U.S. v. Feeney

• Decision Date: 01 February 1993
• Docket Number: Nos. 91-10589,91-10606,PENNY-FEENE,D,s. 91-10589
• Citation: 984 F.2d 1053
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean FEENEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Janiceefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1053

984 F.2d 1053

UNITED STATES of America, Plaintiff-Appellee, v. Sean FEENEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Janice PENNY-FEENEY, Defendant-Appellant.

Nos. 91-10589, 91-10606.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 15, 1992.

Decided Feb. 1, 1993.

Thomas P. Dunn, Honolulu, Hawaii, for defendant-appellant Sean Feeney.

Alexander Silvert, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant-appellant Janice Penny-Feeney.

Marshall H. Silverberg, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: HUG, PREGERSON, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Defendant Janice Penny-Feeney and her husband, co-defendant Sean Feeney, appeal the district court's denial of their various motions to suppress physical evidence in their federal drug and firearm prosecution. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The Feeneys' appeal was timely filed under Fed.R.App.P. 4(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I. FACTS

A detailed description of the investigatory and factual background of this case is provided in the district court's erudite and well-reasoned opinion, which is reported at United States v. Penny-Feeney, 773 F.Supp. 220 (D.Hawaii 1991). We briefly summarize that background below.

Defendant Janice Penny-Feeney and her husband, co-defendant Sean Feeney, were indicted on January 9, 1991, on three counts involving federal drug and firearm violations. The indictment stemmed from an investigation that lasted approximately two years and that culminated in a raid on the Feeneys' Hawaii home on April 3, 1990. The Feeneys moved to suppress all physical evidence that was seized pursuant to a state search warrant authorizing the April 3, 1990, raid. The search warrant was based on an affidavit by a Hawaii State officer, Officer Char, that included: (1) four 1989 tips from an anonymous female informant that resulted in a search, executed pursuant to a warrant, of a package that was mailed to Janice Penny-Feeney from California and that ultimately contained $2700 in drug tainted money; (2) a 1990 tip from an anonymous male informant who contended that Janice Penny-Feeney had been growing marijuana in her Hawaii home for three years; (3) a 1990 tip from a known male informant who detailed Janice Penny-Feeney's growing operation and identified as her associates Tony Vicar and Debbie Loo; (4) Officer Char's corroborating information; and (5) readings taken by a forward looking infrared device (FLIR) during Officer Char's helicopter surveillance of the Feeneys' home.

The district court denied all of the Feeneys' various motions to suppress physical evidence, concluding that (1) the Hawaii State police's use of an FLIR during helicopter surveillance of the Feeneys' home did not violate the Fourth Amendment's prohibition against unreasonable searches, and (2) that the tips from the three informants, coupled with Officer Char's corroborating information, amounted to probable cause for the warrant authorizing the April 3, 1990, raid independent of the FLIR readings. The Feeneys then entered a conditional guilty plea, reserving for appeal the issue of whether the district court erred in denying their motions to suppress physical evidence. We affirm the district court's conclusion that the Hawaii State police demonstrated probable cause for the warrant authorizing the April 3, 1990, raid independent of the FLIR readings. Because we do so, we need not and do not address whether any aspect of Officer Char's use of an FLIR during helicopter surveillance of the Feeneys' home violated the Fourth Amendment's prohibition against unreasonable searches.

II. STANDARD OF REVIEW

We review de novo motions to suppress evidence. United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992); United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988). We review for clear error the trial court's factual findings. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992).

III. DISCUSSION

Abiding by the dictates of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and United States v. Landis, 726 F.2d 540 (9th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984), we unhesitatingly agree with the district court's conclusion that the Hawaii State police demonstrated probable cause to execute their April 3, 1990, raid on the Feeneys' home independent of the FLIR readings.

In Gates, the Supreme Court held that a magistrate should evaluate whether an informant's tip establishes probable cause for issuance of a warrant "under the totality of the circumstances."

The 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. And the 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 238-39, 103 S.Ct. at 2332 (citations omitted).

In Landis, this court held that, in evaluating whether there is a substantial basis for concluding that an affidavit in support of a warrant established probable cause, "[i]nterlocking tips from different confidential informants enhance the credibility of each." Landis, 726 F.2d at 543.

As the district court pointed out, this case involves three separate interlocking sources of information. First, in 1988 an anonymous female informant made four separate phone calls in which she identified Janice Penny-Feeney as a seller of marijuana and in which she stated that Janice Penny-Feeney previously had sold narcotics while living in California and had continued to do so in Hawaii. Based on...