U.S. v. Celestine

• Decision Date: 04 April 2003
• Docket Number: No. 00-50669.,00-50669.
• Citation: 324 F.3d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Michael CELESTINE, aka Michael Erickson, Gregory Celestine, Michael Celestine and Michael Ericson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.3d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Michael CELESTINE, aka Michael Erickson, Gregory Celestine, Michael Celestine and Michael Ericson, Defendant-Appellant.

No. 00-50669.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2003.

Filed April 4, 2003.

COPYRIGHT MATERIAL OMITTED

Gerson Simon, Los Angeles, CA, for the defendant-appellant.

Michael J. Raphael, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CR-99-00731-CAS-01.

Before: B. FLETCHER, ALARCÓN, and HAWKINS, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Gregory M. Celestine ("Celestine"), who pled guilty conditionally to drug crimes, appeals the district court's denial of his motion to suppress evidence obtained during a search, pursuant to a warrant, of a house of which he was a part owner. He contends that the search warrant was not served properly because the affidavit in support of probable cause did not accompany the other documents that comprised the warrant and was served on his attorney after the search was completed. He also contends that the district court incorrectly held that the warrant itself was validly supported by probable cause and that it was timely served on him. We affirm the district court.

I. Factual Background & Procedural History

This case arises out of a search that Drug Enforcement Agency agents conducted at a house in Canyon Lake, California, while Celestine was present and that revealed a largescale indoor marijuana growing operation. The house belongs to Ericson Production, Inc., a fictional company of which Celestine is a co-owner and, under the alias of "Michael Ericson," president.¹ The search was conducted pursuant to a warrant issued by a federal magistrate judge based on an affidavit from DEA special agent Anthony Zavacky ("Zavacky") who had significant experience investigating indoor drug growing operations.

A. Affidavit

Zavacky's affidavit contained the following pertinent information: In 1998, Zavacky received information from an unidentified source that a woman named "Laura" had a father who was growing marijuana in a house in Canyon Lake, California. In May, 1999, the source informed Zavacky that the house in question was on a specific street in Canyon Lake; that it's architecture resembled a "castle"; and that Laura's father did not have a job and lived solely by cultivating marijuana.

The affidavit indicated that Zavacky drove to the street, which is a cul-de-sac with four houses. Only one of the houses resembled a "castle." Utility records for that house indicated that "Deborah Davis" (who was listed as self-employed with "Heron Comput") had been the utility subscriber since October, 1997.² A comparison of the house's electrical consumption against that of four other homes of similar size in the neighborhood revealed that from December, 1997, to May, 1999, the castle-like house used twice the electricity of each of the other four houses. Electrical consumption at the house also increased significantly beginning in December, 1998, at the same time that the house was purchased by Ericson Production, Inc., from William Hansen, an absentee owner. The affidavit explained that unusually high consumption of electricity not otherwise explained is often a sign of an indoor drug-growing operation.

The affidavit also recounted that on December 12, 1998, January 9, 1999, January 30, 1999, April 18, 1999, and May 10, 1999, a person named "Brent Sewell" was a guest at the house. The DEA database indicates that Michael Brent Seawell is suspected of selling marijuana clones or clippings for indoor growing in the San Diego, California, area. Other persons were also observed leaving the house, including William Primanto, and Laura Quinonez (also known as Laura Van Antwerp). The affidavit noted that there was a suspect named Edward Joseph Van Antwerp in another indoor marijuana cultivation case being investigated by an investigator from the Sheriff's Department.

The affidavit stated that in June, 1999, Zavacky and an investigator from the Sheriff's Department searched trash from the house and discovered an empty bottle of pH reducer from Foothill Hydroponics in North Hollywood, California. In Zavacky's experience pH reducer is used to encourage maximum yield and "budding" in indoor marijuana cultivation and Foothill Hydroponics sold products that could be used to grow marijuana indoors. Moreover, according to Zavacky, indoor marijuana cultivators often travel long distances to buy hydroponic supplies in order to avoid detection by local law enforcement. Zavacky and the investigator also found a pair of dull scissors with green residue on the blades. The residue tested positive for the presence of THC, and subsequent forensic tests confirmed that the residue was marijuana.

