791 F.2d at 1399. Under the law of this circuit, then, Agent Wertman's

first hand knowledge of Terry's possession of methamphetamine and his experience with other drug dealers provided the magistrate with "a reasonable ground to believe" that contraband might be found in Terry's residence. United States v. Damitz, 495 F.2d 50, 55 (9th Cir.1974). We find, therefore, that the magistrate had a substantial basis for finding probable cause and issuing the warrant to search Terry's...

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