U.S. v. Calhoun
| Decision Date | 24 September 1976 |
| Docket Number | 75-1493,75-1376,75-2904,75-1492 and 75-1368,75-1541,Nos. 75-1519,s. 75-1519 |
| Citation | 542 F.2d 1094 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darrell CALHOUN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andrew SHEPPARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joe T. HARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. ELLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clifford BURSTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James William WIMBLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Calvin STEPHENSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
S. G. Jackson, Jr., Deputy Federal Public Defender (argued), Los Angeles, Cal., for Wimbley.
Arthur Mabry, Los Angeles, Cal., for Sheppard.
Leonard C. Kohn, Los Angeles, Cal., for Calhoun.
Alan Fenster (argued), Beverly Hills, Cal., for Harris.
Ron Minkin, Los Angeles, Cal., for Ellis.
David Elson (argued), Murphy, Thornton, Hinerfeld & Cahill, Los Angeles, Cal., for Burston.
Donald B. Marks (argued), Beverly Hills, Cal., for Stephenson.
Ronald Munteau (argued), Los Angeles, Cal., for plaintiff-appellee.
Before WRIGHT and CHOY, Circuit Judges, and ORRICK, * District judge.
Seven co-defendants were convicted of conspiracy to distribute heroin (21 U.S.C. §§ 841(a)(1) & 846). All but Sheppard and Wimbley were convicted also of possession of heroin (21 U.S.C. § 841(a)(1)). On appeal, they raise a multitude of issues. We affirm as to all except Sheppard and Wimbley.
Appellants were under investigation by Los Angeles police and the Drug Enforcement Administration (DEA) from August 1, 1973 until March 10, 1974. Investigation focused on a suspected heroin importation ring headed by Vernard Harris. During the months of investigation appellants had been seen going to San Diego, apparently to purchase drugs, and engaging in other suspicious activity.
These observations, together with information supplied by confidential informants, led to the issuance of a court authorized wiretap on the telephones of Vernard Harris. On March 7, a person identifying himself as Raul called the Harris home. When told that Vernard was not at home, he left a message that he could be reached at a number in Mexico. Based on the information already acquired, the officers concluded that the call signified that a drug transaction was imminent, and intensified surveillance.
About 5:00 A.M. on March 8, Wimbley and two others drove to 1131 Alta Loma, the Los Angeles apartment complex in which Calhoun and Joe Harris resided. Some time that morning, Calhoun, Ellis, and two women drove in a limousine to a San Diego hotel. They later rented another car. Sheppard also checked into the hotel. Wimbley, too, went to San Diego on that date, then returned at once to Los Angeles.
On March 9, Calhoun, Ellis, the two women and Sheppard left the San Diego hotel and arrived at 1131 Alta Loma at 6:30 P.M. in the rented car. Ellis removed from the trunk of the car a suitcase later determined to contain four pounds of heroin and four pounds of procaine. Stephenson, with a handgun in his waistband, Joe Harris, with his hand under his coat in a manner suggesting that he carried a gun, Burston, and an unidentified man acted as lookouts and guards while Ellis moved the suitcase into the building.
In the early morning of March 10, a search warrant issued for Calhoun's apartment was executed by the officers who, upon entering, exchanged shots with those inside. Vernard Harris was killed and Calhoun wounded. The search produced the heroin-laden suitcase and other incriminating evidence.
At the time of the raid on Calhoun's apartment, a DEA agent saw and arrested Joe Harris leaving his apartment located in the same building. Having been advised of his Miranda rights, Harris consented to a search of the apartment. Two five pound boxes of mannitol, a chemical often used to dilute heroin, were discovered.
Other law enforcement officers went to 733 North Kings Road and the apartments of Wimbley and Sheppard. They obtained keys from the manager and entered without announcing their purpose. They received permission to search Wimbley's apartment and discovered implements often used in the distribution of narcotics. On entering Sheppard's apartment, they were unable to find him but did discover twenty pounds of mannitol in a closet.
Appellants Calhoun, Ellis, and Sheppard challenge the legality of the court- ordered In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the Court held that a defendant may move to suppress the fruits of a wiretap only if he was a party to the intercepted conversation or if it occurred on his premises. See also United States v. King, 478 F.2d 494 (9th Cir. 1973).
wiretapping of the telephones at Vernard Harris' residence. Because none of the appellants has standing to challenge the wiretaps, we do not reach the merits of their arguments.
None of the appellants fulfills either requirement. The telephones tapped were on the premises of Vernard Harris. The conversations involved persons calling themselves "Raul" and "George." We conclude that appellants lack standing to argue the invalidity of the court-ordered wiretap.
Appellants Harris and Wimbley sought unsuccessfully to require disclosure of the identities of informants who supplied information used both in the application for the wiretap and in the application for a search warrant for the Calhoun apartment. Neither appellant has standing to challenge the interception or the search.
Moreover, even if we were to reach the merits of their contention, it is apparent that neither has met his burden of showing a need for disclosure. United States v. Marshall, 526 F.2d 1349, 1359 (9th Cir. 1976); United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973); United States v. Kelly, 449 F.2d 329, 330 (9th Cir. 1971). The trial court did not abuse its discretion in denying these motions. United States v. Edwards, 503 F.2d 838, 840-41 (9th Cir. 1974).
Appellants Calhoun, Ellis, Harris and Stephenson contend that the evidence seized from the Calhoun apartment in the search by DEA agents and LAPD officers should have been suppressed. They claim that the search warrant was invalid in that the information submitted to the magistrate at the time of the warrant's issuance did not provide probable cause. We conclude that the district court properly denied the suppression motion. In so doing, we note that only Calhoun has standing to contest the search and seizure. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Epperson, 528 F.2d 48 (9th Cir. 1975).
We are, of course, limited to an examination of the allegations contained in the documents submitted to the magistrate in support of the search warrant. Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Probable cause exists when the affidavits give sufficient information to lead a reasonably cautious person to conclude that the items sought are located at the place to be searched. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
In reviewing the affidavits of several law enforcement officers supporting the search warrant, we are mindful of the language of the Supreme Court:
(W)here these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.
United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
The lengthy affidavits in support of the search warrant provide extensive details from which a magistrate could conclude that probable cause existed to search Calhoun's apartment. The information was of several types: descriptions of suspicious activities involving Calhoun and others observed by law enforcement officers over a period of months; statements of several informants that Vernard Harris and Calhoun were involved in drug traffic; statements Calhoun also asserts that the fruits of the search should have been suppressed because the affidavit of a government agent, submitted in support of the search warrant, contained a number of inaccuracies. These do not require suppression for two reasons: they were neither material to a determination of probable cause nor were they intentional. United States v. Prewitt, 534 F.2d 200, 202 (9th Cir. 1976).
of persons who had been arrested and charged with possession of heroin that Vernard Harris had supplied them with drugs; telephone records and observations of police officers associating Calhoun with Vernard Harris; and details of the events of March 9, from which it was reasonable to infer that drugs had been transferred to Calhoun's apartment. On the basis of the information, there was ample support for the magistrate's conclusion that probable cause for a search existed.
Appellant Calhoun expressly disavows any allegation that the inaccuracies were intentional misrepresentations. Therefore, if the evidence seized is to be suppressed, inaccuracies must have been material to the probable cause determination. Prewitt, supra, at 202.
A summary of the alleged inaccuracies demonstrates their immateriality:
(1) The affidavit relates observations of appellants by Officer Woempner which suggest criminal activity. It appears from the affidavit that Woempner communicated directly with the affiant when in fact the contact was only indirect.
(2) Affiant related that Officer Woempner knew that a...
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