U.S. v. Fluker
| Decision Date | 27 September 1976 |
| Docket Number | Nos. 76-1177,75-3510 and 75-3447,s. 76-1177 |
| Citation | 543 F.2d 709 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Earl Franklin FLUKER et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James D. Gilmore, Anchorage, Alaska, for defendant-appellant in No. 75-3447.
Bruce A. Bookman (argued), Anchorage, Alaska, for defendant-appellant in No. 75-3510.
Vincent Vitale (argued), Anchorage, Alaska, for defendant-appellant in No. 76-1177.
John D. Roberts, Asst. U.S. Atty. (argued), Anchorage, Alaska, for plaintiff-appellee.
Before TUTTLE, * HUFSTEDLER and GOODWIN, Circuit Judges.
John B. Foster, Earl Fluker and Willard Young appeal from convictions stemming from violations of 21 U.S.C. §§ 841(a)(1), 844(a), and 846. Appellants Young and Fluker were found guilty by a jury of possession and of conspiracy to possess with intent to distribute various controlled substances, including heroin. Fluker was also convicted of possession of marijuana, a misdemeanor. Appellant Foster was acquitted of the substantive possession and conspiracy counts, but was convicted of simple possession under § 844(a). A substantial portion of the government's case consisted of evidence acquired during a search of the apartments of appellants Young and Fluker. Prior to trial, the district court denied appellants' motions to suppress the evidence obtained during the searches. On this appeal, appellants raise a number of issues involving, inter alia, the correctness of the district court's ruling on the motions to suppress. Specifically, they contend that the affidavit supporting the search warrant for Young's apartment used by the searching and arresting officers was insufficient to establish probable cause, and that the method in which the search warrant was executed violated 18 U.S.C. § 3109, which governs the circumstances under which an officer armed with a warrant may forcibly enter a building without first announcing his authority and purpose. After careful consideration of the record and of all of appellants' arguments, we conclude that, for the reasons articulated below, the district court erred in denying the motion to suppress the evidence obtained as a result of the search of Young's apartment and of his person and that consequently the convictions of Young and Foster must be reversed and new trials granted. We find, however, that appellant Fluker's conviction must be affirmed.
Before addressing appellants' arguments, we think it advisable to set forth in some detail the facts underlying their convictions. Where controverted, the evidence is presented in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
On November 1, 1974, a young woman who was a drug user began furnishing confidential information to DEA Special Agent Robert Johnstone concerning alleged narcotics-related activities of appellant Young. Based on information furnished by this informant and by DEA surveillance of Young's apartment, a search warrant was issued on November 4, 1974 (for the text of the supporting affidavit, see Part I infra ), and was served by Drug Enforcement Administration agents on the premises of Young's apartment that same day.
Young lived in one of two basement apartments at 1127 East 15th Street in Anchorage, and Fluker rented the other. The upper level of the building was occupied by the landlord, although this fact apparently was not known by the DEA agents. At the bottom of an outside stairway to the lower level of the building, a common doorway led into a small entry way or corridor. Immediately off the corridor were the doorways to two apartments. The common doorway opening into the corridor was usually locked (as it was on the day in question) and only the tenants and the landlord had keys. The outside stairway to the lower level apartments led directly down to this entry doorway, which was so situated that someone standing in front of it could move neither to the left nor to the right.
On November 4, 1974, DEA Agents Edward A. Burke and other agents accompanied the confidential informant to the apartment building in question, and the informant entered Young's apartment. Upon leaving the apartment, she returned to Burke and produced a rubber balloon filled with a brown powdery substance which later proved to be heroin. The informant also stated to Burke that she had observed appellants Young and another individual cutting the heroin while she was in the apartment. Burke then proceeded to relay this information by radio to Johnstone, who prepared an affidavit, obtained the search warrant, and radioed back that the warrant had been issued.
The search then commenced. Special Agent O'Brien approached the common doorway at the bottom of the stairs, and while the evidence is unclear whether or not he gave an announcement of authority and purpose before forcing the common door open, the district court found, and we accept the finding for purposes of review, that no announcement was made at this point. After kicking the common doorway in, the DEA agents were at the door to Young's apartment, which the district court found was at least partially open. Again the evidence is somewhat conflicting, but it seems relatively clear that the officers announced themselves and ordered the occupants of the apartment to freeze virtually simultaneously with their entry into the apartment itself.
The agents arrested both Young and Foster; the latter was standing in the livingroom-bedroom area, approximately ten feet from the kitchen sink. Following his arrest, Foster was subjected to a search of his person which produced a quantity of narcotics. A search of the apartment produced narcotics paraphernalia and heroin on the kitchen sink and on the kitchen table.
Appellant Fluker was not in Young's apartment when the agents entered; his arrest stemmed from a different set of facts. Two officers had been left outside the building for surveillance purposes. While standing on the lawn near one of the windows, one officer saw a hand reach out the window and put down some substances in two prophylactics and in small packets in plastic baggies. He then summoned his partner, who looked in the window (reaching in and parting the curtains to do so) and saw several plates, a gun and metal measuring spoons on the kitchen table. The agents told Fluker to freeze and climbed in the window; they saw marijuana in plain view. Fluker was then arrested.
The first issue before us on this appeal concerns the sufficiency of the affidavit prepared by Agent Johnstone to support his application for a search warrant for appellant Young's apartment. We think it important to reproduce the full text of the affidavit at this point, before examining it under the guidelines established by relevant case law:
". . . (T)he facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
'That your affiant is a special agent in charge, Anchorage District Office, Drug Enforcement Administration.
That on November 1, 1974, he met with a confidential informant who stated that Willard Young, a documented narcotics trafficker in Anchorage, Alaska, told the confidential informant that Young was expecting a shipment of eight ounces of heroin from California to arrive in Anchorage on November 4, 1974. On November 4, 1974, the confidential informant telephoned the affiant and stated that he 1 had been in the residence of Willard Young at 1127 East 15th Street, Apartment # 1, Anchorage, Alaska on November 4, 1974. The confidential informant stated that he had observed Willard Young and Davis Stone, a documented narcotics trafficker in Anchorage, Alaska, in the process of taking a brown powder which Young stated to the confidential informant was heroin and mixing it with a cutting agent. The confidential agent further stated that Willard Young told him that he (Young) was going to cut all the heroin he had received this date, November 4, 1974. The confidential informant also related that Willard Young told him that he (Young) had received the shipment of heroin for which he had been waiting. The confidential informant further stated that he observed Willard Young place a quantity of a brown powder which Young stated was heroin into a rubber prophylactic and mix a further quantity of the brown powder with a portion of cutting agent. On Nov. 4, 1974, at approximately 6:15 p. m., the confidential informant was observed by Special Agent Edward Burke to exit the above-described residence and proceed to a location where he met with Special Agent Burke and gave Special Agent Burke a rubber balloon filled with a brown powder substance. The confidential informant stated that he had been given the brown powder substance by Young. Special Agent Burke performed a field test on the brown powder substance and observed a positive reaction for opium content.
We begin our analysis of this affidavit mindful of the admonition that a magistrate's determination of probable cause should be paid great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
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