U.S. v. Drake

• Decision Date: 19 March 1982
• Docket Number: No. 81-1336,81-1336
• Citation: 673 F.2d 15
• Parties: UNITED STATES of America, Appellee, v. Daniel Isaac DRAKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 15

673 F.2d 15

UNITED STATES of America, Appellee, v. Daniel Isaac DRAKE, Defendant-Appellant.

No. 81-1336.

United States Court of Appeals First Circuit.

Argued Jan. 5, 1982.

Decided March 19, 1982.

Owen S. Walker, Federal Public Defender, Boston, Mass., for defendant-appellant.

John H. La Chance, Asst. U. S. Atty., Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, BOWNES and TIMBERS, ^* Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant, Daniel Isaac Drake, appeals his conviction after a jury trial for manufacturing methamphetamine, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). The evidence leading to his conviction was obtained pursuant to a federal search warrant which was held valid after a pretrial hearing on defendant's motion to suppress. There are two issues on appeal, the validity of the warrant and the trial judge's charge to the jury on reasonable doubt.

I. The Warrant

Appellant's argument that the warrant authorizing a search of his laboratory was unsupported by probable cause has two parts. He claims that there was no probable cause to believe that methamphetamine Based on the personal observations of Agent Crowe and another DEA agent and the opinions of a DEA forensic chemist, the affidavit contains the following recitations. Appellant is identified as president of the Wyvern Co., Inc., a company incorporated in Massachusetts in 1975. S.G.A. Scientific, Inc., of Bloomfield, New Jersey, received an order through its Boston office on January 31, 1978, for two kilograms of phenyl 2-propanone (P2P), six kilograms of methylamine, $2800-worth of additional chemicals, laboratory equipment and cutting materials "which can be used in the clandestine manufacture of methamphetamine." The purchase order had been placed by W.C.I. Laboratories-The Wyvern Co., located at 639 Massachusetts Ave., Room 301, Cambridge, Massachusetts. On March 8, 1978, and April 12, 1978, Agent Crowe observed appellant accept delivery of the S.G.A. order in two installments at the building at 639 Massachusetts Ave. Also, on April 12, appellant was seen opening the boxes that had just arrived and washing glassware inside his office. In the middle of the afternoon on the same day, he was seen leaving the lab and driving around Cambridge in a suspicious manner: circling the same block three times, watching in the rear view mirror, making an abrupt U-turn, and moving at five miles per hour. Although periodic surveillance was continued for the next week, no activity at all was observed at the Wyvern Co. laboratory.

was being manufactured on the premises and, if it was, that there was no probable cause to believe that any such manufacture was illegal. The warrant application contained two affidavits of Special Agent Crowe of the Drug Enforcement Administration (DEA). Since the second affidavit repeats the facts of the first one for the purpose of justifying a night-time search, we focus on the first affidavit ¹ which is included as an appendix.

On April 28 Agent Crowe saw appellant enter the building at 639 Massachusetts Ave. at midnight and remain there throughout the night. The next morning another DEA agent took photographs of the interior of the lab, where glassware, tubing and chemicals were assembled on the workbench. The same day Agent Crowe related the above facts to DEA chemist Fasanello who was experienced in the investigation of clandestine laboratories. In the chemist's opinion all of the requisite chemicals for the synthesis of methamphetamine had been purchased by appellant, including lactose and dextrose, common cutting materials or dilutants. Two days later, on Sunday, April 30, appellant was observed by Agent Crowe to enter the laboratory at 6 A.M. where he remained until 8 P.M. At that time Agent Crowe observed a tri-necked flask with stoppers in all three necks and assorted other lab equipment inside the laboratory. He related these facts to the DEA chemist who said that, in his opinion, appellant had only one more step to take in the manufacturing process to convert the amphetamine free base into crystal form. The following day the chemist informed Agent Crowe that, in his opinion, the chemicals P2P and methylamine in combination could only be used to manufacture methamphetamine. On the basis of this information the magistrate issued a search warrant for the Wyvern Co. laboratory.

