U.S. v. DeLeon

• Decision Date: 10 November 1992
• Docket Number: No. 89-30230,89-30230
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert DeLEON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 761

979 F.2d 761

UNITED STATES of America, Plaintiff-Appellee, v. Robert DeLEON, Defendant-Appellant.

No. 89-30230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.

Filed Feb. 7, 1992.

Withdrawn Nov. 10, 1992.

Decided Nov. 10, 1992.

Jeffrey K. Finer and Robyn L. Pugsley, Pat Stiley & Associates, Spokane, Wash., for defendant-appellant.

Stephanie J. Johnson, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: HUG, D.W. NELSON, Circuit Judges, and WALKER, ^* District Judge.

ORDER

The opinion, 955 F.2d 1346, filed February 7, 1992, is hereby WITHDRAWN.

OPINION

WALKER, District Judge:

On May 22, 1989, Robert DeLeon, Jr., was indicted for manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). After the district court denied his motion to suppress evidence, DeLeon was convicted on one count of manufacturing marijuana. The district court imposed a mandatory minimum sentence of five years incarceration and four years supervised release. DeLeon was released on his own recognizance during the pendency of his appeal.

DeLeon appeals his conviction on the grounds that: (1) the district court improperly denied his motion to suppress evidence in violation of the Fourth Amendment because the affidavit used to obtain the search warrant contained material misrepresentations or omissions of fact; and (2) the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(B) violate his rights of due process and equal protection. We REVERSE the district court on the first ground and REMAND for further proceedings consistent with this opinion.

I.

Robert DeLeon owned forty acres of uncultivated land in Moses Lake, Washington. Local rumors had for some time circulated that DeLeon was in the business of growing marijuana. On February 21, 1989, three young men from Sunnyside, Washington, Frank and Charles Linedecker and Loren Brown, came to discuss the sale of farm equipment with DeLeon's neighbor, Frank Sharp. The three men saw a piece of equipment on DeLeon's property and expressed an interest in purchasing it. Sharp warned the men that there was a chance there was marijuana growing in the outbuilding (a shop building of metal construction) and that they should "be very careful because they could get killed up there."

Upon approaching the shop, the men were unable to see inside the windows or enter the building, which was locked from the inside. The men returned and allegedly informed Frank Sharp that DeLeon was growing marijuana in the shop building.

Sharp then told Deputy Detrolio that three men went up to DeLeon's property to look at some equipment and returned saying that they had seen marijuana growing. Chief Deputy Wiester traced the names of the three men and gave Investigator Jurovich the names and telephone numbers of the three men.

On February 23, 1989, Investigator Jurovich conducted telephone interviews of Charles Linedecker, Loren Brown, and Frank Sharp. In an unrecorded interview, Charles Linedecker denied entering the building and seeing or smelling anything incriminating and then told Investigator Jurovich that he would have to talk with Loren Brown. Loren Brown informed Investigator Jurovich that the three men smelled marijuana emanating from the outbuilding, that Frank and Charles Linedecker attempted but were unable to open a door to the shop any further than one foot because it was locked from the inside, and that both Frank and Charles Linedecker returned from their unsuccessful attempt to look inside the outbuilding and told Brown that DeLeon was growing marijuana. A transcript of Brown's taped statement was attached to the supporting affidavit.

Sharp's conversation was also recorded and used in support of the search warrant. Frank Linedecker was never questioned. Sergeant Shay, who was present during Investigator Jurovich's conversations with Linedecker, Brown and Sharp, drafted an affidavit for a search warrant, and presented it to Judge Sperline, of the Superior Court of Washington, on February 23, 1989. Judge Sperline issued a search warrant, and approximately 351 marijuana plants in various stages of maturity were seized from DeLeon's property.

In this appeal, DeLeon challenges the district court's finding that Sergeant Shay's omissions were not intentional or reckless as clearly erroneous and asserts that the modified search warrant would not provide probable cause to search DeLeon's property. Thus, argues DeLeon, his motion to suppress evidence was improperly denied.

DeLeon also challenges the application of the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B)(vii) because it does not define "marijuana plant" and fails to direct a court whether to consider the weight of marijuana or the number of plants in calculating the appropriate mandatory minimum sentence. Because we find that the district court erred in not suppressing the evidence obtained under the search warrant, the sentencing questions are moot and will not be decided today.

II.

In reviewing a district court's findings regarding omissions and misrepresentations in affidavits supporting a search warrant, we review for clear error. United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988); United States v. McQuisten, 795 F.2d 858, 863 (9th Cir.1986). However, a determination of whether such omissions and misrepresentations were material to a determination of probable cause is a mixed question of law and fact, subject to de novo review. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.), amended, reh'g denied, 904 F.2d 25 (9th Cir.1990), cert. denied --- U.S. ----, 111 S.Ct. 268, 112 L.Ed.2d 224; United States v. Simpson, 813 F.2d 1462, 1472 n. 14 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987).

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a defendant seeking an evidentiary hearing to determine whether a facially valid affidavit contains false statements must make a substantial preliminary showing that: (1) the affidavit contains intentionally or recklessly false statements and (2) the affidavit cannot support a finding of probable cause without the allegedly false information. If a defendant prevails at a Franks evidentiary hearing, evidence obtained on the basis of a search warrant issued on an affidavit containing material omissions or misrepresentations must be excluded. In United States v. Stanert, 762 F.2d 775 (9th Cir.1985), amended, reh'g denied, 769 F.2d 1410 (9th Cir.1985), we extended Franks to omissions of material facts and concluded that "the Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead." Id. at 781.

In this case, the district court determined that Charles Linedecker's full statement, including his denial, should have been included in the warrant application. The government argues, however, that because this omission may have been solely the fault of a non-affiant, Inspector Jurovich, there can be no basis for finding that a Franks hearing was necessary. We disagree. A deliberate or reckless omission by a government official who is not the affiant can be the basis for a Franks suppression. The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. While we do not suggest that this is the case here, a different rule would permit government officials deliberately to keep from affiants or the court information material to the determination of probable cause and by such conduct avoid the necessity of a Franks hearing.

The Supreme Court heeded this point in Franks, 438 U.S. at 163-64 n. 6, 98 S.Ct. at 2680 n. 6, and at least two circuits have explicitly stated this tacit but obvious premise. See United States v. Calisto, 838 F.2d 711, 714 (3d Cir.1988); United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984). We agree with the Calisto court that, "[i]f we held that the conduct of ... the affiant[ ] was the only relevant conduct for the purpose of applying the teachings of Franks, we would place the privacy rights protected by that case in serious jeopardy. As the Supreme Court noted in Franks, 'police [can]not insulate one officer's deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.' 438 U.S. at 164 n. 6, 98 S.Ct. at 2680." Calisto, 838 F.2d at 714 (footnote omitted). Therefore, we join the Third and Seventh Circuits in holding that misstatements or omissions of government officials which are incorporated in an affidavit for a search warrant are grounds for a Franks hearing, even if the official at fault is not the affiant.

The facts of this case demonstrate the soundness of this rule. Agent Jurovich knew that Charles Linedecker denied seeing or smelling marijuana on DeLeon's property, but was able to "hide" that knowledge and attempt to circumvent the Franks rule by simply not telling Sergeant Shay, the affiant. The result was that a warrant based on a variety of anonymous and hearsay statements could be obtained for a particularly non-exigent suspected crime, involving neither violence nor mobile contraband.

III.

In determining whether probable cause to search exists, a court must view the "totality of circumstances" set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). The relevant inquiry under Gates is whether in light of all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238, 103 S.Ct. at 2332. In general, a...