U.S. v. Emmons

• Decision Date: 13 May 1994
• Docket Number: No. 93-3244,93-3244
• Citation: 24 F.3d 1210
• Parties: 40 Fed. R. Evid. Serv. 1111 UNITED STATES of America, Plaintiff-Appellee, v. Roger B. EMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1210

24 F.3d 1210

40 Fed. R. Evid. Serv. 1111

UNITED STATES of America, Plaintiff-Appellee, v. Roger B. EMMONS, Defendant-Appellant.

No. 93-3244.

United States Court of Appeals, Tenth Circuit.

May 13, 1994.

Daniel E. Monnat of Monnat & Spurrier, Chartered, Wichita, KS, for defendant-appellant.

David Lind, Asst. U.S. Atty. (Randall K. Rathbun, U.S. Atty. and Kim M. Fowler, Asst. U.S. Atty., on the brief), Wichita, KS, for plaintiff-appellee.

Before BALDOCK, Circuit Judge and McWILLIAMS, Senior Circuit Judge and SHADUR, Senior District Judge. ^*

SHADUR, Senior District Judge.

After a jury trial, Kansas farmer Roger Emmons ("Roger") was found guilty of each of the four drug-related counts in a superseding indictment: one count charging a conspiracy to manufacture marijuana (21 U.S.C. Sec. 846), another asserting possession with intent to distribute marijuana plants (21 U.S.C. Sec. 841(a)(1)) and the other two charging him with maintaining a place for the purpose of manufacturing marijuana plants (21 U.S.C. Sec. 856). One of Roger's two codefendants, Jack Rivard ("Rivard"), entered a guilty plea before trial, while the other codefendant, Roger's brother Daryl Emmons ("Daryl"), went to trial jointly with Roger. ¹ Roger raises four issues on this appeal, charging the district court with errors in:

1. denying Roger's motion to suppress evidence obtained in executing a search warrant;

2. admitting an item of evidence that Roger characterizes as hearsay;

3. upholding the jury verdict even though the evidence against Roger was assertedly insufficient to sustain his conviction; and

4. denying Roger's motion for severance rather than a joint trial with Daryl.

We reject each of Roger's arguments and affirm his conviction.

Facts

In April 1992 informant Lynette Hines ("Hines") told Wichita Police detectives Bruce Watts ("Watts") and John Stinson ("Stinson") that "Jack Rivard was possibly involved in the growing of marijuana and possibly growing it at a house in Wichita." After Rivard denied the detectives' request to search his home, he moved to Greenwood County, Kansas, where he took up residence on property owned by Roger. ²

Some time during the following month, Watts and Stinson passed Hines' tip along to Special Agent Rickey Atteberry ("Atteberry") of the Kansas Bureau of Investigation ("KBI"). Atteberry decided to visit Rivard's property along with Watts, Stinson and Hines. There they saw over 100 marijuana plants, the majority of which were protectively enclosed within wire screens. ³

Agent Atteberry decided to expand his investigation to include Roger's activities for several reasons. For one thing, Hines also said that she had known Rivard for some seven years and that he and his friend Roger had been growing marijuana together, then selling the plants for $1,500 each to a man she later identified as Daryl. According to Hines, Rivard and Roger split the profits 50-50: They made $40,000 each in 1990 and $11,000 each in 1991. In addition, Rivard's subpoenaed telephone records "identified Roger Emmons as a person he [Rivard] regularly contacted by telephone." Those items linked up with information previously obtained from Robert Burnett ("Burnett") ⁴ that Daryl had hired him to install a breaker box and wire Roger's property to permit the operation of 220 submersible pumps, which Burnett testified at trial were to be used for the subterranean irrigation of marijuana fields. Burnett also testified that while he was working on that project he ran into Roger on occasion and that during one such encounter Roger had told him (to the best of Burnett's recollection) that Roger and Daryl "were going to grow marijuana out there."

On July 8, 1992 Atteberry and a number of other agents (acting pursuant to a search warrant) entered onto the property where Roger lived ("Roger's property," owned by Daryl--see n. 2). Leading from the garage and trailer home into the woods, the agents observed "very distinctive trails" alongside which they found clusters of up to 30 marijuana plants. All told, the team counted more than 150 well-cared-for plants, with the surrounding dirt having been hoed and with some of the smaller stalks being sheltered by rodent screens similar to those on Rivard's property.

