U.S. v. Bertrand

• Decision Date: 15 February 1991
• Docket Number: 90-30038,Nos. 90-30015,s. 90-30015
• Citation: 926 F.2d 838
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrell Paul BERTRAND, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Owen RAPAE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 838

926 F.2d 838

UNITED STATES of America, Plaintiff-Appellee, v. Darrell Paul BERTRAND, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John Owen RAPAE, Defendant-Appellant.

Nos. 90-30015, 90-30038.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1991.

Decided Feb. 15, 1991.

Steven Jacobson, Asst. Public Defender, Portland, Ore., for defendant-appellant Rapae.

Hap Wong, Portland, Ore. for defendant-appellant Bertrand.

Leslie K. Baker, Asst. U.S. Atty., Portland, Ore. for plaintiff-appellee.

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

Before BROWNING, CANBY, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

John Owen Rapae and Darrell Paul Bertrand were convicted of various federal narcotics offenses. They appeal the district court's denial of their motions to suppress evidence, its application of the United States Sentencing Guidelines, and its holding that the Guidelines are constitutional. We affirm.

FACTS AND PROCEEDINGS BELOW

On May 16, 1989, Bertrand, Rapae and a third defendant were indicted on charges of: (1) conspiring to manufacture, possess with intent to distribute, and distribute controlled substances; (2) manufacturing methamphetamine; (3) possessing with intent to distribute methamphetamine; and (4) manufacturing marijuana. 21 U.S.C. Secs. 841(a)(1), 846, 853 (1988), and 18 U.S.C. Sec. 2 (1988). The third defendant pleaded guilty to count four and cooperated with the government. Bertrand pleaded guilty to all four counts, reserving his right to appeal the denial of the pretrial motions. Rapae tried his case to a jury and was convicted of counts 1 through 3 and acquitted of count 4.

This appeal arises from the following facts.

Based on firsthand observations and information provided by three informants, the Clackamas County Sheriff's Office believed defendants were operating a methamphetamine lab at their residence in Oregon City, Oregon. Officer Robert Lowe filed an affidavit with the Honorable Charles A. Sams, a state judge, requesting a warrant to search defendants' persons and residence. Lowe's affidavit detailed the information each informant provided, why the informant could be deemed reliable, ¹ and the extent to which the information had been corroborated by the police. Based on the affidavit, Judge Sams issued a search warrant commanding the police to search defendants' persons, residence and "real property."

The Sheriff's Office conducted a search of these areas which resulted in the seizure Appellants filed pretrial motions to suppress the evidence seized from their residence and property, claiming the affidavit filed in support of the warrant had not provided probable cause. In addition, Rapae filed a motion on his own behalf to suppress evidence seized from him during two arrests that took place several months before the raid on the drug lab. The district court denied the motions. Appellants were convicted and sentenced under the Sentencing Guidelines.

of 7 kilograms of methamphetamine, 25 marijuana plants, and other incriminating evidence. The methamphetamine was found in two PVC tubes hidden on the property surrounding defendants' residence. One tube was located in a hollow log and the other was found dangling over a cliff suspended by a wire. The police also obtained a warrant to search a travel trailer defendants had stored at a storage facility. This search uncovered 75 kilograms of ephedrine, a chemical used to make methamphetamine.

Appellants timely appeal.

ANALYSIS

I

Whether the Affidavit Provided Probable Cause to Search the

Property Surrounding Appellants' Residence

Appellants claim that, although the affidavit may have provided probable cause to search their residence and persons, it did not support the search of their outlying "real property."

We review a court's issuance of a search warrant for clear error and will uphold it so long as the court had a "substantial basis" for concluding probable cause existed based on the totality of the circumstances. United States v. Stanert, 762 F.2d 775, 778-79 (9th Cir.), amended on other grounds, 769 F.2d 1410 (9th Cir.1985). In reviewing the validity of a search warrant, we are "limited to the information and circumstances contained within the four corners of the underlying affidavit." Id. at 778; see also, United States v. Castillo, 866 F.2d 1071, 1076 (9th Cir.1988).

Appellants fault Lowe's affidavit because it did not specifically request permission to search the land surrounding appellants' residence. However, Judge Sams's search warrant did authorize the search of appellants' land, and Lowe's affidavit contained a wealth of information indicating drugs might be found on the land. The fact that Lowe did not specifically request to search the land is irrelevant, so long as the affidavit upon which the Judge relied provided probable cause for the search.

We conclude Officer Lowe's affidavit provided probable cause for the search. ² Lowe stated his information was based on the personal observations of three confidential informants. One of these informants, he said, had been to appellants' drug lab, had seen it operating, had seen large quantities of methamphetamine, and had sampled some of the drugs. This informant disclosed the most intimate details of the operation: how the drugs were processed, what equipment was used, and how the drugs were distributed. He also offered details concerning the personal histories of appellants and the role each played in the operation. Another informant told the police he purchased methamphetamine from appellants and that he had seen a guard armed with an automatic weapon patrolling their property. Finally, a relatively insignificant informant related that he had seen an unusually large number of cars arriving at appellants' residence in recent months.

The affidavit stated that some of the above information was corroborated by independent police investigations. In addition, it stated Lowe was an experienced narcotics investigator and that several of his personal observations indicated appellants were producing methamphetamine.

Appellants argue the affidavit listed few facts bearing directly on whether their real property might be a source of incriminating evidence. We believe, however, that the extensive descriptions of the drug operation located in appellants' main residence provided Judge Sams with a substantial basis for believing appellants' outlying property contained incriminating evidence as well. It is unimportant that the affidavit said relatively little about the land in particular as being a potential source of evidence. ³ As we have stated in the past, "[d]irect evidence that contraband or evidence is at a particular location is not essential to establish probable cause to search the location." United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986). Judges issuing warrants may "draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense." Id. (citation omitted). Here, Judge Sams reasonably could infer from the size of appellants' drug lab that evidence related to the lab might be found on the nearby land.

In sum, we hold the affidavit provided probable cause for Judge Sams's issuance of the warrant to search appellants' real property, despite the fact that the affidavit itself did not specifically request permission for such a search.

II The Inaccurate Statements in the Affidavit

Appellants claim Lowe's affidavit contained materially false information and that under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the district court should have held a hearing to determine whether the affidavit, when viewed without the incorrect statements, provided probable cause for Judge Sams's issuance of the search warrant. Franks holds:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless regard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. We agree with the district court that Lowe included inaccurate statements in his affidavit and that he arguably did so with reckless disregard for their truth. The district court correctly found, however, that even without these statements (i.e., assuming the statements are redacted from the affidavit), the affidavit still provided probable cause for the issuance of the warrant. ⁴

"Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard." United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988) (citations omitted). "Whether misstatements or omissions are material to a finding of probable cause is subject to de novo review." Id. (citation omitted).

Lowe's affidavit relied on information furnished by three informants. The inaccurate statements in the affidavit pertain to the reliability of those informants. The affidavit implied all three informants had provided the police with accurate information in previous criminal investigations. This was incorrect: Lowe and his fellow officers had no reason to believe their sources previously had served as informants. In addition to this error, the affidavit implied the second informant had revealed his identity to the police, when in fact he had remained anonymous. Finally, the affidavit suggested the third informant knew more about "drug culture" and the nature of methamphetamine than he actually did.

Officer Lowe's misstatements are inexcusable, and we by no means countenance them. However, the affidavit contains a plethora of information supporting Judge Sams's probable cause...