U.S. v. Erb

• Decision Date: 06 April 1979
• Docket Number: Nos. 77-1916,s. 77-1916
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth ERB, Mark C. Perschbacher, John E. Lavell, Michael S. Mosley, Defendants-Appellants. to 77-1919.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 412

596 F.2d 412

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth ERB, Mark C. Perschbacher, John E. Lavell, Michael

S. Mosley, Defendants-Appellants.

Nos. 77-1916 to 77-1919.

United States Court of Appeals, Tenth Circuit.

Submitted Jan. 22, 1979.

Decided April 6, 1979.

Robert D. Bradley, Denver, Colo., for defendants-appellants.

Roland J. Brumbaugh, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Kenneth W. Erb, Mark Clayton Perschbacher, John E. Lavell and Michael S. Mosley (hereinafter collectively referred to as appellants) appeal from jury convictions and judgments stemming from charges contained in a two-count superseding indictment. Count I charged a violation of 21 U.S.C.A. § 841, manufacture of methamphetamine and 18 U.S.C.A. § 2, aiding and abetting in such manufacture. Count II charged a violation of 21 U.S.C.A. §§ 841 and 846, attempting to manufacture methamphetamine and 18 U.S.C.A. § 2, aiding and abetting in such attempt. The Government elected to proceed to trial on Count I only. The jury returned verdicts of guilty against all defendants.

On appeal from a jury conviction, the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the Government. United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976); United States v. Addington, 471 F.2d 560 (10th Cir. 1973); United States v Twilligear, 460 F.2d 79 (10th Cir. 1972). A review of the evidence in this light follows.

Ronald P. Torres, an officer assigned to the Drug Enforcement Administration (DEA) Task Force, attached an electronic tracking device to a vehicle bearing Colorado license plate SL-2581 being operated by one James R. Corwin after Torres was advised by a reliable informant that Corwin had said that he was then in the process of manufacturing methamphetamine, a controlled substance. Torres had previously supplied the informant with a quantity of phenyl-2-propanone (p-2-p) with instructions that she was to give it to a person named "Kenny" with whom she had been negotiating.

Torres and other DEA agents commenced surveillance of Corwin about 6:10 p. m., March 29, 1971. The informant had related that Corwin would, after various contacts, travel to a location in Denver where a clandestine laboratory was set up for the manufacture of methamphetamine. At about 6:30 p. m., the agents observed Corwin and a female child depart a residence at Wheatridge, Colorado, in a vehicle bearing the SL-2581 license plate. They followed the vehicle constantly. Among other things, the agents observed Corwin drive with the child, park the vehicle and enter an apartment which the informant had previously entered with the supply of p-2-p given her by Agent Torres, located at 9800 West 51st Place, Wheatridge, Colorado. Thereafter, at about 10:10 p. m., Corwin parked his vehicle and was observed walking a short distance to a residence located at 740 South Locust, Denver, carrying something. Following his arrival, the agents detected a strong odor of ether. They began surveillance of the house, the second of two houses on the same lot, set back about 60 to 90 feet from the house facing the street. The house was rented to appellant Mosley. Seven officers were involved initially in the surveillance. At the time of entry the number was about eleven.

Corwin remained in the 740 South Locust house for about one hour. He left, re-entered his vehicle and drove to an apartment complex with another individual. They thereafter left with a third party and drove in Corwin's vehicle to 16th and Ivanhoe where one of the persons left the car. At about 11:50 p. m., Corwin and the remaining unknown person drove to 1265 Downing Street where Corwin left the vehicle and entered yet another apartment complex. A few minutes later, Corwin returned to his vehicle. He and the unknown person then again drove to the 740 South Locust residence. They arrived there about 12:20 a. m. Some fifteen minutes later Corwin and an unknown person left that address and returned to the 9800 West 51st Place apartment.

At about 1:00 a. m., Agent Torres made telephone contact with his informant. The informant said that the process of manufacturing methamphetamine was under way and that the process would be completed about 8:00 a. m. when Corwin was to return to the clandestine lab to pick up his one-third yield of methamphetamine, reportedly some three ounces. During the entire period above referred to, the DEA agents detected a strong odor of ether emanating from the target residence at 740 South Locust.

