U.S. v. Ewain

• Decision Date: 12 March 1996
• Docket Number: No. 95-50133,95-50133
• Citation: 78 F.3d 466
• Parties: 96 Cal. Daily Op. Serv. 1692, 96 Daily Journal D.A.R. 2861 UNITED STATES of America, Plaintiff-Appellee, v. Randy Lee EWAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 466

78 F.3d 466

96 Cal. Daily Op. Serv. 1692, 96 Daily Journal

D.A.R. 2861

UNITED STATES of America, Plaintiff-Appellee, v. Randy Lee EWAIN, Defendant-Appellant.

No. 95-50133.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 15, 1995.

Decided March 12, 1996.

Steven F. Hubachek, Cohen & Hubachek, San Diego, California, for defendant-appellant.

Steve Miller, Assistant United States Attorney, San Diego, California, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, D.C. No. CR-94-00648-NAJ; Napoleon A. Jones, District Judge, Presiding.

Before: HUG, Chief Judge, BEEZER and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

This appeal raises issues involving search and seizure, and construction of a provision in the mail theft statute.

I. FACTS

Ewain, a former postal employee, came under suspicion by a postal inspector for mail theft and by a state narcotics detective for selling methamphetamine. Both lines of suspicion arose as a consequence of a fistfight Ewain had with his roommate. The roommate moved out and told a postal inspector Ewain was making counterfeit mailbox keys and trading them for methamphetamine. The postal inspector told a state narcotics detective, who successfully arranged a controlled buy of methamphetamine at Ewain's house.

The state narcotics detective obtained a search warrant for drugs, drug paraphernalia, and documents relating to narcotics dealing, and invited the postal inspector along on the search. The postal inspector had not obtained a search warrant because he felt that the roommate's story was insufficient probable cause. Both suspected Ewain was counterfeiting keys, based on the roommate's story, and the narcotics detective wanted the benefit of the postal inspector's more educated eye.

The search turned up a number of plastic baggies, at least two of which appeared to contain methamphetamine. In addition, a cornucopia of postal theft evidence was found: other people's mail hidden under the mattress; credit cards that had been mailed to other people but never received; hand written notes containing biographical information about the people whose credit cards were found; checks made out to people who did not live in the house; a metal box containing a disassembled postal lock and rubber mold of an "arrow key;" a partly carved counterfeit arrow key still attached to the bare metal from which it was being made; a toolbox containing a postal arrow lock; a counterfeit arrow key; an apartment house key keeper; and a clay mold with the impression of postal arrow keys hidden under the mattress.

An "arrow key" is used by mail carriers to access a bank of mailboxes or a collection box that is locked by an "arrow lock." They are called "arrow" keys and locks because of the arrow conspicuously stamped on them. They are manufactured by the Postal Service in Washington D.C. and are distributed through controlled channels. Arrow keys are "accountable property." That means a mail carrier must check out an arrow key at the beginning of each delivery day and return it at the end. A "key keeper" is a kind of key safe often used in apartment houses. A postal employee has a key to the key keeper. The key keeper contains a key or a button unlocking the mailboxes in the apartment house.

Several months after the search of Ewain's house, Ewain's wife was arrested wearing a postal worker's uniform and rummaging through an apartment house mailbox. She called Ewain on the tapped jail phone. He was not home, so she talked to another person there. Asked what she'd been arrested for, Mrs. Ewain said:

He'll know.

...

You know, mail theft. I was in my uniform, the whole shebang.

...

Tell him to make sure he's got his place totally clean.... I wanted to let him know that I did put down his address as my address.

Mrs. Ewain actually lived at a different address. Based on her false statement when she was arrested that she lived at Mr. Ewain's address, another search warrant was obtained, and this turned up more postal theft evidence: more mail addressed to other people, personal information on credit card applicants, a broken arrow key in Ewain's dresser, and more arrow keys.

