U.S. v. Comstock
| Citation | 805 F.2d 1194 |
| Decision Date | 03 December 1986 |
| Docket Number | Nos. 85-2853,85-2875,s. 85-2853 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Rhys COMSTOCK, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Michael E. Tigar, Austin, Tex. (Court-appointed), for defendant-appellant.
Michael R. Hardy, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before BROWN, RUBIN, and GARWOOD, Circuit Judges:
Appellant William Rhys Comstock (Comstock) appeals his conviction, following a jury trial, of four controlled substance offense counts charged in two separate two-count indictments which were consolidated for trial. One indictment related to manufacturing and conspiring to manufacture methamphetamine on or about January 7, 1985 at the Lexington Hotel in San Antonio, Texas. The other indictment related to the manufacture, and the possession with intent to distribute, of methamphetamine on or about January 23, 1985 at the Ralph Barrios residence on Piper's Run in San Antonio. Comstock's sole complaint on appeal is that the district court erred in overruling his pretrial motion to suppress, and his trial objections to, the fruits of the January 23, 1985 search of the Barrios residence.
Comstock's challenge in this Court to the January 23, 1985 search is only on the ground that the warrant on which it was based was issued by a Texas justice of the peace, and that a Texas justice of the peace is not a judge of "a state court of record" as required by Fed.R.Crim.P. 41(a) for warrants issued thereunder. Comstock does not dispute that the justice of the peace was authorized under Texas law to issue the warrant, and that a warrant so issued does not violate the Fourth Amendment's requirement of a neutral and detached magistrate. It is likewise undisputed that the warrant was requested by and issued to a San Antonio police department narcotics agent on the basis of an adequate showing of probable cause of a violation of Texas criminal law respecting methamphetamines. However, Comstock claims, and the district court determined, that subsequent participation by federal agents in the search, which was foreseen when the warrant was obtained, required the application of Rule 41(a) in this federal prosecution, under our decisions in Navarro v. United States, 400 F.2d 315 (5th Cir.1968), and United States v. Hanson, 469 F.2d 1375 (5th Cir.1972). Nevertheless, the district court, finding that all officers concerned, state and federal, believed in good faith that the warrant had been issued by a court of record and met the requirements of Rule 41(a), declined to suppress the fruits of the search. We agree with the district court that suppression is not warranted under these circumstances, and hence affirm.
Comstock was prosecuted under two indictments consolidated for trial on charges that he conspired to manufacture the controlled substance methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and that he manufactured the methamphetamine on two occasions and possessed it with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. One indictment--on conspiracy and manufacturing (Cause No. SA 85 CR 92)--pertained to his operation of a methamphetamine laboratory in the Lexington Hotel in San Antonio from on or before January 5, 1985, until on or about January 7, 1985. The other indictment--on manufacturing and possession with intent to distribute (Cause No. SA 85 CR 29)--involved the manufacture of methamphetamine occurring on or about January 23, 1985, in the home of Ralph Barrios on Piper's Run in San Antonio. Comstock was convicted on all counts. 1
At trial, the prosecution produced evidence indicating that Comstock was a mobile methamphetamine maker. 2 Using chemicals and equipment purchased over the counter at chemical supply houses, Comstock would move into a motel or residence for a few days, and, with the help of various accomplices, convert a bathroom into a functioning methamphetamine factory. After he had "cooked" a batch of the drug or performed an intermediate processing step, he would pack his materials into a vehicle and move on.
The Lexington Hotel laboratory was discovered virtually intact by law enforcement officials because of a manufacturing accident. After a guest at the Lexington complained of a foul odor, a hotel employee tried to enter a room whose registered occupant was one Gary Ackerson, but was denied access by the room's occupants. Further guest complaints and the fear of a possible explosion caused the hotel management to call the fire department, and firemen entering Ackerson's hastily vacated room discovered in the bathroom apparatus that resembled a chemical still. San Antonio police were notified, and Federal Drug Enforcement Administration (DEA) Agent Lee Phillips obtained a warrant to search the room, executing the warrant on January 7.
From the chemicals and equipment present, Agent Phillips and a DEA chemist concluded that the hotel bathroom had been the site of a working methamphetamine laboratory. Other miscellaneous evidence was found, including a scrap of paper bearing the words "Ralph # 95 Yellow cab" and a telephone number--without area code--labeled "home." Although agents would later discover that Ralph Barrios, the owner of the Piper's Run house, was a San Antonio taxi driver with the same telephone number, the DEA apparently did not discover Barrios' involvement or identity through the Lexington Hotel search. At trial, however, both Ackerson and Barrios--arrested along with Comstock in the Piper's Run search--testified that the laboratory in the Lexington Hotel had been established and operated by Comstock.
On January 22, 1985, a confidential informant told a San Antonio police narcotics officer, Detective Maurice Rose, that a methamphetamine laboratory was in operation at a residence on Piper's Run in San Antonio. Detective Rose had previously received reliable tips from this informant, and believed the information was trustworthy. Rose was at that time assigned by the San Antonio police department (SAPD) to work with the DEA but still reported to the SAPD. He testified that the operational relationship between the two agencies was "an informal task force" and stated that he would ordinarily call in the DEA whenever he learned that a methamphetamine laboratory was involved. He also stated that it was customary practice for officers from both agencies to execute search warrants when a suspected laboratory was the target of the search. Detective Rose contacted Agent Phillips to tell him about the tip, and the two officers looked at the Piper's Run house that same day to plan how a search could best be executed.
The next day, January 23, Detective Rose applied for a search warrant to a San Antonio justice of the peace, who then issued the warrant to Rose. As testimony at the pretrial suppression hearing revealed, justice of the peace courts were generally--albeit erroneously--believed to be courts of record by local law enforcement officers in San Antonio. 3
Rose testified that he knew he could obtain a valid state search warrant from a number of different state courts, including a municipal court conveniently located in the police department building downstairs from his own office, to which he ordinarily went for warrants. He stated that he was aware of the Rule 41 state court of record requirement and that his knowledge of that rule motivated him to seek a warrant not from the nearby municipal court--which he knew was not a court of record 4--but, instead, from the more distant justice of the peace court, which he believed was a court of record. While he was preparing the warrant application, Detective Rose called DEA Agent Phillips and arranged for the state and federal officers to meet in the vicinity of the Piper's Run residence, but he did not tell Agent Phillips which court would issue the warrant. However, Detective Rose did discuss the court of record requirement with his supervisor, SAPD Sergeant Pat Dotson, who confirmed that a justice of the peace court was a court of record. Sergeant Dotson testified, "It has always been the opinion of all the men in our offices that it was a court of record."
Detective Rose claimed that, at the time the warrant was requested and until after it was executed, he intended to bring state charges against the defendants, but, after entering the Piper's Run residence, he decided to turn the case over to the federal agents because he "just felt they were better qualified and better equipped to handle a case of this magnitude."
There is nothing to suggest that the justice of the peace issuing the warrant believed, or had any reason to believe, that participation of federal officers in the search was likely or contemplated.
Rose further testified that when the warrant was executed some ten to twelve local police officers were present as well as at least three federal agents, including Agent Phillips. Detective Rose entered the Piper's Run residence first. Those arrested in the house included Comstock, Barrios, and Ackerson. As the district court found, on adequate evidence,
Then, Detective Rose, Sergeant Dotson, and Agent Phillips withdrew into an unoccupied bedroom to discuss who should take control of the evidence. Portions of Rose's testimony indicate that he then told Phillips that...
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