According to the affidavit, in June, 1999, William Primanto ("Primanto") was observed leaving the house and driving to Foothill Hydroponics, where he purchased two boxes of grodan cubes and sheets of mylar.³ As additional support and in order to justify searching for specific items — including computer and electronic equipment — the affidavit also described generally how, in Zavacky's experience, drug traffickers and growers operate.

B. Service of the Warrant & Suppression Hearing

On June 29, 1999, a few days after Primanto was followed to Foothill Hydroponics and Zavacky found the scissors and pH reducer, Zavacky and a few other DEA agents went to the house to execute a search warrant issued by a federal magistrate judge based on Zavacky's affidavit.

The items served on Celestine during the search were the warrant's face sheet, captioned "Search Warrant on Written Affidavit," and two attachments ("Attachment A" and "Attachment B"). The face page of the warrant stated, in pertinent part:

Affidavit(s) having been made before me by the below-named affiant that he/she has reason to believe that the premises known as SEE ATTACHMENT A in the Central District of California there is now being concealed property, namely: SEE ATTACHMENT B and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the person or premises above-described and the grounds for application for issuance of the search warrant exist as stated in the supporting affidavit(s).

Attachment A specified the premises to be searched, and Attachment B, which listed the items to be seized, specified that the items to be seized were evidence of violations of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, as well as 18 U.S.C. § 1956. The affidavit in support of probable cause, however, was served on Celestine's attorney only after the search.

Celestine moved for suppression of the evidence from the search before the district court. The court held a hearing at which Zavacky testified that he served Celestine within the first ten minutes of the search, once the house was safe and the agent had gone downstairs to look at the plants. Zavacky also testified that he served Celestine with the face sheet and attachments, but not with a copy of the affidavit in support of probable cause. Zavacky stated that he understood it to be DEA policy that "at that time I was not required to serve the affidavit at the location. I informed the defendant that he would receive a copy when he met with his defense attorney before he was arraigned." He also testified that his conclusion that the house used twice as much electricity as neighboring homes was based on his own visual assessment of the size of the comparator houses. Celestine also testified. He stated that he was not served with the warrant until hours into the search and he presented evidence that the comparator houses were considerably smaller than the castle-like house.

The district court denied the motion to suppress. The court reasoned that the affidavit had not been deliberately withheld and that service of the face sheet and the two attachments provided the defendant with the complete warrant. As to timeliness, the court found that Zavacky's testimony that he served Celestine within 10 minutes of beginning the search was credible.

Celestine pled guilty conditionally, and following the acceptance of his plea and sentencing, this appeal ensued.

II. Standards of Review

We review the district court's decision not to suppress evidence from the search de novo as a question of law, but the trial court's factual findings are reviewed for clear error. United States v. Gantt, 194 F.3d 987, 1000 (9th Cir.1999). The issuance of a search warrant by a magistrate is reviewed for clear error to determine whether the magistrate had a substantial basis to conclude that the warrant was supported by probable cause. See United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.2000).

III. Discussion

A. Service of the Warrant

Celestine contends that the evidence against him that was obtained in the search must be suppressed because Zavacky failed to serve him with the affidavit in support of the showing of probable cause during the search and because the district court erred in finding that the warrant was served on him at the outset of the search. He argues that the search violated Fed.R.Crim.P. 41.⁴ We disagree.

1. Service of the Affidavit in Support of Probable Cause

It is not disputed that Zavacky served Celestine with the face sheet of the warrant and all the attachments incorporated into the warrant and necessary to satisfy the requirements of the Fourth Amendment. We conclude that this is all that is required under Rule 41. Rule 41(f)(3)⁵ provides that the "officer executing the warrant must: (A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or (B) leave a copy of the warrant and...