U.S. v. Chesher

Decision Date09 June 1982
Docket NumberNo. 80-1011,80-1011
Citation678 F.2d 1353
PartiesUNITED STATES of America, Appellee, v. Lawrence Gilbert CHESHER, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Doron Weinberg, San Francisco, Cal., argued, for appellant; Larson, Weinberg & Harris, San Francisco, Cal., on brief.

Sanford Svetcov, Chief Asst. U. S. Atty., San Francisco, Cal., argued, for appellee; Richard Dondero, Asst. U. S. Atty., San Francisco, Cal., on brief.

Before GOODWIN and NORRIS, Circuit Judges, and McNICHOLS, District judge. *

NORRIS, Circuit Judge:

Appellant Lawrence Chesher was convicted on stipulated facts of having manufactured methamphetamine, a Schedule II non-narcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1).

Chesher challenges the district court's denial of his timely motion to suppress evidence as illegally obtained. He argues that the drug laboratory seized in his residence should have been suppressed because it was neither seized pursuant to a valid warrant nor validly seized in plain view.

Chesher contends that an "indicia warrant" authorizing officers to search for any indicia of membership in or association with the Hells Angels Motorcycle Club, was invalid under both the First and Fourth Amendments to the United States Constitution. He also contends that a second warrant, obtained by the officers after they discovered the drug laboratory, was invalid.


On June 12, 1979, an indictment was filed in the United States District Court for the Northern District of California, charging Chesher, along with thirty-one other defendants, with violating Title IX of the Organized Crime Control Act of 1970. This title, commonly known as The Racketeer Influenced and Corrupt Organizations Act (RICO), prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c). The indictment identified the RICO "enterprise" as the Hells Angels Motorcycle Club.

On the day after the indictment was filed, federal officers obtained indicia warrants authorizing a search of each appellant's residence and seizure of any indicia of membership in or association with the Hells Angels Motorcycle Club. In addition to the indicia warrants, the searching officers possessed arrest and Prescott warrants 1 for each appellant.

During the course of the search of Chesher's residence, officers discovered and seized a laboratory used for the manufacture of methamphetamine, and a small quantity of methamphetamine. An additional count charging Chesher with violating 21 U.S.C. § 841(a)(1) was then added to the June 12, 1979 indictment.

Chesher moved to suppress all of the evidence seized in the search of his residence. After several evidentiary hearings Judge Conti denied the suppression motion. Pursuant to a motion made by the government, the RICO charges were dismissed by the court, leaving only the drug manufacture charge against Chesher. Chesher waived his right to trial by jury on the remaining count against him, and agreed to submit the issue of guilt to the court on a written stipulation of facts.

On November 19, 1979, Judge Conti found Chesher guilty as charged. Chesher was sentenced to five years imprisonment and fined $5,000.00. He is currently serving his sentence in a federal correctional institution.


The facts concerning the search are not in dispute. On the evening of June 13, 1979, a team of federal agents executed arrest and search warrants at the home in which Chesher was living. The agents approached the home at approximately 8:30 p. m., and were admitted to the home by Chesher's mother. During the "sweep search" of the home pursuant to the Prescott warrant, one of the agents observed a laboratory apparatus in a back room and summoned the lead agent, Stewart. As he neared the back room, Agent Stewart detected the smell of acetone, a chemical which, from his experience as a drug agent he associated with the manufacture of methamphetamine. Stewart looked into the room, entered it, and turned on the light in order to confirm his belief that the room housed a laboratory. He saw that all of the walls of the room were covered with plastic, that an exhaust fan was installed in the doorway, and that there was glassware typical of a drug laboratory on each table in the room.

Agent Stewart then dispatched Agent Williams to obtain a warrant for the search and seizure of the laboratory and ordered that the laboratory not be touched until then. The search under the indicia warrant then began. While it was underway, Chesher arrived and was arrested without incident. Shortly after midnight, with the indicia search still in progress, Agent Williams returned with a supplemental warrant for the search and seizure of the laboratory. The agents immediately took possession of the laboratory.

