U.S. v. Crozier, s. 81-1345

• Citation: 777 F.2d 1376
• Decision Date: 05 December 1985
• Docket Number: 81-1355 and 81-1484,Nos. 81-1345,s. 81-1345
• Parties: , 54 USLW 2330 UNITED STATES of America, Plaintiff-Appellant, v. Clarence Jay CROZIER, Manuel Isadore Pine, Alan Terry Stein, and Florence Margaret Wolke, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1376

777 F.2d 1376

54 USLW 2318, 54 USLW 2330

UNITED STATES of America, Plaintiff-Appellant, v. Clarence Jay CROZIER, Manuel Isadore Pine, Alan Terry Stein, and Florence Margaret Wolke, Defendants-Appellees.

Nos. 81-1345, 81-1355 and 81-1484.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 1, 1982.

Decided Dec. 5, 1985.

Billie A. Rosen, Asst. U.S. Atty., Phoenix, Ariz., for defendants-appellees.

Richard E. Hove, Du Bois & Hove, Oakland, Cal., Sandra Slaton, Asst. Fed. Public Defender, Phoenix, Ariz., for plaintiff-appellant.

Appeal from the United States District Court for the District of Arizona.

On Remand from the United States Supreme Court.

Before GOODWIN and TANG, Circuit Judges, and SOLOMON, ^* District Judge.

SOLOMON, Judge:

This case is before the court on a remand from the Supreme Court of the United States.

On an interlocutory appeal, we affirmed the district court's orders suppressing evidence seized from the defendants' residences and we vacated its order restraining defendants Clarence Crozier and Florence Wolke from disposing of much of their real and personal property.

The Supreme Court vacated our decision and remanded the case to us for reconsideration in light of three recent cases: Segura v. United States, --- U.S. ----, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh'g denied, --- U.S. ----, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984); and United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). United States v. Crozier, --- U.S. ----, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984).

Facts

On April 9, 1980, drug enforcement agents believing that Crozier and Stein were manufacturing narcotics, arrested them. At the time, they were traveling in separate automobiles.

Agents then proceeded to Crozier's residence, which he shares with defendant Wolke. The agents entered the residence without a warrant. They looked in every room to make sure that no one else was there, and they remained there for six hours while other agents obtained a search warrant.

The search warrant authorized the seizure of "Amphetamine, precursor chemicals including Methylamine, P-2-P, Ether, and Alcohol, and laboratory apparatus, notes, formulas, as well as any indicia of ownership and control of the premises."

In his statement to the magistrate who issued the warrant, Agent Murphy traced his investigation of Crozier and other defendants from 1978 to the date of Crozier's arrest. Murphy stated that confidential informants saw Crozier with chemicals, glassware and other apparatus used to manufacture amphetamine and that Crozier talked to these informants about his amphetamine business. Agents were told of Crozier's suspected laboratory site in Yuma, Arizona, and on April 8, 1980, they saw Crozier and Stein at that site.

Police observed Crozier's laboratory apparatus and chemicals and knew that Crozier had repeated contact with companies that supply the types of chemicals and laboratory apparatus used to manufacture amphetamine.

On April 9, 1980, agents followed Crozier and Stein to a garbage dump and then searched through the trash they left. They found containers of ether, ammonia and other chemicals, an empty dispenser of "PH" papers, and papers bearing the names of Clarence Crozier and Florence Wolke. The agents then executed a search warrant for the Yuma laboratory site and found laboratory equipment and amphetamine.

Based on his nine years of experience with the Drug Enforcement Administration, Murphy concluded that Crozier and other defendants were engaged in activities common to people who manufacture amphetamine. The activities included choosing a secluded site for a laboratory, using chemicals, pans, flasks, beakers and other items which are needed to produce amphetamine. They also carried large amounts of cash which had no apparent source other than the drug operation, and they traveled to purchase chemicals and to meet with co-conspirators.

In their search of the Crozier residence, made pursuant to the warrant, agents seized many irrelevant papers, such as personal letters and greeting cards, medical insurance and social security correspondence, and bank statements dating back to 1973.

