U.S. v. Johns

• Decision Date: 04 November 1991
• Docket Number: 90-10009,Nos. 89-10597,s. 89-10597
• Citation: 948 F.2d 599
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Vernon JOHNS and Albert William Haberkorn, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 599

948 F.2d 599

UNITED STATES of America, Plaintiff-Appellee, v. George Vernon JOHNS and Albert William Haberkorn Defendants-Appellants.

Nos. 89-10597, 90-10009.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 3, 1991.

Decided Nov. 4, 1991.

Roger S. Hanson, Santa Ana, Cal., for defendants-appellants.

John K. Vincent, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before TANG, FARRIS and D.W. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

I. OVERVIEW

Appellants George Vernon Johns and Albert W. Haberkorn appeal the district court's denial of their motion to suppress evidence in connection with their prosecution for conspiracy to manufacture methamphetamine. The district court found that although the search of appellant Johns' storage locker did violate the Constitution, no suppression was required because the officers who conducted the search relied on the validity of the warrant in good faith. That ruling is affirmed.

We also uphold the district court's determination that the affidavit, redacted of any misrepresentations, contained sufficient evidence of probable cause to search. We also affirm the district court's ruling that the government's failure to disclose the existence of an informant it used in its investigation did not undermine its ability to rely on the warrant in good faith or negate probable cause to search. Finally, we hold that the district court did not err in excluding the appellants from an in camera hearing about that informant.

II. FACTS

On January 13, 1985, FBI agent John White applied for a search warrant for Unit 39 of the Kernville Mini-Storage in Kernville, California. After consulting with Assistant U.S. Attorney ("AUSA") Leighton, an AUSA of five years with three years of experience in prosecuting drug cases, White decided to apply for a "sneak and peek" warrant to gain surreptitious entry into the storage unit and photograph its contents. Leighton advised White that he had used a "sneak and peek" warrant before and that he knew of no prohibition against such searches. Leighton counseled White on what to state in the warrant application. Their plan was to watch the unit where they suspected certain chemicals were stored until they gained a lead about the location of the methamphetamine lab where the chemicals were used. The officers intended to notify the owners of the premises once an arrest was made or when they decided to conclude the surveillance.

White's affidavit accompanying the request for a search warrant stated that: 1) on January 10, 1985, federal agents "went to Unit 39 and detected no unusual odors emitting from the front of Unit 39," 2) Bray, a reserve deputy on the Kern County Sheriff's Office, was renting Units 10 and 11 at the Kernville Mini-Storage; these units were directly behind Unit 39 and separated from it only by a quarter-inch thick sheet of plywood, 3) on January 12, 1985, Bray and an investigator of the Kern County Sheriff's Office, Myers, visited unit 10 and 11, and 4) the men smelled an odor "which they both associated with the illicit manufacture of methamphetamine" coming from Unit 39; the odor was strongest at the rear of Unit 10, which was immediately adjacent to Unit 39. The affidavit further stated that Bray "has often smelled methamphetamine itself and the odor emitting from Unit No. 39 through Units No. 10 and 11 is consistent with the smell of methamphetamine, and inconsistent with any other activity." Based on this information, White asserted that there was probable cause to believe that Unit 39 contained chemicals utilized in the manufacture of methamphetamine.

In reliance upon this affidavit, a magistrate issued a search warrant for White to enter Unit 39 surreptitiously and examine its contents without taking anything. The agents and the magistrate discussed the fact that the agents would not give notice of the search when they first entered the storage locker, nor would they give notice for an indefinite period thereafter. The magistrate approved the warrant requiring only that they return to him an inventory of the items photographed.

The agents entered the unit on January 13, 1985, and photographed its contents. Inside they found boxes of chemicals and glassware commonly used in the manufacture of methamphetamine. After this initial search, the government placed agents near the storage unit to observe any activity. On January 26, 1985, agents observed someone bring more boxes to the unit. On March 2, 1985, they saw someone pick up the chemicals and take them to a lab at another building. Government agents searched the second building on March 11, 1985, discovered a methamphetamine laboratory, and arrested the appellants.

On April 2, 1986, appellants moved to suppress this evidence and for an evidentiary hearing on the validity of the search warrant. Their motion was denied.

On April 28, 1986, both Johns and Haberkorn entered a conditional plea of guilty to conspiracy to manufacture and distribute methamphetamine. After denying Johns' motion to reconsider the denial of his motion for an evidentiary hearing in light of United States v. Freitas, 610 F.Supp. 1560 (N.D.Cal.1985), rev'd, 800 F.2d 1451 (9th Cir.1986), the district court sentenced Johns to ten and Haberkorn to five years in prison.

On July 15, 1988, we issued an opinion in United States v. Johns, 851 F.2d 1131 (9th Cir.1988), holding that appellants had made a substantial preliminary showing that a hearing to test the validity of the affidavit was warranted under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We also remanded to determine whether the FBI agents relied in good faith on the "sneak and peek" warrant.

Following the Franks hearing, the district court found that the affidavit, redacted of any false statements or misrepresentations, still supported a finding of probable cause. The district court held the police relied on the warrant in good faith after consulting AUSA Leighton and the magistrate. Finally, the district court ruled that it was not error to exclude appellants from an in camera hearing on the government's informant, and that the failure to disclose the informant's existence did not undermine the government's good faith or affect the existence of probable cause.

III. DISCUSSION

A. Jurisdiction and Standard of Review

Our jurisdiction over this appeal rests on 28 U.S.C. § 1291 (1982). We focus here on the findings and conclusions of the district court on remand. All purely factual findings are reviewed under the clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200 n. 5 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Whether the agents' reliance on the warrant was objectively reasonable is reviewed de novo. United States v. Dozier, 844 F.2d 701, 707 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).

B. Probable Cause

Appellants contend that the affidavit supporting the search warrant did not support a finding of probable cause because it contained misrepresentations and material omissions. On appeal, the duty of a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982); United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987). In our review, we examine all circumstances set forth in the affidavit. Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332-2333. In doubtful cases, the reviewing court should give preference to the validity of the warrant. United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).

The search warrant contained several statements regarding the odors the agents smelled while visiting storage units 10 and 11. The affidavit states that when Deputy Myers opened the doors to his unit, both Investigator Bray and Myers detected a very strong odor "which they both associated with the illicit manufacture of methamphetamine." Bray stated that this odor was strongest at the rear of Unit 10, which shares a wall with unit 39. The affidavit also contained Bray's statement that the smell he detected in units 10 and 11 "is inconsistent with any activity other than the illicit manufacture of methamphetamine or the storage of chemicals used solely in the manufacture of methamphetamine."

During cross-examination at the Franks hearing, Leighton and Bray admitted that some of the statements in the unredacted affidavit were not true. Leighton admitted that he knew from his training that methamphetamine itself has no odor. Bray admitted that he was told in courses that methamphetamine manufactured under clinical conditions probably has no smell at all; the government's chemist also stated that he knew methamphetamine has no smell. Bray further conceded under questioning by the district court that the chemicals used in the manufacture of methamphetamine have other, legitimate purposes. Bray stated, however, that he was familiar with the smell of methamphetamine labs, a smell generated by the use of various chemicals during the process of making the drug.

After the Franks hearing, the district court redacted some, but not all of the untruthful statements from the affidavit. An examination of the affidavit shows that some offending statements remain. Specifically, the court left in the statement that Bray "has often smelled methamphetamine itself" and that the odor coming from Unit 39 "is consistent with the smell of methamphetamine, and inconsistent with any other activity." Since Bray and Leighton admitted that methamphetamine has no smell and that the chemicals could have been used for other activities, these statements...