II. ANALYSIS

A. The Search.

Ewain challenges the denial of his motion to suppress the postal theft evidence from the first search of his house. He argues that the search warrant was for evidence of narcotics dealing, not postal theft; that bringing the postal inspector along was a means of expanding the search beyond its lawful purpose; and that the postal theft evidence was not in plain view because an untrained observer, unlike a locksmith or postal inspector, could not recognize arrow keys and the like and understand their significance. The lawfulness of a search and seizure is a mixed question of law and fact reviewed de novo. United States v. Huffhines, 967 F.2d 314, 316 (9th Cir.1992).

The Fourth Amendment requires warrants to particularly describe the place to be searched and items to be seized. "[T]he scope of a lawful search is 'defined by the object of the search'...." Maryland v. Garrison 80 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). It is undisputed that the postal theft evidence was outside the warrant's description of items to be seized.

It is also undisputed that the police had a lawful warrant and conducted a lawful search for narcotics evidence, and that the places where postal theft evidence was discovered were places which could properly be searched for narcotics evidence. Thus it is undisputed that the narcotics detective had a lawful right to be where he was when the postal theft evidence was discovered. It is also undisputed that a person with the knowledge of a postal inspector or locksmith would immediately recognize the arrow keys and other items as evidence of postal theft.

Ewain argues that the narcotics search warrant was being used as a pretext to search for postal theft evidence. We cannot accept the factual proposition that the search warrant was a pretext to search for something other than what it described. The district judge made a fact finding that the police really were looking for narcotics evidence:

In this particular case, I think it's absolutely clear that there was a serious, valid investigation for evidence of narcotics. They got a controlled buy. That's--that's what they got, and they were, therefore, going to go and search the residence for evidence therefor, and I find that there's absolutely no evidence of pretext. Certainly if they were able to find evidence of postal violations, they wanted to make certain that they did in fact seize that and not overlook it due to their lack of expertise.

And thus I find that there was good faith and I deny the motion to suppress.

There is no reason to doubt the correctness of this finding. Though we agree with the district court that the officers had a subjective good faith intent of finding narcotics, this finding is not determinative, as we explain below.

There is no reason to doubt that the postal inspector was brought along for his expertise in spotting mail theft evidence. The narcotics detective testified that postal theft and methamphetamine dealing often go hand in hand. The district judge noted that "it's an amazing thing. I don't think I've ever seen a mail--theft of mail case that didn't involve methamphetamine users." We need not decide whether the postal inspector was mistaken in thinking he lacked probable cause. Both the postal inspector and the narcotics detective suspected they would find mail theft evidence. But they did not just go looking for mail theft evidence on a pretext of looking for narcotics evidence. They were interested in finding narcotics evidence, had a good warrant to search for it, looked where narcotics evidence might be expected to be found, and found mail theft evidence in plain view, at least to a trained observer. The evidentiary significance of the subjective good faith of the officers is that it tends to show they really did confine their search to places which would be searched for methamphetamine evidence, and did not expand it to places where they would expect to find postal theft but not methamphetamine evidence.

Once the police are lawfully searching in a place for one thing, they may seize another that is in plain view, if its incriminating nature is immediately apparent. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990). After the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971), it had been thought that the discovery of the thing not described in the warrant had to be "inadvertent," but Horton holds that inadvertence is not required. If a police officer has a valid warrant for one item, and "fully expects" to find another, based on a "suspicion ... whether or not it amounts to probable cause," the suspicion or expectation does not defeat the lawfulness of the seizure. Horton, 496 U.S. at 138-39, 110 S.Ct. at 2308-09.

The Constitution limits lawful search warrants to those "particularly describing the place to be searched, and the person or things to be seized." U.S. Const. amend. IV. General warrants are unconstitutional. The plain view doctrine, applied in the context of a search pursuant to a warrant, does not allow the use of a properly limited search warrant as a pretext to search for anything else. United States v. Rettig, 589 F.2d 418 (9th Cir.1978). In Rettig, a magistrate judge had denied an application for a search warrant for evidence of a large cocaine conspiracy, because the information was stale. The police set up a ruse to arrest the defendant at his home, caught him flushing marijuana down the toilet, obtained a state search warrant for marijuana evidence, and then spent hours going through documents, as would be expected in an investigation of a cocaine...