U.S. v. Burnes

• Decision Date: 07 May 1987
• Docket Number: No. 86-5119,86-5119
• Citation: 816 F.2d 1354
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Edgar BURNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1354

816 F.2d 1354

UNITED STATES of America, Plaintiff-Appellee, v. Jack Edgar BURNES, Defendant-Appellant.

No. 86-5119.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1987.

Decided May 7, 1987.

Thomas K. Buck, Los Angeles, Cal., for defendant-appellant.

Dennis A. Fischer, Santa Monica, Cal., for plaintiff-appellee.

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

Before PREGERSON and NORRIS, Circuit Judges, and LOVELL, ^* District Judge.

LOVELL, District Judge:

Following the district court's denial of his motion to suppress evidence, Jack Edgar Burnes entered a conditional guilty plea, pursuant to Fed.R.Crim.P. 11(a)(2), to one count of possession with intent to distribute methamphetamine, a Schedule II controlled substance. The court fined Burnes $25,000 and sentenced him to six years imprisonment plus a special five year parole term. Burnes appeals his conviction and sentence on the grounds that the district court erred in denying his request for an evidentiary hearing to consider the validity of an affidavit supporting a search warrant, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the Drug Enforcement Administration (DEA) lacks authority to reclassify methamphetamine as a Schedule II controlled substance. We affirm the judgment of the district court.

I. Background

By indictment filed in November, 1985, Burnes was charged with one count of possession with intent to distribute 2,196 grams of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). A second count charged possession of an unregistered firearm, in violation of 26 U.S.C. Secs. 5845(a)(7), 5861(d), and 5871. ¹

The search warrant which led to the filing of the indictment was executed at defendant's residence by federal and California state officers on July 26, 1985. During the search, the officers seized approximately 2,196 grams of methamphetamine and a .45 caliber silencer. The search warrant was issued on the basis of the affidavit of Richard L. Dickerson, an agent of the California Bureau of Narcotics Enforcement.

In his affidavit, Dickerson stated that he had more than 21 years of experience in law enforcement and more than 17 years of experience in the investigation of narcotics cases. The affidavit also noted that Agent Wadkins, another 17-year veteran of the Bureau of Narcotics Enforcement, had participated in the investigation.

The affidavit stated that on July 24, 1985, Dickerson, Wadkins, and other agents were conducting a surveillance of ChemLab, a chemical supply outlet, in Placentia, California, when Wadkins observed a female adult enter the Chem-Lab building. The woman came out of Chem-Lab with several bottles and boxes, including a plastic bottle about one foot tall with a wide mouth, which she placed in the passenger compartment of her car. Agent Wadkins told Dickerson that he had seen similar plastic bottles on previous occasions and that those bottles had contained ephedrine. Ephedrine is used in the manufacture of methamphetamine. Based on Wadkins' experience and observations, Dickerson believed the bottle contained ephedrine.

Agents followed the woman to Burnes' residence. For approximately two minutes, the agents were unable to observe the woman or her car. After the woman left Burnes' residence, the agents followed her to another location, and at that time were able to observe that the items obtained at Chem-Lab were no longer in the passenger compartment of the woman's car. Because the woman and her vehicle had been under constant surveillance except for the two minute gap at Burnes' residence, Dickerson concluded that the woman had taken the chemical supplies into the residence.

Burnes' residence was kept under surveillance from 2:00 P.M. on July 24 until 8:30 P.M. on July 25 and from 7:30 A.M. on July 26 until the execution of the warrant later that day. The affidavit stated that during the afternoon and evening of July 24, the agents observed the arrival and departure of 15 vehicles, and that someone from each vehicle "would enter the residence, remain inside for a short period of time, five to twenty minutes[,] and then leave." Dickerson stated that in his experience such activity was "consistent with and exclusive to trafficking in controlled substances."

Additional statements set forth in the affidavit included an agent's observation of Burnes returning to the residence at 6:30 P.M. on July 25. Burnes was followed by another vehicle which drove around the immediate area for approximately five minutes before stopping at the residence. During that time, the driver appeared to be looking around at vehicles parked in the area. Dickerson stated that in his experience persons engaged in narcotics trafficking often use associates to conduct counter-surveillance activity.

Also included in the affidavit were reports of information regarding Burnes received from informants in 1980 and 1983. Dickerson interviewed two informants in 1983 who reported their purchases of methamphetamine from Burnes "on numerous occasions until 1982." FBI investigators provided information from other informants regarding the manufacture of narcotics by Burnes in early 1983.

Claiming that the affidavit contained deliberate or reckless omissions and misstatements, Burnes moved to suppress all evidence obtained pursuant to the execution of the search warrant. Burnes requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court held that Burnes had failed to make a substantial showing of deliberate or reckless omissions or false statements material to a determination of probable cause. Consequently, the court denied Burnes' request to suppress evidence and for a Franks hearing. After entering a conditional guilty plea, Burnes was convicted of one count of possession with intent to distribute methamphetamine.

Prior to sentencing, Burnes challenged the classification of methamphetamine as a Schedule II controlled substance and moved to limit his possible maximum sentence to five years. The district court denied his motion on the ground that the DEA's reclassification of methamphetamine from a Schedule III to a Schedule II controlled substance was pursuant to a lawful delegation of authority from the Attorney General. Burnes appeals the district court's denial of both of his motions.

II. Standard of Review

The district court's determination whether to hold a Franks hearing is reviewed de novo. United States v. Perdomo, 800 F.2d 916, 920 (9th Cir.1986). The issue of impermissible delegation of authority involves a question of statutory interpretation which this court also reviews de novo. Trustees of Amalgamated Ins. Fund v. Geltman Indus., 784 F.2d 926, 929 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986).

III. Refusal to Hold a Franks Hearing

In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), the Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard 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.

In Franks, the Court expressly recognized that there is "a presumption of validity with respect to the affidavit supporting the search warrant," and also that "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. at 171-72, 98 S.Ct. at 2684 (footnote omitted).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court held that a "totality of circumstances" test should be applied in determining whether the affidavit established probable cause, id. at 230-31, 103 S.Ct. at 2328-29, and 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." Id. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).

In applying the rules of Franks and Gates, this court has recognized that where a substantial preliminary showing is made, the court must hold a hearing to determine if any false statements deliberately or recklessly included in the affidavit were material to the magistrate's finding of probable cause. United States v. Stanert, 762 F.2d 775, 780, modified, 769 F.2d 1410 (9th Cir.1985)). If the affidavit is insufficient to establish probable cause without the false material, the court must set aside the search warrant and suppress the fruits of the search. United States v. Foster, 711 F.2d 871, 879 (9th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984). These rules also apply to the omission of facts from the affidavit. Stanert, 762 F.2d at 781.

We have also held that "[i]n doubtful cases, preference should be given to the validity of the warrant." United States v. McQuisten, 795 F.2d 858, 861 (9th Cir.1986). Moreover, "opinions and conclusions of an experienced agent regarding a set of facts are properly a factor in the probable cause equation under the Gates totality of the circumstances approach." United States v. Michaelian, 803 F.2d 1042, 1045 (9th Cir.1986).

Burnes alleges that agent Dickerson's affidavit contains several false statements or omissions. Burnes raises four issues with respect to the validity of the affidavit. First, Burnes claims that there was an insufficient basis for the affiant to conclude from his observation of the bottle that it probably...