Our inquiry into whether or not the affidavit is sufficient for a finding of probable cause to issue a search warrant is guided by certain well-settled principles. The standard for probable cause is only the probability of criminal activity, not a prima facie showing of such. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); United States v. Ellsworth, 647 F.2d 957, 964 (9th Cir. 1981); United States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979). The evidence need only be sufficient to persuade a person of reasonable caution to believe that a crime is being or has been committed.

Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966). See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Although the evidence sufficient for probable cause must be more than what amounts to a mere suspicion, it is considerably less than what is required for a conviction of guilt. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); United States v. Howe, 591 F.2d 454, 457 (8th Cir.), cert. denied, 441 U.S. 963, 99 S.Ct. 2411, 60 L.Ed.2d 1069 (1979); United States v. Welebir, 498 F.2d 346, 349 (4th Cir. 1974). The issuing magistrate is entitled to draw reasonable inferences from the facts in the affidavit, United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980), 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981); Rosencranz v. United States, supra, and once he has done so and found probable cause, "the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746.

We believe that, from the facts and circumstances appearing in the affidavit and the reasonable inferences therefrom, the magistrate reasonably concluded that the crime of illicit manufacture of a controlled substance was probably being committed at the Wyvern Co. lab. The first fact contributing to such a conclusion was the order placed to S.G.A. Scientific, Inc., for numerous chemicals known to be ingredients of methamphetamine, including two, P2P and methylamine, which in combination can only produce methamphetamine. A strong inference that they are being combined arises from the fact that they were obtained at the same time. United States v. Anton, 633 F.2d 1252, 1254 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981). "When the possible combinations of these chemicals includes an end product which is an illegal substance, it is reasonable to infer that manufacture of such a substance is taking place." Id. at 1254.

The purchase in a single order of all the requisite chemicals, known as precursors, for the manufacture of a controlled drug is a "red flag" fact which arouses suspicion, although not necessarily establishing probable cause. United States v. Noreikis, 481 F.2d 1177, 1178 (7th Cir. 1973), cert. denied in part and judgment vacated in part on other grounds, 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974); United States v. Failla, 343 F.Supp. 831, 835 (W.D.N.Y.1972). But it justified the subsequent surveillance of the premises. When, after unpacking the second and final shipment of chemicals, the appellant left the lab and drove in what appeared to be an evasive manner, a reasonable inference could be drawn that he feared he was being followed. His subsequent cessation of laboratory activity implies that his fear had been confirmed. Appellant's late-night and Sunday entries into the building, combined with the assembly of laboratory equipment indicating chemical synthesis in progress, complete the picture of a clandestine drug-manufacturing operation.

Appellant singles out some of these observed events and asserts possible innocent explanations for them. We do not deny that individual facts averred in the affidavit may be capable of noncriminal explanation. But, as stated in United States v. Patterson, 492 F.2d 995 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974), where the court found probable cause to support a warrantless search, "(t)he succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one." Id. at 997. See United States v. Martin, 509 F.2d 1211, 1213 (9th Cir.), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975). In Patterson the "prudent man" whose conclusion regarding probable cause was upheld was "an experienced border agent familiar with the methods employed by smugglers." Id. at 997. In our case the observations and opinions of experienced DEA personnel familiar with the methods of operators of clandestine laboratories were evaluated Our rejection of appellant's attempt to paint each individual fact as equally compatible with innocent behavior is rooted in the probable cause standard itself. The warrant application did not purport to provide evidence establishing a crime beyond a reasonable doubt, nor was the magistrate being asked to determine the guilt or innocence of any person. The issue is whether the affidavit conveyed sufficient facts to enable the magistrate reasonably to infer a likelihood that methamphetamine was being manufactured illicitly on the premises to be searched, and we...