Next day the agents returned to the Rivard property to set up surveillance cameras in an effort to find out who was cultivating the marijuana. But as the agents approached the area they saw Rivard and Roger in the process of watering the illicit crop. Both men were then immediately placed under arrest. ⁵

After having been read their Miranda rights, both Rivard and Roger made statements that were later testified to at trial. Rivard told the officers, "You got us now. I have never done this before." Then while an agent was getting biographical information from Roger, Rivard said to Roger, "We are really screwed this time," to which Roger replied "Yeah, that's what you get for trying to make an extra buck."

After the arrests, a helicopter aerial search of the Rivard property revealed the location of two additional marijuana clusters containing a total of 205 plants. When agents then returned to Roger's property to tell his wife that he had been arrested "so she wouldn't be worried about him," they saw more trails that led them to more marijuana fields behind Roger's residence--this time comprising a total of 530 plants. All of the plants referred to in this paragraph had been tended and wire-screened like the others.

Later that night (July 9) KBI Special Agent Ray Lundin ("Lundin") submitted an application to a Greenwood County judge for a search warrant for Roger's residence and garage. In the space calling for the particular description of the objects of the search, Lundin referred to his attached sworn affidavit, as did the warrant promptly issued by the judge. Upon executing the warrant the agents located and seized a hand-drawn map found in Roger's kitchen, which Atteberry testified at trial corresponded to the configuration of the marijuana patches, along with various items in the garage consistent with the cultivation of marijuana (though also useable for legitimate purposes): watering buckets, wire screening, an unopened 12-pound bag of Miracle Gro brand plant food and quantities of lime (a chemical used to treat the ground when growing marijuana).

Motion To Suppress

Before trial Roger moved to suppress all physical evidence, statements and observations derived through the execution of the last-mentioned search warrant. That motion was denied after a pretrial hearing. Before us Roger contends (1) that Lundin's underlying affidavit was insufficient to provide probable cause for the issuance of a warrant to search Roger's residence and (2) that the warrant was overbroad because it failed to state with particularity the things to be seized.

For the purpose of our review, we must accept the trial court's findings of fact unless clearly erroneous and must view the evidence in the light most favorable to the government (United States v. Dahlman, 13 F.3d 1391, 1394 (10th Cir.1993)). Whether or not a violation of the Fourth Amendment has occurred, however, is a question of law to be considered de novo (id.).

1. Probable Cause

For over a decade the older "two-pronged" inquiry into probable cause has been replaced by a less rigid totality-of-the circumstances approach. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) has summarized that newer approach in these terms:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Roger's initial position, that there was no evidence to support the belief that he was a marijuana distributor, is wholly unpersuasive. For starters, the judge who issued the warrant was certainly entitled to consider the large quantity of marijuana discovered during the two expeditions onto Roger's property, an amount totally at odds with purely personal consumption. And Lundin's affidavit also referred to his personal observation of Roger and Rivard watering similar marijuana plants on Rivard's property (where agents had seen between 150 and 200 marijuana plants alongside paths leading up to the house and outbuildings, situated in such a way as to be concealed from aerial surveillance). Like the district judge, we will not disturb the legitimate determination by the state court judge that substantial evidence supported the issuance of the warrant (Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085-86, 80 L.Ed.2d 721 (1984) (per curiam)).

Roger is equally unpersuasive in arguing that even if the marijuana could give rise to an inference of distribution, it could not fairly be inferred that evidence would be found in his home. Quite to the contrary, once the entirely reasonable determination was made that Roger was involved in the possession of marijuana with intent to distribute it, the state court judge could properly credit Lundin's affidavit (which we quote verbatim):

Based upon the training and experience the affiant believes probable cause exists that numerous items of evidence in the investigation of possession of marijuana with intent to sell and other violations are present in the residence, out buildings and vehicles of Roger Emmons in Fall River, Kansas.

That distributors of controlled substance keep records including but not limited to of sales, payments, purchases, money orders, customers names, and address, photo's and other recordings.

That distributors of controlled substance keep...