A. Seizure of the Drug Laboratory

Chesher contends that the evidence of the drug laboratory should have been suppressed because it was seized in violation of the Fourth Amendment. First, Chesher argues that the seizure cannot be justified as a "plain view" seizure. Second, he argues that the supplemental search warrant was invalid for several reasons: failure of the underlying affidavit to allege sufficient facts to provide probable cause, failure of the affidavit to allege a federal offense, and failure of the warrant to authorize nighttime service.

The district court found that the laboratory was seized in plain view. The court also held that the supplemental warrant, though not needed, was valid. The facts of the discovery and seizure are not in dispute. The sole issue is whether these facts are sufficient as a matter of law under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) to justify a warrantless seizure. We hold that the government has met its burden of showing a valid plain view seizure of the laboratory. Accordingly, we do not reach the issues relating to the supplemental warrant.

The plurality opinion in Coolidge sets forth three requirements for a valid plain view seizure. First, there must be a legitimate prior justification for the officer's presence. Id. at 466, 91 S.Ct. at 2038. Second, the discovery must be "inadvertent." Id. at 469, 91 S.Ct. at 2040. Finally, it must be "immediately apparent to the police that they have evidence before them." Id. at 466, 91 S.Ct. at 2038.

Chesher argues that the government has failed to meet its burden in establishing the third requirement of Coolidge-that the incriminating nature of the item seized be immediately apparent to the officer. First, he contends, acetone (the chemical smelled by Agent Stewart as he approached the back room) has lawful uses. Second, he contends, even Stewart's closer inspection of the glassware and equipment disclosed only that it was a laboratory of some sort, not whether it existed for legal or illegal purposes.

We reject both of Chesher's arguments. Although the Supreme Court has given little guidance as to what the third Coolidge requirement specifically requires, 2 we know of no authority suggesting that Coolidge requires that an object be conclusively incriminating. We agree with the Second Circuit that "under the plain view doctrine ... the incriminating nature of an object is generally deemed 'immediately apparent' where police have probable cause to believe it is evidence of crime." United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979). This is consistent with the rationale for allowing plain view seizures. If the benefit of permitting warrantless seizure in narrow circumstances is avoidance of the inconvenience of obtaining a warrant for inadvertently discovered evidence, Coolidge, 403 U.S. at 467-68, 91 S.Ct. at 2038-2039, it follows that an object's possible relevance as evidence need not be shown to any greater degree than would be sufficient to obtain a warrant were one sought. We hold that if facts sufficient to provide probable cause to believe an object is incriminating are immediately apparent to the officer, the third Coolidge requirement is met.

We conclude that the smell of acetone, the appearance of the room in which the laboratory was housed, and the laboratory glassware itself, provided Agent Stewart with probable cause to believe that the laboratory was evidence of a crime. The district court's decision to admit the evidence of the drug laboratory must therefore be upheld.

B. Sufficiency of the Evidence

Chesher argues that the evidence against him was insufficient to support the district court's finding of guilt. In considering this claim, we are limited to a determination of whether the stipulated facts present substantial evidence of guilt beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Jacobo-Gil, 474 F.2d 1213, 1214 (9th Cir. 1973). 3

The stipulation contained the following facts. Chesher lived in his mother's house. In the back room of the house was a laboratory used for the manufacture of methamphetamine. The door to the back room had been fitted with a latch and padlock, although the door was unlocked at the time of the search. When Chesher was arrested at the house, he had in his possession a key which fit the padlock. Two of Chesher's fingerprints were found on a piece of equipment in the laboratory. Several of the handwritten papers in the room, pertaining to the production of methamphetamine, contained references to individuals apparently involved in the use of the laboratory. None of these documents contained references to Chesher, nor were any of the documents in Chesher's handwriting. In the bedroom occupied by Chesher, the agents found small amounts of methamphetamine "consistent with personal use."

The lawfulness of the entry and the arrest, together with our holding that the drug laboratory was seized in plain view, justifies the admission of all the above evidence except...

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