After they searched the Crozier residence, they proceeded to the Stein residence. Crozier's son and daughter and a friend, none of them defendants, were on the Stein premises. The agents entered the residence without a warrant and conducted a sweep to make sure that no other persons were present.

There is conflicting testimony on whether the agents entered the Stein residence with the permission of the occupants. It is undisputed that they remained on the premises for more than six hours and until a search warrant issued.

The warrant for the Stein residence was based on the statement of probable cause which supported the Crozier warrant. The warrant did not describe any particular property to be seized; it merely authorized the seizure of "Material evidence of violation 21 USC 841, 846, (Manufacture and Possession with intent to distribute Amphetamine and Conspiracy)." The affidavit was more detailed, but the executing officer did not have the affidavit, only the warrant.

The agents seized laboratory equipment and chemicals, and they also seized Stein's tax returns and records of real estate transactions.

During the search of the Stein residence, agents photographed gold coins and jewelry, and they examined records of financial transactions. Based on Murphy's statement that these items are the fruits of crime, agents obtained a warrant to seize them, and on April 11, 1980, they seized these items pursuant to the warrant.

Crozier, Stein, Pine, Wolke and seven other defendants were indicted for the manufacture and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). They were also indicted for conspiracy and tax evasion, in violation of 26 U.S.C. Sec. 7201. Crozier alone was indicted for engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848, the penalties of which include forfeiture of all profits obtained through the enterprise.

The district court granted the government's ex parte motion to restrain the transfer or encumbrance of almost all of the real and personal property belonging to Crozier and some property belonging to Wolke, who lives with Crozier.

The district court suppressed the evidence seized from the Crozier and Stein residences because both warrants were overbroad and because no exigent circumstances existed to justify the warrantless entry of the Crozier residence. The district court did not rule on the validity of the April 10, 1980 search of Wolke's automobile, but the government concedes that it was the fruit of the search of the Stein residence.

We affirmed the district court's finding that there were no exigent circumstances to justify the warrantless entry of the Crozier residence. We found that there was even less justification for the warrantless entry of the Stein residence because none of the defendants were there when the agents arrived. We affirmed the suppression of evidence against Stein and Crozier but remanded to the district court the issue of whether other defendants had a legitimate expectation of privacy in the Stein and Crozier homes which would justify the suppression of the evidence against them. United States v. Crozier, 674 F.2d 1293 (9th Cir.1982).

We also vacated the restraining order and directed the district court to hold a hearing to determine whether the restraining order was justified.

Discussion

I. The Search Warrants

In Segura v. United States, --- U.S. ----, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Supreme Court considered facts which are similar to those here. The police arrested one defendant and took him to his apartment where they entered the apartment without permission, saw other defendants, and conducted a limited security check. There was drug paraphernalia in plain view. Two agents stayed in the apartment until a warrant was secured nineteen hours later. In a search pursuant to the warrant, agents discovered and seized cocaine and records of drug sales.

The Court held that the seizure was reasonable under the Fourth Amendment because it was based upon probable cause and because the officers secured the dwelling to prevent the destruction of evidence. The officers merely secured the premises and did not exploit their presence. The Court emphasized that "an entry in the absence of exigent circumstances is illegal." Segura, 104 S.Ct. at 3390.

The Court also held that even if the seizure was illegal, evidence seized from the dwelling may be admissible if the government had an independent source for the warrant under which the evidence was seized. Id. at 3391.

We review the issue of probable cause de novo as we apply Segura to the facts of this case. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

A. The Crozier Warrant

In our earlier opinion, we held that the entry into the Crozier residence was illegal because there were no exigent circumstances. We ended our inquiry there. Under Segura, even if the initial entry is illegal, the evidence seized may be admissible if there was an independent source for the warrant. Segura, 104 S.Ct. at 3391. We must determine whether the agents had an independent source for the information on which the magistrate issued the warrant and whether the warrant was supported by probable cause.

We must examine the affidavits in support of the warrant in a common-sense and realistic manner. United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir.1978). The conclusions of an agent based on his experience with investigations may be considered. United States v. Hendershot, 614 F.2d 648, 654 (9th Cir.1980). We may not...