U.S. v. Becker
| Citation | 929 F.2d 442 |
| Decision Date | 29 March 1991 |
| Docket Number | No. 90-30095,90-30095 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Duskin Claude BECKER, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Deborah J. Dealy-Browning, Asst. U.S. Atty., Eugene, Or., for plaintiff-appellant.
Jay W. Frank, Moule & Frank, Eugene, Or., for defendant-appellee.
Appeal from the United States District Court for the District of Oregon.
Before WRIGHT, CHOY and THOMPSON, Circuit Judges.
This case is resubmitted for decision on March 8, 1991.
In this interlocutory appeal, the government appeals the district court's order suppressing evidence obtained by using a jackhammer to search beneath a concrete slab located on premises for which a search warrant had been issued. We have jurisdiction pursuant to 18 U.S.C. Sec. 3731 (1988). We reverse.
On June 2, 1989, a warrant was issued to search the residence of the defendant, Duskin Claude Becker. In particular, the search warrant authorized a search of
88852 Ross Lane, Springfield, Oregon located on the west side of Ross Lane approximately 1/4 mile from its junction with the McKenzie Highway, also known as Highway 126. The residence is single story, brown in color with cedar shake trim, and wood framed. The residence is surrounded by a cyclone fence and includes a brown colored shop with a metal roof in the backyard. A mail box to the right of the driveway depicts the name D. BECKER on it.
On June 3, 1989, agents from state and federal investigatory agencies executed the search warrant. At this time, agents observed a newly-poured concrete pad located near the shop. Documentary evidence seized during the search indicated that the concrete had been poured on or about May 19, 1989. Becker admitted that the concrete had been poured after a search warrant had been executed at his neighbor's home.
Agents then rented a jackhammer and removed portions of the concrete slab. Pieces of aluminum foil were discovered under the concrete and were seized. The foil tested positively for the presence of methamphetamine.
On August 18, 1989, a second warrant was issued to search the premises. This warrant specifically authorized the search of "[t]he carport and soil located beneath the concreted carport...." On August 22, 1989, agents executed this warrant and discovered and seized additional pieces of aluminum foil from under the concrete slab. This foil, too, tested positively for the presence of methamphetamine.
On February 12, 1990, the district court granted Becker's motion to suppress the evidence obtained as a result of the initial search under the concrete pad, finding that "the officers had plenty of time to obtain [another] warrant" and "[t]he search was obviously very intrusive in nature ..." Reporter's Transcript of Proceedings, February 12, 1990, at 38 (Motions Hearing). Further, "[t]o the extent that [evidence seized during the initial search] ... form[ed] the basis for establishing probable cause to secure the ... [second] warrant authorizing the search below the concrete pad," the district court also suppressed the evidence seized from under the concrete pad during the second search. Id. at 39.
The government then filed this interlocutory appeal pursuant to 18 U.S.C. Sec. 3731.
A threshold issue we must address is whether we have appellate jurisdiction to hear this interlocutory appeal from the district court's ruling on the motion to suppress. Notwithstanding the dicta in United States v. Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988), we conclude that we do.
People of the Territory of Guam v. Mafnas, 721 F.2d 683, 685 (9th Cir.1983) (quoting DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962)). Congress, however, broadened the government's right to appeal when it enacted 18 U.S.C. Sec. 3731. United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018-19, 43 L.Ed.2d 232 (1975). "[T]he legislative history of [section 3731] makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." Id.
[a]n appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence ... not made after the defendant has been put in jeopardy and before the verdict ..., if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
In the present case, Becker's counsel asserted for the first time at oral argument on November 5, 1990 that the government had not filed the required certificate with the district court. We deferred submission of the case to allow the government to respond to this newly-presented issue. On November 8, 1990, the government filed the certificate with the district court, and on November 13, 1990, moved this court for permission to supplement the record on appeal with the filed certificate. Becker opposed the motion citing United States v Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988).
In Eccles, the government failed to provide the requisite certificate to the district court until after this court heard oral argument. Id. at 1359. The Eccles court reluctantly permitted the late filing of the certificate, stating that
[p]recedent ... compels us to allow the government to perfect jurisdiction in this case by filing the appropriate certificate after oral argument. We recognize, however, that a general rule excusing the government from filing a certificate until after oral argument would eviscerate the statutory requirement that the United States attorney certify that the appeal has not been taken to delay trial. See 18 U.S.C. Sec. 3731. We therefore follow the lead of the Fifth Circuit in United States v. Herman, 544 F.2d 791, 794 (5th Cir.1977), and "serve notice upon [the government] that we will entertain no future section 3731 appeals unless the appropriate certificate is incorporated in the record on appeal."
Here we choose to exercise our discretion to allow the government to supplement the record on appeal. See Fed.R.App.P. 10(e). Hence, the certificate is " 'incorporated in the record on appeal' " (Eccles, 850 F.2d at 1360) (quoting Herman, 544 F.2d at 749), and the government's appeal is not precluded by the dicta quoted from Eccles.
This exercise of our discretion is consistent with Fed.R.App.P. 3(a) which provides, in pertinent part, that the "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." 1 Thus, permitting the late filing of such a certificate falls within the discretion of the court. This result is also consistent with section 3731, which provides that "[t]he provisions of this section shall be liberally construed to effectuate its purposes."
Moreover, we find no indication that Becker has been prejudiced by the failure of the government to file the certificate earlier than it did. First, Becker was not incarcerated during the pendency of this appeal, but was free on bond. Second, any delay occasioned by this appeal has already been incurred and vacating this appeal would not prove curative.
Our decision to permit the record on appeal to be supplemented by the section 3731 certificate now filed in the district court is further buttressed by the fact that Becker's counsel deliberately obfuscated the issue by stating in his brief that he "disagree[d] with the government's statement that this court has jurisdiction pursuant to 18 U.S.C. section 3731." He gave no indication that he considered our appellate review was foreclosed by the circumstance of the unfiled certificate. Instead, he waited until oral argument to raise the issue. Had the issue been raised earlier, it could have been dealt with before this panel invested considerable time and energy in reading the briefs, reviewing the record, and preparing for oral argument.
We reject the contention that our appellate jurisdiction is defeated by the late filing of the section 3731 certificate. In this, we are joined by the Eccles court. In Eccles, the court adjudicated the case before it. In so doing, it is plain the court determined it had jurisdiction to decide the case. Indeed it did. As this Circuit stated in Meier v. Keller, 521 F.2d 548, 553 (9th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976), "[w]hile ... delay [in the filing of a section 3731 certificate] is not to be regarded with favor, ... it does not rise to jurisdictional dimensions." Accord United States v. Wolk, 466 F.2d 1143, 1146 n. 2 (8th Cir.1972); United States v. Kleve, 465 F.2d 187, 189-90 (8th Cir.1972); United States v. Welsch, 446 F.2d 220, 224 (10th Cir.1971).
Turning to the merits of the case, the issue is whether the use of a jackhammer to search beneath the concrete slab was unreasonable. "A warranted search is unreasonable if it exceeds in scope or intensity the terms of the warrant." United States v. Penn, 647 F.2d 876, 882 n. 7 (9th Cir.) (en banc), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980). Whether officers exceeded the scope of a warrant during a search is reviewed de novo. See United States v. McLaughlin, 851 F.2d 283, 286 (9th Cir.1988)....
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...but does require us to decide whether to exercise our discretion under F.R.App.P. 3(a) to dismiss the appeal. See United States v. Becker, 929 F.2d 442, 445 (9th Cir.1991). While "the complete failure to file a certificate would clearly constitute a violation of the statute," id. at n. 1, w......
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