At about 2:23 a. m., the agents observed Corwin again entering the 740 South Locust residence. He left shortly thereafter while the agents were discussing whether to enter the house. The strong odor of ether had emanated from the target residence at 740 South Locust continuously since 10:00 p. m. The agents knew, from their training and experience, that ethyl ether is an ingredient used by clandestine laboratory operators to manufacture methamphetamine.

At approximately 2:50 a. m., some eleven DEA agents forcibly entered the premises at 740 South Locust. They did so after Agent Torres and his immediate supervisor, Agent Ralph Lockridge, discussed the likelihood that in view of Corwin's unexpected departure from the residence at about 2:30 a. m. (rather than the 8:00 a. m. "pickup" time reported to Torres by his informant) it was necessary to enter without a warrant in order to protect against the removal of methamphetamine, the dismantling of the laboratory and to protect against any explosions or fires which could occur as a result of the clandestine activities being conducted in the house. The officers believed that it would probably be at least two and possibly five hours before a search warrant could be obtained. (R., Vol. III, pp. 63-66; R., Vol. V, pp. 41-42.) Agent Torres believed that there was probable cause to then enter the house whose window blinds had been tightly drawn but whose lights had been on continuously during the surveillance in view of the heavy odor of ether which had continuously emanated from within, the information supplied by the informant, Corwin's reputation and background and his "commuting" activities that evening which verified the information relayed to Torres by the informant, i. e., that Corwin would make a number of contacts with persons and arrange for deliveries.

Prior to the decision to enter the house without warrant, Torres and his fellow DEA agents had been told on March 29, 1977, in conversations with their confidential informer, whose reliability had been tested on numerous prior drug investigation cases which had led to arrests, that James R. Corwin was in the process of manufacturing methamphetamine and that Corwin would be leaving an apartment premise at 9800 West 51st Place, Wheatridge, Colorado, in a 1974 black and yellow Plymouth Duster, bearing Colorado license plate number SL-2581 and would, following intermediate stops, proceed to a location where the clandestine laboratory to manufacture methamphetamine was located. It is significant here to observe that the information proved to be quite reliable in relation to Corwin's later movements and activities. Agent Torres knew, as a matter of his personal knowledge, that Corwin had associated with "dangerous people." This background, coupled with the continuous detection of the strong odor of ether emanating from the secluded small residence structure at 740 South Locust Street created compelling concern for action on the part of the agents when Corwin returned to the house about 2:30 a. m. instead of the projected 8:00 a. m. arrival earlier indicated by the informer for the purpose of collecting his (Corwin's) share of the manufactured methamphetamine. When Corwin left the residence shortly after his 2:30 a. m. arrival, the agents determined that it was necessary to effect a forced entry because of the possibility that the "cooking process" was being terminated, Corwin had departed with his "share" of the methamphetamine, the laboratory may then have been in the process of disassembly and removal together with the chemicals.

The agents made the forced entry of the residence at about 2:50 a. m. They first observed appellants Perschbacher, Mosley and Erb in the living room. Appellant Lavell jumped out of a back bedroom window. Agents stationed there arrested him. The four appellants were immediately gathered outside of the house where they were advised of their Miranda rights. When Torres was questioned with regard to this warrantless entry, he identified the "emergency circumstances" then existing, in his view, including his beliefs that the clandestine laboratory in the house may then have been in the process of disassembly and removal, the methamphetamine may have been destroyed, an explosion could occur in light of the chemicals present, and that Corwin and the people he was involved with were dangerous people. (R., Vol. III, pp. 72, 73.)

Torres confirmed that the "Kenny" referred to by his informant was in fact appellant Kenneth Erb, who had expressed his elation to the informant that the informant had obtained the p-2-p. Further, Torres stated that he knew that Corwin and other appellants had "associated with persons that had committed murder over the disclosure or involving a methamphetamine clandestine laboratory." (R., Vol. III, pp. 73, 74.) Torres, upon cross-examination, was interrogated in relation to probable cause to enter the house at 740 South Locust Street after Corwin had departed the residence:

Q. And so with Corwin gone at the time of the entry, you really had no information whatever about any of the individuals in the house. Is that not true?

A. I knew that they were associated with persons that had committed murder...